Citation Nr: 21007604 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 15-06 367A DATE: February 10, 2021 REMANDED Entitlement to a rating greater than 20 percent for degenerative disc disease of the cervical spine is remanded. Entitlement to rating greater than 10 percent for chondromalacia patella of the left knee is remanded. Entitlement to a rating greater than 10 percent for chondromalacia patella of the right knee is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1982 to August 1984. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 Rating Decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) which denied a rating greater than 20 percent for degenerative disc disease of the cervical spine, a rating greater than 10 percent for chondromalacia patella of the left knee, and a rating greater than 10 percent for chondromalacia patella of the right knee. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. Here, the Veteran has not opted-in to VA’s test program, the Rapid Appeals Modernization Program (RAMP). Although the AMA was implemented effective February 19, 2019, the Rating Decision pertaining to the issues addressed herein was issued prior to that date. Accordingly, the Board will review the current appeal under the existing Legacy Appeals System. The Veteran seeks entitlement to higher disability ratings for degenerative disc disease of the cervical spine, chondromalacia patella of the left knee, and chondromalacia patella of the right knee. Unfortunately, the Board finds that additional development must be undertaken before these claims can be adjudicated on the merits. These claims were most recently remanded by the Board for additional development in December 2018 in order to provide the Veteran with additional VA examinations to ascertain the severity of his service-connected cervical spine disability as well as his left and right knee chondromalacia patella. A Compensation and Pension Exam Inquiry dated on November 15, 2019, indicated that a VA Knee & Lower Leg examination as well as a VA Neck (Cervical Spine) was requested by the RO in Waco, Texas. However, a computer printout associated with the claims file in May 2020 indicated that these requested examinations were cancelled by Medical Administration Services (MAS) on December 6, 2019, because “Veteran failed to RSVP.” A May 2020 Supplemental Statement of the Case noted that the Veteran was a “no show for VA examination” and continued the Veteran’s various disability ratings at their current levels. However, in his December 2020 Written Brief Presentation, the Veteran’s representative maintained that he was never contacted with respect to scheduling new VA examinations. In support of this, the representative emphasized that the Veteran did not have a history of missing VA appointments and was in regular contact with VA regarding the status of his dependents throughout the period on question. Indeed, a review of the record from the time of the December 2018 Board Remand to the present does not reveal any correspondence addressed to the Veteran informing him of an upcoming VA examination. In most instances, there is at least a correspondence associated with the file which informs the Veteran that he/she will be contacted to schedule a VA examination in the future. Additionally, although a Report of Contact indicated that the Veteran was contacted via telephone regarding dependency verification during this period, it does not appear that VA ever attempted to contact him via telephone regarding a scheduled VA examination appointment. A review of the Veteran’s VA treatment records further demonstrates that he was also attending appointments for medical treatment in the late 2019 to early 2020 timeframe. As such, the Veteran’s representative requested that the case again be remanded to afford the Veteran another opportunity to attend the VA examinations requested in the previous remand, and to contact the Veteran via written correspondence as well as via telephone to ensure that he is made aware of any upcoming VA examination appointments. The Board recognizes that, in the absence of clear evidence to the contrary, the law presumes the regularity of the administrative process. Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (citing Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992)). Notification for VA purposes is a written notice sent to the claimant’s last address of record. See 38 C.F.R. § 3.1(q). However, given the irregularities in this case (such as there being no written notice of record informing the Veteran that he would be contacted to schedule a VA examination in the future), and in order to ensure that the duty to assist has been adequately fulfilled, the Board finds that remand is needed to schedule new examinations and to provide adequate notification of the rescheduled examinations. The matters are REMANDED for the following action: 1. Obtain updated VA and private treatment records. 2. Schedule the Veteran for a VA examination to ascertain the current severity of his degenerative disc disease of the cervical spine. Prior written notice must be provided to the Veteran informing him of the date, time, and location of his scheduled examination. This prior written notice should be mailed to the Veteran at his most recent address of record. A copy of the mailed examination notice must be associated with the claims file. If the Veteran does not respond to written correspondence, then attempt to contact the Veteran via telephone to arrange for his VA examination, and associate any Report of Contact with the claims file. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and after repeated use over time. The examiner should also address any associated objective neurologic abnormalities. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and after repeated use over time. If the examiner finds any other disability or pathology in the Veteran’s degenerative disc disease of the cervical spine, then the examiner should discuss whether such pathology and symptoms are part and parcel of, caused by, or a progression of, the Veteran’s service-connected degenerative disc disease of the cervical spine. If it is not possible to separate the effects of a service-connected disability and a nonservice-connected disability, if any, then reasonable doubt must be resolved in the claimant’s favor and the symptoms in question attributed to the service-connected disability. 3. Schedule the Veteran for a VA examination to ascertain the current severity of his left and right knee chondromalacia patella. Prior written notice must be provided to the Veteran informing him of the date, time, and location of his scheduled examination. This prior written notice should be mailed to the Veteran at his most recent address of record. A copy of the mailed examination notice must be associated with the claims file. If the Veteran does not respond to written correspondence, then attempt to contact the Veteran via telephone to arrange for his VA examination, and associate any Report of Contact with the claims file. (Continued on the next page)   The examiner should identify all symptoms and pathology associated with the service-connected right and left knee disabilities, to include whether he exhibits any arthritis, loss of range of motion, instability, or meniscal pathology. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and after repeated use over time. If the examiner finds any other disability or pathology in the Veteran’s left and right knees, such as meniscal tears or arthritis, then the examiner should discuss whether such pathology and symptoms are part and parcel of, caused by, or a progression of, the Veteran’s service-connected left and right knee chondromalacia patella. If it is not possible to separate the effects of a service-connected disability and a nonservice-connected disability, if any, reasonable doubt must be resolved in the claimant’s favor and the symptoms in question attributed to the service-connected disability. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Anthony M. Flamini 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.