Citation Nr: 0002972	
Decision Date: 02/07/00    Archive Date: 02/10/00

DOCKET NO.  95-40 622	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los 
Angeles, California


THE ISSUE

Entitlement to an increased (compensable) evaluation for 
right ulnar neuritis.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


INTRODUCTION

The veteran served on active duty from August 1942 to 
November 1944.





The current appeal arose from a January 1995 rating decision 
of the Department of Veterans Affairs (VA) Regional Office 
(RO) in Los Angeles, California.  The RO, in pertinent part, 
denied entitlement to an increased (compensable) evaluation 
for right ulnar neuritis.

In June 1997 the Board of Veterans' Appeals (Board) remanded 
the case to the RO for further development and adjudicative 
actions including accomplishment of a special neurological 
examination of the veteran.  

The veteran failed to report for VA special neurological 
examinations scheduled for May 5th, 6th, and 26th, 1998.

The RO affirmed the denial of entitlement to an increased 
(compensable) evaluation for right ulnar neuritis in November 
1998.  

The case has been returned to the Board for further appellate 
review.


FINDING OF FACT

The veteran without good cause failed to report for three 
scheduled VA special neurological examinations.


CONCLUSION OF LAW

The veteran's claim for entitlement to an increased 
(compensable) evaluation for right ulnar neuritis is denied.  
38 C.F.R. § 3.655 (1999).





REASONS AND BASES FOR FINDING AND CONCLUSION

Criteria

VA regulations provide that as to increased ratings and 
certain original claims, when a claimant fails to report for 
a scheduled medical examination without good cause the claim 
shall be denied, without review of the evidence of record.  
38 C.F.R. § 3.655.

The United States Court of Appeals for Veterans Claims 
(Court) has held that the burden was upon VA to demonstrate 
that notice was sent to the claimant's last address of record 
and that the claimant lacked adequate reason or good cause 
for failing to report for a scheduled examination.  Hyson v. 
Brown, 5 Vet. App. 262, 265 (1993).  The Court has also held 
that the "duty to assist is not always a one-way street."  
Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).

The Court has held that claim denials based upon 38 C.F.R. 
§ 3.655 for failure to report for a scheduled VA examination 
without good cause are factual matters which are subject to a 
"clearly erroneous" standard of review.  Engelke v. Gober, 
10 Vet. App. 396, 399 (1997).

In the absence of clear evidence to the contrary, the law 
presumes the regularity of the administrative process.  
Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (citing 
Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992)).  
Notification for VA purposes is a written notice sent to the 
claimant's last address of record.  38 C.F.R. § 3.1(q) 
(1999).



Factual Background & Analysis

The Board remanded the case to the RO in June 1997 in order 
to have the veteran undergo a special neurological 
examination for the purpose of clarifying the neurological 
impairment caused by the service-connected right ulnar 
neuritis.

The veteran was scheduled for a peripheral nerves examination 
by VA in September 1997; however, the examiner recommended 
that the veteran be examined at the West Los Angeles VA 
Medical Center where there was complete access to his most 
recent neurologic work-up.  The veteran agreed with this 
recommendation.

The veteran failed to report for VA special neurological 
examinations scheduled on May 5th, 6th, and 26th, 1998.  No 
correspondence was returned to VA as undeliverable.

In July 1998 the veteran's representative wrote to him and 
advised him of the need to report for any scheduled 
examinations.  No reply was received from the veteran.

Statements of record on the veteran's behalf from his 
representative at the RO dated in December 1999, and at the 
Board dated in January 2000, are negative for any explanation 
to account for the veteran's failure to report for three 
scheduled examinations.

Given the presumption of regularity of the mailing of VA 
examinations scheduling notice and considering the fact that 
the veteran has never contacted the RO to give adequate 
reasons for not reporting for an examination, and that he has 
been advised by his representative of the importance for 
doing so, the Board is satisfied that the veteran failed to 
report to the three scheduled VA examinations without good 
cause.  38 C.F.R. § 3.655.  Therefore, the Board finds the 
veteran's increased rating claim for right ulnar neuritis 
must be denied as a matter of law.  Sabonis v. Brown, 6 Vet. 
App. 426, 430 (1994).



ORDER

Entitlement to an increased (compensable) evaluation for 
right ulnar neuritis is denied.



		
	RONALD R. BOSCH
	Member, Board of Veterans' Appeals