Citation Nr: 1320892	
Decision Date: 06/28/13    Archive Date: 07/05/13

DOCKET NO. 10-02 340	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUES

Entitlement to an increased disability rating in excess of 10 percent for residuals of a chip fracture of the cuboid of the left foot. 


REPRESENTATION

Veteran represented by:	Mississippi Veterans Affairs Commission


ATTORNEY FOR THE BOARD

Saira Spicknall, Counsel



INTRODUCTION

The Veteran served on active duty from April 1977 to December 1977.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Jackson, Mississippi Department of Veterans Affairs (VA) Regional Office (RO), wherein the RO denied entitlement to a compensable rating for residuals of a chip fracture of the cuboid of the left foot. 

During the pendency of the appeal, by a December 2009 rating decision, the Veteran's residuals of a chip fracture of the cuboid of the left foot were increased to 10 percent, effective, April 18, 2008, the date of his claim for increase. Although this was a partial grant of the benefit sought on appeal, the Veteran has indicated continued disagreement with the rating assigned and he has not been granted the maximum benefit allowed; thus, the claim is still active. See AB v. Brown, 6 Vet. App. 35, 38 (1993).

A review of the Virtual VA paperless claims processing system reflects that additional records have been added to the present appeal. These records include VA medical records from September 2012 to January 2013. A supplemental statement of the case (SSOC) was issued in May 2013, which addressed this additional evidence.


FINDINGS OF FACT

1. The Veteran did not report for a VA examination scheduled on February 27, 2013 and has not provided any evidence or argument as to why he failed to report for the February 27, 2013 VA examination or whether he had good cause for failing to report for the examination. 

2. The Veteran was informed that his claim could be denied if he failed to report for a scheduled VA examination without good cause, and has been notified that his claim is being denied for failure to report for the examination without a showing of good cause.

3. The Veteran's residuals of a chip fracture of the cuboid of the left foot are productive of subjective complaints of pain, swelling, stiffness and problems with walking and stability and objective findings of pain, non intact ligaments of left foot around calcaneal cuboid ligament without instability, a normal range of motion, a slow but non antalgic gait, possible increased pain affecting mobility with flare up, and an old healed fracture of the metatarsal, X-ray evidence of small plantar spur and large fragment avulsion fracture of the left foot cuboid with malunion in 2008 and no X-ray evidence of abnormality in 2012; non-service connected foot disabilities also affecting the left foot function include pes planus, callus and corn formation and diabetic neuropathy. 


CONCLUSION OF LAW

The criteria for a disability rating in excess of 10 percent for residuals of a chip fracture of the cuboid of the left foot must be denied for failure to report for a scheduled VA examination. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.655, 4.71a, Diagnostic Codes 5003, 5283 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

In this decision, the Board will find that the Veteran has failed to report for a VA examination in connection with the currently appealed claim for an increased rating. The evidence shows that he was notified that failing to report for this examination could result in denial of his claim, and was after the fact notified that his failure to report for the examination without a showing of good cause required that his claim be denied. As the evidence is without contradiction in this regard, a denial of his claim for increase is required. See 38 C.F.R. § 3.655.

The Board will discuss the relevant law which it is required to apply. This includes statutes published in Title 38, United States Code ("38 U.S.C.A."); regulations published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). 

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts).

The Veterans Claims Assistance Act (VCAA)

Under the VCAA, VA must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (2012).

The United States Court of Appeals for Veterans Claims (Court) held in Pelegrini v. Principi, 18 Vet. App. 112 (2004) that to the extent possible the VCAA notice, as required by 38 U.S.C.A. § 5103(a) (West 2002), must be provided to a claimant before an initial unfavorable decision on a claim for VA benefits. Pelegrini, 18 Vet. App. at 119-20; see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

The Veteran was provided notice of the VCAA in April 2008. An additional letter was sent in March 2009. The VCAA letters indicated the types of information and evidence necessary to substantiate the claim, and the division of responsibility between the Veteran and VA for obtaining that evidence, including the information needed to obtain lay evidence and both private and VA medical treatment records. The Veteran also received notice in April 2008, pertaining to the downstream disability rating and effective date elements of his claim and an SOC was issued in December 2009 with subsequent readjudication in a May 2013 SSOC. Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also Mayfield and Pelegrini, both supra.

Service connection for residuals of a chip fracture of the cuboid of the left foot has been established and an initial rating for this condition has been assigned. The claim has therefore been substantiated. See Dingess v. Nicholson, 19 Vet. App. at 490-491. Notice under the VCAA is no longer required as to this matter, because the purpose for which such notice was intended to serve has been fulfilled. Id. 

Accordingly, the Board finds that no prejudice to the Veteran will result from the adjudication of his claim in this Board decision. All relevant evidence necessary for an equitable resolution of the issue on appeal has been identified and obtained, to the extent possible. The evidence of record includes private medical records, VA outpatient treatment reports, VA examinations, and statements from the Veteran and his representative. 

The September 2009 VA examination report reflects that the examiner reviewed the Veteran's medical history, documented his current medical condition, and rendered appropriate diagnoses and conclusions consistent with the remainder of the evidence of record, and with supporting rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Consequently, the medical examination is adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). 

The Veteran was scheduled for a VA examination on November 27, 2012 which he did not attend. In a November 2012 statement, the Veteran requested his VA examination be rescheduled as he was ill and could not make it. A new VA examination was scheduled in February 27, 2013 and the Veteran failed to report to the examination. To date, the Veteran has not provided any evidence or argument as to why he failed to report for the February 27, 2013 VA examination or whether he had good cause for failing to report for the examination. Thus, pursuant to VA laws and regulations, the claim for increase is to be denied. See 38 C.F.R. § 3.655. 

The duty to assist in the development and the adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996); Zarycki v. Brown, 6 Vet. App. 91, 100 (1993); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran's failure to attend a scheduled VA examination without any evidence or argument as to why he failed to report for the February 27, 2013 VA examination or whether he had good cause for failing to report for the examination constituted a failure to cooperate in the development and adjudication of his claim. His failure to attend the VA examination is the determinative factor in the denial of the claim for an increased rating currently on appeal. See 38 C.F.R. § 3.655(a)-(b). 

The Veteran has not indicated that he has any further evidence to submit to VA, or which VA must obtain. There is no indication that there exists any additional evidence that has a bearing on this case that has not been obtained. The Veteran has been accorded ample opportunity to present evidence and argument in support of his appeal. VA has obtained, or made reasonable efforts to obtain, all evidence that might be relevant to the issues on appeal, and that VA has satisfied the duty to assist. All pertinent due process requirements have been met. See 38 C.F.R. § 3.103 (2012).


The Merits of the Appeal

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. See 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.

In order to evaluate the level of disability and any changes in the disorder, it is necessary to consider the complete medical history of the Veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). When, as here, the Veteran is requesting an increased rating for an established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, the most recent examination is not necessarily and always controlling. VA must consider not only to the evidence as a whole but to both the recency and adequacy of examinations. See Powell v. West, 13 Vet. App. 31, 35 (1999).

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. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different "staged" ratings may be warranted for different time periods.

When evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2012); cf. Powell, 13 Vet. App. at 34; Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath, 1 Vet. App. at 592. Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.

The Veteran is currently assigned a 10 percent disability evaluation for residuals of a chip fracture of the cuboid of the left foot to 38 C.F.R. § 4.71a, Diagnostic Code 5283. Diagnostic Code 5283 provides ratings based on malunion or nonunion of tarsal or metatarsal bones. Moderate malunion or nonunion of tarsal or metatarsal bones is rated 10 percent disabling; moderately severe malunion or nonunion of tarsal or metatarsal bones is rated 20 percent disabling; and, severe malunion or nonunion of tarsal or metatarsal bones is rated 30 percent disabling. A Note to Diagnostic Code 5283 provides that malunion or non-union of tarsal or metatarsal bones with actual loss of use of the foot is rated 40 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5283 (2012).

Other foot injuries are rated 10 percent when moderate, 20 percent when moderately severe, and 30 percent when severe. 38 C.F.R. § 4.71a, Diagnostic Code 5284 (2012). A Note to Diagnostic Code 5284 provides that, with actual loss of use of the foot, a 40 percent rating is assigned. 38 C.F.R. § 4.71a, Diagnostic Codes 5167 and 5284 (2012).

Words such as "moderate," "moderately severe" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just."  38 C.F.R. 4.6 (2012). Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6.

The Veteran contends his residuals of a chip fracture of the cuboid of the left foot warrant a higher disability rating than the 10 percent currently assigned. He has reported this disability is productive of pain, swelling, stiffness and instability. 

The medical evidence of record includes private medical records and VA medical records from within a year of the Veteran's claim to January 2013 as well as VA examinations in May 2007, May 2008 and September 2009.  The medical evidence reflects objective findings of: pain; non intact ligaments of left foot around calcaneal cuboid ligament without instability; a normal range of motion; a slow but non antalgic gait; possible increased pain affecting mobility with flare up; an old healed fracture of the metatarsal; X-ray evidence of small plantar spur and large fragment avulsion fracture of the left foot cuboid with malunion per the May 2008 VA examination; and no X-ray evidence of abnormality in 2012 per a September 2012 VA outpatient X-ray report. These records also reflect the Veteran has several non-service connected foot disabilities which also affect the left foot functioning, including pes planus, callus and corn formation and diabetic neuropathy. Private and VA medical records also reflect the Veteran has ankle braces for both ankles and orthotics for both feet to help with stability and pain, however, the evidence does not indicate these were issued with respect to his service-connected residuals of a chip fracture of the cuboid of the left foot or his non-service connected disabilities. 

In a June 2012 notice letter, the Veteran was notified that it was his responsibility to report for the VA examination and to cooperate in the development of the claim. The Veteran was notified of that the consequences for failure to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. § 3.655. A VA examination of the left foot was scheduled for November 27, 2012. 

In a November 2012 letter, the Veteran requested that his VA examination of the feet be rescheduled as he was ill and could not make it to the examination. 

A VA examination of the left foot was rescheduled for February 27, 2013. Documentation associated with the claims file indicates that he Veteran failed to report for the VA examination scheduled by the VA Medical Center (VAMC) on February 27, 2013. The VAMC documentation in the claims file indicates that the request was initiated on February 6, 2013 and the address indicated in the examination request report is the Veteran's last known address provided to VA.

In a supplemental statement of the case dated in May 2013, the Veteran was advised that his failure to report for the VA examination without a showing of good cause for his failure to report had resulted in the denial of his claim. The Veteran has provided no evidence or information to indicate that he was not notified of the scheduled examination or that he had good cause for not reporting for the examination. The Board therefore finds that the presumption of regularity of the administrative process is not rebutted by clear and convincing evidence in this case. See Matthews v. Principi, 19 Vet. App. 23 (2005); Mindenhall v. Brown, 7 Vet. App. 271 (1994). The Board further concludes that good cause has not been shown for failure to report for the examination. See 38 C.F.R. § 3.655.

The provisions of 38 C.F.R. § 3.655 address the consequences of a veteran's failure to attend scheduled medical examinations. That regulation at section (a) provides that, when entitlement to a 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. At section (b) the regulation provides that 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; and, further, that when the examination is 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. (Emphases added.) 

As described above, the Veteran has failed to report for the February 27, 2013 VA examination in connection with the claim for increase on appeal, and has not provided good cause for failure to report for the examination. Accordingly, entitlement to an increased disability rating in excess of 10 percent for residuals of a chip fracture of the cuboid of the left foot is not warranted.

As the preponderance of the evidence is against the claim insofar as it is shown without contradiction that the Veteran did not report for the scheduled examination and did not provide good cause for failing to report for the examination, the benefit of the doubt doctrine is not for application in resolution of this appeal. See generally Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to an increased disability rating in excess of 10 percent for residuals of a chip fracture of the cuboid of the left foot is denied.



____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs