Citation Nr: 1806682 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 07-13 629A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to an increased rating greater than 10 percent for degenerative joint disease, residual of ACL tear and reconstructive surgery with history of instability, left knee. REPRESENTATION Appellant represented by: John S. Berry, Attorney at Law ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran had active service from November 1982 to November 2002. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The Board remanded the issue in May 2014. In a March 2016 determination, the Board denied the claim. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court) and in a June 2017 Memorandum Decision the Court vacated the March 2016 Board decision and remanded the matter to the Board. This appeal was processed using the Veteran's Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. Accordingly, any future consideration of the case should take into consideration the existence of these electronic records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND By way of background (and as discussed in the Court's Memorandum Decision), in June 2006, the Veteran requested an increased disability rating for his left knee condition, asserting that he was entitled to separate disability ratings for instability and limitation of motion of the left knee. In March 2007, the Veteran underwent a VA orthopedic examination and in May 2007 the RO issued a rating decision that continued the Veteran's 10 percent disability rating. In August 2007, the Veteran filed a Notice of Disagreement (NOD) with the May 2007 rating decision. Five years later, in October 2012, the Veteran submitted a statement indicating, in relevant part, "I would like VA to reopen my claim for my left knee. My knee condition has gotten worse. It hurts more than ever and it frequently 'goes out' when attempting to do any physical activity." In April 2013, the RO notified the Veteran that he had been scheduled for a VA examination in May 2013. The Veteran failed to report to the examination and in July 2013 the RO issued a rating decision that continued the 10 percent disability rating. In May 2014, the Board addressed whether a timely appeal had been perfected as to the initial rating for the Veteran's left knee disability in a March 2004 rating decision and March 2005 Statement of the Case (SOC). The Board directed the RO to send the Veteran a letter indicating that his June 2005 substantive appeal was untimely. In addition, the Board determined that the Veteran had timely filed a notice of disagreement with the May 2007 rating decision that had continued the 10 percent disability rating for the left knee, but that the RO had failed to issue an SOC. The Board remanded the matter and instructed the RO to issue an SOC on the issue of entitlement to the higher rating. The Board further instructed the RO to advise the Veteran of the time to perfect his appeal and, if he perfected his appeal, to return the case to the Board. The Board stated that it "intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matter[]. . . remanded." At no point in the determination did the Board address the Veteran's failure to appear for his scheduled May 2013 VA examination or his subsequent failure to provide good cause for that failure to appear. The Court's June 2017 Memorandum Decision found that the March 2016 Board decision provided inadequate reasons and bases based on three considerations. First, the Board relied on the Veteran's failure to report for a May 2013 VA examination without addressing the Board's May 2014 remand that stated that the Veteran "need take no action until so informed." Second, the Board found a March 2007 VA examination more probative than the Veteran's October 2012 lay statement without accounting for the fact that 5 years had elapsed between them. Finally, the Board relied on the absence of evidence to negate the probative value of the Veteran's competent lay evidence that his left knee had become more unstable. The arguments of the Veteran's attorney representative before the Court and the Court's Memorandum Decision suggest that the Veteran was confused by the Board's May 2014 remand, specifically with respect to the statement that he need take no action until informed. The argument suggests that but for this statement in the Board remand that the Veteran would have provided good cause for his failure to appear for the May 2013 VA examination or would provide additional evidence in support of his claim. Despite the failure of the Veteran or his attorney representative to provide such good cause or additional evidence following the subsequent June 2015 SOC continuing the denial of his claim based on his failure to appear for a VA examination, prior to the adjudication by the Board in March 2016, or, indeed, at any time to the present, in order to remedy any confusion the Board finds that a remand to afford the Veteran the opportunity to attend a new VA examination is in order. In reaching that determination, the Board has considered the remainder of the Memorandum Decision. Of note, the Memorandum Decision cited to Turk v. Peake, 21 Vet. App. 565, 569 (2008), for the proposition that when a veteran misses a scheduled examination the Board consider (1) whether the examination was necessary to establish entitlement to the benefit sought, and (2) whether the Veteran lacked good cause to miss the scheduled examination. In this case, the Board finds that an examination is necessary to establish the benefit sought because the evidence of record is insufficient. In that regard, the sole evidence of a change or potential worsening of the Veteran's condition between the time of the May 2007 VA examination and the present is the Veteran's October 2012 statement discussed above. The Veteran's contention that his left knee "frequently... goes out" is not sufficient to establish the right to higher or separate ratings under the applicable Diagnostic Codes. As noted in the brief to the Court from the Veteran's attorney representative, Diagnostic Code 5257 provides ratings based on "slight, "moderate," and "severe" lateral instability or recurrent subluxation. The above statement could be interpreted in any number of ways and does not clearly evidence either subluxation or instability or the degree of such subluxation or instability, as subsequently argued by the Veteran's representative. As such, the evidence of record is insufficient and a remand for a VA examination is necessary to obtain a medical examination documenting the severity of the Veteran's disability. As contemporaneous reexamination of his service-connected left knee disability is necessary to allow the Board to make an informed decision on his increased rating claim, remand is warranted. See 38 C.F.R. § 3.327(a) (2017) (providing that reexaminations will be requested whenever VA needs to determine the current severity of a disability); see also Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007), citing Caluza v. Brown, 7 Vet. App. 498, 505-06 (1998) ("Where the record does not adequately reveal the current state of the claimant's disability. . . the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination."). The Veteran should note that under 38 C.F.R. § 3.655(a), when entitlement to a benefit cannot be established 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 38 C.F.R. § 3.655(b). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, and death of an immediate family member. 38 C.F.R. § 3.655(a). 38 C.F.R. § 3.655(b) provides that 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. In contrast, when the examination was scheduled in connection with, among other things, a claim for increase, "the claim shall be denied." A claim for a higher initial rating is an "original compensation claim" and not a "claim for increase" for purposes of 38 C.F.R. § 3.655(b). Turk v. Peake, 21 Vet. App. 565, 570 (2008). Here, the Veteran was granted service connection for his left knee disability in August 2003. In June 2006, the Veteran filed a claim for increase that is the basis for the current appeal. The claims before the Board are therefore claims for increase under 38 C.F.R. § 3.655(b). As discussed above, reexamination is necessary because since the May 2007 VA examination the Veteran contends that his left knee symptoms have worsened. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current nature and severity of his left knee disability. Timely notice of the VA examination which contains notice of 38 C.F.R. § 3.655 must be mailed to the Veteran's last address of record (with a copy provided to the Veteran's representative) and a copy of that notice must be associated with the electronic claims file. The electronic claims file should be made available to and reviewed by the examiner. Full range of motion testing must be performed where possible. The joint(s) involved should be tested in both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with range of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain the basis for this decision. If the Veteran reports flare-up episodes, the examiner must assess any additional functional loss during flare-ups. If an assessment is not possible without resorting to speculation based on the fact that the examination was not performed during a flare-up, the examiner must "[E]licit relevant information as to the veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of record, including the veteran's lay information, or explain why [he or] she c[an] not do so" and whether this is due to the examiner's knowledge or that of the medical community in general. Sharp v. Shulkin, 29 Vet. App. 26 (2017). 2. After the above is complete, readjudicate the Veteran's claim. If a complete grant of benefits is not awarded, issue a supplemental statement of the case (SSOC) to the Veteran and his representative. 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 2014). _________________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2016).