Citation Nr: 21000362 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 17-52 314 DATE: January 5, 2021 ORDER Entitlement to an increased rating in excess of 10 percent for lumbar osteoarthritis at L5-S1, prior to September 5, 2017, is denied. New and material evidence having been received, the claim of service connection for a right hip disability is reopened. REMANDED Entitlement to an increased rating in excess of 20 percent for lumbar osteoarthritis at L5-S1 with intervertebral disc syndrome, (IVDS), (previously rated as lumbar osteoarthritis at L5-S1), since September 5, 2017, is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities, (TDIU), is remanded. FINDINGS OF FACT 1. The Veteran failed to report for scheduled VA examinations in April 2012, May 2017, June 2017, and August 2017 pertaining to his January 2012 claim for an increased rating for lumbar osteoarthritis at L5-S1, prior to September 5, 2017. 2. Since the December 2005 final rating decision, new and material evidence has been received to establish that the Veteran has a current right hip disability. The evidence received is not cumulative or redundant and raises a reasonable possibility of substantiating the underlying claim for service connection for a right hip disability. CONCLUSIONS OF LAW 1. The claim for an increased rating higher than 10 percent for lumbar osteoarthritis at L5-S1, prior to September 5, 2017, is denied due to the Veteran’s failure to report for scheduled VA examinations. 38 C.F.R. § 3.655. 2. New and material evidence has been received and is sufficient to reopen the Veteran’s claim of service connection for a right hip disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States in the United States Army from January 2001 to April 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from July 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that in a March 2020 rating decision, the RO assigned a separate, 10 percent rating for right lower extremity radiculopathy, effective from September 5, 2017, as a neurological impairment associated with the Veteran’s service-connected lumbar spine disability. As the Veteran has not expressed disagreement with the effective date or rating assigned for his right lower extremity radiculopathy, the issue is not currently on appeal or addressed herein. 1. Entitlement to an increased rating in excess of 10 percent for lumbar osteoarthritis at L5-S1 prior to September 5, 2017 is denied. The Veteran seeks an increased rating for his service-connected lumbar osteoarthritis at L5-S1. The Veteran was initially granted service connection for his lumbar spine disability in a December 2005 rating decision. The RO assigned a noncompensable rating for the disability, effective April 25, 2005. In January 2012, the Veteran filed the present claim seeking an increased, compensable rating for his lumbar spine disability. In the July 2012 rating decision on appeal, the RO continued the noncompensable (zero percent) rating assigned for the Veteran’s lumbar spine osteoarthritis. After the Veteran submitted a Notice of Disagreement as to the denial of his claim, in a September 2017 rating decision, the RO assigned a 10 percent for the lumbar spine disability, effective December 28, 2006. The Veteran timely appealed the decision, seeking an even higher increased rating. In response to his January 2012 increased rating claim, the RO scheduled the Veteran for VA examinations in April 2012, May 2017, June 2017, and August 2017 to evaluate the severity of his lumbar spine osteoarthritis. Although the Veteran was notified of the examinations, he failed to report for the examinations scheduled. A July 2017 Report of General Information note reflects that RO personnel contacted the Veteran regarding the missed examinations, at which time the Veteran’s mailing address and phone number(s) were confirmed. In a September 2017 Statement of the Case, the RO continued the 10 percent rating assigned for the Veteran’s lumbar spine disability, and noted his failure to appear for the scheduled VA examinations. VA regulations state that when a claimant fails to report for an examination scheduled in conjunction with an increased rating claim, the claim is to be denied. 38 C.F.R. § 3.655(b). Good cause for failure to report for a VA examination includes, but is not limited to, the illness or hospitalization of the claimant or the death of an immediate family member. 38 C.F.R. § 3.655(a). When a veteran misses a scheduled VA examination, the Board must 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. If these questions are answered in the affirmative, then the Board may apply 38 C.F.R. § 3.655(b), including summary denial. See Turk v. Peake, 21 Vet. App. 565, 569 (2008); see also Kyhn v. Shinseki, 23 Vet. App. 335, 342 (2010) (acknowledging that 38 C.F.R. § 3.655(b) compelled the Board to deny the appellant’s claim to reopen for failure to report for his scheduled examination). In this case, the claim on appeal stems from the Veteran’s January 2012 request for an increased rating for his lumbar spine disability. The Veteran was notified that he would be required to attend a VA examination, and there is no indication in the record that he was not properly notified of the VA examinations scheduled. The Veteran lacked good cause for his failure to attend the VA examinations. He has not asserted that he did not receive notice of the examinations, and it is presumed that appropriate notice was sent. There is a presumption of regularity in the law which holds that public officers are presumed to have properly discharged their official duties in the absence of evidence to the contrary. Clear evidence to the contrary is required to rebut the presumption of regularity. Ashley v. Derwinski, 2 Vet. App. 307 (1992); see also Butler v. Principi, 244 F.3d 1337, 1340 (Fed.Cir.2001) (the presumption of regularity allows courts to presume that what appears regular is regular, the burden shifting to the claimant to show the contrary). The Board may therefore presume that the Veteran was properly notified of the VA examinations, but failed to appear for them. He has not provided any indication that he did not receive notice of the exams. The Veteran has not provided any explanation or reason why he did not attend the examinations, and therefore there is no good cause provided which would trigger a duty to provide a new VA examination. The Board notes that the duty to assist is not always a one-way street. If a veteran desires help, he cannot passively wait for it in those circumstances where he may have information that is essential. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Here, an examination was essential to the adjudication of his claim, and the Veteran failed to appear and has not provided any good cause. Thus, the claim for a rating higher than 10 percent for his lumbar spine disability prior to September 5, 2017, is therefore denied. 38 C.F.R. § 3.655. 2. New and material evidence having been received, the claim of service connection for a right hip disability is reopened. In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision makers. 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. 38 C.F.R. § 3.156(a). In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App. 273, 283 (1996). The provisions of 38 C.F.R. § 3.156(a) create a low threshold, with the phrase raises a reasonable possibility of substantiating the claim enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Here, in the December 2005 rating decision, the RO acknowledged in-service complaints of right hip pain, but also acknowledged that the Veteran failed to report to a scheduled VA examination which may have been material to the outcome of the claim. The RO thus determined that there was no permanent residual or chronic disability subject to service connection demonstrated by the evidence of record. Since that time, the Veteran underwent a September 2017 examination which revealed a current diagnosis of right hip osteoarthritis. Thus, the Board finds that the evidence received since the December 2005 rating decision is new and material. The evidence is new in that it was not previously considered by agency decisionmakers. Moreover, it raises a reasonable possibility of substantiating the claims in that it relates to previously unestablished fact necessary, namely a current right hip diagnosis. Accordingly, reopening of the claim of entitlement to service connection for a right hip disability is warranted. REASONS FOR REMAND 1. Entitlement to an increased rating in excess of 20 percent for lumbar osteoarthritis at L5-S1 with IVDS, (previously rated as lumbar osteoarthritis at L5-S1) since September 5, 2017, is remanded. In December 2018, the Board remanded the Veteran’s claim for an increased rating for his service-connected lumbar spine osteoarthritis due to the RO’s failure to consider a September 2017 VA back examination report in the September 2017 Statement of the Case. The claim was subsequently readjudicated, and in a March 2020 rating decision (with associated Supplemental Statement of the Case), the RO assigned a 20 percent rating for the disability, effective from the date of the September 5, 2017, VA examination. The case has now been returned to the Board for appellate review. During the September 2017 VA back examination, the examiner diagnosed the Veteran with IVDS of the thoracolumbar spine, without incapacitating episodes. The Veteran described having flare-ups of the back with throbbing pain in the lower back and sometimes sharp pain the middle of the back. However, the examination was not conducted during a flare-up and the examiner noted that the examination is neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss during flare-ups. The examiner was unable to state without mere speculation whether pain, weakness, fatigability or incoordination significantly limit functional ability with flare ups and unable to describe the flare-up in terms of ROM and did not offer an explanation. At this point, the Board notes that the frequency, duration, and severity of flares are necessary considerations when determining whether VA must attempt to schedule an examination during a flare. Sharp, 29 Vet. App. at 32. Flare-ups must be quantifiable and must result in limitation of motion or function beyond that contemplated by the already provided evaluation. In addition, because there is a regulation addressing stabilization of ratings, the flare-up must be of such length as to establish that the overall impairment is more severe than currently evaluated, rather than a brief snapshot in time. On the heels of this examination, the Court of Appeals for Veterans Claim (Court) decided Sharp and ruled that the Board may treat as adequate an examiner’s statement that he or she could not offer an opinion without resorting to speculation when it is clear that the examiner has 1) “considered all procurable and assembled data” before stating that an opinion cannot be reached and 2) explained the basis for the conclusion that a non-speculative opinion cannot be offered. Id. at 33. Essentially, it must be obvious that the inability to provide an opinion without resorting to speculation is a reflection of the limitation of knowledge in the medical community at large and not a limitation based on the examiner’s lack of expertise, insufficient information, or unprocured testing of the individual examiner. Id. Here, the Board is unclear as to whether the examiner solicited enough information from the Veteran to determine whether flare-ups significantly limit functional ability and remand is warranted to obtain an adequate examination. The Board notes that the Veteran missed multiple VA examinations, most recently an August 2019 examination, and has not demonstrated good cause as to the reason. However, remand is warranted to obtain an addendum opinion as to proper consideration of the functional limitation caused by the condition during flare-ups. 2. Entitlement to service connection for a right hip disability is remanded. Here, the record contains evidence that the Veteran complained of right hip pain while in service. A March 2004 service treatment record documents the Veteran’s report of right hip pain. Specifically, the record notes that the Veteran reports back pain remaining the same but now with right hip pain as well, monthly without known precipitating event, pain increased with hip movements or situs, alleviated at rest; lower back pain with intermittent sharp shooting pains to right knee and right hip joint pain which does not appear to be related to back pain. The September 2017 examiner diagnosed the Veteran with osteoarthritis of the right hip and opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner rationalized that review of active military service medical record does not show any encounter for right hip condition. The examiner did not directly address the Veteran’s March 2004 STR noting right hip pain. The Veteran was then scheduled for a VA examination but failed to make the examination without offering reason as for the absence. Under 38 C.F.R. § 3.655, when a claimant fails to report for an examination scheduled in conjunction with a reopened claim for a benefit which was previously disallowed, the claim shall be denied. 38 C.F.R. § 3.655(b). The record reflects that the Veteran was notified about a scheduled examination, failed to make the examination, was requested to reschedule the examination but failed to do so, and after confirming receipt the March 2020 Supplemental Statement of the Case, failed to offer additional information or evidence. The Board finds that good cause has not been shown for the Veteran’s failure to report for his scheduled examination. However, although the Veteran failed to attend the August 2019 VA examination and good cause has not been demonstrated as to the reason why, when VA provides an examination, VA is required to provide an examination of adequate measure. Of the basic foundations of measure for an adequate examination is that the opinion is based on accurate facts. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The September 2017 examiner rationalized that because there were no in-service complaints of a right hip condition, there was no nexus between the Veteran’s current condition and service. However, such statement is inaccurate as the record demonstrates the Veteran’s in-service complaint of a right hip condition. Hence, the opinion is inadequate as it is based on an inaccurate fact. Thus, to the extent of VA’s duty to provide an adequate examination, remand is warranted to obtain an addendum opinion. 3. Entitlement to a TDIU due to service-connected disabilities, is remanded. The issue of entitlement to a TDIU rating has been expressly raised by the Veteran as well as reasonably raised by the record and is not a separate “claim” for benefits, but rather, is part and parcel of the claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, although both the September 2017 VA examiner and September 2020 private doctor opined that the Veteran’s condition impacts his ability to work, the September 2017 VA examination is inadequate, and the September 2020 private opinion appears to have been rendered without evidence of an accompanying physical examination of the Veteran. Thus, the claims are intertwined. Where a claim is inextricably intertwined with another claim, the claims must be adjudicated together. Harris v. Derwinski, 1 Vet. App. 180 (1991). The RO has not developed a claim of entitlement to a TDIU. On remand, such development should be completed. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA and private treatment records and associate those records with the claims file. 2. Obtain an addendum opinion to the September 2017 VA lumbar spine condition examination. The examiner is asked to note review of and address the Veteran’s treatment records. The examiner should express an opinion as to whether pain or other manifestations during flare-ups or with repeated use could significantly limit functional ability. The examiner should portray the degree of any additional ROM loss due to pain on repeated use or during flare-ups. If no estimate can be provided, the examiners should provide a sufficiently detailed explanation as to why. The examiner must attempt to ascertain information, such as frequency, duration, characteristics, severity, and functional loss, regarding any flare-ups by alternative means and to estimate the functional impact of any flare-ups in terms of ROM on the basis of that information. The examiner is further asked to provide further consideration of whether pain, weakness, fatigability or incoordination significantly limit functional ability with flare ups, and describe in terms of ROM, and if unable to do so without mere speculation provide further explanation. The examiner must provide rationale for all opinions expressed. 3. Obtain an addendum opinion to the September 2017 VA hip condition examination. The examiner is asked to note review of and address the Veteran’s treatment records. Specifically, the examiner is asked to directly address the Veteran’s March 2004 in service treatment record of a right hip complaint. The examiner is further asked to opine whether it is at least as likely as not that the Veteran’s right issue condition is related to the Veteran’s service or a due to or caused by a service connected disability. The rationale for all opinions expressed must be provided. (Continued on the next page) 4. Develop and adjudicate the Veteran’s claim for entitlement to TDIU under the provisions of 38 C.F.R. § 4.16 and Rice v. Shinseki, 22 Vet. App. 447 (2009). DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Alli, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.