Citation Nr: 18144028 Decision Date: 10/23/18 Archive Date: 10/22/18 DOCKET NO. 10-31 268 DATE: October 23, 2018 ORDER Entitlement to an initial compensable rating for limited extension of the right knee is denied. Entitlement to a rating in excess of 10 percent for right knee chondromalacia is denied. Entitlement to a rating in excess of 10 percent for left knee chondromalacia is denied. Entitlement to a rating in excess of 10 percent for right shoulder bursitis with osteoarthritis prior to July 24, 2015, and in excess of 20 percent thereafter, is denied. Entitlement to a rating in excess of 20 percent for left shoulder bursitis with osteoarthritis is denied. FINDINGS OF FACT 1. After being afforded appropriate notice of examination, the Veteran failed to report for his October 2017 VA examination scheduled by VA in conjunction with his increased rating claims for limited extension of the right knee, right knee chondromalacia, left knee chondromalacia, right shoulder bursitis with osteoarthritis, and left shoulder bursitis with osteoarthritis. 2. The Veteran’s right knee is manifested by arthritis established by x-ray resulting in limitation of extension to no more than five degrees. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for limited extension of the right knee have not been met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5261 (2017). 2. The claim for entitlement to a rating in excess of 10 percent for right knee chondromalacia is denied as a matter of law based on the Veteran’s failure to report for a VA examination. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.655(b) (2017). 3. The claim for entitlement to a rating in excess of 10 percent for left knee chondromalacia is denied as a matter of law based on the Veteran’s failure to report for a VA examination. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.655(b) (2017). 4. The claim for entitlement to an initial compensable rating for a rating in excess of 10 percent for right shoulder bursitis with osteoarthritis prior to July 24, 2015, and in excess of 20 percent thereafter, is denied as a matter of law based on the Veteran’s failure to report for a VA examination. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.655(b) (2017). 5. The claim for entitlement to a rating in excess of 20 percent for left shoulder bursitis with osteoarthritis is denied as a matter of law based on the Veteran’s failure to report for a VA examination. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.655(b) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1958 to June 1969. This matter is on appeal from a September 2009 rating decision. Failure to Report for VA Examination At the outset, the Board notes that in November 2015, the Board issued a decision that, in pertinent part, denied entitlement to an initial compensable rating for limited extension of the right knee; entitlement to a rating in excess of 10 percent for right knee chondromalacia; entitlement to a rating in excess of 10 percent for left knee chondromalacia; entitlement to a rating in excess of 10 percent for right shoulder bursitis with osteoarthritis prior to July 24, 2015, and in excess of 20 percent thereafter; and entitlement to a rating in excess of 20 percent for left shoulder bursitis with osteoarthritis. The Veteran subsequently appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In November 2016, counsel for the Veteran and the VA Secretary (the parties) filed a Joint Motion for Remand (JMR), wherein they argued that the Board relied erroneously upon incomplete objective medical findings expressed in VA examinations conducted in May 2009 and July 2015. The parties petitioned that the Court vacate the November 2015 Board decision and remand the issues remaining on appeal to the Board so that a new medical opinion concerning the Veteran’s knees and shoulders could be obtained. The Court granted the parties’ motion. In June 2017, the Board remanded the issues of entitlement to an initial compensable rating for limited extension of the right knee; entitlement to a rating in excess of 10 percent for right knee chondromalacia; entitlement to a rating in excess of 10 percent for left knee chondromalacia; entitlement to a rating in excess of 10 percent for right shoulder bursitis with osteoarthritis prior to July 24, 2015, and in excess of 20 percent thereafter; and entitlement to a rating in excess of 20 percent for left shoulder bursitis with osteoarthritis for the Veteran to be afforded VA examinations to address the deficiencies noted in the November 2016 JMR. In July 2017, a letter was sent to the Veteran’s Tennessee address with notice that he was being scheduled for a VA examination. The letter provided information related to the requirement of attendance at the examination and the consequences of failure to attend without good cause. The July 2017 letter was not returned as undeliverable; however, in August 2017, VA received a returned copy of the June 2017 remand order. In August 2017, the RO performed a CLEAR search and obtained a new address for the Veteran in California. The information in the CLEAR report indicated that the Veteran had moved to this California address effective March 10, 2017. In August 2017, the RO sent another letter to the Veteran’s updated California address, which included a copy of the June 2017 Board remand order, and a request for assistance with the provision and/or identification of additional pertinent evidence of treatment for his claimed disabilities. The August 2017 letter was not returned as undeliverable, and the Veteran did not respond to the request. In September 2017, the RO provided a VA examination request based on the California zip code provided in the CLEAR report. The examination was scheduled through VETFED on October 17, 2017. The Veteran failed to report for his examination, and the examination was thus canceled. Although a copy of the examination notice is not contained in the Veteran’s file, the Board notes that absence of copies of the VAMC examination scheduling letters in the claims file does not preclude application of the presumption that the Veteran received proper notice. See Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004). In Kyhn v. Shinseki, 24 Vet. App. 228, 237 (2011), the Court indicated that the presumption of regularity applied to notice of VA examinations. However, that decision was vacated on other grounds in Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013). There has been no subsequent precedential opinion on this question. VA enjoys a “presumption of regularity” that “supports official acts of public officers” and “allows courts to presume that what appears regular is regular.” Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001); see Miley v. Principi, 366 F.3d 1343, 1347 (Fed.Cir.2004); Wise v. Shinseki, 26 Vet. App. 517, 525 (2014). The presumption of regularity extends to VA’s ministerial acts of mailing decisional and notice documents to claimants. See, e.g., Clarke v. Nicholson, 21 Vet. App. 130, 133 (2007) (applying the presumption of regularity to the RO’s mailing of a rating decision); Crain v. Principi, 17 Vet. App. 182, 186 (2003) (RO’s mailing of a Statement of the Case); Schoolman v. West, 12 Vet. App. 307, 310 (1999) (RO’s mailing of an application for dependency and indemnity compensation (DIC)); Davis v. Brown, 7 Vet. App. 298, 300 (1994) (Board’s mailing of a copy of its decision). For the following reasons, that presumption has not been rebutted in this case. The October 2017 examination report reflects that the Veteran failed to report; no reason was given. A July 2018 SSOC informed the Veteran that he failed to report for the scheduled examination, and he has not responded to the SSOC. Additionally, in the October 2018 brief to the Board, the Veteran’s representative did not provide any reasons for the Veteran’s failure to report to his scheduled examination. There has been no allegation of nonreceipt of the notice, and even such assertion of nonreceipt alone does not constitute clear evidence to rebut the presumption of regularity. See Miley v. Principi, 15 Vet. App. 97 (2001). Given the presumption of regularity of the mailing of the VA examination scheduling notice and the fact that the Veteran has not provided a reason for his failure to report, the Board is satisfied that the Veteran received notice of the examination and failed to report to the scheduled VA examination without good cause. As will be discussed in further detail below, when a Veteran fails to report for an examination, the claim shall be decided in accordance with 38 C.F.R. § 3.655(b) or (c) (2017). Increased Rating A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. 38 C.F.R. § 4.40. Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Id.; see also 38 C.F.R. § 4.59 (discussing facial expressions such as wincing, muscle spasm, crepitation, etc.). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. Although the first sentence of 38 C.F.R. § 4.59 refers only to arthritis, the regulation applies to joint conditions other than arthritis. Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011). In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of “the normal working movements of the body,” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). The final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). The plain language of § 4.59 indicates that the regulation is not limited to the evaluation of musculoskeletal disabilities under diagnostic codes predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016). The Court held that § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the diagnostic code under which the disability is being evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. at 354. Entitlement to an initial compensable rating for limited extension of the right knee The Veteran’s limited extension of the right knee is rated as noncompensable, pursuant to 38 C.F.R. § 4.71a, DC 5261. The Veteran contends that his right knee limitation of extension warrants an initial compensable evaluation. Under DC 5261, extension of the leg limited to 10 degrees warrants a 10 percent rating. Extension limited to 15 degrees warrants a 20 percent rating. When extension is limited to 20 degrees, a 30 percent rating is assigned. Where extension is limited to 30 degrees, a 40 percent rating is assigned. Where extension is limited to 45 degrees, a 50 percent rating is assigned. Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. The Veteran was afforded two VA examinations to assess the severity of his right knee disability. A May 2009 VA examiner documented right knee extension to 5 degrees. A June 2015 VA examiner documented right knee extension to 0 degrees. The June 2015 examiner noted pain and lack of endurance during flare-ups, but identified no additional loss of function. The examiner also stated that the examination was consistent with the Veteran’s description of functional loss during flare-ups. As noted above, the Veteran failed to report to his scheduled October 2017 VA examination without good cause. VA treatment notes reflect that the Veteran has received treatment for his right knee during the appeal period. However, the findings do not reflect symptoms of greater severity than those reported at the VA examinations. The Veteran failed to report to his scheduled October 2017 VA examination, which would have evaluated the current severity of his service-connected right knee disability and corrected any deficiencies in the prior examination reports. Since he did not report to that examination, his initial increased rating claim must be based on the evidence of record. See 38 C.F.R. § 3.655(a)-(b) (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). Considering the evidence of record, which includes the May 2009 and June 2015 VA examination reports, the Board finds that the Veteran’s right knee disability not show a compensable level of limitation of extension under DC 5261. Consequently, the Board determines that an initial compensable rating for limitation of extension in the right knee is not supported by the evidence of record. Right Knee Chondromalacia, Left Knee Chondromalacia, Right Shoulder Bursitis, Left Shoulder Bursitis The Veteran is seeking increased ratings for his service-connected right knee chondromalacia, left knee chondromalacia, right shoulder bursitis, and left shoulder bursitis. He filed his claims for increased ratings in March 2009. As noted above, the Veteran failed to report for his October 2017 VA examination without good cause. Under 38 C.F.R. § 3.655(b), when a claimant fails to report for a scheduled medical examination, without good cause, a claim for an increase shall be denied. Accordingly, as he failed to appear for an examination scheduled in conjunction with claims for increase, the claims for increased ratings for the right knee chondromalacia, left knee chondromalacia, right shoulder bursitis with osteoarthritis, and left shoulder bursitis with osteoarthritis must be denied. See 38 C.F.R. § 3.655(b). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs