Citation Nr: 1817335 Decision Date: 03/20/18 Archive Date: 03/30/18 DOCKET NO. 10-41 111 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an increased rating for residual scars from left hand cellulitis, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. D. Simpson, Counsel INTRODUCTION The Veteran served on active duty from August 1969 to March 1972 and December 1972 to December 1974. He earned a Combat Infantryman Badge and Gallantry Cross with Palm during service in the Republic of Vietnam. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In that decision, the RO denied an increased rating for postoperative scars, cellulitis, left hand and index finger. In February 2017, the Veteran was afforded a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ). A hearing transcript is of record. In June 2017, the Board granted an increased rating for service-connected posttraumatic stress disorder (PTSD) and awarded a total disability rating based upon individual unemployability (TDIU). The issue currently on appeal was remanded for additional development. FINDING OF FACT Entitlement to an increased rating in excess of 10 percent for residual scars from left hand cellulitis 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. CONCLUSION OF LAW Entitlement to a rating in excess of 10 percent for residual scars from left hand cellulitis must be denied as a matter of law. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.655 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (West 2012), sets forth VA's duties to notify and assist claimants in substantiating claims for VA benefits. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017)). The Veteran was appropriately notified about the information and evidence needed to substantiate the claim in a December 2008 letter. The Veteran does not assert prejudice from any notification deficiency and none has been identified by the Board. The duty to notify is satisfied. Regarding the duty to assist, the Board finds that all relevant facts have been properly developed and that all evidence necessary for equitable resolution of the issues herein decided has been obtained in accordance with 38 U.S.C. § 5103A and 38 C.F.R. § 3.159(c). The Veteran's service treatment records (STRS), Social Security Administration (SSA) records, private medical records and sufficiently identified VA treatment records have been associated with the claims file. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)). The Veteran has not been afforded a VA examination. The Board's June 2017 Remand determined that a VA examination was needed, and instructed the AOJ to schedule the Veteran for a VA examination. Thereafter, the AOJ scheduled the Veteran for a VA examination for his left hand. A November 2017 letter mailed to the Veteran's address of record notified him that the VA medical facility nearest him would contact him about scheduling a VA examination and to direct all correspondence about scheduling the examination to the VA medical facility. It also notified him that he must show good cause for any inability to attend a scheduled examination and that his failure to attend without showing good cause may result in denial of the claim. A November 2017 Veterans Benefits Administration (VBA) Inquiry reflects that a dermatology examination was requested and then 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 November 2017 VBA correspondence reflects that the Veteran failed to report; no reason was given. In a January 2018 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 nonreceipt of the notice, and even such assertion of nonreceipt alone does not constitute clear evidence to rebut the presumption of regularity. See Miley v. Principi, 15 Vet. App. 97 (2001). In the February 2018 appellant's post remand brief, the Veteran's representative acknowledged that the Veteran failed to report to the examination, and asserted that it is possible good cause preventing him from doing so. 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) (2017). As the Veteran was offered an opportunity to attend a VA examination, but he failed to report without asserting good cause, the Board finds there has been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). 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). II. Analysis The Veteran claims that his currently assigned 10 percent rating for residual scars from left hand cellulitis 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 residual scars from left hand cellulitis in November 1980. In October 2008, he filed claims for increase. As noted above, the March 2009 rating decision on appeal continued the previously assigned 10 percent rating. 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 and Board determined that one was needed to assess the current severity of the Veteran's residual scars from left hand cellulitis. Thus, the claim was remanded to the RO for a contemporaneous examination. The RO attempted to schedule the Veteran for a VA examination, and the Veteran failed to report 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. In remanding the claim, the Board implicitly found that it could not and adheres to that finding in this decision. The available medical records do not include findings responsive to the applicable rating criteria. The Veteran has not provided lay statements that would otherwise substantiate his claim for increase. For the foregoing reasons, the claim for an increased rating for residual scars from left hand cellulitis on appeal must be denied as a matter of law. 38 C.F.R. § 3.655(b). ORDER A rating in excess of 10 percent for residual scars from left hand cellulitis is denied. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs