BVA9502812 DOCKET NO. 93-00 881 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased rating for a service-connected fracture residuals, transverse process at L-3, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. J. Bohanan, Associate Counsel INTRODUCTION The appellant served on active duty from April 1972 to February 1975. This appeal arises from a May 1992 Department of Veterans Affairs Regional Office in Waco, Texas which denied the appellant's claim for an increased rating for his service-connected fracture residuals, transverse process at L-3, currently evaluated as 10 percent disabling. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that his back disorder worsened after surgery in October 1990 and that current manifestations are of sufficient severity to warrant an increased disability rating. 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 veteran's claim for an increased evaluation for his service- connected fracture residuals, transverse process at L-3. FINDINGS OF FACT 1. Attempts to obtain all relevant evidence necessary for an equitable disposition of the veteran's appeal have been made by VARO. 2. The appellant failed without good cause to report for a scheduled VA examination in conjunction with his claim for an increased evaluation. CONCLUSION OF LAW The criteria for an increased rating for residuals of a fracture, transverse process at L-3 have not been met. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.655 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the appellant has satisfied his statutory burden of submitting evidence which is sufficient to justify a belief that his claim is "well-grounded." 38 U.S.C.A. § 5107(a) (West 1991) and Murphy v. Derwinski, 1 Vet.App. 78 (1990). It is also clear that the appellant's claim has been adequately developed for appellate review purposes by VARO, and the Board may therefore proceed to disposition of the matter. In that regard, the Board notes that a VA examination was conducted in May 1992, described by the examiner as an "unsatisfactory and uncooperative examination." A December 1992 statement of the appellant's accredited representative explained that there was a "personality dispute" between the examiner and the appellant, and that the appellant reported an inability to cooperate with the examination due to "pain." The representative requested that another VA examination be scheduled. A VA examination was scheduled in October 1993 and in June 1994 in connection with the appellant's claim for an increased rating. The appellant, without explanation, failed to report to either scheduled examination. In his December 1994 written argument, the appellant's representative reported that the reasons for the appellant's failure to cooperate were "unclear." 38 C.F.R. § 3.655 provides that, when a claimant fails to report for an examination scheduled in conjunction with a claim for an increase, the claim shall be denied. In view of the lack of cooperation exhibited by the appellant in failing to report for the examination and his failure to provide good cause for not appearing, his claim for an increased rating is denied. ORDER An increased rating for residuals of a fracture, transverse process L-3, is denied. KENNETH R. ANDREWS, JR. 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.