Citation Nr: 1331485 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 07-33 400 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for a right knee disability. 2. Entitlement to service connection for a left knee disorder, to include as secondary to the service-connected right knee disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The appellant had active service from January 21, 2003 to June 9, 2003. This appeal comes to the Board of Veterans' Appeals (Board) from a July 2007 rating decision. In his October 2007 and December 2007 VA Forms 9, the appellant submitted written requests for a Travel Board hearing. He was subsequently scheduled for a Travel Board to be held on March 5, 2010, at the Waco RO. However, in a February 2010 written statement, the appellant informed VA that he was unable to attend that hearing. He did not state why he was unable to appear at that hearing and he did not ask for a rescheduling of the hearing. Therefore, his request for a Board hearing is deemed withdrawn and the Board will continue with the appeal. See 38 C.F.R. § 20.704(d). The Board must note that in reviewing this case the Board has not only reviewed the appellant's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The claims file is void of any competent evidence linking a left knee disability to the appellant's service connected right knee disability. 2. The appellant failed to report to a VA examination scheduled in conjunction with his claim for service connection and with his claim for increased rating. CONCLUSIONS OF LAW 1. Criteria for service connection for a left knee disorder, to include as secondary to the service-connected right knee disability, have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.310, 3.655 (2013). 2. Criteria for a rating in excess of 10 percent for a right knee disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.655, 4.1, 4.2, 4.7, 4.71a, Diagnostic Code (DC) 5260 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. The evidence of record does not show a diagnosed chronic left knee disorder listed under 38 C.F.R. § 3.309(a), and therefore 38 C.F.R. § 3.303(b) does not apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In January 2007, the appellant filed a claim seeking service connection for a left knee disability as secondary to his right knee disability, but he provided no indication that he had ever actually been diagnosed with a chronic left knee disability, and he did not report receiving any medical treatment for his left knee. Service treatment records do not show any left knee impairment; and a VA examination in 2003 noted that the appellant had a normal gait without any limp. At a VA examination in July 2007, the appellant was again noted to walk with a non antalgic gait and he used no assistive devices, such as a cane or brace. In fact, no medical evidence of record has been introduced even showing that the appellant has ever been diagnosed with a current left knee disability, providing some evidence against this claim. Given that, as described, the appellant's claims file generally lacked evidence to support a grant service connection, the Board remanded his claim in September 2011 to obtain a medical opinion of record. In doing so, the Board acknowledged that the appellant was competent to describe his orthopedic symptoms, including left knee pain and limitation of motion, but concluded that he ultimately lacked the medical training or expertise to determine the etiology of such pain. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). That is, the appellant's statements alone were found to be insufficient to establish that service connection was warranted for his left knee or that he had such a disability. Unfortunately, while the appellant was scheduled for a VA examination, he failed to report to the scheduled examination and he has not provided any good cause for his absence. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim (such as his left knee claim), the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(b) Here, the Board acknowledged in September 2011 that there was no competent evidence to relate a left knee disability to the appellant's service connected right knee disability. The Board remanded the appellant's claim in an effort to obtain such evidence, but he failed to report to the scheduled examination. Without the opinion that was to be obtained, there is simply no competent evidence either of a diagnosed left knee disability, or relating a left knee disability to the appellant's service connected right knee disability. Therefore, evidence of record does not substantiate the criteria for service connection, and the appellant's claim is denied. The best evidence at this time simply fails to reveal even the existence of a left knee problem. II. Increased Rating Disability ratings are determined by applying a schedule of ratings that 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. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The appellant's right knee is currently rated at 10 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5260. In January 2007, he filed a claim seeking an increased rating for his right knee. In September 2011, the Board reviewed the appellant's claim and determined that an examination was necessary to properly evaluate the appellant's claim. The appellant was scheduled for a VA examination in October 2011, but he failed to report and neither he, nor his representative, provided any good cause for his absence. 38 C.F.R. § 3.655(b) provides that, when, as in this case, a claimant fails to report for an examination scheduled in conjunction with a claim for increase without good cause, the claim shall be denied. See also Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("the duty to assist is not always a one-way street," and a veteran has an obligation to assist in the development of his claim). Here, the appellant's claim was one for increase, and was not an appeal of an original claim. As such, the regulations are very clear that in such a situation the claim shall be denied. Accordingly, the appellant's claim for an increased rating for his right knee disability is denied. III. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and 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 the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in February 2007, which informed the appellant of all the elements required by the Pelegrini II Court as stated above. The letter also informed him how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records and VA treatment records have been obtained, and the appellant has not alleged receiving any private treatment. Additionally, the appellant was scheduled to testify at a hearing before the Board that he had requested, but he informed VA that he would not attend his hearing. He did not request that the hearing be rescheduled. The appellant's claim was specifically remanded by the Board in September 2011 to obtain a medical opinion and an examination. The appellant was apprised in the remand of the importance of reporting for the examination and was warned that failure to report could leave to the denial of his claim. Unfortunately, he failed to report; and neither he, nor his representative, has advanced any good cause for his absence. The Board recognizes that a notice letter regarding the scheduled VA examination is not of record. However, there is no indication in the record that 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). It is also found to be highly relevant that the August 2012 supplemental statement of the case, which was sent to the Veteran's address of record, specifically discussed his failure to report for the VA examination. If the appellant had not been informed of the examination, one would have expected him to voice disagreement upon receipt of the supplemental statement of the case, but there is no record in the claims folder of any response from the appellant. Additionally, the appellant's representative in a September 2013 brief even acknowledged that the appellant had indeed failed to report to his examination, but did not offer any good cause for his absence or suggest that he was not informed of the examination. As such, the evidence clearly shows that the appellant failed without good cause to report for his VA examination. The Veteran has clearly been given notice that his failure to go to the exam has this consequence, and he has not provided any reason for his failure to attend that would provide a reason for the Board to remand the case once again for another examination. There is no evidence that the appellant did not receive notice of the examination and 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); see also Kyhn v. Shinseki, 23 Vet. App. 335 (2010), affirmed by Kyhn v. Shinseki, 24 Vet. App. 228 (2011). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER An evaluation in excess of 10 percent for the right knee disability is denied. Service connection for a left knee disorder, to include as secondary to the service-connected right knee disability, is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs