Citation Nr: 1341233 Decision Date: 12/13/13 Archive Date: 12/20/13 DOCKET NO. 09-43 753 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for tinnitus, to include as secondary to asbestos exposure. 2. Entitlement to the restoration of a 10 percent evaluation for myositis ossificans, right ankle prior to December 15, 2005. 3. Entitlement to an increased disability rating in excess of 10 percent for service-connected myositis ossificans, right ankle from December 15, 2005. ATTORNEY FOR THE BOARD C. Eckart INTRODUCTION The Veteran served on active duty in the Marine Corps June 1980 to June 1984, and in the Army from July 1987 to November 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In April 1992, the RO granted service connection for a right ankle disability and awarded a 10 percent evaluation, effective November 13, 1991. The Veteran failed to report for a VA re-examination in April 1994. In a May 1994 letter, the RO proposed to terminate his benefits. The RO indicated that the Veteran needed to submit VA Form 21-4138 if he was ready to report for an examination. No response was received. Subsequently, in a July 1994 administrative decision, the RO terminated the Veteran's VA compensation benefits effective August 1, 1994. The Veteran did not file a disagreement. In a December 2005 VA Form 21-526, the Veteran filed a claim for his right ankle. The RO erroneously construed this as an increased rating claim and, in a July 2006 rating decision, continued the 10 percent evaluation, indicating that a 10 percent rating had been in effect from November 13, 1991, but failed to note that his benefits had been suspended. Subsequently, the RO in an October 2006 notice determined that service connected benefits for the right ankle were reinstated effective December 15, 2005, essentially re-established entitlement to the 10 percent rating effective that date. However the Veteran has not only appealed the RO's failure to restore a 10 percent rating prior to December 15, 2005, but has also appealed the RO's 10 percent rating in effect as of this date. The right ankle issue has been recharacterized into separate issues as noted on the title page to best address this matter in light of this procedural history and the Veteran's contentions. In July 2006, the RO also denied service connection for tinnitus and hypertension. The Veteran did not perfect his appeal for service connection for hypertension by submitting a substantive appeal. Accordingly, the Board does not have jurisdiction over this issue. The Veteran requested a Board hearing on these matters, and following remand by the Board in December 2012, received notice of the date and location of said hearing. The Veteran, however, failed to report for that hearing. Not having received a request for postponement, the Board considers the request for a hearing withdrawn. See 38 C.F.R. § 20.704(d). The Board again remanded this matter in April 2013 for additional development. Such has been completed and this matter is returned to the Board for additional consideration. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. To the extent that the Veteran is claiming entitlement to an effective date prior to December 15, 2005 for an increased rating claim rather than a restoration of a previously reduced rating, such has not been addressed by the RO and is referred to the RO for further consideration. The issues of entitlement to service connection for tinnitus and increased rating for right ankle are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. The Veteran failed without adequate reason to report for a VA examination scheduled on April 27, 1994 or within one year of the date of the order to report, and the payment of VA compensation benefits based upon a 10 percent evaluation for service-connected myositis ossificans of the right ankle were discontinued from August 1, 1994. He did not appeal the July 26, 1994 action effectuating this suspension. 2. The veteran's claim for the resumption of payment of VA compensation benefits discontinued in August 1, 1994 and entitlement to an increased rating for his service-connected myositis ossificans of the right ankle was received on December 15, 2005. 3. No evidence has been received that would suggest he is legally entitled to a resumption of a 10 percent rating for his right ankle disability prior to the December 15, 2005 date of claim. CONCLUSION OF LAW Legal entitlement to restoration of a 10 percent rating for myositis ossificans, right ankle from August 1, 1994 to December 15, 2005 is not shown. 38 U.S.C.A. §§5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.158, 3.159, 3.330, 3.655, 3.951 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. By a letter submitted in January 2006 prior to the July 2006 rating on appeal, the Veteran was notified of the evidence not of record that was necessary to substantiate his claim. He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain. He was also provided with the requisite notice with respect to the Dingess requirements in a July 2008 notice. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service and private treatment records have been obtained. The Board notes that the Veteran submitted evidence of private treatment from a Dr. A.F.at Mid Valley Family Practice which he initially indicated took place from July 1993 to the present in his December 2005 claim, but when he filled out the authorization to obtain such records later in March 2013, he indicated the treatment records took place between 2005 and the present. Such records have been obtained as well as other private records from Advanced Orthopedics from 2006 to the present. The Board further notes that the Veteran's December 2005 claim described treatment from a J. B. MD at Schofield Health Clinic at Schofield Barracks in Hawaii from February 1991 to November 2005. However the end date of treatment appears to be in error, as the evidence reveals that his treatment at Schofield Barracks took place during active duty and did not include treatment beyond active duty, as he relocated to Texas as of November 11, 1991 when he filed an initial claim for VA benefits, and has continued to live in Texas since then. Thus there is not shown to be a need to obtain medical records from this military facility beyond the active service dates. In regards to the duty to assist including providing a VA examination, given that this matter of entitlement to restoration of a 10 percent rating for a right ankle disability prior to December 15, 2005 is being denied as a matter of law, obtaining a VA examination to determine the current level of disability would not prove to be material to the outcome of this matter. As such, the necessity for a VA examination has not been triggered. In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled, and no further action is necessary under the mandates of the VCAA. Analysis The veteran advances that he is entitled to restoration/resumption of a 10 percent disability evaluation for his service-connected right ankle disorder based upon his contentions that the ankle has continued to have the same symptoms during the time period in which his benefits were suspended as he did when he was initially granted service connection for the disorder. By way of history, service connection for myositis ossificans, right ankle was granted by the RO in an April 1992 rating decision with a 10 percent initial rating assigned effective November 13, 1991 (one day after he was most recently discharged from active duty). This 10 percent rating remained in effect in a March 1993 rating decision after a VA examination was done the same month. Thereafter the Veteran received a letter on April 21, 1994 advising him that a VA examination was being scheduled to address the severity of his right ankle disorder, and that he would be notified at a later time of the date and location of this examination. While the actual notice showing the date, time and location of the examination is not of record, the Veteran himself has admitted receiving such notice in June 2007, when he described having advised the VA RO in Houston that he did not have the means to travel the 600 mile round trip to attend the VA examination in San Antonio, Texas, and subsequently his benefits were suspended. See NOD dated June 2007. Thus receipt of notice of the VA examination scheduled for April 1994 is conceded by the Veteran. In May 1994 the RO issued a rating noting that his right ankle disability was not static and pointed out that the Veteran had failed to report to a scheduled VA examination. It was determined that the evidence was inadequate to evaluate his disability and that his disability was not considered static. See 38 C.F.R. § 3.951. On May 18, 1994 the RO sent the Veteran a letter advising him that due to his failure to report for the VA examination scheduled for April 27, 1994, it was proposed that his benefits were to be terminated effective August 1, 1994. He was provided a VAF 21-4138 for the purpose of his submitting a compelling reason for his failure to report and also to indicate his willingness to report for an examination within 60 days. He was also advised that a request for a hearing within 30 days would toll any further action. This notice also enclosed notification of his appellate rights. Such notice was in accordance with VA criteria governing revision of decisions in effect at the time. See 38 C.F.R. § 3.105 (1994). No communications were received by the Veteran within 60 days and on July 26, 1994, he was notified of that his VA benefits were suspended effective August 1, 1994. Notice of his procedural rights were enclosed. He did not appeal this action of the RO which suspended his benefits. All notices of these actions were shown to be sent to his correct address of record. Thus this July 1994 action suspending his benefits is a final, unappealed decision, not presently before the Board. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013). Among the pertinent criteria in effect during the time of this suspension in 1994, regarding the resumption/restoration of disability compensation benefits suspended due to the veteran's failure to report for a scheduled VA examination after the veteran subsequently reports for examination is governed by the provisions of 38 C.F.R. § 3.655 (1994). 38 C.F.R. § 3.330 (1994). That regulation states, in pertinent part, that following suspension of disability compensation benefits for failure to report for a VA examination, the veteran's benefits shall not be further adjusted until an examination has been conducted and the report thereof has been reviewed. 38 C.F.R. § 3.655 (1994). Furthermore, pursuant to 38 C.F.R. § 3.158(b) (1994), where the veteran fails without adequate reason to respond to an order to report for Department of Veterans Affairs examination within 1 year from the date of request and payments have been discontinued, the claim for such benefits will be considered abandoned. Section (a) provides, in pertinent part, that should the right to benefits be established, payment shall commence not earlier than the date of filing of the new claim. In this matter, following the suspension of benefits in August 1994, the earliest communication from the Veteran to the RO was dated in December 15, 2005. This is the date in which his VA benefits, comprising of a 10 percent evaluation for his right ankle disorder were restored. Thus he is not shown to be legally entitled to restoration of a 10 percent rating prior to this date. See Sabonis v. Brown, 6 Vet. App. 426 (1994); Even assuming arguendo, that that the July 1994 rating suspending his benefits was deemed to be pending before the Board, the Board notes that there is not shown to be any evidence between the July 1994 rating and his claim of December 15, 2005 that would indicate that restoration of the 10 percent rating is warranted for his right ankle disorder. The only medical evidence that encompasses this time period is shown to be 61 pages of private treatment records from Mid Valley Family Practice, with treatment from 2003 to 2013. These include records from June 2003 to May 2005 that contain no reference to ankle problems whatsoever, although an April 2004 record did address foot complaints limited to fungus of the toenails. The remainder of the records fall outside the period prior to December 15, 2005, and thus are not pertinent to address whether restoration of a 10 percent rating is warranted. Additionally there are no lay statements from the Veteran or any other lay witness that were submitted between the time of the July 1994 action that suspended benefits effective August 1, 1994 and the reinstatement of such benefits at 10 percent disabling effective December 15, 2005. Thus there is no evidence between the time of the August 1, 1994 suspension of benefits and the December 15, 2005 reinstatement of benefits at 10 percent disabling, showing that the Veteran's service-connected right ankle disability resulted in moderate or marked motion loss, ankylosis, malunion of the os calcis or astralgus, or astragalectomy. Thus the criteria for compensable ratings under the pertinent Diagnostic Codes for ankle disability are not shown to be met during this time period 38 C.F.R. § 4.71a, Diagnostic Codes 5270, 5272, 5273, 5274 (in effect from 1994-2005). In view of the foregoing, entitlement to restoration of these benefits prior to December 15, 2005 is not warranted, as there is not shown to be any legal basis upon which to grant such restoration. ORDER Entitlement to the restoration of a 10 percent evaluation for myositis ossificans, right ankle prior to December 15, 2005 is denied. REMAND Unfortunately the Board finds that additional development is necessary regarding the issues of entitlement to service connection for tinnitus and for entitlement to a rating in excess of 10 percent disabling for the right ankle, currently in effect from December 15, 2005. The Veteran has contended that he did not receive notice for VA examinations scheduled at various times in 2009. Upon further review of the evidence in the electronic folder, the Board notes that due process violations regarding notice of scheduled VA examinations have taken place. VA examinations to address the right ankle and tinnitus disabilities are shown to have been scheduled for February 2009, April 2009 and June 2009, and were cancelled due to the Veteran's failure to appear, and due to notices of such examinations being returned as undeliverable. However the Frank M. Tejeda Clinic, the medical facility that held the responsibility of scheduling the examinations and notifying the Veteran of the dates and locations of the examinations is shown to have sent such notices in February 2009 and March 2009 to a street address that was no longer valid (Georgia Avenue). The correct address (Pedro Martinez Avenue) was in the VA's possession at the time these examinations were scheduled, and in fact the RO is noted to have sent notices to this correct address during this time period. The most recent VA examination was scheduled for June 2009, with a notice sent by the RO to the Veteran's correct address on May 19, 2009 advising him that the Frank M. Tejeda Clinic would be sending a future letter advising him of the date, time and location of the examination. Although a letter from the Frank M. Tejeda Clinic regarding this most recent VA examination is not of record, it is presumed to have again been sent to the wrong address based on the previous letters sent by this facility in 2009. Thus the presumption of regularity is rebutted regarding the notices scheduling the VA examinations in 2009, and the Board finds that in order to correct this due process violation, the Veteran should rescheduled for VA examinations to address the current severity of his right ankle disability and the etiology of his tinnitus, alleged to be either due to noise exposure in service or due to asbestos exposure (which is confirmed by the service treatment records). Accordingly, the case is REMANDED for the following action: 1 . The RO should request that the Veteran identify the names, addresses, and dates of treatment for all medical care providers, VA and non-VA, inpatient and outpatient, who may possess additional records showing treatment for his tinnitus since service and his right ankle disorder since 2013, and that are not already of record. The Veteran should provide all necessary written releases for these records. If any of the identified records cannot be obtained, the AOJ should notify the Veteran of such and describe the efforts used in requesting these records. 2. Following completion of the above, the RO should schedule the veteran for a VA ears disorders examination to determine the nature and likely etiology of his claimed tinnitus. The claims folder must be made available to the examiner prior to the examination, and the examiner should acknowledge such review of the pertinent evidence in the examination report. All indicated studies should be performed. All manifestations of current disability should be described in detail. The examiner should address the following: (a) Does the veteran have any current, chronic tinnitus disorder? If so, is it at least as likely as not that any current tinnitus disorder began in service, is due to exposure to noise conceded to have taken place in service, or is due to exposure to asbestos which the Veteran has also alleged as a possible cause? (b) In answering these questions, the examiner must consider all service medical records, which include evidence of exposure to noise and asbestos. The examiner must also consider any and all post-service medical records. The examiner must also consider any lay evidence which has been provided by the Veteran regarding his tinnitus complaints. Any opinion offered should include an explanation of supporting comprehensive rationale based on sound medical principles and facts. 3. The Veteran should be afforded a VA examination in connection with his claim for an increased evaluation of the right ankle myositis ossificans. The claims folder, and a copy of this remand, must be provided to and reviewed by the examiner prior to conducting the required examination. (Advise the Veteran that failure to appear for an examination as requested, and without good cause, could adversely affect his appeal. See 38 C.F.R. § 3.655 (2013).) All tests deemed necessary by the examiner must be undertaken. (a) The examiner should describe the nature and extent of all manifestations of the disability caused by or the result of his status-post right ankle myositis ossificans. The examiner should describe any functional loss, as well as objective evidence of painful motion, edema, instability, weakness, tenderness, etc. The examiner should describe gait, any callosities, breakdown, or unusual shoe wear pattern that would indicate abnormal weight bearing, and describe any skin or vascular changes that are due to the service-connected disability. (b) In evaluating the Veteran's right ankle disorder, ankle range-of-motion studies should also be conducted and functional losses due to problems such as pain should be equated to additional loss of motion (beyond what is shown clinically). If repetitive motion causes pain, this should be described in detail. The examiner should describe whether the disability of the right ankle more closely equates to ankylosis. If ankylosis is found to exist (or is approximated by functional losses), the examiner should determine the degree of plantar flexion and dorsiflexion that the ankylosis would be fixed at, and also determine whether there is abduction, adduction, inversion or eversion deformity accompanying such ankylosis. 4. Following completion of the above development, the RO should readjudicate the Veteran's claim. If the benefits sought on appeal remain denied, the Veteran should be provided a supplemental statement of the case, which reflects consideration of all additional evidence received and all applicable regulations. It must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and discussion of all pertinent regulations. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. No action by the veteran is required until he receives further notice; however, the veteran is advised that failure to cooperate by reporting for examination without good cause may result in the denial of the claim(s). 38 C.F.R. § 3.655 (2013). 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). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs