Citation Nr: 21006211 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 18-00 941 DATE: February 3, 2021 ORDER Entitlement to service connection for a neck disability is denied. Entitlement to service connection for a sleeping disability is denied. Entitlement to a rating in excess of 10 percent for a low back disability is denied. Entitlement to an initial rating in excess of 10 percent for RLE radiculopathy is denied. Entitlement to an initial rating in excess of 10 percent for LLE radiculopathy is denied. Entitlement to an effective date earlier than February 28, 2001, for the 10 percent evaluation for a low back disability is dismissed. FINDINGS OF FACT 1. The Veteran’s claims for increased evaluations for lumbar spine and bilateral lower extremity radiculopathy and service connection for neck and sleeping disabilities are not original claims. 2. The Veteran failed to report for VA examinations in conjunction with claims that are not an original claim; he has not provided good cause for his failure to report. 3. In an April 2001 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection and assigned a 10 percent disability rating lumbar spine disability, effective from February 28, 2001, the date of separation from active duty. CONCLUSIONS OF LAW 1. Entitlement to service connection for a neck disability is denied as a matter of law. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(a), 3.655(a), (b). 2. Entitlement to service connection for a sleeping disability is denied as a matter of law. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(a), 3.655(a), (b). 3. Entitlement to a rating in excess of 10 percent for a low back disability is denied as a matter of law. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(a), 3.655(a), (b). 4. Entitlement to an initial rating in excess of 10 percent for RLE radiculopathy is denied as a matter of law. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(a), 3.655(a), (b). 5. Entitlement to an initial rating in excess of 10 percent for LLE radiculopathy is denied as a matter of law. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(a), 3.655(a), (b). 6. Entitlement to an effective date earlier than February 28, 2001, for the 10 percent evaluation for a low back disability is denied. 38 U.S.C. § 7105(d)(3); 38 C.F.R. §§ 3.104, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active naval service from February 1981 to February 2001. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In an April 2019 decision and remand, the Board the claims for VA examinations. The Board also directed the RO to issue a Statement of the Case for the issue of entitlement to an effective date earlier than February 28, 2001, for the 10 percent evaluation for a low back disability, which was accomplished in April 2020. A timely VA Form 9 was received in June 2020. 1. Entitlement to service connection for a neck disability is denied. In regard to claims numbered 1 through 5, the Veteran was scheduled for VA examinations in October 209 and February 2020 that he did not attend, he has not provided good cause or any reason for this failure ot report. See October 2019 Medical Record; see also February 2020 Medical Record. The Veteran and his representative were informed that his claims were denied as a matter of law for his failure to report in an April 2020 Supplemental Statement of the Case (SSOC). 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. More specifically, when a claimant fails to report for a medical examination scheduled in conjunction with an original compensation claim, without good cause, the claim shall be rated based on the evidence of record. VA regulations define an original claim as the initial complete claim for one or more benefits on application on a form prescribed by the Secretary. 38 C.F.R. § 3.160(b). The Veteran’s original claim was filed in October 2000 and the instant appeal arises from a claim filed in September 2011. Thus, the claims must be denied if the Veteran has not presented good cause for his failure to report for the examinations. The Veteran’s address was listed correctly on the examination request information and corresponds with the address the Veteran has recently provided. See October 2019 Medical Record; see also May 2020 VA Form 21-8940. Further, the Veteran’s representative has responded to correspondence since the April 2020 SSOC and referenced receipt of the April 2020 receipt. Based on the presumption of regularity, the Board finds the Veteran received notice of the examination, failed to report, and has not provided good cause. See Kyhn v. Shinseki, 24 Vet. App. 228 (2011) (VA’s established procedure for notifying claimants of VA examinations entitles it to the presumption of regularity that VA employees properly discharged their official duty to notify a veteran of a VA examination). The presumption has not been rebutted by clear and convincing evidence. The Veteran has not offered any other cause, good or not, for his failure to report. Therefore, the Board concludes that both claims service connection for a neck and sleeping disability and for increased rating for lumbar spine and bilateral lower extremity radiculopathy must be denied as a matter of law. See 38 C.F.R. § 3.655 (b). 2. Entitlement to service connection for a sleeping disability is denied. 3. Entitlement to a rating in excess of 10 percent for a low back disability is denied. 4. Entitlement to an initial rating in excess of 10 percent for RLE radiculopathy is denied. 5. Entitlement to an initial rating in excess of 10 percent for LLE radiculopathy is denied. 6. Entitlement to an effective date earlier than February 28, 2001, for the 10 percent evaluation for a low back disability is denied. In the Veteran’s April 2015 Notice of Disagreement (NOD), filed in regard to the rating decision on appeal, the effective date and evaluation assigned elections for disagreement were selected. As mentioned in the introduction, the Board has characterized the issue on appeal entitlement to an effective date earlier than February 28, 2001, for the 10 percent evaluation for a low back disability. The Veteran separated from active duty February 28, 2001. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. In claims for direct service connection, if the claim is received within one year after separation from active service, the effective date of the award is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400(b)(2). The date assigned for the Veteran’s lumbar spine disability is the date the Veteran separated from active duty and no earlier date is allowed. VA law and regulations do not provide for an effective date earlier than the day following separation from service. Given the above, the appeal is denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). M. Mills Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Trickey 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.