Citation Nr: 1308422	
Decision Date: 03/12/13    Archive Date: 03/20/13

DOCKET NO.  02-02 330	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California



THE ISSUES

1.  Entitlement to a compensable evaluation for limitation of extension of the right knee.

2.  Entitlement to a total disability rating based on individual unemployability (TDIU).



WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

K. Osegueda, Associate Counsel
INTRODUCTION

The Veteran served on active duty from August 1990 to August 1994.

This matter initially came before the Board of Veterans' Appeals (Board) from a May 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.  In that decision, the RO, among other things, denied entitlement to an evaluation in excess of 10 percent for chondromalacia patella of the right knee.  

The Veteran was afforded a hearing in September 2005 before the undersigned Veterans Law Judge.  The transcript of the hearing is of record.

In August 2011, the Board denied entitlement to an evaluation in excess of 10 percent for chondromalacia patella of the right knee.  Additionally, the Board remanded the claims of entitlement to a separate compensable evaluation for limitation of extension of the right knee, based on the Veteran's complaints that he had decreased extension in his right knee, and entitlement to a TDIU, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009).  

In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim.  A review of the documents in such file reveals additional VA treatment records relevant to the issues on appeal.



FINDINGS OF FACT

The Veteran failed, without good cause, to report for scheduled VA examinations in conjunction with his claims for increase or other original claim.




CONCLUSIONS OF LAW

1.  A separate compensable evaluation for limitation of extension of the right knee is denied on the basis of failure to report for a VA medical examination.  38 C.F.R. § 3.655(a), (b) (2012); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

2.  Entitlement to a TDIU is denied on the basis of failure to report for a VA medical examination.  38 C.F.R. § 3.655(a), (b) (2012); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) provides that VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

In Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006), the Court held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.

The record reflects that the originating agency provided the Veteran with the notice required under VCAA by letters dated in July 2003, May 2004, March 2006, June 2006, and October 2011.  

Moreover, in a hearing before the undersigned, the issue of entitlement to an increased evaluation for the right knee on appeal was clarified and potentially relevant additional evidence that the Veteran may submit in support of his claim was identified.  These actions by the undersigned supplement VA's compliance with the VCAA and serve to satisfy the obligations imposed by 38 C.F.R. § 3.103.

Based on the foregoing, adequate notice was provided to the appellant prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). 

VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012).  In connection with the current appeal, available service treatment records, VA treatment records, and private treatment records have been obtained.  

The Board further observes that these issues were remanded in August 2011 in order to provide the Veteran with adequate VCAA notice with respect to the claim for TDIU, to afford the Veteran a VA examination to determine the impact of his service-connected disabilities on his ability to secure and maintain substantially gainful employment, and to afford the Veteran a VA examination to determine the nature and extent of his right knee limitation of extension.  Thereafter, the Veteran was scheduled the requested examinations in June 2012 and July 2012.  

While the Veteran was afforded opportunities to report for VA examinations which have been offered pursuant to VA's duty to assist, his failure to attend the examinations has been well-documented in the record and he has not provided any reason for his absence.  38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012).  As the Court of Appeals for Veterans Claims has held, "[t]he duty to assist in the development and adjudication of a claim is not a one-way street."  Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996).  "If a [claimant] wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  See also Olson v. Principi, 3 Vet. App. 480, 483 (1992).  Given the RO's efforts in attempting to arrange for examinations, it would be unreasonable to place a burden upon VA to turn up heaven and earth in an attempt to secure further response from the claimant.  See Hyson v. Brown, 5 Vet. App. 262, 265 (1993).

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  In addition to the evidence discussed above, the Veteran's statements in support of the claim are also of record, including testimony provided at a September 2005 hearing before the undersigned.  The Board has carefully considered such statements and concludes that no available outstanding evidence has been identified.  Additionally, the Board has reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. 

For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).


Failure to Report for VA Examination

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012).  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2012).

When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied.  See 38 U.S.C.A. § 5107(a) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Under 38 C.F.R. § 3.655, when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record.  However, when the examination 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.  38 C.F.R. § 3.655(b) (2012).  VA regulations define an original claim as an initial application on a form prescribed by the Secretary.  38 C.F.R. § 3.160 (2012).

In this case, the claims on appeal are not the original claim for compensation as contemplated by the operative VA regulations.  38 C.F.R. § 3.160(b) (2012).  Rather, an original claim for compensation for the Veteran's service-connected chondromalacia patella of the right knee was received by VA in September 1994.  He submitted a claim for an increased rating of his right knee in November 1999.  The TDIU claim is considered to have been raised by the record as part of the increased rating claim and is, therefore, a component of the increased rating claim.  See Rice, 22 Vet. App. at 447.  

In a letter dated on June 18, 2012, the RO informed the Veteran that it had scheduled him for an examination in connection with his claims.  The letter also stated that the claims file would be returned to the RO without action if he failed to report to the examination.  The Veteran failed to report to the examination without good cause.

There is nothing in the claims file to suggest that the Veteran did not receive notification of the examination.  Moreover, he has not contended that he did not receive notification from VA.  Therefore, the Board finds no evidence that the Veteran did not receive notice of the examination and that the presumption of regularity of the administrative process has not been rebutted by clear and convincing evidence.  See Matthews v. Principi, 19 Vet. App. 23 (2005); Mindenhall v. Brown, 7 Vet. App. 271 (1994); Khyn v. Shinseki, 24 Vet. App. 228 (2011) (providing that the presumption of regularity applies to examinations). 

The Veteran was also notified of the provisions of 38 C.F.R. § 3.655 in a November 2012 Supplemental Statement of the Case (SSOC), and he was provided the opportunity to respond before the case was returned to the Board.  To date, he has not submitted any response.  Therefore, the Board also concludes that the Veteran has not shown good cause for his failure to report for the examination.  See 38 C.F.R. § 3.655.  A claimant is responsible for cooperating with VA in the development of his claim.  38 U.S.C.A. § 5107(a); Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000).

Lastly, the Board has considered all testimony present by the Veteran and finds such testimony to have been of inadequate detail and does not provide a basis on which to evaluate the claims.

As the Veteran failed to report for an examination scheduled for his claims of an increased rating for limitation of extension of the right knee and TDIU and he has not shown good cause for failing to appear, his claims must be denied.

The criteria for a denial based on application of 38 C.F.R. § 3.655 have been met regarding the claims for a separate compensable evaluation for limitation of extension of the Veteran's service-connected right knee and TDIU and the claims must be denied pursuant to the operative regulation.  38 C.F.R. § 3.655(b) (2012).


ORDER

Entitlement to a compensable evaluation for limitation of extension of the right knee is denied.

Entitlement to a TDIU is denied.




____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs