Citation Nr: 20032218 Decision Date: 05/07/20 Archive Date: 05/07/20 DOCKET NO. 14-35 598 DATE: May 7, 2020 ORDER Entitlement to a rating in excess of 10 percent for a lumbosacral strain is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran, without good cause, failed to appear at scheduled VA examinations necessary to decide his claim for an increased rating in excess of 10 percent for a lumbosacral strain and TDIU. 2. Entitlement to an increased rating in excess of 10 percent for a lumbosacral strain and a TDIU cannot be established without the rescheduled examination, and the reexamination was scheduled in connection with a claim for increase rather than an original compensation claim. CONCLUSIONS OF LAW 1. Entitlement to a rating in excess of 10 percent for degenerative disc disease of the lumbar spine cannot be established without a current VA reexamination, and the failure to report, without good cause, for the reexamination scheduled in connection with this claim, which is a claim for increase rather than an original compensation claim, warrants denial of the claim as a matter of law. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.655. 2. Entitlement to a TDIU cannot be established without a current VA reexamination, and the failure to report, without good cause, for the reexamination scheduled in connection with this claim, which is part of the claim for an increased rating for the service-connected back disability, rather than an original compensation claim, warrants denial of the claim as a matter of law. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.655. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1971 to November 1972. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2012 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Board remanded these matters in September 2018 in order to provide the Veteran with an adequate VA examination to determine the current severity of his service-connected lumbosacral strain. The RO substantially complied with the Board’s remand directives and no further action is necessary. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a rating in excess of 10 percent for a lumbosacral strain and a TDIU. The Veteran claims that his currently assigned rating a lumbosacral strain should be higher throughout the claim period and that he is entitled to a TDIU. 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. Under 38 C.F.R. § 3.655 (b), 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 his back disability in November 1972. In July 2011, he filed a claim for an increased rating for his service-connected back disability. A January 2012 rating decision on appeal continued the previously assigned 10 percent rating for the service-connected back disability. The Veteran’s June 2012 notice of disagreement (appeal) raised the issue of TDIU and is part and parcel of the claim for an increased rating for the service-connected back disability. See Rice, 22 Vet. App. at 447. Hence, TDIU is considered part of the Veteran’s July 2011 claim for increase, for purposes of applying the provisions of 38 C.F.R. § 3.655(b). In its September 2018 remand, the Board instructed the RO to identify and obtain any outstanding treatment records, including any additional treatment records identified by the Veteran. The RO was also instructed to schedule the Veteran for a new VA examination to assess the severity of his service-connected back disability, to include functional impairments caused by these disabilities. A new examination was necessary because the Veteran last underwent a VA examination in 2011. Since that examination, the United States Court of Appeals for Veterans Claims has clarified that examinations of musculoskeletal disabilities must comply with the language of 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158, 168-70 (2016). The RO scheduled a VA examination in April 2019 at the Shreveport medical center. The Veteran refused to travel to Shreveport and cancelled the appointment. The RO issued a supplemental statement of the case (SSOC) in August 2019 denying the Veteran’s claims. His representative explained that the Veteran was ill in April 2019 and could not attend the VA examination. The Veteran’s representative requested a new examination and the RO scheduled an examination in October 2019. The Veteran confirmed his October appointment but then failed to appear, stating that he wanted to be seen closer to home. The RO scheduled a third appointment through a VA contractor closer to the Veteran’s home in December 2019. The Veteran failed to appear. A February 2020 SSOC was issued and denied the Veteran’s claims for an increased rating and TDIU. Neither he nor his representative provided an explanation for the Veteran’s failure to report to the December 2019 scheduled back examination and has made no attempt to contact VA to request that the examination be rescheduled. While there are no letters notifying the Veteran of the examination associated with his claims file, the Court has held that the presumption of regularity applies to notice of VA examinations. See Kyhn v. Shinseki, 24 Vet. App. 228, 237 (2011). 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. However, the Court has held that the absence of copies of letters notifying a veteran of VA examinations 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 this case, even if there were an allegation of non-receipt, such allegation alone does not constitute clear evidence to rebut the presumption of regularity. Id. Given the absence of any specific contentions in this regard, the Board finds that the presumption of regularity has not been rebutted and notice of the December 2019 VA back examination is presumed to have been received by the Veteran. Additionally, the Veteran and his representative was provided the February 2020 Supplemental Statement of the Case which noted the Veteran’s repeated failure to report for scheduled examinations. Various responses from the Veteran’s representative were subsequently associated with the claims file but without indication of information regarding the Veteran failing to report to scheduled examinations. Thus, the Veteran failed to report for a necessary VA reexamination without good cause. See 38 C.F.R. § 3.655. VA’s duty to assist is not always a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran must cooperate in VA’s efforts to obtain evidence needed to adjudicate his claims, including keeping his contact information up-to-date, attending scheduled VA examinations, and promptly communicating with VA why he cannot attend a scheduled VA examination. 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 Board finds that it cannot as the case was previously remanded for necessary evidence with which to rate the Veteran’s disability claim and appropriately adjudicate his claim for TDIU. Therefore, the claim for a higher rating for a lumbosacral strain and a TDIU must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mohammad Mahmoudi, Associate Counsel 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.