Citation Nr: 0005631 Decision Date: 03/01/00 Archive Date: 03/14/00 DOCKET NO. 98-16 006A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for degenerative disc disease of the cervical spine. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The veteran served on active duty from April 1960 to April 1963. The current appeal arose from an April 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The RO granted entitlement to service connection for degenerative disc disease of the cervical spine with assignment of a 10 percent evaluation. In May 1998 the Board of Veterans' Appeals (Board) remanded the case to the RO for further development and adjudicative actions. In December 1999 the RO affirmed the initial 10 percent evaluation for degenerative disc disease of the cervical spine. The case has been returned to the Board for further appellate review. FINDING OF FACT The veteran without good cause failed to report for two scheduled VA examinations associated with his increased rating claim. CONCLUSION OF LAW The veteran's claim of entitlement to an initial evaluation in excess of 10 percent for degenerative disc disease of the cervical spine is denied as a matter of law. 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 (1999). 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 and Analysis As the Board noted in its May 1999 remand of the case to the RO for further development and adjudicative actions, the veteran reported that his neck disability caused numbness and tingling in his hands at his January 1999 personal hearing before a hearing officer at the RO. The veteran also reported that his head shakes due to muscle spasm of the neck. The Board noted that the March 1998 VA examination report shows a diagnosis of degenerative disc disease with possible neurologic deficit. The Board pointed out that neither the veteran nor the Board may make medical determinations. Grottveit v. Brown, 5 Vet. App. 91 (1993). The Board specified that a VA examination was necessary to clarify the neurological deficit that was attributable to the veteran's cervical spine disability. The Board also noted that the veteran in his October 1998 substantive appeal reported that he had not worked for ten years due to his degenerative disc disease and was in receipt of disability benefits from the Social Security Administration (SSA). In light of the foregoing, the Board determined that the record of the SSA action and the evidence relied upon were probative of the level of impairment due to the veteran's service-connected disability. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). The Board also stated that a VA examination would materially assist in determining the extent of the veteran's functional loss due to pain or due to flare-ups. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Also noted was that in this regard, the VA General Counsel had found that Diagnostic Code 5293 pertaining to intervertebral disc syndrome involved the loss of range of motion because the nerve defects and resulting pain associated with injury to the sciatic nerve may cause limitation of motion of the cervical vertebrae, and 38 C.F.R. §§ 4.40, 4.5 (1999) must be considered. VAOPGCPREC 36-97. In its May 1999 remand order, the Board directed the RO to contact the veteran for identification of additional sources of his treatment for his service-connected cervical spine disability, to obtain the veteran's SSA records, and to afford the veteran VA examinations by appropriate specialists in orthopedics and neurology to determine the nature and extent of severity of his service-connected cervical spine disability. The RO by letter dated in July 1999 requested the veteran to provide the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who may have additional records referable to treatment of his cervical spine disability. The veteran did not respond to the correspondence. The RO obtained the veteran's SSA records; however, the pertinent medical evidence therein was prior to the October 1997 and March 1998 VA examination reports on file. Most importantly, the veteran failed without good cause to report for VA examinations scheduled in July and August 1999, and no correspondence in this regard was returned as undeliverable. Given the presumption of regularity of the mailing of VA examination scheduling notice and considering the fact that the veteran has never contacted the RO to give adequate reasons for not reporting for the two scheduled examinations, the Board is satisfied that the veteran failed to report for the scheduled VA examinations without good cause. 38 C.F.R. § 3.655. Therefore, the Board finds the veteran's increased rating claim for degenerative disc disease of the cervical spine must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to an initial evaluation in excess of 10 percent for degenerative disc disease of the cervical spine is denied. RONALD R. BOSCH Member, Board of Veterans' Appeals