Citation Nr: 0007927
Decision Date: 03/23/00	Archive Date: 09/08/00

DOCKET NO. 98-18 069A              DATE MAR 23, 2000

On appeal from the Department of Veterans Affairs Regional Office
in Seattle, Washington

THE ISSUES

1. Entitlement to an initial evaluation in excess of 30 percent for
a left knee disability.

2. Entitlement to an initial evaluation in excess of 20 percent for
a right knee disability.

REPRESENTATION

Appellant represented by: Montana Veterans Affairs Division

WITNESSES AT HEARING ON APPEAL

Appellant and her fiancee

ATTORNEY FOR THE BOARD

Solomon J. Gully, IV, Associate Counsel

INTRODUCTION

The appellant served on active duty from August 1986 to December
1991.

This matter comes before the Board of Veterans' Appeals (Board) on
appeal from rating decisions by the Department of Veterans Affairs
(VA) Regional Offices (ROs) in Fort Harrison, Montana, and Seattle,
Washington. The Board notes that this matter was initially before
the RO located in Fort Harrison, Montana. During the pendency of
this matter, the appellant relocated, and jurisdiction of this
matter was transferred to the RO located in New Orleans, Louisiana
in May 1996. The veteran again relocated, and the claim was
transferred to the RO located in Seattle, Washington in June 1998.
This case was previously remanded by the Board for additional
development in April 1996, June 1997, and August 1998. The case is
now, once more, before the Board for appellate review.

The Board notes that during the pendency of the appeal, the RO
granted a 20 percent evaluation for the veteran's service-connected
right knee disability. While the veteran appealed the RO's February
1994 rating decision granting a noncompensable evaluation for the
right knee disorder, the subsequent partial grant of 20 percent
does not terminate the issue on appeal. The United States Court of
Appeals for Veterans Claims (Court) (known as the United States
Court of Veterans Appeals prior to March 1, 1999) has held that
where a veteran has filed a notice of disagreement (NOD) as to the
assignment of a disability evaluation, a subsequent rating decision
awarding a higher rating, but less than the maximum available
benefit, does not abrogate the pending appeal. See AB v. Brown, 6
Vet. App. 35, 38 (1993).

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In accordance with the recent case of Fenderson v. West, 12 Vet.
App. 119 (1999), the issues in this case have been rephrased to
reflect that the veteran is appealing the initial evaluations
assigned for her bilateral knee disability.

FINDINGS OF FACT

1. All available evidence for an evaluation of the veteran's claims
has been obtained.

2. The veteran failed to appear for a scheduled VA medical
examination without good cause shown.

3. Correspondence mailed to the veteran's last known address of
record was undeliverable, and attempts to locate her have been
unsuccessful.

4. The evidence of record is silent as to any current bilateral
knee symptomatology.

CONCLUSIONS OF LAW

1. The criteria for an evaluation in excess of 30 percent for a
left knee disability have not been met at any time since the
effective date of grant of service connection for such disability.
38 U.S.C.A. 1155, 5107 (West 1991); 38 C.F.R. 3.655(b), 4.7, 4.40,
4.45, 4.59, and 4.71a, Diagnostic Codes 5257-5261 (1999).

2. The criteria for an evaluation in excess of 20 percent for a
right knee disability have not been met at any time since the
effective date of grant of service connection for such disability.
38 U.S.C.A. 1155, 5107 (West 1991); 38 C.F.R. 3.655(b), 4.7, 4.40,
4.45, 4.59, and 4.71a, Diagnostic Codes 5099-5257 (1999).

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REASONS AND BASES FOR FINDINGS AND CONCLUSION

Factual Background

This case was initially before the Board in April 1996, at which
time it was remanded for further development. In particular, the
Board directed the RO to schedule a VA orthopedic examination to
determine the nature and severity of the veteran's bilateral knee
disability in light of DeLuca v. Brown, 8 Vet. App. 802 (1995).

A review of the record reflects that a VA examination was scheduled
in December 1996, but was canceled by the veteran. A computer-
generated report indicates that the veteran would be out of town,
but would "contact VARL." The claims folder was forwarded to the
Board for appellate review.

In June 1997, the Board remanded the matter to the RO for
completion of the evidentiary development requested in its previous
remand. In addition, the Board advised the veteran of the
provisions of 38 C.F.R. 3.655 concerning the consequences of
failing to appear for a scheduled examination.

in August 1997 correspondence, the veteran reported that she moved
to Spokane, Washington, and requested that her physical
examinations be rescheduled. She indicated that her current address
was MSC #1955, NNN X. XXXXX XXX., Spokane, Washington NNNNN.

During an October 1997 VA orthopedic examination, the veteran gave
a history of injuring her left knee while skiing prior to her
discharge from service. She reported wearing a knee brace one to
two times a week, and explained that cold weather general increased
her left knee pain. She related that her left knee buckled three to
four times a week, and indicated that she experienced increased
pain in both knees when descending stairs. While swelling was rare,
it was more frequent in the left knee. The veteran denied
experiencing a locking sensation in either knee. She reported
bilateral knee pain at night that occasionally woke her up, and
indicated

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that she usually took Ibuprofen to treat the pain. She stated that
she had stopped all physical activity.

A physical examination revealed that the veteran's gait was normal,
and she was able to do heel-to-toe without difficulty. She squatted
to 115 degrees bilaterally with pain response. The leg lengths were
noted to be "equal to circumference," with the right measured at
14-inches, and the left at 13 7/8-inches. The veteran had a "very
marked pain response" on the medial aspect of the left knee on even
light touch. In addition, she had very slow and jerky motions when
requested to elevate and then flex and extend the left knee. Range
of motion of was from 0 to 140 degrees bilaterally, with "marked
pain with motion" of the left knee. A positive medial McMurray's
sign was noted bilaterally. Both legs were described as "okay,"
pulses were noted to be "okay," and hip range of motion was "okay"
bilaterally. The ligaments were normal bilaterally. While X-rays of
the knees were noted to be normal, a notation added to the X-ray
report indicates that the veteran's right knee showed calcification
adjacent to the medial femoral condyle.

The pertinent diagnoses included Pelligrini-Stieda disease of the
left knee, probable tom medial meniscus of the left knee joint and
possible anterior cruciate ligament tear, although this could not
be determined specifically on the orthopedic exam, and probable tom
medial meniscus of the right knee joint with history of
chondromalacia of the patella, which was not evident on orthopedic
examination.

An April 1998 rating decision confirmed the 30 percent evaluation
in effect for the left knee disability, and granted a 20 percent
evaluation for the right knee disability.

In August 1998, the Board determined that the October 1997 VA
orthopedic examination was inadequate for rating purposes, and
remanded the case to the RO for another examination.

In compliance with the August 1998 remand, the RO completed a
worksheet in September 1998, requesting that the VA medical
facility schedule an examination. A computer generated report from
the VA Medical Center (VAMC) in Spokane,

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Washington indicates that the veteran's examination was canceled
when the notification letter was returned as undeliverable.

The RO's development letter was returned as undeliverable in
September 1998. The postal service noted that no forwarding address
was on file, and the letter could not be forwarded. Later that
month, the RO attempted to mail this letter to the veteran at NNN
X. XXXXXXXX, Spokane, Washington NNNNN. This correspondence was
also returned as undeliverable.

A September 1999 memorandum to the file notes that an attempt was
made to reach the veteran by telephone in November 1998. While a
message was reportedly left, the veteran failed to respond. Both an
Internet site and the telephone book listed the veteran's current
address as NNN X. XXXXXXXX, Spokane, Washington NNNNN. However, the
record notes that prior correspondence was unsuccessfully mailed to
this address. When the RO attempted to contact the veteran by
calling the telephone number listed on the Internet site and in the
telephone book, a message indicated that the telephone number was
"disconnected or no longer in service."

A Supplemental Statement of the Case mailed to the veteran at NNN
X. XXXXXXXX, Spokane, Washington NNNNN was returned to the RO as
undeliverable. A handwritten note on the envelope indicates that
the veteran had moved.

Analysis

Initially, the Board finds that the veteran's claims are well
grounded pursuant to 38 U.S.C.A. 5107. Shipwash v. Brown, 8 Vet.
App. 218, 224 (1995). Once it has been determined that a claim is
well grounded, VA has a statutory duty to assist in the development
of evidence pertinent to the claim. 38 U.S.C.A. 5107.

As set forth above, Board and the RO have attempted to satisfy this
duty. It is regrettable that defects in the VA examinations
required that additional examinations be performed. The veteran was
advised fully of the reasons why additional examinations were
required and of the importance of her cooperation.

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The Court has held that VA's duty to assist the veteran is not a
one-way street; she also has an obligation to assist in the
adjudication of her claim. Wood v. Derwinski, 1 Vet. App. 190, 193
(1991). The current posture of this claim is that the veteran
failed to appear for a scheduled examination without good cause;
this circumstance is subject to the mandates of a controlling
regulation of which the veteran had been informed. Accordingly, the
Board finds that no further assistance in developing the facts
pertinent to this claim is required to comply with the duty to
assist the veteran under 38 U.S.C.A. 5107(a).

The evidence shows that the RO developed the record consistent with
the Board's August 1998 remand instructions. Stegall v. West, 11
Vet. App. 268 (1998). The veteran was scheduled for a VA medical
examination in October 1998, but she failed to report. The record
also shows that RO utilized the most recent address of record in
notifying her of this examination. Moreover, the RO attempted to
locate a more recent address for the veteran without success. The
RO's efforts in this regard are well documented above, and
throughout the claims folder.

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 (1994)(citing Ashley v. Derwinski, 2 Vet. App. 62
(1992)). Notification for VA purposes is a written notice sent to
the veteran's address of record. 38 C.F.R. 3.1(q)(1999).

In Hyson v. Brown, 5 Vet. App. 262 (1993), the Court found that,
when it was apparent from a review of the claims folder that a
veteran had multiple addresses on file, it was incumbent upon the
RO that notice was sent to the veteran's "last address of record."
In Wamhoff v. Brown, 8 Vet. App. 517 (1996), the Court found that
notice of required VA examinations mailed to the veteran's sole
address on file was sufficient to trigger the veteran's duty to
appear for such examinations, although the evidence in that case
later revealed that the veteran did not receive such notification
because he was not in fact residing at that address.

While the most recent notice to report for VA medical examination
was returned to the VAMC as undeliverable, and the veteran did not
receive this notification, the

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Court has held that in the normal course of events, it is the
burden of the appellant to keep the VA apprised of their
whereabouts. If she does not do so, there is no burden on the VA to
"turn up heaven and earth" to find her. Hyson, 5 Vet. App. at 265.
The failure of a claimant to advise VA of her correct address is
not one of the circumstances identified in 38 C.F.R. 3.655 as "good
cause" for the failure to report for examination, and Hyson would
appear to indicate that it could not be a "good cause."

In view of the foregoing, the Board finds that the veteran's
failure to appear for a scheduled VA examination is without good
cause, as she did not receive or respond to correspondence sent by
the RO, or otherwise contact the RO with her new address, despite
having knowledge of her pending appeal.

In Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that
when a veteran appealed the initial rating assigned in an original
compensation claim (following a grant of service connection), that
"rating claim" continued to be an original claim as a matter of
law. Therefore, the Board can not deny the veteran's claims for
increased evaluations in accordance with 38 C.F.R. 3.655(b), on the
basis that she failed to report for a scheduled VA examination
without good cause or adequate reason, because the regulation
states that when a claimant fails to report for an examination
scheduled in conjunction with an original claim, the claim shall be
rated based on the available evidence on file. Thus, the Board must
adjudicate the veteran's claims based on the evidence of record. 38
C.F.R. 3.655.

Disability evaluations are determined by the application of the VA
Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part
4. The percentage ratings contained in the Rating Schedule
represent, as far as can be practicably determined, the average
impairment in earning capacity resulting from diseases and injuries
incurred or aggravated during military service and their residual
conditions in civil occupations. 38 U.S.C.A. 1155 (West 1991); 38
C.F.R. 4.1 (1999).

Where entitlement to compensation has already been established and
an increase in the disability rating is at issue, the present level
of disability is of primary concern.

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Although a rating specialist is directed to review the recorded
history of a disability in order to make a more accurate
evaluation, the regulations do not give past medical reports
precedence over current findings. See 38 C.F.R. 4.2 (1999);
Francisco v. Brown, 7 Vet. App. 55 (1994).

Where there is a question as to which of two evaluations shall be
applied, the higher evaluation will be assigned if the disability
picture more nearly approximates the criteria required for that
rating. Otherwise, the lower rating will be assigned. 38 C.F.R.
4.7.

Where the particular disability for which the veteran has been
service connected is not listed, it may be rated by analogy to a
closely related disease in which not only the functions affected,
but also the anatomical location and symptomatology are closely
analogous. See 38 C.F.R.  4.20, 4.27. See also Lendenmann v.
Principi, 3 Vet. App. 345, 349- 350 (1992); Pernorio v. Derwinski,
2 Vet. App. 625, 629 (1992).

Disability of the musculoskeletal system is primarily the
inability, due to damage or inflammation in parts of the system, to
perform normal working movements of the body with normal excursion,
strength, speed, coordination and endurance. Functional loss may be
due to pain supported by adequate pathology and evidenced by
visible behavior of the claimant undertaking the motion. 38 C.F.R.
4.40.

The factors of disability affecting joints are reduction of normal
excursion of movements in different planes, weakened movement,
excess fatigability, swelling and pain on movement. 38 C.F.R. 4.45.

The Court has held that functional loss, supported by adequate
pathology and evidenced by visible behavior of the veteran
undertaking the motion, is recognized as resulting in disability.
DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. 4.10, 4.40,
4.45.

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The veteran's left knee disability has been evaluated as 30 percent
disabling under Diagnostic Codes 5261-5257, and her right knee
disability has been evaluated as 20 percent disabling under
Diagnostic Codes 5099-5257. A knee impairment with recurrent
subluxation and lateral instability is rated 10 percent when
slight, 20 percent when moderate, and 3 0 percent when severe. 38
C.F.R. 4.71a, Diagnostic Code 5257 (1999). Limitation of extension
of a leg is rated 0 percent when limited to 5 degrees, 10 percent
when limited to 10 degrees, 20 percent when limited to 15 degrees,
30 percent when limited to 20 degrees, 40 percent when limited to
30 degrees, and 50 percent when limited to 45 degrees. 38 C.F.R.
4.71a, Diagnostic Code 5261 (1999).

As noted above, the Board remanded this case in August 1998 for
additional development of the evidence in accordance with pertinent
law and regulations governing the rating of disabilities of the
musculoskeletal system, as mandated by the Court in DeLuca. In
particular, the Board found that evidence then of record was
insufficient to determine the severity of the veteran's bilateral
knee disability upon consideration of her subjective complaints of
pain, weakness, and functional impairment under 38 C.F.R. 4.40 and
4.45 (1996). Id., 8 Vet. App. at 206. The Board requested another
examination to identify findings that could provide the basis for
a higher rating for the veteran's service-connected bilateral knee
disability.

Unfortunately, because of the veteran's disappearance, the
development requested by the Board could not be completed and, as
emphasized previously by the Board, the record as it stands is
inadequate for deciding the claim on appeal. As detailed in the
remand in 1998, the evidence of record does not demonstrate the
actual range of pain free motion, does not demonstrate atrophy due
to disuse, and does not show objective findings supporting the
subjective complaints of pain. In view of these circumstances, the
Board is unable to determine the appropriate diagnostic codes and
evaluations that are warranted because the record lacks the
aforementioned specific data that the pertinent VA regulations and
diagnostic codes require ascertaining the degree of impairment.

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Consequently, the Board finds that the veteran's overall impairment
associated with her service-connected right knee disability is
appropriately rated as 30 percent disabling under Diagnostic Codes
5261-5257, and her right knee disability is appropriately rated as
20 percent disabling under Diagnostic Codes 5099-5257. Higher
evaluations under different diagnostic codes are not indicated.
Based on the evidence of record, the Board must conclude that the
preponderance of the evidence is against the veteran's claims for
an initial evaluation in excess of 30 percent for a left knee
disability, and an initial evaluation in excess of 20 percent for
a right knee disability.

The Board has considered the Court's holding in Fenderson, and the
application of "staged" ratings during the appeal period. However,
the Board specifically finds that there is no evidence that
supports the veteran's claims at different periods of time during
the appeal period.

ORDER

Entitlement to an initial evaluation in excess of 30 percent for a
left knee disability is denied.

Entitlement to an initial evaluation in excess of 20 percent for
a,right knee disability is denied.

Richard B. Frank 
Member, Board of Veterans' Appeals