Citation Nr: 1318628 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 12-23 271 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an increased rating for bilateral knee degenerative changes, currently evaluated as 10 percent disabling. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for lung cancer. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral shoulder arthritis. 4. Entitlement to service connection for lung cancer. 5. Entitlement to service connection for bilateral shoulder arthritis. REPRESENTATION Appellant represented by: Jeffrey E. Marion, Attorney ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The Veteran had active duty service from November 1960 to October 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran's notice of disagreement was received in November 2010. A statement of the case was issued in June 2012, and a substantive appeal was received in July 2012. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The reopened claims for service connection for lung cancer and bilateral shoulder arthritis are addressed in the REMAND portion of the decision below and are REMANDED to the RO. VA will notify the appellant if further action is required. FINDINGS OF FACT 1. The Veteran failed to appear for a VA examination for his bilateral knee disability in June 2010 and again in August 2011. 2. In October 2011, the Veteran's representative provided information indicating that there was good cause for the failure to appear, and the VA examination was rescheduled for November 2011. 3. The Veteran failed to appear for the November 2011 VA examination and, to date, has not provided good cause. 4. In a March 2009 decision, the RO denied service connection for lung cancer; the Veteran did not appeal from the March 2009 decision. 5. Certain evidence received since the March 2009 decision is neither cumulative nor redundant of the evidence previously of record; and relates to an unestablished fact necessary to substantiate the claim of service connection for lung disability. 6. In a March 2009 decision, the RO denied service connection for bilateral shoulder arthritis; the Veteran did not appeal from the March 2009 decision. 7. Certain evidence received since the March 2009 decision is neither cumulative nor redundant of evidence previously of record; and relates to an unestablished fact necessary to substantiate the claim of service connection for bilateral shoulder arthritis. CONCLUSIONS OF LAW 1. Entitlement to a disability evaluation in excess of 10 percent for the Veteran's service-connected bilateral knee degenerative changes is denied on the basis of failure to report for a VA medical examination. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.655(b), 4.7, 4.71a, Diagnostic Codes 5256-5010 (2012). 2. The March 2009 rating decision which denied the Veteran's claim of entitlement to service connection for lung cancer is final. 38 U.S.C.A. § 7105 (West 2002). 3. New and material evidence has been received to reopen the claim of service connection for lung cancer. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 4. The March 2009 rating decision which denied the Veteran's claim of entitlement to service connection for bilateral shoulder arthritis is final. 38 U.S.C.A. § 7105 (West 2002). 5. New and material evidence has been received to reopen the claim of service connection for bilateral shoulder arthritis. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Duty to Notify Upon receipt of a complete application, 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. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Regarding the increased rating claim, the RO provided the appellant pre-adjudication notice by a letter dated in May 2010. The notification complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. 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). In light of the favorable decision as it relates to the issue of reopening the Veteran's claims for service connection lung cancer and bilateral shoulder arthritis, no further discussion of VCAA is necessary at this point. The matter of VCAA compliance with regard to the service connection issues will be addressed in a future merits decision on those issues after action is undertaken as directed in the remand section of this decision. Duty to Assist VA has obtained VA and private treatment records; reviewed Virtual VA records; assisted the Veteran in obtaining evidence; and scheduled the Veteran for VA examinations in August 2011 and November 2011, but the Veteran failed to appear. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran and his representative have not contended otherwise. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Increased Rating The present appeal involves the Veteran's claim that the severity of his service-connected bilateral knee disability warrants a higher disability rating. At the outset the Board notes that when a claimant fails to report for an examination scheduled in conjunction with an increased rating claim, the claim shall be denied. 38 C.F.R. § 3.655(b). Here, the Veteran failed to appear for a June 2010 examination and an August 2011 VA examination for his bilateral knee disability. However, in October 2011, the Veteran's representative provided information showing that there had been good cause for this failure by informing the RO that the Veteran did not receive notice of the examination. As a result, the VA examination was rescheduled for November 2011. Despite the representative's January 2012, February 2012 and May 2012 letters asserting that the Veteran did appear for the November 2011 VA examination, a VA compensation and pension exam inquiry shows otherwise. To date, no good cause has been provided for the Veteran's failure to appear at the November 2011 VA examination. As the law and not the evidence is dispositive, the increased rating claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). New and Material Evidence The request to reopen the Veteran's claims of service connection for lung cancer and bilateral shoulder arthritis involve underlying claims of service connection. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from a disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. § 1101; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). By rating decision in August 2010, the RO reopened the Veteran's service connection claims. Although the RO may have determined that new and material evidence was received to reopen the claims of service connection for lung cancer and bilateral shoulder arthritis, the Board is not bound by that determination and must nevertheless consider whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The claims of service connection for lung cancer and bilateral shoulder arthritis were denied by rating decision in March 2009. The Veteran was informed of the decision in March 2009, but did not file a notice of disagreement within one year from the date of the notification. Thus, the Board finds that the March 2009 rating decision became final. See 38 U.S.C.A. § 7105(c). The evidence of record at the time of the March 2009 rating decision included service treatment records, military personnel records, and a February 1981 VA examination. The RO denied the claims of service connection for lung cancer and bilateral shoulder arthritis because there was no medical evidence of such disorders in service, no current diagnosis and no post-service evidence showing that they existed within the one-year presumptive period following service. Evidence submitted since the March 2009 rating decision includes a November 2011 VA treatment record found in the Veteran's Virtual VA file showing a past medical history of lung lobectomy due to cancer; and June 2010 and July 2010 private treatment records from Neil Thomas, M.D. showing shoulder degenerative joint disease (DJD). The Board finds that this evidence relates to an unestablished fact necessary to substantiate the Veteran's claims for service connection for lung cancer disability and bilateral shoulder arthritis as they pertain to whether the Veteran has current disabilities, and is neither cumulative nor redundant. See generally Shade v. Shinseki, 24 Vet. App. 110 (2010). Accordingly, as new and material evidence has been received, the Board finds that the claims of entitlement to service connection for lung cancer and bilateral shoulder arthritis are reopened. ORDER Entitlement to an increased rating for bilateral knees degenerative changes, currently evaluated as 10 percent disabling, is denied. New and material evidence has been received to reopen a claim of entitlement to service connection for lung cancer. New and material evidence has been received to reopen a claim of entitlement to service connection for bilateral shoulder arthritis. REMAND The reopened issues of entitlement to service connection for lung cancer and bilateral shoulder arthritis (on a merits analysis) are now before the Board. For the sake of clarity, the Board notes that the Veteran has previously established service connection for degenerative changes of both knees, a back strain with degenerative changes of the thoracic and lumbar spine, and status post thoracotomy and left partial lobectomy of the lung for pulmonary tuberculosis. His current claim for service connection for lung cancer is based on an allegation that he developed lung cancer due to asbestos exposure aboard ships. Regarding the Veteran's service connection claim for lung cancer, there appears to be outstanding treatment records. A November 2011 VA treatment record found in Virtual VA shows that the Veteran's granddaughter reported that he was treated for shortness of breath and chest pain at Sharp Memorial Hospital. Records from this medical facility are not of record. Regarding the Veteran's claim for bilateral shoulder arthritis, the Board notes that the Veteran is competent to testify as to his symptoms. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Service treatment records show that in a January 1980 report of medical history, the Veteran confirmed a past/current history of painful/trick shoulder/elbow. As noted above, post service treatment records show diagnosis of DJD. With the Veteran's in-service reports of symptoms of shoulder disability and post-service treatment records showing a current disability, a VA examination is warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Appropriate action should be taken to obtain treatment records from Sharp Memorial Hospital. 2. The Veteran should also be afforded an appropriate VA examination to determine the nature, extent and etiology of any current bilateral shoulder arthritis. It is imperative that the claims file be made available to the examiner for review in connection with the examination. Any medically indicated special tests should be accomplished. After reviewing the claims file (including the January 1980 report of medical history showing complaints of shoulder and/or elbow pain) and examining the Veteran, the examiner should respond to the following: Is it at least as likely as not (a 50% or higher degree of probability) that the current bilateral shoulder arthritis is causally related to service? A rationale should be provided. 3. After completion of the above and any additional development which the RO may deem necessary, the RO should then review the expanded record and readjudicate the issues (on a merits analysis) of entitlement to service connection for lung cancer and bilateral shoulder arthritis. The RO should issue an appropriate supplemental statement of the case, and give the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs