Citation Nr: 21024942 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 14-29 072A DATE: April 27, 2021 ORDER Entitlement to a rating in excess of 30 percent for a right shoulder disability is denied. Entitlement to a rating in excess of 10 percent for a right shoulder scar is denied. Entitlement to a rating in excess of 30 percent for cervical spine degenerative arthritis (neck disability) is denied. Entitlement to an effective date prior to January 2, 2009 for the award of a 30 percent rating for a neck disability is denied. Entitlement to service connection for a right ankle disability is denied. Entitlement to service connection for a right hip disability is denied. Entitlement to service connection for a right leg disability is denied. Entitlement to service connection for a right groin disability is denied. FINDINGS OF FACT 1. The Veteran failed, without good cause, to report to VA examinations necessary to adjudicate his claims for increased ratings for his right shoulder and neck disabilities. 2. On January 2, 2009, VA received the Veteran’s increased rating claim for a neck disability. There is no evidence of a prior, unadjudicated claim for an increased rating and it is not factually ascertainable that the Veteran’s neck disability increased in severity in the year prior to his January 2009 claim. 3. The Veteran’s right ankle disability is not proximately due to or aggravated by a service-connected disability. 4. The Veteran’s right hip disability is not proximately due to or aggravated by a service-connected disability. 5. The Veteran’s right leg disability was not incurred during active duty and is not otherwise related to military service or a service-connected disability. 6. The Veteran’s right groin disability was not incurred during active duty and is not otherwise related to military service or a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 30 percent for a right shoulder disability is denied. 38 U.S.C. § 501; 38 C.F.R. § 3.655(b). 2. The criteria for entitlement to a rating in excess of 10 percent for a right shoulder scar are not met. 38 U.S.C. § 501; 38 C.F.R. § 3.655(b). 3. The criteria for entitlement to a rating in excess of 30 percent for a neck disability are not met. 38 U.S.C. § 501; 38 C.F.R. § 3.655(b). 4. The criteria for entitlement to an effective date prior to January 2, 2009 for the award of a 30 percent rating for a neck disability are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 5. The criteria for entitlement to service connection for a right ankle disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 6. The criteria for entitlement to service connection for a right hip disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 7. The criteria for entitlement to service connection for a right leg disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 8. The criteria for entitlement to service connection for a right groin disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1972 to December 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from June 2009 and March 2010 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the claims on appeal in November 2018 and August 2019. In a June 2018 statement, by way of his representative, the Veteran withdrew his Board hearing request. 38 C.F.R. § 20.704(e). 1. Entitlement to a rating in excess of 30 percent for a right shoulder disability is denied. 2. Entitlement to a rating in excess of 10 percent for a right shoulder scar is denied. 3. Entitlement to a rating in excess of 30 percent for a neck disability is denied. VA regulations provide 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. Absent a showing of good cause, a Veteran’s refusal to participate or cooperate during a VA examination is akin to a failure to report for a VA examination. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, such as here, the claim shall be denied. 38 C.F.R. § 3.655(b) (Emphasis added). Pursuant to the August 2019 Board remand directives, the RO requested VA examinations to assist the Veteran in substantiating his claims. Examinations were scheduled for July 2020. However, the record indicates that the examinations were cancelled at the Veteran’s request. See July 2020 exam requests. Thereafter, the RO scheduled VA examinations again for December 2020. The RO contacted the Veteran multiple times regarding his scheduled examinations via telephone and by courier. See January 2021 contact history. However, the record shows that the Veteran refused the examinations. See January 2021 exam requests. Failure to receive notice of an examination could provide good cause for the failure to report. See Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013). Critically, the Veteran has not disputed the report in the January 2021 Supplemental Statement of the Case that he failed without good cause to report for the needed VA examinations, or asserted that he did not receive notice of the examinations and there is no other evidence of non-receipt of record. Rather, the Veteran called to report that he wanted “no further examination.” See May 2020 VA Form 21-0820. In this regard, while VA has a duty to assist the Veteran in substantiating his claims, that duty is not a one-way street and it is important that he make efforts to assist VA in gathering evidence relevant to his claims. Woods v. Gober, 14 Vet. App. 214, 224 (2000). As explained to the Veteran in the prior remands, the Board found that an examination was necessary to decide his claims, as the evidence of record was not sufficient. To date, neither the Veteran nor his representative has provided an explanation for the Veteran’s failure/refusal to report to the July 2020 and December 2020 VA examinations, and they have not indicated that he wants to reschedule the examinations. Thus, the Board finds that the provisions of 38 C.F.R. § 3.655(b) apply, and the Veteran’s increased rating claims are denied. 4. Entitlement to an effective date prior to January 2, 2009 for the award of a 30 percent rating for a neck disability is denied Generally, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. An exception to that rule regarding increased ratings applies, however, under circumstances where the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. If an increase in disability occurred within one-year prior to the claim, the increase is effective as of the date the increase was “factually ascertainable.” If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(2); See Gaston, supra. Prior to March 24, 2015, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (as in effect prior to March 24, 2015). Here, by way of history, a September 1996 rating decision awarded service connection for a neck disability and assigned a 20 percent rating, effective June 24, 1996. The Veteran did not appeal that decision, and new and material evidence was not received within one year of its issuance. Accordingly, the September 1996 rating decision is final. See 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156(b), 20.1103. In an April 2001 rating decision, the RO denied the Veteran’s increased rating claim based upon the evidence of record. The Veteran did not appeal that decision, and new and material evidence was not received within one year of its issuance. Therefore, the April 2001 rating decision is also final. Id. As the April 2001 rating decision is the most recent final decision of record, the proper inquiry before the Board is whether a claim for an increased rating was filed between the final April 2001 rating decision and the current effective date of the Veteran’s 30 percent rating, or January 2, 2009. Here, the record does not show any formal or informal claim for an increase in rating for the Veteran’s disability, there are no VA treatment records that reflect a worsening of the condition that could be construed as an increased rating claim, and the Veteran’s representative does not assert otherwise. 38 C.F.R. § 3.157(b) (as in effect prior to March 24, 2015). The Board emphasizes that VA treatment records merely showing treatment are insufficient to constitute an informal claim for increased benefits under former 38 C.F.R. § 3.157(b). As the Court of Appeals for Veterans Claims stated in Massie v. Shinseki, 25 Vet. App. 123, 134 (2011), such an interpretation of 38 C.F.R. § 3.157(b) would produce an absurd result by unnecessarily burdening VA by requiring it to treat every such medical record as an informal claim for an increased disability rating. Hence, VA treatment records dated between 2001 and 2009 (documenting generalized complaints of neck pain and limited motion) do not constitute informal claims for an increased neck disability rating. Moreover, such symptoms do not reflect a worsening of his condition consistent with a 30 percent rating under 38 C.F.R. § 4.71a, DC 5242, General Rating Formula (requiring forward flexion of the cervical spine to 15 degrees or less or favorable ankylosis of the entire cervical spine). On January 2, 2009, VA received the Veteran’s increased rating claim for a neck disability. See January 2009 VA Form 21-4138. While June 2009 and March 2010 rating decisions continued a 20 percent rating, a July 2016 rating decision increased the rating to 30 percent based on a clear and unmistakable error, effective January 2, 2009, the date of the claim. Absent an earlier unadjudicated claim for an increased rating for a neck disability prior to the current effective date of January 2, 2009, or of evidence showing an increase in the disability within one year prior to the date the January 2009 claim was received, which is not demonstrated in this case, as discussed above, the earliest effective date that is warranted is the currently assigned date of January 2, 2009, which is the earliest effective date allowed by law. Therefore, the claim for an earlier effective date prior to January 2, 2009 for the assignment of a 30 percent rating for a neck disability is denied. Service Connection 1. Entitlement to service connection for a right ankle disability is denied. 2. Entitlement to service connection for a right hip disability is denied. 3. Entitlement to service connection for a right leg disability is denied. 4. Entitlement to service connection for a right groin disability is denied. The Veteran indicates that his right ankle, hip, leg, and groin disabilities are secondary to his service-connected right shoulder and/or lumbar spine disabilities. See June 2009 VA Form 21-4138; September 2009 correspondence; April 2010 Notice of Disagreement. As the Veteran does not assert and the evidence does not otherwise suggest his right ankle and hip disabilities are directly related to service, only secondary service connection will be addressed. However, regarding the Veteran’s right leg and groin disabilities, since his service treatment records (STRs) show a right leg injury and groin pain, a claim of direct service connection is raised as to those issues. See Morgan v. Wilkie, 31 Vet. App. 162 (2019). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Here, the Veteran has a current diagnosis of right ankle achilles tendonitis and possible degenerative joint disease of the right hip. See April 2009 private examination report. The evidence does not indicate that that the Veteran is currently diagnosed a right leg or groin disability. However, the Veteran reported right leg, hip, and groin pain reaching the level of functional impairment of earning capacity. See March 2009 congressional and September 2009 correspondence. Additionally, he is service-connected for a right shoulder disability and a lumbar spine disability. Affording him the benefit of the doubt, the first element of direct service connection is established, as well as the first two elements of secondary service connection. Turning to the second element of direct service connection, in-service incurrence of a disease or injury, STRs show that the Veteran complained of groin pain and was diagnosed with bilateral adductor sprain and also reported right leg pain from a gunshot wound. See July 1972 STRs. Thus, element two of direct service connection is also met as to the right leg and groin disabilities. Regarding the final element of direct and secondary service connection, a nexus to service is not established, as there is no competent opinion of record relating the Veteran’s right ankle, hip, leg, and groin disabilities to military service or a service-connected disability. This is precisely why the Board requested a VA examination and medical opinion in this case. As noted above, the Veteran cancelled and refused to report for a VA examination despite the RO contacting him numerous times with regards to notifying and scheduling an examination throughout the appeal period. However, the duty to assist has been frustrated by the Veteran’s lack of cooperation and refusal to report to a VA examination needed to produce evidence essential to his claims for service connection. If the Veteran believes that he is entitled to service connection, he must at least fulfill his minimal obligation of reporting to a VA medical examination when it is scheduled. As already noted, when entitlement to an original compensation claim cannot be established without a VA examination and a claimant, without good cause, refuses to participate in such an examination, such is akin to a failure to report, and the claim shall be rated on the evidence of record. 38 C.F.R. § 3.655. Therefore, due to the Veteran’s failure to cooperate in appearing for his scheduled VA examination, the Board was unable to obtain medical evidence that is relevant to the claims. There otherwise is no competent evidence showing that the Veteran’s right ankle, hip, leg, and groin disabilities are related to service or a service-connected disability. To the extent the Veteran complains of right leg pain, a July 2018 private examiner attributed the cause of his pain to a lower extremity neurological disorder, and the Board notes that the Veteran is currently service-connected for right lower extremity peripheral neuropathy associated with his lumbar spine disability. See June 2019 rating decision. Furthermore, to the extent that the Veteran relates his right ankle, hip, leg, and groin disabilities to a service-connected disability, the Board finds that he is not competent to do so, as the determination as to the etiology of such disabilities are complex medical questions that are beyond the ken of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Accordingly, the preponderance of the evidence is against the claims of entitlement to service connection for right ankle, hip, leg, and groin disabilities. As such, the benefit of the doubt doctrine is not for application, and service connection must be denied. See 38 U.S.C. § 5107(b). S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.S. Mahoney 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.