Citation Nr: 0005904	
Decision Date: 03/03/00    Archive Date: 03/14/00

DOCKET NO.  94-08 273	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in 
Albuquerque, New Mexico


THE ISSUES

1.  Entitlement to an increased (compensable) evaluation for 
anxiety disorder.

2.  Entitlement to a total disability rating for compensation 
purposes on the basis of individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of 
the United States


INTRODUCTION

The veteran served on active duty from March 1965 to February 
1968.







The current appeal arose from rating decisions of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Albuquerque, New Mexico.

The case was previously before the Board of Veterans' Appeals 
(Board) in May 1997 and April 1998 at which time other issues 
then pending were adjudicated, and the issues of entitlement 
to an increased (compensable) evaluation for anxiety disorder 
and a TDIU were remanded to the RO for further development 
and adjudication.

In September 1999 the RO affirmed the denials of entitlement 
to an increased (compensable) evaluation for anxiety disorder 
and a TDIU.

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


FINDING OF FACT

The veteran without good cause failed to report for a 
scheduled VA examination.


CONCLUSIONS OF LAW

1.  The veteran's claim of entitlement to an increased 
(compensable) evaluation for anxiety disorder is denied as a 
matter of law.  38 C.F.R. § 3.655 (1999).

2.  The veteran's claim of entitlement to a TDIU is denied as 
a matter of law.  38 C.F.R. § 3.655.



REASONS AND BASES FOR FINDING AND CONCLUSIONS

Criteria

Regulations provide that when entitlement to a benefit cannot 
be established without a current VA examination, and a 
claimant, without good cause, fails to report for such 
examination, the claim shall be denied.  38 C.F.R. 
§ 3.655(a)(b) (1999).  

Examples of good cause include, but are not limited to, the 
illness or hospitalization of the claimant, death of an 
immediate family member, etc. Id.  When a claimant fails to 
report for an examination scheduled in conjunction with an 
original compensation claim, the claim shall be based on the 
evidence of record. Id. When the claim 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.  Id. 38 C.F.R. § 3.655.

The 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

In its April 1998 remand of the case to the RO the Board 
pointed out that a May 1997 letter to the veteran in which he 
was asked to provide information relative to his claims went 
unanswered and was not returned as undeliverable.  

The Board noted that the VA examination scheduled in 
September 1997 was canceled because the veteran had withdrawn 
his claim.  Because a withdrawal of a claim must be in 
writing, see 38 C.F.R. §§ 20.202, 20.204(b), (c) (1999), the 
Board remanded the case to the RO to clarify the status of 
the veteran's remaining appellate claims.

In April 1998, the RO, as directed, sent a letter to the 
veteran requesting that if he wished to withdraw the 
remaining issues still in appellate status, he should do so 
in writing on the enclosed form provided.  The veteran did 
not respond to the RO's April 1998 correspondence.  In June 
1999 the local VA outpatient clinic again advised the RO that 
the veteran had notified them that he was withdrawing his 
claims and therefore had not reported for a previously 
scheduled VA examination.
In the absence of a withdrawal of the appeal by the veteran 
in writing, the Board is precluded by law from recognizing 
notification of withdrawal of the veteran's appeal from any 
other source including the local VA outpatient clinic.

In the veteran's case, there is no question as to whether he 
received notification to report for a scheduled examination.  
The record clearly shows that he was well aware of the need 
to report for examination in conjunction with his claim.  The 
veteran chose not to report for examination reportedly due to 
the fact that he had withdrawn his appeal.  In the absence of 
a written withdrawal of the appeal from the veteran, the 
Board has no alternative but to deny both issues on appeal 
for failure of the veteran without good cause to report for a 
scheduled VA examination.  38 C.F.R. § 3.655.  

Therefore, the Board finds the veteran's increased rating 
claim for anxiety disorder and a TDIU 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 
anxiety disorder is denied.

Entitlement to a TDIU is denied.



		
	RONALD R. BOSCH
	Member, Board of Veterans' Appeals