Citation Nr: 18141269 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 16-21 267 DATE: October 10, 2018 ORDER The claim of entitlement to an evaluation in excess of 10 percent for a left ankle disability is denied. The claim of entitlement to an evaluation in excess of 10 percent for a right ankle disability is denied. The claim of entitlement to an evaluation in excess of 10 percent for a right knee disability is denied. The claim of entitlement to an evaluation in excess of 10 percent for a left knee disability is denied. FINDINGS OF FACT 1. Entitlement to an increased rating in excess of 10 percent for a left ankle disability cannot be established without the scheduled reexamination, and the reexamination was scheduled in connection with a claim for increase, rather than an original compensation claim. 2. Entitlement to an increased rating in excess of 10 percent for a right ankle disability cannot be established without the scheduled reexamination, and the reexamination was scheduled in connection with a claim for increase, rather than an original compensation claim. 3. Entitlement to an increased rating in excess of 10 percent for a left knee disability cannot be established without the scheduled reexamination, and the reexamination was scheduled in connection with a claim for increase, rather than an original compensation claim. 4. Entitlement to an increased rating in excess of 10 percent for a right knee disability cannot be established without the scheduled reexamination, and the reexamination was scheduled in connection with a claim for increase, rather than an original compensation claim. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for a left ankle disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.655 (2018). 2. The criteria for entitlement to a rating in excess of 10 percent for a right ankle disability have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.655 (2018). 3. The criteria for entitlement to a rating in excess of 10 percent for left knee disability have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.655 (2018). 4. The criteria for entitlement to a rating in excess of 10 percent for right knee disability have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.655 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Army from January 1997 to January 2001. The Veteran has not been afforded a VA examination since his claim that his bilateral ankle and bilateral knee disabilities were worse than represented in his September 2011 examination. The Veteran reported in his April 2015 Notice of Disagreement that he moved four times within the previous year, and then was homeless, and in that upheaval he did not receive his examination notification. The Veteran was scheduled for an examination in January 2016, but VA records reflect that he requested to cancel it. In his May 2016 Substantive Appeal, the Veteran requested to reschedule the examination as the January 2016 examination occurred during hazardous weather conditions during which he felt unsafe to travel. A June 2016 Veterans Benefits Administration (VBA) Inquiry reflects that a new examination was scheduled in May 2016, and subsequently cancelled as the Veteran failed to report. Although a copy of the notice is not contained in the Veteran’s virtual file, the Board notes that the absence of copies of the VA examination scheduling letters in the claims file does not preclude application of the presumption that the Veteran received proper notice. See Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004). In Kyhn v. Shinseki, 24 Vet. App. 228, 237 (2011), the Court indicated that the presumption of regularity applied to notice of VA examinations. However, that decision was vacated on other grounds in Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013). There has been no subsequent precedential opinion on this question. VA enjoys a “presumption of regularity” that “supports official acts of public officers” and “allows courts to presume that what appears regular is regular.” Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001); see Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004); Wise v. Shinseki, 26 Vet. App. 517, 525 (2014). The presumption of regularity extends to VA’s ministerial acts of mailing decisional and notice documents to claimants. See, e.g., Clarke v. Nicholson, 21 Vet. App. 130, 133 (2007) (applying the presumption of regularity to the RO’s mailing of a rating decision); Crain v. Principi, 17 Vet. App. 182, 186 (2003) (RO’s mailing of a Statement of the Case); Schoolman v. West, 12 Vet. App. 307, 310 (1999) (RO’s mailing of an application for dependency and indemnity compensation (DIC)); Davis v. Brown, 7 Vet. App. 298, 300 (1994) (Board’s mailing of a copy of its decision). For the following reasons, that presumption has not been rebutted in this case. The June 2016 VBA correspondence reflects that the Veteran failed to report for the examination rescheduled following his Substantive Appeal; no reason was given. In a June 2016 supplemental statement of the case (SSOC), the AOJ indicated that the Veteran had failed to appear for the examination. The SSOC also notified the Veteran that when a claimant, without good cause, fails to report for an examination or reexamination, “the claim shall be rated based on the evidence of record, or even denied.” There has been no allegation of non-receipt of the notice, and even such assertion of non-receipt alone does not constitute clear evidence to rebut the presumption of regularity. See Miley v. Principi, 15 Vet. App. 97 (2001). In the August 2016 statement of the accredited representative, the Veteran’s representative did not present good cause for the Veteran’s failure to report to his May 2016 examination. The Veteran has provided no explanation for missing the examination. Good cause has not been shown for missing the scheduled VA examination. 38 C.F.R. § 3.655. As will be discussed in further detail below, when a veteran fails to report for an examination without good cause, the claim shall be decided in accordance with 38 C.F.R. § 3.655 (b) or (c). In sum, the Board finds that VA’s duties to notify and assist have been satisfied and, thus, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Increased Rating 1. The claim of entitlement to an evaluation in excess of 10 percent for a left ankle disability The Veteran claims that his currently assigned 10 percent rating for a left ankle disability, a right ankle disability, a left knee disability, and a right knee disability should be higher throughout the appeal period. Under 38 C.F.R. § 3.655 (a), when entitlement to a benefit cannot be established without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination or reexamination, action shall be taken in accordance with 38 C.F.R. § 3.655 (b) or (c) as appropriate. 38 C.F.R. § 3.655 (b) applies to original or reopened claims or claims for increase, while 38 C.F.R. § 3.655 (c) applies to running awards, when the issue is continuing entitlement. More specifically, when a claimant fails to report for a scheduled medical examination, without good cause, a claim for an increase shall be denied without review of the evidence of record. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, and death of an immediate family member. See 38 C.F.R. § 3.655. 38 C.F.R. § 3.655 (b) provides that when a claimant fails to report for an examination scheduled in conjunction with, among other things, a claim for increase, “the claim shall be denied.” A claim for a higher initial rating is an “original compensation claim” and not a “claim for increase” for purposes of 38 C.F.R. § 3.655 (b). Turk v. Peake, 21 Vet. App. 565, 570 (2008). Here, the Veteran was granted service connection for a bilateral knee disability in a February 2002 rating decision, and a bilateral ankle disability in a December 2011 rating decision. In August 2013, he filed a new claim for increased evaluations for his bilateral ankle and bilateral knee disabilities. The June 2014 rating decision on appeal continued the previously assigned 10 percent ratings. The claim is therefore a claim for increase under 38 C.F.R. § 3.655 (b). As indicated above, the Veteran had not been afforded a contemporaneous examination. The RO attempted to schedule the Veteran for three separate VA examinations. The Veteran provided good cause for missing the first two, but failed to report for the third examination without providing good cause. As the Veteran has provided no explanation for his failure to report for examination, the Board is satisfied that he received notice and failed to report to the scheduled VA examinations without good cause. See 38 C.F.R. § 3.655. The next question to be addressed under 38 C.F.R. § 3.655 (a) is whether entitlement to the benefits sought can be established without the scheduled reexamination. The available medical records do not include findings responsive to the applicable rating criteria. The Veteran has provided lay statements that address his ongoing pain, for which he is compensated with the current evaluations, but such statements do not otherwise substantiate his claim for increase. For the foregoing reasons, the claim for an increased rating for a left ankle disability, right ankle disability, left knee disability, and right knee disability must be denied as a matter of law. 38 C.F.R. § 3.655 (b). 2. The claim of entitlement to an evaluation in excess of 10 percent for a right ankle disability See argument in Section 1. 3. The claim of entitlement to an evaluation in excess of 10 percent for a right knee disability See argument in Section 1. 4. The claim of entitlement to an evaluation in excess of 10 percent for a left knee disability See argument in Section 1. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Fisher, Associate Counsel