Citation Nr: 21007511
Decision Date: 02/09/21	Archive Date: 02/09/21

DOCKET NO. 13-33 975
DATE: February 9, 2021

ORDER

Entitlement to an increased rating for degenerative arthritis of the right knee in excess of 10 percent for painful motion is denied.

Entitlement to a compensable rating for degenerative arthritis of the right knee for limitation of extension is denied.

FINDING OF FACT

1. The Board determined in its October 2018 remand that a current VA examination was necessary to establish entitlement to the Veteran’s claim for increase.

2. The Veteran failed to report for the scheduled examination and has not shown good cause.

CONCLUSION OF LAW

1. The criteria for entitlement to an increased rating for degenerative arthritis of the right knee in excess of 10 percent for painful motion have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.655; 4.71a, Diagnostic Code 5010.

2. The criteria for entitlement to a compensable rating for degenerative arthritis of the right knee for limitation of extension have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.655; 4.71a, Diagnostic Code 5261.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from November 1983 to May 1988.

This appeal comes to the Board of Veterans’ Appeals (Board) from a rating decision, dated February 2012, issued by a Department of Veterans Affairs (VA) Regional Office. The Veteran timely appealed.

The Veteran’s appeal has previously been before the Board. The Veteran’s representative argued in a September 2018 appellant’s brief that the record did not adequately reveal the current state of the claimant’s disability and “the VA must provide a new examination.” The Board agreed that the fulfillment of the statutory duty to assist required a thorough and contemporaneous medical examination and in October 2018, remanded the Veteran’s claim for additional development. Specifically, the Board found “that a remand is required to have an examiner supplement the record with a report regarding the current severity of the Veteran’s right knee disability.” 

A VA examination was scheduled for November 27, 2019. The Veteran was marked as a “no-show” for the scheduled examination and has not provided any request to reschedule or reason for failing to appear. Therefore, the Board will proceed to adjudication.

Increased Ratings

Entitlement to an increased evaluation for osteoarthritis of the right knee

The Veteran was scheduled for a new examination, as per Board remand instructions, in November 2019. The Veteran failed to appear for the examination. Neither the Veteran, nor his representative, have offered an explanation as to why the Veteran did not appear at the scheduled examination. Rather, the Veteran's representative noted, "It is believed that they [contents of the substantive appeal and the briefs filed on behalf of the appellant] have introduced into record essential elements of the appellants position on the issue and emphasized pertinent VA regulatory provisions to support the case." September 2020 Appellate Post-Remand Brief.

When entitlement to a benefit cannot be established without a current VA examination and a claimant, without good cause, fails to report for an examination scheduled in conjunction with a claim for increase, the claim shall be denied. 38 CFR § 3.655(a),(b).

Here, the representative argued in September 2018 and the Board determined in its October 2018 remand that a current VA examination was necessary to establish entitlement to the Veteran’s claim for increase. The Veteran failed to report for the scheduled examination and has not shown good cause. The claim is denied as a matter of law. 38 CFR § 3.655(a),(b).

 

 

LAURA E. COLLINS

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	M. Brewer, 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.