Citation Nr: 18152134 Decision Date: 11/21/18 Archive Date: 11/20/18 DOCKET NO. 14-06 248 DATE: November 21, 2018 ORDER A rating in excess of 10 percent for right knee disability is denied. A rating in excess of 10 percent for left knee disability is denied. FINDING OF FACT The appellant’s failed to report, without good cause, for a scheduled VA examination in conjunction with his claims for a rating in excess of 10 percent for service-connected right knee disability and a rating in excess of 10 percent for left knee disability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for right patellofemoral pain syndrome have not been met. 38 C.F.R. § 3.655. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 2. The criteria for a rating in excess of 10 percent for left patellofemoral pain syndrome have not been met. 38 C.F.R. § 3.655. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty from April 2003 to April 2007. He had service in Iraq, where his awards and decorations included the Combat Action Badge. This case was previously before the Board of Veterans’ Appeals (Board) in July 2015 and December 2017. Each time, it was remanded for further development. Following the requested development, VA confirmed and continued the 10 percent ratings for his right and left patellofemoral pain syndrome. Thereafter, the case was returned to the Board for further appellate action. The evidence of record consists of VA treatment records dated from September 2009 through April 2018 and the reports of VA examinations performed in January 2012, January 2014, and August 2015. On examination, the appellant’s bilateral knee disabilities are manifested primarily by tenderness to palpation, and crepitus. He is able to flex each knee to at least 120 degrees with objective evidence of right knee pain at 60 degrees and objective evidence of left knee pain at 100 degrees. Extension is full without objective evidence of pain, and his knee strength is full without evidence of muscle atrophy. During the January 2014 examination, it was noted that the appellant occasionally wore braces to assist him with ambulation. However, more recent records (e.g., the report of his August 2015 examination and VA outpatient treatment records, dated in July 2016 and March 2018) show that he does not use assistive devices. Indeed, his knees have been found to be stable in all planes, and there has been no evidence of deformity, heat, redness, or swelling. While his knees reportedly slow him down at work, there is no evidence of weakness, a lack of endurance, excess fatigability, or incoordination during repetitive testing or during flare-ups. A December 2017 Board decision concluded that the prior VA examination findings were inadequate in view of a decision of the Court of Appeals for Veterans Claims (Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016)). Therefore, the Board remanded the issues for a new VA examination to ascertain the severity of the disabilities to include joint testing for pain on both active and passive motion, in weight bearing and non-weight bearing. However, the record reflects that the Veteran failed to report for the VA examination scheduled pursuant to this remand without good cause. 1. Entitlement to a rating in excess of 10 percent for right knee disability. 2. Entitlement to a rating in excess of 10 percent for left knee disability. The appellant contends that he has daily knee pain, worse when negotiating ladders or stairs, and stiffness at the end of the day. He states that his symptoms impact his employment as a cable installer in commercial buildings, and that increased ratings are, therefore, warranted. The Board concludes that the claims are denied as a matter of law for failure to report for VA examination. 38 C.F.R. § 3.655. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Under 38 C.F.R. § 3.655(a), “individuals for whom an examination has been scheduled are required to report for the examination.” Turk v. Peake, 21 Vet. App. 565, 569 (2008). That regulatory provision provides, in pertinent part, that when entitlement or continued 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 in accordance with Paragraph (b) or (c) of that section, as appropriate. 38 C.F.R. § 3.655(a). When the examination was scheduled in conjunction with a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(b). Here, the matters on appeal are claims for increase involving each knee. VA scheduled the appellant for a VA examination in February 2018 to ascertain the severity of his service-connected knee disabilities. However, the appellant failed to report for that examination without explanation. A June 2018 Supplemental Statement of the Case notified the appellant that his claims for increase were denied because he failed to report for his scheduled examination. The appellant to date has not reported good cause for his failure to report for the scheduled examination. Accordingly, the claims are denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the claim must be terminated or denied as without legal merit). C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Harold A. Beach, Counsel