Citation Nr: 1308917 Decision Date: 03/15/13 Archive Date: 03/25/13 DOCKET NO. 08-10 127 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for coronary artery disease. 3. Entitlement to service connection for hypertension. 4. Entitlement to a rating higher than 10 percent for residuals of a lumbosacral strain with mild degenerative changes. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from February 1982 to June 1991, and from January 2003 to August 2004. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in March 2007 of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2008, the Veteran appeared at a hearing before a Decision Review Officer. A transcript of the hearing is in the record. In March 2011, the Veteran did not appear at a hearing before the Board. Without good cause shown for the failure to appear, the request for the hearing is deemed withdrawn. 38 C.F.R. § 20.704(d). In an August 2011 decision, the Board, in pertinent part, reopened the claims of service connection for left knee, coronary artery disease, and hypertension and remanded those claims, along with the claim for increase for the lumbosacral strain. for additional development. FINDINGS OF FACT 1. The Veteran failed to report for scheduled VA examinations in September 2011 and offered no good cause for his failure to report. 2. The lumbosacral strain is manifested by subjective pain and forward flexion of the thoracolumbar spine to 90 degrees; there is no evidence of guarding, abnormal gait, abnormal spinal contour, or incapacitating episodes of at least two weeks duration that required bed rest prescribed by a physician in the past 12 months. CONCLUSIONS OF LAW 1. The claims of service connection for left knee disability, coronary artery disease, and hypertension are denied as a matter of law. 38 C.F.R. § 3.655 (2012). 2. The criteria for an evaluation greater than 10 percent for lumbosacral strain with mild degenerative changes have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5237, 5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. October 2006, August 2011, February 2012, and April 2012 letters satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The October 2006 letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). VA examinations were conducted in February 2007 and January 2009; the Veteran has not argued, and the record does not reflect, that these examinations were inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). In September 2011, the Veteran was scheduled for VA examinations with respect to his service connection claims, for which he failed to report. The Veteran has not responded or explained in any way the reason for his failure to report to the examinations. He has likewise not returned releases requested in order to obtain private treatment records believed to be pertinent to his claims. The duty to assist a claimant is not a one-way street, and in this case the Veteran has failed to cooperate to the full extent in the development of his claim. Olsen v. Principi, 3 Vet. App. 480 (1992); Wood v. Derwinski, 1 Vet. App. 406 (1991). There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Service Connection When a claimant fails to report for a scheduled medical examination without good cause, in a reopened claim for a benefit which was previously disallowed, the claim shall be denied. 38 C.F.R. § 3.655. In addition, when requested information is not furnished within one year claims are considered abandoned. 38 C.F.R. § 3.158. The United States Court of Veterans Affairs (Court) 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). In August 2011, after reopening the claims of service connection for left knee disability, coronary artery disease, and hypertension, the Board remanded the claims to the RO for further development that included affording the Veteran VA examinations in conjunction with the reopened claims and asked theVeteran to submit or to authorize VA to obtain private medical records pertaining to treatment of his left knee disability, coronary artery disease, and hypertension. There has been substantial compliance with this remand as the RO sent the Veteran multiple letters requesting his action on the private medical records, and he was scheduled for VA examinations in September 2011. However, he did not respond to the requests for action and did not appear for the examinations. He has provided no rationale showing good cause explaining why he failed to report for the examinations. The address used by the RO is one provided by the Veteran in correspondence dated in February 2010. This is the Veteran's most current address of record. There is no indication in the record that the mail was not received. See Ashley v. Derwinski, 2 Vet. App. 62 (1992) (regarding the presumption of regularity that public officers have properly discharged their official duties in absence of clear evidence to the contrary); Mindenhall v. Brown, 7 Vet. App. 271 (1994) (regarding the applicability of the presumption of regularity to RO actions). The notice letter regarding the scheduled VA examinations is not of record, but the report from the VA medical facility notes that the Veteran failed to report for the scheduled examinations. An August 2011 letter to the Veteran informed him of the possible consequences of failing to report for a scheduled examination. The November 2012 SSOC informed the Veteran of his failure to report and there being no showing in the record of good cause for his failure to report. There is no record in the claims folder of a response from the Veteran. Additionally, in April 2012, VA sent the Veteran a letter at an APO address found by way of an internet person search. The Veteran was informed that previous notices for examination had been sent to his address of record, and that he should inform VA of his current address and current service status. No response was received from the Veteran, and this letter was not returned as undelivered. In short, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. The Board finds that additional efforts to schedule an examination would be futile. In the absence of clear evidence to the contrary, the law presumes the regularity of the administrative process. Notification for VA purposes is a written notice sent to the claimant's last address of record. See 38 C.F.R. § 3.1(q). Given the presumption of regularity of the mailing of VA examination scheduling notice and the fact that the Veteran has not contacted the RO with a reason for his failure to report, the Board finds that the Veteran failed to report to the scheduled September 2011 VA examinations without good cause. 38 C.F.R. § 3.655. Therefore, in accordance with 38 C.F.R. § 3.655, the reopened claims of service connection for left knee disability, coronary artery disease, and hypertension must be denied as a matter of law. Increased Rating In August 2006, the Veteran filed a claim for increase for service-connected lumbosacral strain with degenerative changes. In the March 2007 rating decision on appeal, the RO increased the rating for the lumbosacral strain to 10 percent, effective August 2006, the date the Veteran filed his claim. The Veteran expressed disagreement with the 10 percent rating. In October 2008, the RO issued a supplemental statement of the case referring to a 20 percent rating. In a rating decision in October 2010, the disability rating was still rated 10 percent. In August 2011, the Board remanded the issue for clarification of the current rating. In a November 2012 SSOC, the current rating was listed as 10 percent. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss due to pain, supported by adequate pathology and evidenced by the visible behavior of the Veteran undertaking the motion is a factor. Weakness is also an important. 38 C.F.R. § 4.40. When evaluating the joints, factors to consider include less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance in rating diseases or injuries of the spine. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Under DC 5243, intervertebral disc syndrome is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes a 10 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months; a 20 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months; a 40 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 60 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. As per Note (1) of the DC, for purposes of evaluations under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. On VA examination in February 2007, the Veteran complained of constant low back pain, radiating to the lower extremities. He had no reports of flare-ups and no complaints of numbness, weakness, or bowel or bladder incontinence. He reported having lost six or seven days from work in the last year due to back pain. The Veteran reported eight incapacitating episodes, each lasting for one day, in the past 12 months. On examination, there was positive tenderness over the sacrum, and muscle spasm in the paraspinous muscles. The Veteran had a normal gait. Range of motion showed flexion from zero to 90 degrees,with pain at 90 degrees; extension from zero to five degrees with pain at five degrees; right lateral rotation from zero to 10 degrees, with pain at 10 degrees; left lateral rotation from zero to 20 degrees, with pain at 20 degrees; and right and left lateral flexion from zero to 20 degrees, with pain at 20 degrees. He had 1+ reflexes at knees and ankle. The straight leg raising test was negative to 90 degrees in the sitting position bilaterally. Motor strength was 5/5 in all muscle groups in both lower extremities. Sensation was intact to sharp/dull in all dermatomes of both lower extremities. There were no flare-ups, and no additional limitations following repetitive use. There was no effect of incoordination, fatigue, weakness, or lack of endurance on his spinal function. The diagnosis was myofascial-type back pain. On VA examination in January 2009, the Veteran reported constant lower back pain. He estimated having missed three weeks in the last year from work as a cable splicer due to back problems. He had no reports of flare-ups, and no complaints of numbness, weakness, or bowel or bladder incontinence. The Veteran reported eight incapacitating episodes, each lasting for one or two days, following epidural injections. On examination, there was tenderness over the lower lumbar paraspinous musculature. There was no muscle spasm, but there was increased tonicity of the paraspinous muscles. The Veteran had a normal gait. Range of motion showed flexion from zero to 90 degrees, without pain; extension from zero to 15 degrees, with pain; right and left lateral rotation from zero to 30 degrees, with less pain on the left than the right; and right and left lateral flexion from zero to 30 degrees, with pain throughout. Reflexes were 2+ in the knees and 1+ in the ankles. The straight leg raising test was negative to 90 degrees in the sitting position with low back pain only. Motor strength was 5/5 in all muscle groups in both lower extremities. Sensation was intact to sharp/dull in all dermatomes of both lower extremities. There were no flare-ups, and no additional limitations following repetitive use, other than increased pain without further loss of motion. There was no effect of incoordination, fatigue, weakness, or lack of endurance on his spinal function. The diagnosis was lumbosacral strain with mild degenerative changes producing a myofascial-type back syndrome. Given the evidence of record, the Board finds the preponderance of the evidence is against a rating in excess of 10 percent for the service-connected lumbosacral strain under DC 5237. Muscle spasm was shown on the February 2007 examination, but not on the January 2009 examination. Neither of the VA examinations noted any guarding, abnormal gait, or abnormal spinal contour. Both examinations noted flexion to 90 degrees, with pain shown at 90 degrees on the February 2007 examination and no pain shown with flexion on the January 2009 examination. Thus, forward flexion has not been shown to be greater than 30 degrees but not greater than 60 degrees. The combined range of motion of his thoracolumbar spine was 165 degrees on the February 2007 VA examination, and greater than 200 degrees on the January 2009 examination. Although the Veteran complains of pain, the Board finds that the effects of pain reasonably shown to be due to the Veteran's service-connected lumbosacral spine disorder are, however, already contemplated by the 10 percent rating for his lumbar spine disability. 38 C.F.R. §§ 4.40, 4.59; DeLuca, supra. Both VA examiners found that there was no additional loss of motion after repetitive testing. While the RO has assigned the current 10 percent rating based on the Veteran's own report of incapacitating episodes, there is no evidence of record demonstrating the Veteran had any incapacitating episodes of at least two weeks duration that required bed rest prescribed by a physician in the past 12 months due to his lumbosacral spine disability; therefore, the Veteran does not warrant a 20 percent disability evaluation under DC 5243. Extraschedular Consideration Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for such a rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular rating is, therefore, adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Comparing the Veteran's current disability level and symptomatology to the Rating Schedule, the degree of disability is encompassed by the Rating Schedule and the assigned schedule ratings are adequate and no referral to an extraschedular rating is required under 38 C.F.R. § 3.321(b)(1). Total Disability Rating for Compensation based on Individual Unemployability The Veteran has not expressly raised and the record does not reasonably raise the claim for a total disability rating for compensation based on individual unemployability. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for a total disability rating based on individual unemployability, whether expressly raised by the veteran or reasonably raised by the record, is not a separate claim for benefits). ORDER Service connection for a left knee disability is denied. Service connection for coronary artery disease is denied. Service connection for hypertension is denied. A rating higher than 10 percent for residuals of a lumbosacral strain with degenerative changes is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs