Citation Nr: 18155936 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 14-05 782 DATE: December 6, 2018 ORDER 1. Entitlement to service connection for an acquired psychiatric disorder, to include depression, is denied. 2. Entitlement to service connection for a sleep disorder is denied. FINDINGS OF FACT 1. The Department of Veterans Affairs (VA) scheduled and rescheduled the Veteran’s VA examination, and mailed appropriate correspondences to his most recent mailing address of record. 2. The Veteran failed, without good cause, to appear for his scheduled and rescheduled VA examination in conjunction with his previously disallowed claims for entitlement to service connection for an acquired psychiatric disorder and a sleep disorder. CONCLUSIONS OF LAW 1. VA fulfilled its duty to assist and notify the Veteran, and substantially complied with previous remands by the Board of Veterans’ Appeals (Board), and the presumption of regularity has attached and was not rebutted. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156, 3.159, 3.326, 3.655. 2. The reopened claim of entitlement to service connection for an acquired psychiatric disorder is denied based on the failure to report for a VA medical examination. 38 U.S.C. §§ 501, 7105; 38 C.F.R. §§ 3.655, 20.1103. 3. The reopened claim of entitlement to service connection for a sleep disorder is denied based on the failure to report for a VA medical examination. 38 U.S.C. §§ 501, 7105; 38 C.F.R. §§ 3.655, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty for training from November 1974 to June 1975, and active duty from October 1976 to October 1982. This matter is before the Board on appeal of the VA regional office (RO) June 2011 rating decision. 1. Factual and Procedural Background During his April 2013 hearing before a Decision Review Officer (DRO), the Veteran testified that, in 1980, he was: (1) informed that his son was injured and transported for treatment to a facility near Fort Sam, Houston, Texas; (2) applied for and was granted a reassignment to Fort Sam; (3) developed frictions with his commander at Fort Sam; (4) became frustrated and unable to sleep; and (5) remained depressed and suffered from poor sleep after separation from service. His service treatment records show that he reported depression and a sleep disorder at his discharge from service examination. In October 2002, the Veteran filed an initial claim for disability benefits for depression and a sleep disorder. In March 2003, the RO issued a rating decision denying service connection for these disabilities. Since the Veteran did not initiate an appeal of the March 2003 rating decision or submit new and material evidence within one year of that decision, the March 2003 rating decision became final. See 39 U.S.C. § 7105; 38 C.F.R. § 20.1103; Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007). In February 2011, the Veteran submitted an application to reopen his claims for service connection for a psychiatric disorder and a sleep disorder. In July 2011, the RO denied reopening. In August 2011, he filed a notice of disagreement and requested a DRO hearing. In April 2013, he had a DRO hearing and testified as detailed supra. In November 2013, the RO issued a statement of the case (SOC). In January 2014, the Veteran filed his substantive appeal and requested a Board hearing. Although he notified the RO of his new address, the RO informed him of the June 2016 Board hearing by a mailing sent to his old address, and he did not appear for the hearing. In July 2016, the Board directed the RO to update the Veteran’s mailing address and schedule him for another hearing. While the hearing was scheduled for May 2017, and the hearing notice was sent to his correct mailing address, he failed to appear for his rescheduled Board hearing. In November 2017, the Board: (1) determined that the Veteran’s testimony before the DRO constituted new and material evidence; (2) reopened these matters; (3) expanded the issues to encompass the entitlement to service connection for an acquired psychiatric disorder, to include depression under Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009); and (4) remanded this matter to the RO to schedule the Veteran for a VA examination to determine the diagnosis of and etiology for his acquired psychiatric disorder and sleep disorder. The Veteran was then scheduled for a December 2017 VA examination but failed to appear. In December 2017, the RO issued a supplemental SOC (SSOC) wherein it provided the Veteran with the entire provisions of 38 C.F.R. § 3.655, which regulation is entitled, “Failure to report for Department of Veterans Affairs examination,” which informed him that: (1) the failure to report for a VA examination in connection with a reopened claim that was previously denied would result in a denial and (2) that he could establish good cause for his failure to report for the examination, which included examples of what constituted good cause, such as the illness or hospitalization of the claimant and the death of an immediate family member. The SSOC informed the Veteran that his failure to report for the December 2017 examination resulted in a denial of his claims. In February 2018, the Board remanded these matters again with a directive to reschedule his VA examination. The Veteran’s VA examination was rescheduled for May 2018, but he again failed to appear. In October 2018, the RO issued an SSOC stating: a Notice of Failure to Report for VA Examination [was] received from the VA Medical Center, Salisbury, NC, dated May . . . 2018, [and it] stated that you failed to report for the requested examination. In addition, to date, we have not received any type of statement or communication requesting that you be rescheduled for this VA Examination. In October 2018, the RO contacted the Veteran by phone, and he: (1) acknowledged he had received the October 2018 SSOC; (2) confirmed that he had no other evidence to submit; and (3) stated his desire to have his appeal certified to the Board. That same month, the RO notified the Veteran and his representative of the certification. While the certification notice mailed to the Veteran was returned as undeliverable, the certification notice mailed to his representative and the procedural notice mailed to the Veteran three days later were not returned as undeliverable. 2. Analysis The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a). A proper VCAA notice must inform the claimant of any information and evidence not of record that: (1) is necessary to substantiate the claim; (2) VA will seek to provide; and (3) the claimant is expected to provide. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1). The VCAA also requires VA to make reasonable efforts to help the claimant obtain evidence necessary to substantiate his claim. 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159(c), (d). This duty to assist contemplates that VA will help a claimant obtain records relevant to his claim and provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). However, the duty to assist is a two-way street. If a claimant wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Further, there is a presumption of regularity, pursuant to which it is assumed that government officials have properly discharged their official duties. Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994). Therefore, VA is only required to mail its notices to the claimant’s last address of record for the presumption to attach. The presumption of regularity may be rebutted only by clear evidence to the contrary. Schoolman v. West, 12 Vet. App. 307, 310 (1999). Such evidence includes clear evidence that VA did not follow its regular mailing practices or that its practices were not regular. Crain v. Principi, 17 Vet. App. 182, 186 (2003). The mere fact that a VA notice was not received does not, by itself, constitute clear evidence rebutting the presumption. Boyd v. McDonald, 27 Vet. App. 63, 71-72 (2014). Rather, the presumption of regularity may be rebutted where there is evidence that: (1) VA used an incorrect address on the mailing in question; or (2) the mailing was returned as undeliverable, and there were other possible and plausible addresses available to VA at the time. Id. Here, while the RO utilized the Veteran’s outdated address in the past, the record shows that: (1) VA utilized his correct address at the time when his May 2018 VA examination was scheduled; and (2) no alternative address for mailing was or is available to VA. Thus, the Board finds that the presumption of regularity has attached and was not rebutted. Further, the record shows that: (1) pursuant to the November 2017 remand, the RO duly scheduled the Veteran for a December 2017 VA examination; and (2) pursuant to the Board’s February 2018 remand, the RO duly re-scheduled him for a May 2018 VA examination. Therefore, the Board finds that the RO substantially complied with the November 2017 and February 2018 remand orders. Stegall v. West, 11 Vet. App. 268 (1998). The Board is aware that in the May 2018 remand instructions, the Board had requested that a copy of the letter notifying the Veteran of the scheduled appointment should be associated with the electronic claims folder. That letter is not in the electronic file; however, the Board finds that such is not prejudicial to the Veteran for two reasons. One, the October 2018 SSOC informed the Veteran that he had failed to report for the May 2018 examination and, two, the Veteran acknowledged that he received the October 2018 SSOC. Thus, the Veteran was informed that an examination was scheduled and that he failed to report for the examination. Thus, the fact that the letter informing him of the scheduled examination is not in the electronic file does not take away the finding that there was substantial compliance with the Board’s May 2018 remand instructions. The purpose of that remand instruction was to ensure that the Veteran was properly informed of the date and time for the examination. Here, the October 2018 SSOC informed the Veteran that he had failed to report for the scheduled examination and he was given an opportunity to express a willingness to appear for the examination. The RO subsequently called the Veteran, wherein he acknowledged receipt of the October 2018 SSOC, stated he had no additional evidence to submit, and to send the case to the Board. Essentially, if the Veteran had not been informed of the examination and was told he had failed to report for the examination, he would have likely informed VA that he never received notice of the scheduled examination. Therefore, the Board finds that it is reasonable to conclude that the Veteran was properly informed of the May 2018 scheduled examination. Thus, the concern of whether the Veteran was informed of the scheduled examination was cured by subsequent communications (SSOC and phone call) with the Veteran. The record demonstrates that the Veteran failed to appear for the December 2017 and May 2018 VA examinations, and the December 2017 and October 2018 SSOCs: both (1) informed him of his failure to report for the December 2017 and May 2018 VA examination, respectively; (2) clarified that there was no showing of good cause in the record for the failure to report; and (3) stated that an unfavorable decision was rendered based on his failure to report for the examinations. After the October 2018 SSOC, the Veteran confirmed having received the October 2018 SSOC. At no point did the Veteran allege being unaware of the May 2018 VA examination or expressed a desire to have it rescheduled, or stated his willingness to report for another VA examination. Moreover, he clarified that he had no other evidence to offer. The Board finds that VA has fully satisfied its duty to assist, and additional efforts to assist or notify the Veteran would serve no useful purpose. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Under 38 C.F.R. § 3.655(a), when entitlement to a benefit cannot be established without a VA examination, and a veteran, without good cause, fails to report for such examination, action shall be taken in accordance with § 3.655(b) or (c), as appropriate. Pursuant to 38 C.F.R. § 3.655(b), when a veteran fails to report for an examination scheduled in conjunction with a reopened claim for a benefit, which was previously disallowed, the claim shall be denied as a matter of law. Because the Veteran failed to report for an examination scheduled in connection with his reopened claims for service connection for an acquired psychiatric disorder and a sleep disorder, and he has not shown good cause for failing to appear, denial of his claims based on 38 C.F.R. § 3.655(b) is warranted. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Anna Kapellan, Associate Counsel