Citation Nr: 0006734 Decision Date: 03/13/00 Archive Date: 03/17/00 DOCKET NO. 99-03 544 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an increased disability rating for lumbosacral strain, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: R. Edward Bates, Esq. ATTORNEY FOR THE BOARD V. Marletta, Associate Counsel INTRODUCTION The veteran served on active duty from September 1974 to September 1978. This case comes before the Board of Veterans' Appeals (Board) from a rating decision rendered in November 1998 by the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA). The RO based its November 1998 rating decision that denied the veteran's claim for an increased rating for lumbosacral strain on the following finding: "The claimant failed to report for a VA examination scheduled at VA Medical Center, Tuskegee, AL, on October 20, 1998. Evidence expected from this examination which might have been material to the outcome of this claim could not be considered." Where entitlement to a benefit cannot be established without a current VA examination and a claimant, without good cause, fails to report for such examination, action will be taken depending on the type of claim pending. 38 U.S.C.A. § 501(a) (West 1991); 38 C.F.R. § 3.655(a) (1999). When a claimant fails to report for an examination scheduled in conjunction with a claim for an increase, the claim shall be denied. 38 C.F.R. § 3.655(b) (1999). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant or death of an immediate family member. 38 C.F.R. § 3.655(a) (1999). While the law is clear regarding the consequences of a claimant's failure to report for a scheduled VA examination (particularly in a claim for an increased rating), the record in this case remains unclear as to whether the veteran's spinal examination was scheduled in a proper manner and whether the veteran received timely notice thereof. A computer-generated Compensation and Pension (C&P) Exam Inquiry, dated October 21, 1998, notes under the heading "Requested exams currently on file" the following information: "Spine (Cervical, Thoracic & Lumbar); Requested on Oct. 21, 1998 at 09:39:59 by Montgomery RO - Open." In addition, a C&P Examination Request Worksheet contains the following hand-written notation dated October 21, 1998: "Exam was not input as directed." Finally, a computer-generated examination cancellation form dated October 30, 1998 comments as follows: "No phone contact as of 10-30-98 at 12:25pm. Tried to call veteran on 10-28 to get time of appt. changed for 10-30 at 3:00 because Dr. was in a conference. Left message on answering machine 10-28. Failed to re-report 10-20-98." Although the record shows the RO attempted to schedule a spinal examination for October 30, 1998, the rating decision indicates the denial of the veteran's claim based on his failure to report for an examination scheduled for October 20, 1998. However, there is no record of a spinal examination scheduled for October 20, 1998. It is possible that the last notation on the computer-generated examination cancellation notice was entered in error and should have read "failed to re-report 10-30-98" and that the RO relied on the erroneous entry in preparing its rating decision. However, due process concerns require that the veteran be given the benefit of the doubt in this instance and again be afforded the opportunity to submit to a VA C&P examination. The Board notes that the veteran's attorney, in a VA Form 9 (Appeal to the Board of Veterans' Appeals) filed February 12, 1999, purports to waive the veteran's right to a C&P examination in order to expedite his claim. However, as noted in the legal authority cited above, such a waiver would result in an automatic denial of the veteran's claim because, given the lack of pertinent, recent medical evidence in this case, the veteran's entitlement to an increased rating cannot be established without a current VA examination. In the best interest of the veteran, the Board will therefore disregard the veteran's attorney's request for a waiver of a VA examination. REMAND Accordingly, this case is REMANDED to the RO for the following action: 1. The RO should request that the veteran provide the names and addresses of all health care providers who have examined him or have afforded him treatment for his lumbosacral strain since May 1998. 2. Upon receipt of any and all such names and addresses, and duly executed authorization for the release of private medical records if necessary, the RO should request that all health care providers identified by the veteran furnish legible copies of all medical records compiled pursuant to either the examination of or treatment rendered for his lumbosacral strain. 3. Following receipt of any and all such records, the RO should afford the veteran a VA spinal examination. 4. The RO is to advise the veteran that failure to report for a scheduled VA examination without showing good cause may have an adverse affect upon his claim, to include the possible denial thereof. In addition, the RO should carefully document all correspondence with the veteran with regard to the scheduling of his VA spinal examination. 5. Following completion of all requested actions, the RO should review the claim, and determine whether an increased rating for the veteran's service-connected lumbosacral strain can now be granted. If the decision remains in any manner adverse to the veteran, he and his representative should be furnished with a supplemental statement of the case, and with a reasonable period of time within which to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). The case should then be returned to the Board for further appellate consideration, as warranted. The Board expresses its gratitude in advance to the RO for assisting in the requested development. M.W. GREENSTREET Member, Board of Veterans' Appeals