Citation Nr: 0814857 Decision Date: 05/05/08 Archive Date: 05/12/08 DOCKET NO. 04-16 505 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a rating in excess of 10 percent for residuals of a shrapnel wound of the right arm (major). REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney ATTORNEY FOR THE BOARD M. J. O'Mara, Associate Counsel INTRODUCTION The veteran had active service from July 1943 to December 1945. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which continued the 10 percent rating for residuals of shrapnel wound of the right arm (major). In an August 2005 decision, the Board denied the veteran's claim for a rating in excess of 10 percent for shrapnel wound of the right arm (major). The veteran filed a timely appeal to the United States Court of Appeals for Veterans Claims (Court). In December 2006, Counsel for the VA Secretary and the veteran filed a Joint Motion to Vacate the August 2005 Board decision and Remand the appeal to the Board. In an Order dated in January 2007, the Court granted this motion, vacating the August 2005 Board decision and remanding the matter to the Board for further proceedings consistent with the Order. In June 2007, the Board remanded the issue on appeal to the RO for action consistent with the December 2006 Joint Motion. The RO completed all requested actions and returned the appeal to the Board. FINDING OF FACT The veteran, without demonstrating good cause, did not report for a VA examination scheduled in February 2008, in conjunction with his claim on appeal; a comprehensive medical examination is necessary to determine entitlement to an increased rating for the veteran's residuals of a shrapnel wound of the right arm (major). CONCLUSION OF LAW Inasmuch as the veteran failed to appear for a scheduled examination, the criteria for a rating in excess of 10 percent for residuals of a shrapnel wound of the right arm (major) have not been met. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.655, 4.73, Diagnostic Code 5307 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist Under the Veterans Claims Assistance Act (VCAA) Pub. L. No. 106-475, 114 Stat. 2096 (2000), now codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002), the Board is required to address the duty to notify and duty to assist imposed by 38 U.S.C.A. §§ 5103, 5103(A) and 38 C.F.R. § 3.159. VA has a duty to notify a claimant and his representative, if any, of the information and evidence needed to substantiate a claim. This notification obligation was accomplished by way of an RO letter dated in July 2007, after the initial adjudication of the veteran's claim. This letter effectively satisfied the notification requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing the veteran about the information and evidence not of record that was necessary to substantiate the claim for an increased rating; (2) informing the veteran about the information and evidence VA would seek to provide; (3) informing the veteran about the information and evidence he was expected to provide; and (4) requesting the veteran provide any evidence in his possession that pertains to his claim. The letter also advised the veteran of how VA assigns disability ratings and effective dates and complies with the holding of Dingess v. Nicholson, 19 Vet. App. 473 (2006). Although the veteran received VCAA notice after the original adjudication of his claim, he is not shown to be prejudiced by the timing of VCAA-compliant notice, as the RO readjudicated his claim in a February 2008 supplemental statement of the case (SSOC). See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case (SOC) or SSOC, is sufficient to cure a timing defect). In Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), the Court found that, at a minimum, adequate notice under the law requires that VA notify the claimant that, to substantiate a claim for an increased rating: (1) the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. The July 2007 VCAA letter does not contain the level of specificity set forth in Vazquez-Flores. However, such procedural defect does not constitute prejudicial error in this case because (1) given the procedural history of the appeal with its attendant notice, a reasonable person would have been expected to be aware of what evidence would have substantiated the claim, and (2) the record suggests actual knowledge on the part of the veteran of what was needed to substantiate the claim. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The record includes statements from the veteran in a May 2003 statement, August 2003 notice of disagreement (NOD), April 2004 substantive appeal, September 2007 statement, and during the July 2003 VA examination, in which a description was made as to the effect of the service-connected disability on his daily life. These statements indicate an awareness on the part of the veteran that information about such effects, with specific examples, is necessary to substantiate a claim for a higher evaluation. Significantly, the Court in Vazquez-Flores held that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim." Vazquez-Flores, 22 Vet. App. at 48; see Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007). In addition, the July 2007 letter informed the veteran that a disability rating would be based in part on the impact of the veteran's condition and his symptoms on employment. Further, the letter stated that evidence that would be used to establish a disability rating included VA treatment records, Social Security determinations, statements from employers regarding job performance and lost time, and lay statements from others that have witnessed his condition. Hence, the showing of actual knowledge and notification to the veteran satisfies the first and fourth requirements of Vazquez-Flores. Finally, the July 2003 rating decision includes a discussion of the rating criteria used in the present case, and this criteria was set forth in further detail in the April 2004 SOC. The veteran was accordingly made well aware of the requirements for an increased rating pursuant to the applicable diagnostic criteria, and such action thus satisfies the second and third notification requirements of Vazquez-Flores. Second, VA has a duty to assist a veteran in obtaining evidence necessary to substantiate a claim. The service medical records, VA outpatient treatment records, and a report of VA examination are associated with the claims file. The veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide his claim. As such, all relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained and the case is ready for appellate review. Merits of the Claim The veteran contends that his residuals of a shrapnel wound of the right arm (major) are more severe than the current evaluation reflects. Having carefully considered the claim in light of the record and the applicable law, the Board is of the opinion that the veteran's claim must be denied as the evidence of record is inadequate to rate the veteran's claim. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2007). Separate diagnostic codes identify the various disabilities. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2007). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2007). The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). However, where the question involves one for an increased rating, the current level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Although the present level of disability is of primary concern to the Board's evaluation of the claim, service medical records show that the veteran sustained a shrapnel wound of the right arm, entry medial, exit lateral, mild, in July 1944 in Normandy, France. The wound was described as a perforating through and through wound of the right upper arm. The veteran complained of weakness of the right arm apparently one week prior to his injury. He had inconsistent type of anesthesia to touch and pinprick beginning about three inches above the elbow. The impression was hysteria or malingering. X-rays of the right arm after injury showed foreign bodies 2 mm by 2 mm, 8 inches above the elbow joint in the soft tissue. There was no evidence of fracture. The veteran was to be transferred as a slightly wounded case. Two days later, the medical records show that he was not transferred but treated with massage and physiotherapy. Upon separation examination in December 1945, the examination report indicated that the veteran sustained a shrapnel wound, right arm, in combat, June 1944, no sequelae. After service, the veteran underwent VA examination in January 1948. It was shown that he had an arm condition that had its onset in service. The medical history showed that there had been no medical treatment or hospitalization since service discharge. X-ray examination of the right humerus showed pin-head sized foreign bodies in the middle third of the humerus in the outer aspect. The examiner indicated that he did not believe these were large enough to be of clinical significance and the bony structures appeared to be intact throughout. Physical examination showed a small scar about the circumference of a dime on the medial lateral aspect of his right arm at a level of the upper part of the medial third (point of entrance). The scar was not adherent, tender, and had no keloid formation or retraction. About 2 inches below that scar on the posterior part of the arm was another scar the size of a navy bean that was not tender, was freely movable, not adherent, and had no keloid formation. On the lateral part of the arm, corresponding in line to the shrapnel, on moderate palpation, the tissue rather deep in the arm felt granular and was moderately tender. The granular feeling of the tissue was over a circumference of about 1/2 inch. This, according to the examiner, was due to slight muscle injury in the area, from the shrapnel. The diagnosis was shrapnel wound of the right arm. In connection with the instant claim, the veteran underwent VA examination in July 2003. The veteran was described as right handed. The injury was described as a through and through type of shrapnel wound. He had always had somewhat of a weak grip since that time but it had not been functionally significant in recent years. The examiner indicated that the veteran said that his arm did not hurt him, although when the veteran laid on it, it "bothered" him. Clinical examination revealed that the veteran had full range of motion of the elbow, shoulder and wrist. He had a tremor bilaterally, associated with old age. Examination of the strength of the right elbow revealed good strength against resistance and extension and flexion. The examiner specifically noted that the veteran had full pronation and supination of the elbow. The examiner could not see a through and through scar from the lower arm wound. The veteran had good grip strength, bilaterally. He had no weakness of any of the fingers and could oppose his thumb to all of his fingers and had no flexion deformities or abnormal angulation of the fingers. He also had full range of motion of the wrist. The examiner also indicated that the veteran did not have any functional disability either subjectively or objectively. It was also noted by the examiner that the veteran could do any activity he wished with his right arm but could not with his left arm. In the June 2006 Joint Motion to Vacate the August 2005 Board decision that denied the veteran's claim, the parties argued that the July 2003 VA examination report was not adequate in compliance with 38 U.S.C.A. § 5103A(d). The parties stated that the veteran's original injury was sustained in his upper right arm, whereas the VA examiner reported that the veteran's injury was to the lower right arm and the examiner noted that he could not see the through and through scar of the lower arm wound. The parties argued that based on this discrepancy, it was apparent that the examiner had not reviewed the veteran's claims file. Therefore, the parties stated that the veteran's claim should be remanded for a new VA examination, wherein the examiner reviewed the veteran's complete claims file prior to conducting the examination. In a June 2007 remand, the Board remanded the claim on appeal to the RO to afford the veteran a new VA examination. In January 2008, the RO notified the veteran that he would be scheduled for a new VA examination and that if he failed to report to the examination without good cause, his claim might be denied. The RO scheduled the veteran for a VA examination; however, the record indicates that the veteran failed to report to the examination. Under the applicable criteria, when entitlement or continued entitlement to a VA benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, action shall be taken in accordance with paragraph (b) of 38 C.F.R. § 3.655 (2007) as appropriate. 38 C.F.R. § 3.655(a) (2007). 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) (2007). As the veteran failed to report to his February 2008 VA examination, and the claim is one for an increased rating, the veteran's claim must be denied. 38 C.F.R. § 3.655(b). The January 2008 notification letter to the veteran that he was to be scheduled for a VA examination was not noted to have been returned as undeliverable. Therefore, the law presumes the veteran received the notice, in the absence of clear evidence to the contrary. See Leonard v. Brown, 10 Vet. App. 315, 316 (1997); YT v. Brown, 9 Vet. App. 195, 199 (1996); Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992). It is therefore presumed that the letter was received by the veteran at his last and most recent address of record. Regarding the veteran's most recent address of record, the claims file includes statements from the veteran wherein he has cited his address as being located on [remanded] (February 2003 claim), [remanded] (May 2003 statement and August 2003 NOD), and [remanded] (September 2007 statement). Therefore, the veteran has not been clear as to the correct spelling of his address. The record indicates that the RO has used the spelling of the veteran's address as shown in his May 2003 statement and August 2003 NOD to send all notification letters. As these letters have not been returned as undeliverable, the presumption of regularity attaches and the veteran is presumed to have received the letters. See YT, 9 Vet. App. at 199. Further, in the February 2008 SSOC, the RO informed the veteran and his attorney that his claim continued to be denied because he failed to report to his VA examination. In her March 2008 response to the February 2008 SSOC, the veteran's attorney did not argue that the veteran had not received notice of the February 2008 VA examination. In contrast, she stated that the veteran's case had been stated completely and requested review from the Board "immediately." The veteran failed to report for the February 2008 VA examination and the information expected from this examination was needed to determine the current severity and manifestations of the veteran's residuals of a shrapnel wound of the right arm (major); however, an examination showing current severity of the disability has not been conducted. Moreover, the veteran has argued that the July 2003 VA examination is not adequate for rating purposes. Therefore, that examination cannot be used to rate the veteran's disability. In Olson v. Principi, 3 Vet. App. 480 (1992), the Court held that the veteran must be prepared to meet his obligations by cooperating with VA's efforts to provide an adequate medical examination and submitting to the Secretary all medical evidence supporting his claim. In this case, the veteran has not cooperated with VA's efforts to obtain medical evidence necessary to evaluate the severity and manifestations of the right arm disability at issue on appeal. Given the veteran's unexplained lack of cooperation, the Board is left with no alternative but to deny the claim pursuant to 38 C.F.R. § 3.655 (2007). When the law is dispositive, the Board has no alternative but to deny the appeal. Sabonis v. Brown, 6 Vet. App. 426 (1994). In light of the discussion above, the Board is satisfied that the veteran's due process rights were not violated. The veteran may, however, reopen his claim for an increased rating for his residuals of a shrapnel wound of the right arm (major) at any time in the future should he become willing to appear for a VA examination. ORDER Entitlement to a rating in excess of 10 percent for residuals of a shrapnel wound of the right arm (major) is denied. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs