Citation Nr: 20021430 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 15-29 059 DATE: March 25, 2020 ORDER Entitlement to a disability rating higher than 20 percent for low back disability is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Board previously remanded this claim in June 2019, in part, to have the Veteran undergo a VA compensation examination needed to reassess the severity of his service-connected low back disability and its impact on his employability. 2. Without good cause, he failed to report for his examination in June 2019. CONCLUSIONS OF LAW 1. Because there is no reason or justification for failing to report for that necessary VA compensation examination, the claim for a rating higher than 20 percent for the low back disability must be summarily denied. 38 C.F.R. § 3.655. 2. Because there is no reason or justification for failing to report for that necessary VA compensation examination, the claim for entitlement to a TDIU must be summarily denied. 38 C.F.R. § 3.655. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1971 to April 1986. The Veteran testified at a hearing before the undersigned Veterans’ Law Judge in October 2018. A transcript of that hearing has been associated with the record. In June 2019 the Board remanded the appeal for additional development. 1. Entitlement to a rating in excess of 20 percent for the low back disability 2. Entitlement to a TDIU This case was previously before the Board in June 2019, at which time the Board remanded the claims for further development both to obtain any outstanding VA and/or private treatment records relevant to the claim and for a new VA examination reassessing the severity of this low back disability and its impact on the Veteran’s employability. In compliance with the Board’s remand directives, the Veteran was scheduled for this necessary additional examination. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only “substantial” rather than strict or exact compliance with the Board’s remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). He was duly notified of the date, time and location of the examination, but inexplicably he failed to report for it. The examination was scheduled to occur in June 2019. Moreover, he has not provided any justifiable explanation for his failure to attend that scheduled examination or asked to have it rescheduled. According to VA regulations, it is incumbent upon the Veteran to submit to a VA examination regarding his receipt of VA compensation or pension benefits. See Dusek v. Derwinski, 2 Vet. App. 519 (1992). When necessary or requested, he must cooperate with VA in obtaining evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding that the duty to assist is not a one-way street). When entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without “good cause”, fails to report for such examination, action shall be taken. 38 C.F.R. § 3.655 (a). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. When a claimant fails to report for an examination scheduled in conjunction with a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655 (b) (italics added for emphasis). In other words, this disposition is nondiscretionary. Prior to May 2013, the Veterans Court (CAVC) had held that VA was entitled to the presumption of administrative regularity that VA employees had properly discharged their official duty to notify a Veteran, as an example, of a scheduled VA examination. This presumption of administrative regularity could be rebutted by clear evidence to the contrary. See Ashley v. Derwinski, 2 Vet. App. 62 (1992); Mindenhall v. Brown, 7 Vet. App. 271 (1994). The Court also had held that the absence of a copy of the notice letter in the claims file did not constitute clear evidence to rebut this presumption of administrative regularity. See Kyhn v. Shinseki, 24 Vet. App. 228, at 236 (2011) (Kyhn II). However, while that appeal was pending, the higher Federal Circuit Court issued Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013). In Kyhn the Federal Circuit Court vacated the lower Court’s Kyhn II decision, holding that the Court had relied upon extra-record evidence to make a finding of fact in the first instance. The lower Court (CAVC) had allowed VA to submit an affidavit of a manager from the VA Medical Center (VAMC) involved establishing the regular practice of mailing such notices. But the Federal Circuit Court held the CAVC could not consider such evidence because judicial notice does not extend to affidavits from “a party’s employees regarding otherwise unknown internal procedures.” (slip op. at 7). The Federal Circuit Court went on in Kyhn to further hold that the CAVC had done impermissible fact-finding in the first instance. The Federal Circuit Court essentially drew a distinction between “instances where the presumption of regularity was premised upon independent legal authority” and instance where it was based upon “evidentiary findings.” (slip op. at 10). Here, although the file does not contain the actual letter informing the Veteran of the time, date and location of the examination, the record does reflect that he was advised that a VA medical facility would be in touch with him about the examination. Also, the address of record at the time appears to be correct, and there is no indication that his address had changed or that this mail was returned to VA as undeliverable. Rebutting the presumption of administrative regularity usually requires more than a mere allegation of defective process or procedure, nonreceipt of a communication, or other failing, etc. Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994); Schoolman v. West, 12 Vet. App. 307, 310 (1999). Notification for VA purposes is a written notice sent to the claimant’s last address of record. See 38 C.F.R. § 3.1 (q). Moreover, this presumption of administrative regularity does not diminish the claimant’s responsibility to keep VA informed of changes of address and, if he does not, VA is not obligated to turn up heaven and earth to find him. See Hyson v. Brown, 5 Vet. App. 262, 265 (1993). Thus, the presumption of administrative regularity would apply in this situation. Moreover, the February 2020 supplemental statement of the case (SSOC) informed the Veteran of his failure to report for the needed VA examination. The SSOC was mailed to the same address as the notification about the VA examination. Notably, the Veteran responded to the SSOC and submitted correspondence with a return address that matches his address listed on the notification about the VA examination and the SSOC. Had he in fact not received notice of the examination, it stands to reason he would have mentioned this or made argument concerning it or took exception when responding to VA after receipt of the SSOC, but he did not. At the October 2018 hearing, the Veteran testified that his back condition had worsened since his last examination in October 2014. He also testified that he was unemployed and unable to get a job due to his service-connected back disability. Since his last examination in October 2014, the Court has held in precedent cases that VA examinations are required to “express an opinion on whether pain could significantly limit” a veteran’s functional ability, and that determination “should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Furthermore, the VA examiner would have been required to consider the lay statements of the Veteran in assessing the degree of additional range of motion loss due to pain. Id. at 10. The scheduled June 2019 VA examination was needed to address some of the concerns expressed by the Veteran at the October 2018 Board hearing, most significantly the functional impairment caused by his low back pain; however, he failed to report for the examination. The Board also recognizes the private medical records submitted by the Veteran in April 2019. However, the Board finds these medical records to be inadequate for rating purposes because they do not include the additional testing required by Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp, 29 Vet. App. 26. Furthermore, the private medical records do not contain necessary range of motion examination findings, indication of ankylosis, and whether the Veteran has had incapacitating episodes and of sufficient frequency and duration over the past 12 months owing to his low back disability. Simply put, the Board cannot assess the severity of his low disability using just the medical records provided by his private physician. In summary, the record indicates the Veteran failed to report for his needed June 2019 VA examination and has not provided any explanation or other indication of good cause for his failure to report for that examination. Accordingly, his claim for a higher (increased) rating for his service-connected low back disability and the claim for entitlement to a TDIU must be summarily denied. 38 C.F.R. § 3.655 (b). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Azizi, T. The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.