93 Decision Citation: BVA 93-17558 Y93 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 91-13 546 ) DATE ) ) ) THE ISSUES 1. Entitlement to an increased (compensable) rating for Pellegrini- Stieda disease of the right knee. 2. Entitlement to disability compensation for the period from March 1, 1987, to February 6, 1990. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nancy Phillips, Counsel INTRODUCTION The appellant had active service from January 1980 to August 1982. This matter came before the Board on appeal from rating decisions of the St. Petersburg, Florida, Regional Office. The increased rating issue was previously before the Board in December 1991 when it was remanded for further development of the evidence. The adjudicative history of that issue was set forth in a remand. An April 1992 rating decision denied entitlement to disability compensation for the period from March 1, 1987, to February 6, 1990. The supplemental statement of the case was issued in April 1992. The substantive appeal was received in June 1992. A statement from the local representative of the Disabled American Veterans was dated in September 1992. The case was returned to the Board and redocketed in September 1992. A statement from the national representative of the Disabled American Veterans was received in October 1992. A hearing was held before a member of the Board of Veterans' Appeals in March 1993. Subsequent to the 1991 remand, the veteran raised the issues of service connection for a skin disorder and an increased evaluation for his service-connected back disorder. These issues are referred to the regional office for appropriate action. Also raised at the recent hearing was the question of the actual date of suspense of benefits in 1987, whether benefits were suspended as of January or March. We do not feel that this has any substantive bearing on the issue presented and refer it to the regional office for clarification. CONTENTIONS OF APPELLANT ON APPEAL It is essentially contended that the right knee is symptomatic on occasion; that symptoms include pain, limitation of motion, locking and swelling; and that the Department of Veterans Affairs (VA) examination of December 1991 is inadequate for rating purposes because it did not include a complete radiology examination as was requested in the Board's remand. It is further contended that the appellant did not abandon his claim from 1987 from 1990; that he repeatedly tried to have an examination scheduled; that each time he requested such an examination, he got a letter telling him that his request had been received, but, then, he never received an examination appointment. He maintains that, with respect to an address in Damon, Texas, this was simply a local address which he gave when he was seen in an emergency room when he was on his way to Los Angeles, and should not have been considered a change of address for the purpose of scheduling examinations. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. 7104 (West 1991), following review and consideration of all evidence and material of record in the appellant's claims file, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence supports a 10 percent rating for the right knee disability; and that the preponderance of the evidence is against entitlement to disability compensation for the period from March 1, 1987, to February 6, 1990. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the issues on appeal has been obtained by the regional office. 2. The right knee disability is manifested by complaints including pain, swelling, locking and instability, with clinical evidence principally of diffuse tenderness and degenerative changes on radiographic examination. 3. The right knee disability more nearly results in slight impairment of the knee. 4. The appellant failed to report for Department of Veterans Affairs (VA) examinations which were scheduled from November 1986 to May 1989. Each request for physical examination sent by the regional office to the VA scheduling clinic listed the then latest address of record. 5. It is presumed, and there is no evidence to the contrary, that notification of each of the VA examinations was sent to the latest address of record. 6. In January 1989, action was taken to suspend the appellant's compensation as of the date of the last payment, March 1, 1987. 7. In February 1990, the VA received a request from the appellant to reschedule an examination. A VA examination was conducted in April 1990. 8. VA disability compensation was resumed effective March 1, 1990. 9. The appellant's failure to report for the VA examinations which were scheduled from November 1986 to January 1989, and to which he was provided notice which was sent to the latest address of record, was without adequate reason. CONCLUSIONS OF LAW 1. The schedular criteria for a 10 percent rating for Pellegrini- Stieda disease of the right knee are met. 38 U.S.C.A. 1155, 5107 (West 1991); 38 C.F.R. Part 4, 4.7, 4.45, 4.59, Code 5257 (1992). 2. The appellant abandoned his claim by failing to report for VA examinations which were scheduled from 1986 to 1989 with a year of notice to do so. 38 U.S.C.A. 5107 (West 1991); 38 C.F.R. 3.158, 3.655 (1992). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS We find the claims to be plausible and, therefore, well grounded within the meaning of 38 U.S.C.A. 5107. We are also satisfied that all relevant facts have been developed. The appellant has been afforded VA orthopedic examination in connection with the current appeal, and in addition, records of recent VA outpatient treatment have been obtained and associated with the claims file. The representative has argued that the most recent of the orthopedic examinations was inadequate evidently because the right knee was not the subject of examination by a radiologist. We have reviewed the examination report, and agree that it is not clear whether new X-rays of the right knee were ordered and reviewed, or whether the orthopedist's conclusion was based on review of older X-rays. However, it should be emphasized that a decision as to whether new X- rays should be ordered or not is essentially one of medical judgment. Therefore, even if it were the case that the 1992 examination did not include X-ray studies on the right knee, we could not, simply for that reason, conclude that the examination was inadequate for rating purposes. As to the differences in the interpretation of radiographic studies in 1990 and 1992, both interpretations have been considered in rating the right knee disability. Moreover, the rating is based primarily on functional impairment and not on X-ray findings. A Right Knee Disability According to the VA's Schedule for Rating Disabilities, slight impairment of the knee with recurrent subluxation or lateral instability warrants a 10 percent rating. Code 5257. The record shows the appellant twisted the right knee in December 1981. He was put in a cast for two weeks for a sprained knee. According to a medical board report in May 1982, he still had pain and on and off swelling. There was no sensation of locking. Findings included slight quadriceps atrophy, mild effusion, patellar crepitus and medial joint tenderness. There was no instability. An arthrogram showed some abnormality, possibly indicating minor tears or degeneration of the meniscus. The VA examination of the right knee in 1983 was significant only for slight discomfort and a grating sensation on compression. There was no swelling, effusion, limitation of motion or instability. Radiographic studies were interpreted as showing Pellegrini-Stieda disease. A 10 percent rating was assigned from September 1982. The evidence was deemed insufficient to evaluate the right knee disability from March 1, 1987, to February 6, 1990. Radiographic studies of the right knee in April 1990 were interpreted as showing early degenerative changes. VA outpatient and inpatient treatment records dated in 1990 and 1991 do not reflect any complaints or findings with respect to the right knee. On the VA orthopedic examination in March 1992, the appellant's complaints included right knee pain, swelling, giving out and occasional locking. Examination of the knees showed no erythema, warmth, swelling or effusion. There was what was characterized as rather diffuse but minor tenderness. There was no patellar grinding. There reportedly was no evidence of instability, but the appellant was unable to relax. There was full extension and flexion of the knee. Radiographic studies were reportedly within normal limits. The diagnosis was internal derangement of the right knee--possible meniscus tear. At the hearing before the Board in 1993, the appellant testified that the knee acted up on occasion, with symptoms of swelling, instability and pain. Although the complaints of pain, swelling, instability, etc., are not clinically documented in the current record, there is documentation of mild tenderness about the knee and of degenerative changes on radiographic examination. We are of the opinion that these signs and symptoms, when considered in light of the criteria, establish that the disability more nearly results in slight impairment of the knee and, therefore, a 10 percent rating is warranted. However, the absence of clinical documentation of instability, limitation of motion, swelling, erythema, or weakness associated with the disability clearly shows that the impairment is no more than slight. II. Entitlement to Disability Compensation for the Period from March 1, 1987, to February 6, 1990 Individuals for whom VA examinations have been authorized and scheduled are required to report for such examinations. 38 C.F.R. 3.326(a). Generally, where evidence requested is not furnished within one year, the claim will be considered abandoned; and should the right to benefits be established, compensation based on such evidence shall commence not earlier than the date of filing the new claim. 38 C.F.R. 3.158(a). Where the veteran fails without adequate reason to respond to an order to report for VA examination within one year from the date of request and payments have been discontinued, the claim for such benefits will be considered abandoned. 38 C.F.R. 3.158(b). Where payments of compensation have not been made or have been discontinued because a payee's present whereabouts is unknown, payments will be resumed effective the day following the date of last payment if entitlement is otherwise established, upon receipt of a valid current address. 38 C.F.R. 3.158(c). Where a veteran, without good cause, fails to report for VA examination, the award will be discontinued effective date of last payment (except in certain situations involving static disabilities and prestabilization ratings). 38 C.F.R. 3.655(a). If the claim was abandoned, and the veteran subsequently states that he is willing to report for an examination, benefits may be paid from the date of receipt of the new claim if he reports for such examination within one year from the date of notice to report. 38 C.F.R. 3.655(f). If the evidence is insufficient to evaluate the disability during any period following termination or reduction, for which payments are not otherwise precluded, the rating will contain a notation to that effect. 38 C.F.R. 3.330. According to statements and testimony by the appellant, the Texas address which was given to the VA in October 1986 was actually his father's address, which he gave for the purpose of obtaining medical treatment; he did not intend that the VA change his address for any other purpose. What the record shows is that in March 1986, he contacted the VA Regional Office in St. Petersburg, Florida, and told that office not only that he was going to the VA Hospital in Houston for treatment, but also requested that his claims folder be transferred to the Houston Regional Office because this was "his permanent address." He then gave an address in Damon, Texas. In October 1986, the Houston Regional Office sent a request for physical examination to the VA Scheduling Clinic in Houston. An examination was scheduled in November 1986. The address to which notification was sent was the address in Damon, Texas. The appellant failed to report. In February 1987, the appellant informed the VA by letter that he had not received a notice to report for examination. He did, however, report that he had received a notice of suspension of benefits, which notification was sent to the Damon, Texas, address. He indicated that he was currently living in Redondo Beach, California, requested another examination, and also asked that the claims file be transferred to the Regional Office in Los Angeles. The Los Angeles Regional Office then submitted a request for physical examination to the VA scheduling clinic. An examination was scheduled in March 1987. The appellant failed to report. The address to which notification was sent was the address in Redondo Beach. In April 1987, the appellant informed the VA Regional Office in Los Angeles that he had not been notified of the VA examination, and requested another examination. The address he gave was the address in Redondo Beach. In April 1987 the regional office sent a request for physical examination to the VA scheduling clinic. The address he gave was again the Redondo Beach address. The appellant failed to report for an examination scheduled in June 1987. Notification of discontinuation of benefits was then sent to the Redondo Beach address, returned as "addressee unknown" and remailed to his Leesburg, Florida, address. In August 1987 the appellant informed the Regional Office in Los Angeles that it was "because the VA changed my address without my permission that I did not receive notification of the last exam that was scheduled." He also indicated that he would be in California most of the time and would like to be scheduled for an examination there. He stated his address was in Leesburg, Florida, that he did not want his address changed and that his mail would be forwarded to him promptly. In September 1987 the Los Angeles Regional Office sent a request for physical examination to the scheduling clinic. The appellant failed to report for examination scheduled in Los Angeles in September 1987. The address to which notification was sent was the Redondo Beach address. In November 1988, the appellant informed the Los Angeles Regional Office that he was currently a patient at the VA Medical Center in Brentwood, California, and that his address of record was in Hollywood, California. In December 1988 the regional office submitted a request for physical examination to the scheduling clinic in West Los Angeles. He failed to report for an examination scheduled in January 1989 notice of which was sent to the Hollywood address. In a communication received at the VA on February 7, 1990, the appellant requested that the examination be rescheduled. His address was in Leesburg, Florida. He reported for VA examination which was conducted later in 1990. The appellant's VA compensation benefits were discontinued in January 1987, following the initial failure to report for examination. In February 1990, the appellant indicated his willingness to report for examination, and his VA compensation was resumed, with the date of the last payment in February 1987. Compensation benefits were ultimately resumed effective February 7, 1990. Evidence which was associated with the claims file shows that the appellant failed to report for several VA examinations which were scheduled between October 1986 and January 1989. This evidence includes the appropriate VA Form 21-2507, Request for Physical Examination, which were sent from the regional office to the appropriate scheduling clinic, and, it must be emphasized, with the exception of the examination scheduled in September 1987, on each occasion, the appellant's address listed on this form was, in fact, the latest address of record. Although the claims file does not show that the scheduling clinic then sent notice to report for examination to the appellant, according to the VA's Adjudication Procedure, M21-1, Change 445, March 7, 1988, the scheduling clinic would normally advise the person to be examined of the time and place of examination. According to the general rule of administrative regularity, in the absence of evidence to the contrary, officials are presumed to properly perform their duties. In this case, the duty of the scheduling clinic would be to send the notice of examination to the address listed on the VA Form 21-2507. On each occasion, with the noted exception, it must be emphasized, this was the address of record according to the appellant's own communications with the VA. We find no persuasive evidence to rebut the presumption that the appellant was, in fact, properly apprised of the scheduled examinations, but failed to report. Under the VA's laws and regulations, if an appellant fails to report "without adequate reason" for a VA examination, his compensation may be discontinued. In such cases, if he later establishes entitlement to compensation, the award will be effective only from the time of the new claim. In this case, the question to be answered is whether the appellant abandoned his claim by failing to report for these several VA examinations scheduled from 1986 to 1989. We are of the opinion that, on each occasion, proper notice of the examination was sent to him. He has attempted to explain his failure to appear for the scheduled examinations by suggesting that the VA was at fault in somehow misunderstanding what his address of record was, but we are not persuaded by the contemporaneous record that this was in fact the case. Apart from the appellant's assertions, there is nothing to suggest misunderstanding or other fault on the part of the VA. For example, although he now asserts that the Texas address was given only as a temporary address, he clearly requested that his file be transferred to Texas and that that would be his permanent address. We find that the regional offices involved made every reasonable effort to afford the appellant an examination, that the failure to report for these several examinations was without adequate reason and, therefore, his actions constitute abandonment of his claim. Since he abandoned his claim, he is not entitled to the resumption of compensation prior to the date of receipt of the new claim, this was February 7, 1990, the date on which the statement was received indicating his willingness to report for examination, said examination having taken place some months later. ORDER A 10 percent rating is granted for the right knee disability, subject to controlling regulations applicable to the payment of monetary benefits. Entitlement to compensation from March 1, 1987, to February 6, 1990, is denied. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * (MEMBER TEMPORARILY ABSENT) H. STERLING, M.D. HOLLY E. MOEHLMANN *38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans' Appeals Se direction of the Chairman of the Board, to proceed with the transaction of busin assignment of an additional member to the Section when the Section is composed o Members due to absence of a Member, vacancy on the Board or inability of the Mem the Section to serve on the panel. The Chairman has directed that the Section p transaction of business, including the issuance of decisions, without awaiting t Member. (CONTINUED ON NEXT PAGE) NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.