BVA9509244 DOCKET NO. 92-23 564 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating for mechanical low back pain with traumatic arthritis, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his wife. ATTORNEY FOR THE BOARD K. Keyes, Associate Counsel INTRODUCTION The veteran served on active duty from January 1979 to January 1985. He had a prior period of service which has not been verified. This matter comes before the Board of Veterans' Appeals (Board) from an October 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that granted service connection for mechanical low back pain with traumatic arthritis and assigned a 10 percent disability rating. The veteran appealed the assigned rating. The Board remanded this case in August 1994 for further development by the RO. For the reasons noted below, this development could not be accomplished, and the RO returned the case to the Board. CONTENTIONS OF APPELLANT ON APPEAL In a March 1995 statement, the veteran's representative in Washington, DC, contends that this case must be remanded again because the RO did not accomplish the development ordered by the Board in its August 1994 remand. Specifically, the representative contends that the RO did not obtain VA treatment records and did not afford the veteran's field representative an opportunity to review the claims folder before it was returned to the Board. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claim for an increased disability evaluation for the veteran's service-connected mechanical low back pain with traumatic arthritis. FINDINGS OF FACT 1. The veteran did not respond to the RO's attempts to obtain information necessary to the further development of evidence needed to evaluate the degree of impairment resulting from his service-connected mechanical low back pain with traumatic arthritis. 2. The veteran failed to report for VA examinations scheduled in conjunction with his claim for an increased disability rating. 3. The RO wrote to the veteran at the latest address of record. The RO attempted unsuccessfully to reach the veteran by telephone. 4. The RO has sent the veteran's representative service organization copies of all correspondence and other written communications with the veteran. 5. The veteran's representative service organization had notice of the October 1994 request for information from the RO and of the scheduled VA examinations. CONCLUSIONS OF LAW 1. The RO has fulfilled its statutory duty to assist the veteran in developing facts pertinent to the claim by attempting to obtain all relevant evidence necessary for an equitable disposition of the veteran's appeal. 38 U.S.C.A. § 5107(a) (West 1991). 2. The veteran's failure to report for examination requires that the claim for an increased rating for the service-connected mechanical low back pain with traumatic arthritis be denied. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.655(b) and 4.71a, Diagnostic Code 5295-5010 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In August 1994, the Board remanded this case for further development including instructing the RO to request that the veteran furnish, with appropriate release forms, the names of all health care providers who had treated him for his service-connected low back disorder since July 1990 and to schedule the veteran for VA orthopedic and neurological examinations. In October 1994, the RO wrote to the veteran requesting the information needed to obtain records of treatment for his back disorder. The RO also scheduled the veteran for two VA examinations. The veteran failed to report for the scheduled examinations, and he did not respond to the RO's October 1994 letter requesting information. Having still not received a reply from the veteran nearly five months after its October 1994 letter, the RO returned the claims file to the Board in late February 1995. Section 3.655 of VA regulations provides, When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(b) (1994). Accordingly, the Board concludes that, based on the veteran's failure to report for the examinations scheduled in conjunction with his claim for an increase, his claim must be denied. In a March 1995 statement, the veteran's representative contends that, regardless of the veteran's failure to cooperate with the RO in developing facts pertinent to his claim, this case should be remanded because the RO failed to obtain VA treatment records. However, the Board finds that the RO did not err in not obtaining these records or in not expending VA's resources on any further development in this case because the regulation provides that when a veteran fails to report for an examination in conjunction with a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(b) (1994). Similarly, with regard to the contention of the veteran's representative in Washington, DC, that this case must be remanded because the veteran's local representative did not have an opportunity to review the claims folder contrary to the procedures outlined in VA Manual M21-1, Part IV, Chapter 8, Paragraph 8.40c, the Board notes that paragraph 8.40c provides, in part, that the RO is to follow the procedure provided in paragraph 8.23. Paragraph 8.23a provides that the RO should give the representative an opportunity to execute VA Form 1-646 in all instances except as noted in paragraph 8.23b. Paragraph 8.23b provides that if an appeal was remanded by the Board solely for assembly of records for forwarding to the Board without further consideration by the agency of original jurisdiction, VA Form 1-646 is not required. VA Manual M21-1, Part IV, Change 13, Paragraphs 8.23, 8.40 (October 3, 1992); see also VA Manual M21-1, Part IV, Change 64, Paragraphs 8.31-8.34, 8.45 (October 11, 1994). Although this appeal was not remanded by the Board in August 1994 solely for assembly of records, further consideration by the RO turned out to be unnecessary after all because the evidentiary development that the Board requested could not be accomplished given the veteran's failure to cooperate in that development. Wood v. Derwinski, 1 Vet.App. 190, 193 (1991) ("The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."). Thus, in this case, the RO properly construed the procedures outlined in Manual M21-1 as not requiring either further consideration by the RO (no new evidence was developed to warrant further consideration) or the completion of VA Form 1-646 before returning the claims file to the Board. Furthermore, even if the provisions of Manual M21-1 are construed as requiring that the veteran's representative be afforded review of the claims file even when VA Form 1-646 is not required, the Board concludes that any error on the part of the RO in not affording the local representative that opportunity is harmless error in this case. In support of this conclusion, the Board notes first that no additional evidence had been added to the claims file since the Board's August 1994 remand, and therefore there was nothing for the local representative to review in the folder. Second, nearly five months elapsed between the RO's October 1994 request for information and its returning the case to the Board, and in that time the representative service organization was furnished copies of all correspondence sent to the veteran to enable the representative to assist the veteran. Such assistance would not have been dependent on a review of the claims folder. Third, the Board notes that the Washington-based representative was afforded an opportunity to review the claims folder before submitting it to the Board, and he has offered no explanation for the alleged necessity in this case of review of the claims folder by the local representative rather than the Washington-based representative of the same service organization. Accordingly, the Board concludes that a remand is not warranted for review by the local representative solely because that is the procedure that is usually followed. See Soyini v. Derwinski, 1 Vet.App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet.App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided); cf. Brady v. Brown, 4 Vet.App. 203, 207 (1993) (a remand is unnecessary even where there is error on the part of VA, where such error was not ultimately prejudicial to the veteran's claim). The veteran's representative in this case is an accredited service organization which employs representatives to assist veterans with their claims to the VA regionally and on appeal to the Board in Washington, DC. In addition to having received all other correspondence from the RO concerning this case, the representative service organization in this case was sent a copy of the RO's October 1994 letter to the veteran requesting certain information necessary for further development of the facts in this case. Therefore, the veteran's representative was on notice as to the request for information. The RO met its burden in this case by sending the October 1994 letter to the veteran's representative and also to the "latest address of record" for the veteran which, the Board notes, had changed from the time prior to the Board's August 1994 remand. Hyson v. Brown, 5 Vet.App. 262, 265 (1993) ("[I]t is the burden of the veteran to keep the VA apprised of his whereabouts. If he does not do so, there is no burden on the part of the VA to turn up heaven and earth to find him."); see also Ashley v. Derwinski, 2 Vet.App. 307, 308 (1992). Moreover, evidence in the claims file reflects that the RO attempted unsuccessfully to reach the veteran by telephone when he did not respond to the October 1994 letter and failed to report for scheduled VA examinations. See Olson v. Principi, 3 Vet.App. 480, 482-83 (1992) (where VA made repeated attempts to provide veteran with adequate medical examination and veteran failed to report for examination, VA fulfilled its statutory duty to assist in development of facts pertinent to the veteran's claim). When the RO meets its burden to notify the veteran's representative of the information needed to develop the claim, the burden then shifts to the veteran, and consequently to his representative service organization, which includes both his local and Washington, DC, representatives, to respond to the RO's request. The veteran's representative in this case has executed a power of attorney form which authorizes it to "present" a claim for all VA benefits to which the veteran may be entitled. See VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative (provides for the appointment of a service organization to "present" a benefit claim before VA and to receive any information from VA in connection therewith). A duty to "present" a claim includes a duty to see that a response to a request for information from the RO is made or to inform the RO on behalf of the veteran of extenuating circumstances which may make it impossible to respond and to report for scheduled VA examinations. See Memorandum No. 01-91-17, Office of the Chairman, Board of Veterans' Appeals (May 28, 1991) ("A representative acts as the agent of the appellant, standing in his or her place. Dealings with a represented appellant should normally be conducted through the representative. In almost every situation, the representative should be the primary recipient of correspondence and inquiries concerning the case."). Here the representative service organization in Washington, DC has had the opportunity to review the record and provide any assistance to the appellant. The Board is not required to remand the case to afford the representative another opportunity, especially when the representative has offered no explanation in terms of what could be accomplished in the field which could not be initiated from the Washington, DC office. See generally, O.G.C. Prec. op. 11-92 (May 14, 1992) (VA's standard power of attorney forms can be fairly read as authorizing the named representative to present evidence on behalf of the claimant or beneficiary and, if the evidence later proves erroneous, the claimant or beneficiary can, under agency principles, be held responsible for resulting overpayments.); O.G.C. Adv. op. 42-93 (November 2, 1993) (citing a well-established principle of law that a party is deemed bound by the acts of his lawyer-agent and noting that only where VA establishes a rational basis for treating claimants with attorneys different from claimants with non-attorney representatives will VA not violate equal protection under the Fifth Amendment). With regard to the RO's obligations, a remand in this case could only require the RO to repeat what it had already accomplished, i.e., to request needed information and provide the veteran with an opportunity for response and to schedule him for VA examinations. In light of the foregoing, the Board concludes that the veteran's claim must be denied. The Board observes, however, that a claim is not considered abandoned until one year elapses following a request for evidence or an order to report for an examination. 38 C.F.R. 3.158 (1994). Therefore, the veteran still has several months to comply with the RO's October 1994 request for information and to request that the RO reschedule VA examinations to which he intends to report. After the expiration of one year, further action will not be taken unless a new claim is received, and, should entitlement to the benefits sought be established, the effective date of the payment would not be earlier than the date of filing of the new claim. 38 C.F.R. 3.158(a) (1994). ORDER An increased disability rating for mechanical low back pain with traumatic arthritis is denied. JAN DONSBACH Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.