Citation Nr: 1335958 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 06-37 526 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for a bilateral knee disability. 2. Entitlement to an initial compensable rating for a low back disability. 3. Entitlement to a compensable rating for a left ankle/heel disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1980 to October 1984. These matters are before the Board of Veterans' Appeals (Board) on appeal from May 2004 and March 2005 rating decisions by the Cheyenne, Wyoming Department of Veterans Affairs (VA) Regional Office (RO). The May 2004 rating decision, in pertinent part, granted service connection for intermittent strain with degenerative changes of the lumbar spine (low back disability) and assigned a 0 percent rating, denied service connection for chronic disorder of the knees and continued a 0 percent rating for residuals of left fracture of the os calcis (left ankle/heel disability). In March 2005 the Veteran submitted additional medical evidence with respect to his knees, low back and left ankle/heel disabilities. In response, in March 2005, the RO issued a rating decision that confirmed and continued the denial of service connection for a bilateral knee disability, continued the 0 percent rating for the service-connected low back disability, and continued the 0 percent rating for a left ankle/heel disability. The Veteran's claims file has since been transferred to the jurisdiction of the Waco, Texas RO. In August 2010 the Board remanded these matters for additional development. The issue of entitlement to service connection for bilateral knee disability (on de novo review) is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. An unappealed November 1991 rating decision denied the Veteran's claim of service connection for chronic disorder of the knees based on a finding that no residual disability from an injury in service in 1982 was shown. 2. Evidence received since the November 1991 rating decision includes a private medical opinion which suggest that the Veteran's bilateral knee disability is related to injuries sustained in service in 1982; relates to an unestablished fact necessary to substantiate the claim of service connection for bilateral knee disability; and raises a reasonable possibility of substantiating such claim. 3. At no time during the appeal period is the Veteran's service-connected low back disability shown to have been manifested by forward flexion limited to 85 degrees or less, combined range of motion limited to 235 degrees or less, muscle spasm, guarding, or localized tenderness; vertebral fracture and neurological symptoms are not shown. 4. The Veteran failed to report for VA examinations scheduled in 2012 in connection with his claim for a compensable rating for his service-connected left ankle/heel disability (which is necessary to properly adjudicate the matter on appeal); good cause for his failure to appear has not been alleged, and is not shown. CONCLUSIONS OF LAW 1. New and material evidence has been received and the claim of service connection for bilateral knee disability may be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2013). 2. An initial compensable rating for a low back disability is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.31, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (Codes) 5003, 5010-5237 (2013). 3. The Veteran's claim seeking an increased compensable rating for left ankle/heel disability must be denied because he has failed (without good cause) to report for VA examinations scheduled to determine his entitlement to an increase. 38 C.F.R. §§ 3.326(a), 3.655 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to these claims. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Regarding whether new and material evidence has been received to reopen a claim of service connection for a bilateral knee disability, in Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (Court) held that in a claim to reopen a previously finally denied claim, VCAA notice must notify the claimant of the meaning of new and material evidence and of what evidence and information (1) is necessary to reopen the claim; (2) is necessary to substantiate each element of the underlying service connection claim; and (3) is specifically required to substantiate the element or elements needed for service connection that were found insufficient in the prior final denial on the merits. As the decision to reopen the claim of entitlement to service connection for a bilateral knee disability is favorable to the Veteran, no further action is required to comply with the VCAA on this matter. Regarding the claim for an initial compensable rating for a low back disability, the rating decision on appeal granted service connection and assigned a 0 percent disability rating and effective date for the award. As such, statutory notice had served its purpose, and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). A November 2006 statement of the case (SOC) provided notice on the "downstream" issue of entitlement to an increased rating. January 2007, July 2012 and April 2013 supplemental SOCs (SSOCs) readjudicated the matter after the Veteran and his representative responded and further development was completed. 38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). Regarding the claim for increase for a left ankle/heel disability, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In this instance VCAA notice for an increased rating notice was not provided to the Veteran before the initial unfavorable RO decision on the claim. The RO provided the Veteran with post-adjudication VCAA notice by letter, dated in August 2010. Any VCAA-mandated notice defect was cured because, after content-complying VCAA notice was provided, the claim was readjudicated in SSOCs in July 2012 and April 2013. It is not alleged that notice in this case was less than adequate. See Shinseki v. Sanders, 556 U.S. 396 (2009) (discussing the rule of prejudicial error). The Veteran's service treatment records (STRs) are associated with the claims file. In August 2010, this matter was remanded for the Veteran to be afforded a VA examination, and to obtain postservice private treatment records. A specific request for authorization to obtain the private treatment records was sent to the Veteran's last address of record in December 2010, but no response was received. The letter from the RO was not returned as undeliverable. A VA examination was scheduled in June 2012; the Veteran failed to report for the examination. At the time the notice of examination was sent the Veteran had two mailing addresses (in Wyoming) of record. The record shows that the RO sent the notice of examination to both addresses of record and only one was returned to the RO as "NOT DELIVERABLE AS ADDRESSED." The other was not returned. The RO rescheduled the Veteran to be examined by VA in October 2012, and resent the notice to his new address (in Texas), and he also failed to report for the October 2012 examination. The Veteran's representative requested that the Veteran be rescheduled for another examination and that the RO make every attempt to contact the Veteran by telephone or written correspondence. The RO made two unsuccessful attempts to reach the Veteran by telephone. On the first call the Rating Veterans Service Representative (RVSR) left a return telephone number with instruction for the Veteran to leave his current address. On the second call the RVSR left his or her phone number, but did not get a return call from the Veteran. The RVSR noted that an SSOC had been mailed to the Veteran at the TX address (last updated address of record) and it had not been returned. Under these circumstances VA has met its assistance obligations. See also Wood v. Derwinski, 1 Vet. App. 190 (1991) (While VA has a statutory duty to assist the Veteran in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street). As will also be discussed in greater detail below, the Veteran failed (without good cause) to report for examinations scheduled in connection with the claim pertaining to an increased rating for left ankle/heel disability. Legal Criteria, Factual Background, and Analysis Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file and in Virtual VA, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. New and Material Evidence Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a). When determining whether the claim should be reopened, the credibility of newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). The Court has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold. Specifically, the Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." See Shade v. Shinseki, 24 Vet. App. 110 (2010). A claim by the Veteran for entitlement to service connection for chronic disease or disorder of the knees was denied by the RO in November 1991; he was notified of the decision in December 1991. Evidence of record, at that time, failed to show any residual disability from lacerations of the right knee in January 1982. The Veteran did not appeal the November 1991 denial, or submit evidence that would be considered "new and material" within one year of the notification letter; therefore, the November 1991 rating decision is final. See 38 U.S.C.A. § 7105. Evidence of record at the time of the final November 1991 rating decision consisted of the Veteran's STRs (which includes a January 1982 emergency care treatment report showing the Veteran sustained a laceration to his right knee). In November 2003 the Veteran filed to reopen the claim of service connection for chronic disease or disorder of the knees. In the May 2004 rating decision currently on appeal, the RO did not consider whether new and material evidence had been submitted to reopen the Veteran's claim for service connection for a bilateral knee disability; rather, the RO classified that issue as basic entitlement to service connection, and denied the claim. However, in a March 2005 rating decision, the RO reopened the claim and addressed the issue on the merits (upon receiving additional evidence within one year of the May 2004 rating decision). Notwithstanding, the question of whether new and material evidence has been received to reopen such claim must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (reopening after a prior Board denial). If the Board finds that no such evidence has been offered, that is where the analysis must end; hence, what the RO may have determined in this regard is irrelevant. Id. at 1383. Evidence added to the record since the November 1991 final denial includes evidence that tends to show a relationship between the claimed bilateral knee disability and an injury in service. An October 2006 medical statement from the Veteran's private physician, Dr. Herber, notes that MRI [magnetic resonance imaging] of the knees show normal findings on the right, but a tear of the posterior horn of the medial meniscus of the left knee. He noted that while it is difficult to establish a definite causal effect, his opinion is that current symptoms, and findings on imaging studies are secondary to or are as likely as not, related to the Veteran's fall and injuries in service in 1982. This is new evidence (as it was not previously of record), and it is material as it pertains to an unestablished fact necessary to substantiate the claim of service connection for a bilateral knee disability; raises (under the Court's guidelines in Shade, 24 Vet. App. 110 ) a reasonable possibility of substantiating the claim; and is material. Accordingly, the claim may be reopened. De novo review of the matter is further addressed in the Remand below. Increased Rating In general, disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability. Separate diagnostic codes identify the various disabilities which are rated according to the specific criteria therein. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In every instance where the Schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation is to be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. After careful consideration of the evidence, any reasonable doubt remaining is to be resolved in favor of the Veteran. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. In a claim for an increased rating, "staged" ratings may be warranted if the claim involves the initial rating assigned with a grant of service connection (as in the instant matter for a compensable rating for a low back disability). See Fenderson v. West, 12 Vet. App. 119 (1999). When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or re-examination and a claimant, without good cause, fails to report for such examination, or reexamination, action shall be taken in accordance with paragraph (b) or (c) of this section as appropriate. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. 38 C.F.R. § 3.655(a). 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. 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 [emphasis added] be denied." 38 C.F.R. § 3.655(b). Low Back Disability A May 2004 rating decision granted service connection for intermittent strain with degenerative changes of the lumbar spine (low back disability) and assigned a 0 percent rating effective November 19, 2003. The Veteran essentially contends that the severity of his low back disability is such that it warrants a compensable rating. His low back disability has been assigned a 0 percent rating under Codes 5010 (traumatic arthritis) - 5237 (lumbosacral strain) and the General Rating Formula for Diseases and Injuries of the Spine (General Formula). 38 C.F.R. § 4.71a. Under Code 5010 arthritis due to trauma and substantiated by x-ray findings is to be rated as degenerative arthritis (Code 5003). Degenerative arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When the limitation of motion is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each major joint affected by limitation of motion, to be combined, not added under Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Under the General Formula a 10 percent rating is warranted when (1) forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; (2) the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; (3) there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or (4) there is vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted when (1) forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; (2) the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or (3) there is 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 rating is warranted when (1) forward flexion of the thoracolumbar spine is limited to 30 degrees or less, or (2) when there is favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. Unfavorable ankylosis of the entire spine warrants a 100 percent rating. There are several notes following the General Formula criteria, which provide: (1) Associated objective neurological abnormalities including, but not limited to, bowel or bladder impairment are to be rated separately under an appropriate diagnostic code. (2) For purposes of VA compensation, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateroflexion is 0 to 30 degrees, and left and right lateral rotation is 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateroflexion, and left and right rotation. The normal combined range of the thoracolumbar spine is to 240 degrees. (3) In exceptional cases, an examiner may state that, because of age, body habitus, neurological disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in the regulation. 38 C.F.R. § 4.71a. The criteria in the General Formula apply regardless of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. 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 may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. STRs show that in March 1982 the Veteran fell approximately 25 to 30 feet (radiographic report notes the fall was approximately 35 to 40 feet) from a telephone pole, and among other things, he sprained his mid back. X-rays of the thoracic and lumbar spine showed no acute bony lesion. In February 2004 written statements by the Veteran's former coworkers and a friend, it was noted that the Veteran had suffered from intermittent periods of extreme back pain since the accident in service when he fell from a power pole from 60 feet. It was noted that the Veteran usually complained of pain or discomfort involving his back. The pain was often so severe he would be unable to work; and extremely cold temperatures seemed to aggravate his symptoms. In a March 2004 written statement, the Veteran noted that while working as an exterior lineman at an Air Force base he fell 60 feet from a power pole and landed flatfooted. As a result of the fall he has experienced back pain. He stated that he believes that he damaged his spinal cord when he landed flatfooted from such a great height. On May 2004 VA examination, the Veteran reported having intermittent low back pain over the last 20 years. The pain occurs episodically with bending or twisting and can last up to 3 days. His treatment consist of taking Motrin and repositioning his back. He had not sought medical care for his back. Concerning his employment, he was employed by the federal government as an electrician. He stated that he would miss up to 3 days of work, if the back pain occurred during the work week. However, he had not missed work in the last eight months. He stated that he had limited his movement, including walking, and would rest his back when the pain was present. On physical examination he had a normal gait and station. He moved quickly and easily without distress and used no assistive devices. His lower back showed normal lumbar lordosis. There was no palpable spasm. There was negative straight leg raising. Range of motion testing revealed flexion to 91 degrees, extension to 38 degrees, right rotation was to 62 degrees, left rotation was to 55 degrees, right lateral flexion was to 29 degrees, and left lateral flexion was to 31 degrees. There was no pain with range of motion testing. Nor was there additional limitation after repetitive motion, or during flare-ups. X-rays showed mild degenerative change throughout the mid-lumbar spine. No acute abnormality was identified. The diagnosis was intermittent lumbar strain with x-ray evidence for mild degenerative change. A January 2005 private treatment reports from Dr. Torkelson revealed the Veteran was seen for multiple musculoskeletal complaints, which the Veteran reported may be related to the 1982 injury in service. He complained of having severe low back pain that last 2 to 3 days, during which he would take Motrin with good relief and the symptoms would resolve. He occasionally had numbness in both lower extremities. He did not have any "true" radiating pain or neurologic symptoms of nerve root compression. He had never been in a physical therapy program. On examination of the lumbosacral spine, there was no deformity, swelling, or visible or palpable muscle spasm. Range of motion was normal. Straight leg raising was negative to 90 degrees. Neurological examination of the lower extremities was normal, with normal strength, sensation and reflexes. X-rays of the lumbosacral spine showed a small anterior osteophyte on L3. Disc spaces were well maintained. No significant facet arthritis was detected. The impression was intermittent low back pain without evidence of fracture. In an October 2006 statement, the Veteran's private physician, Dr. Herber noted that an MRI [magnetic resonance imaging] scan of the lumbar spine shows degenerative disc disease with disc bulging. The Board reiterates that the Veteran was scheduled for VA examinations in June and October 2012 for which he failed to report, without giving cause. When a claimant fails (without good cause) to report for a VA examination scheduled in conjunction with an original compensation claim (such as here), the claim shall [emphasis added] be rated based on the evidence of record. 38 C.F.R. § 3.655(b). While the Veteran has reported intermittent low back pain, at no time is there evidence of thoracolumbar spine forward flexion limited to 85 degrees, combined range of motion limited to 235 degrees; muscle spasm, guarding, or localized tenderness (not resulting in abnormal gait or abnormal spine contour); or vertebral body fracture with loss of 50 percent or more of the height. In this regard, it should be noted that on range of motion testing in May 2004 forward flexion of the Veteran's back was to 91 degrees and the combined range of thoracolumbar spine motion was 306 degrees; there was no additional limitations after repetitive motion. The reported symptoms and associated impairment of function of the low back (decreased movement and walking) throughout the evaluation period do not fall within the parameters of the criteria for a compensable (10 percent) rating. The Veteran's service-connected low back disability does not meet (or approximate) the criteria for a compensable (10 percent) rating under the General Formula, therefore a compensable rating under the General Formula criteria is clearly not warranted throughout the appeals period. As the low back disability is noncompensable under the General Rating Formula, a rating of 10 percent may be assigned if there is satisfactory evidence of limitation of motion "objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion." 38 C.F.R. § 4.71a, Diagnostic Code 5003. Although the Veteran had subjective complaints of pain, painful motion during testing of range of motion was not evident on VA examination in 2004 or elsewhere in the record. The examiner also found no additional limitations to range of motion after repetitive testing or during flare-ups. Likewise, the 2004 VA examiner specifically noted "no palpable spasm," and the record does not otherwise reflect objective findings of muscle spasm or other such symptoms. For these reasons, a compensable rating under Diagnostic Code 5003 is not warranted. Neurological manifestations of a low back disability are to be separately rated (under the appropriate Code) and such rating is to then be combined with the rating under the General Formula, discussed above. However, on January 2005 neurological examination the Veteran's lower extremities were normal, with normal strength, sensation and reflexes. It was noted that he occasionally had numbness in both lower extremities, but he did not have any true radiating pain or neurologic symptoms of nerve root compression. Therefore, a separate compensable rating for neurological manifestations of the low back is not warranted. The record does not reflect any distinct period of time when the symptoms of the Veteran's low back disability exceeded those encompassed by the noncompensable rating assigned, and therefore a "staged" increased rating is not warranted. The preponderance of the evidence is against this claim; therefore, the appeal in this matter must be denied. The Board has considered whether referral for extraschedular consideration is indicated. The evidentiary record does not show any manifestations of, or functional impairment due to, the Veteran's low back disability not encompassed by the noncompensable rating assigned (as the requirements for a compensable rating are not met). Therefore, referral for extraschedular consideration is not warranted. See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008). Finally, according to the evidence of record, the Veteran has been employed as an electrician for the federal government throughout the appeal period. Hence, the matter of entitlement to a total disability rating based on individual unemployability is not raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Left Ankle/Heel Disability In its August 2010 remand, the Board directed that the Veteran be afforded a VA examination to determine the current severity his service-connected left ankle/heel disability. A June 2012 letter from the Cheyenne VA Medical Center (VAMC) was sent to the Veteran at both Wyoming addresses of record at that time. Only one of the letters was returned as undeliverable. The Veteran failed to report for the examination. The Board notes that under such circumstances it may be presumed the Veteran received adequate notice. See Kyhn v. Shinseki, 24 Vet. App. 335, 339 (2010) (holding that, under the presumption of regularity, it is presumed that the Veteran received notice of the examination.). Moreover, the VA examination was rescheduled for October 2012. The notice of the examination was sent to the Veteran at his Texas address, which was the last address of record at that time, and he did not report for that examination. Again, it may be presumed that the Veteran received notice of the examination. See Id. The Veteran's representative requested that the Veteran be rescheduled for another examination and that the RO make every attempt to contact the Veteran by telephone or written correspondence. A June 2013 deferred rating decision shows that a RVSR telephoned the Veteran twice and had not received a response. The RVSR noted that an SSOC was mailed to the Veteran and had not been returned. The record establishes the Veteran failed to report for two VA examinations scheduled in connection with his claim for increase. While it appeared that there was some issue regarding the Veteran's current mailing address (in June 2012), the record shows that the VAMC forwarded notice of the June 2012 examination to both addresses of record and only one was returned undeliverable. The Court has held that in the absence of clear evidence to the contrary, the law presumes the regularity of the administrative process. See YT v. Brown, 9 Vet. App. 195, 199 (1996); see also Mindenhall v. Brown, 7 Vet. App. 271 (1994) (citing Ashley v. Derwinski, 2 Vet. App. 62 (1992)). The Board expressly finds that the appellant has not demonstrated good cause for failing to appear for the necessary medical examinations. The regulation governing in such circumstances, 38 C.F.R. § 3.655(b), is clear and unequivocal; it mandates that the claim must be denied. Accordingly, the Board has no discretion in the matter; the law is dispositive. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER The appeal to reopen a claim of service connection for bilateral knee disability is granted An initial compensable rating for a low back disability is denied. A compensable rating for a left ankle/heel disability is denied. REMAND Regarding service connection for bilateral knee disability on de novo review, the Board finds that while the notice provisions of the VCAA appear to be satisfied further development of the record is necessary to comply with VA's duty to assist the Veteran in the development of facts pertinent to his claim. See 38 C.F.R. § 3.159. The Veteran's claim was previously denied in essence because there was no residual right knee disability shown after he sustained a laceration to the right knee in January 1982. It was also found on May 2004 VA examination that it was less likely than not that a bilateral knee disability was the result of the Veteran's falling from a telephone pole in service. However, new and material evidence received and associated with the claims file suggests that the Veteran may have bilateral knee disability/pathology that is responsible for his complaints of knee pain and which may be related to an injury in service. Although he has no definitive diagnosis of a right knee disability aside from pain/paresthesia and numbness/tingling, MRI revealed a tear of the posterior horn of the medial meniscus of the left knee, and he has reported a history of bilateral knee discomfort. As the evidence of record suggests that the Veteran may have a bilateral knee disability related to an injury in service, the "low threshold" standard as to when an examination to secure a nexus opinion is required is met, and development for such an examination is necessary. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In an October 2006 statement, Dr. Herber noted that the Veteran has had examination, counseling and diagnostic imaging done in his office. Records of such evaluation and treatment by Dr. Herber are not associated with the Veteran's claims file. Notably, in its August 2010 remand, the Board instructed the RO to provide the Veteran with a release to obtain records of treatment (including regarding the knees) from M.C.H., M.D. (Dr. Herber). In an August 2010 letter the Veteran was asked (generically) to send any medical reports from doctors and hospitals concerning any treatment received. A VA Form 21-4142 (Authorization and Consent to Release Information) was attached for the Veteran to complete if he wanted VA to obtain the records for him. In a December 2010 letter to the Veteran the RO requested that he complete and return an Authorization and Consent to Release Information form so they could obtain treatment information from Dr. Herber. There was no response from the Veteran as to either letter. VA is only obligated to obtain records that are adequately identified and for which necessary releases have been submitted. See 38 C.F.R. § 3.159(c)(1). The duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). However, as the August and December 2010 letters were sent to an address in Cheyenne, Wyoming (the address of record at those times) and the record reflects that the Veteran had relocated to San Angelo, Texas and may not have received the letters; and since this matter is already being remanded for additional development on other grounds, the Board finds that efforts should be made to obtain those private medical records. The Veteran is advised that ultimately it is his responsibility to ensure that such records are received. Accordingly, the case is REMANDED for the following action: 1. After securing the necessary authorization(s) from the Veteran, the RO should obtain copies of his complete clinical record of any treatment and/or evaluation from Dr. Herber, Cheyenne Family Medicine. The RO should also ask the Veteran to identify the sources of any further treatment he has received for his bilateral knee disability, and with his assistance secure complete clinical records of treatment from the identified sources. The RO should review all additional records received, and arrange for any further development suggested by the information therein. If such provider(s) does not respond to the RO's request for records, the Veteran should be so notified. 2. After the development sought above is completed the RO should arrange for an orthopedic examination of the Veteran to determine the nature and likely etiology of a bilateral knee disability. The examiner must review the Veteran's claims file in conjunction with the examination. Following examination of the Veteran, and review of his pertinent medical history the examiner should provide an opinion that responds to the following: a. Please identify (by medical diagnosis) each knee disability found. b. As to each diagnosed knee disability entity, please indicate whether it is at least as likely as not (a 50% or greater probability) that such is related to the Veteran's active service (to include the right knee laceration and when he fell from a telephone pole while in service)? The examiner is asked to explain the rationale for all opinions, with citation to supporting clinical data and/or medical texts or treatises as deemed appropriate. 3. The RO should then re-adjudicate the claim de novo. If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford 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 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). ______________________________________________ M. C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs