Case 26004857

B. MULLINS · 2026 · Case ID: 26004857

MIXED

Summary

The veteran, who served in the United States Army from October 1977 to October 1980 and March 1984 to July 1987, appeals the denial of an increased rating for bilateral knee conditions and the grant of service connection for neurological abnormalities associated with his lumbar spine disability. The Board dismissed the claim for service connection for PTSD, noting it had already been granted by the AOJ and was no longer on appeal. For the neurological abnormalities secondary to lumbar spine disability, the Board found the evidence in approximate balance and resolved the doubt in the veteran's favor, granting service connection. The Board denied the veteran's claim for an increased rating for his bilateral knee conditions. The veteran failed to attend multiple scheduled VA examinations for his knees without good cause, and the Board found the AOJ had substantially complied with prior remand directives. The Board noted the veteran's deportation by ICE and subsequent difficulty in scheduling examinations, but ultimately denied the increased rating claim for the knees due to the failure to attend the necessary examinations, citing 38 C.F.R. § 3.655.

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

17-61 296

Full Decision Text

Citation Nr: 26004857
Decision Date: 04/22/26 Archive Date: 04/22/26

DOCKET NO. 17-61 296
DATE: April 22, 2026

ORDER

Entitlement to service connection for acquired psychiatric disorder is dismissed.

Entitlement to service connection for neurological abnormalities associated with service-connected lumbar spine disability is granted.

Entitlement to a rating in excess of 10 percent for service-connected right knee disability is denied.

Entitlement to a rating in excess of 10 percent for service-connected left knee disability is denied.

FINDINGS OF FACT

1. In September 2024, the Agency of Original Jurisdiction (AOJ) granted the Veteran's claim of service connection for acquired psychiatric disorder described as PTSD, effective November 23, 2016.

2. In September 2025, the Veteran filed an application for higher level review of the September 2024 rating decision requesting an increased rating for acquired psychiatric disorder in the AMA, as well as an earlier effective date for that rating, and as a result the claim has been already moved out of the legacy system into the AMA, and the legacy issue is properly dismissed.

3. Resolving reasonable doubt in the Veteran's favor, his neurological abnormalities are at least as likely as not related to his service-connected lumbar spine disability.

4. The Veteran, without good cause, failed to appear for a VA examination scheduled to adequately assess the severity of his service-connected right knee condition.

5. The Veteran, without good cause, failed to appear for a VA examination scheduled to adequately assess the severity of his service-connected left knee condition.

CONCLUSIONS OF LAW

1. The Board dismisses the claim of service connection for acquired psychiatric disorder described as PTSD because the claim has been granted already and rendered moot. 38 U.S.C. §§ 7104(a), 7105(d), 38 C.F.R. § 19.55.

2. The criteria for service connection for neurological abnormalities related to his lumbar spine are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

3. The criteria for an evaluation in excess of 10 percent for right knee instability have not been met. 38 U.S.C. §§1155, 5107; 38C.F.R. §§3.102, 3.655, 4.1, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5257.

4. The criteria for an evaluation in excess of 10 percent for left knee instability have not been met. 38 U.S.C. §§1155, 5107; 38C.F.R. §§3.102, 3.655, 4.1, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5257.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had honorable active service with the United States Army from October 1977 to October 1980, and from March 1984 to July 1987.

In November 2016, the Veteran filed a supplemental claim for increased rating for lumbar spine, and bilateral knees, as well as service connection for a psychiatric condition. As discussed below, the psychiatric condition PTSD has been awarded.

In December 2020, the Board denied a disability rating in excess of 40 percent for lumbar spine disability, but remanded the claim for a left knee rating in excess of 10 percent, a right knee rating in excess of 10 percent, and a separate rating for neurological abnormalities associated with lumbar spine disability. See BVA Decision dated December 2020.

The Veteran has received total disability and individual unemployability (TDIU) from May 2, 2008. See Rating Decision- Codesheet dated March 2026. As such, the Board will not address TDIU in this decision as already granted in full.

Dismissed claim

1. Entitlement to service connection for PTSD

The Veteran filed a claim for acquired psychiatric disorder including PTSD. Then in September 2024 a rating decision granted entitlement to service connection for acquired psychiatric disorder described as PTSD at 70 percent effective November 23, 2024.

The Board may?dismiss?any appeal which fails to allege specific error of fact or law in the determination being appealed.?38?U.S.C. §?7105;?38?C.F.R. §?19.55. Here, as the rating decision in September 2024 has granted service connection for acquired psychiatric disorder, there no longer remains a case or controversy.

The Veteran also filed an application
already granted in full.

Dismissed claim

1. Entitlement to service connection for PTSD

The Veteran also filed an application for higher level review requesting a higher rating as well as an earlier effective date for that rating in September 2024. The higher-level review application withdrew the claim from the legacy system and moved it into the AMA. See VA Form 20-0996 dated September 2025.

The Board finds that even though the December 2025 SSOC listed the issue of acquired psychiatric disorder including PTSD, the claim is properly dismissed from the legacy system. The Board finds that the December 2025 SSOC listed the issue of acquired psychiatric disorder including PTSD in error. Moreover, subsequently, in December 2025 another rating decision issued based on the higher-level review application granted a 100 percent rating effective November 23, 2016, and an evaluation of 70 percent from May 3, 2024. See Rating Decision-Narrative dated December 2025.

Therefore, the Board dismisses this issue because it has been granted, and the issue is no longer under appeal in the legacy system.?38?U.S.C. §§?7104, 7105;?38?C.F.R. §?19.55.

Service Connection

Entitlement to service connection for neurological abnormalities associated with service-connected lumbar spine disability

The Veteran is service connected for lumbar spine disability.

The October 2023 VA examiner stated that it is at least as likely as not that the Veteran's neurological abnormalities are proximately due to or the result of service-connected lumbar spine disorder. The examiner stated that the temporal association, symptomatic overlap, and service-related injuries make it reasonable to associate the lumbar condition with the neurological abnormalities. See C&P Examination received October 2023.

In the January 2025 rating decision, favorable findings stated that the claimed condition of radiculopathy was secondary to a service-connected disability. Then the findings stated that the condition was back strain with degenerative disc disease at L4 to L5 and L5 to S1. The January 2025 rating decision confusingly denied severe radiculopathy as not a result of toxic exposures risk activities but acknowledged the condition as secondary. However, it does not appear that the Veteran ever received a grant of service connection for neurological abnormalities.

The law is clear. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the Veteran shall be afforded the benefit of the doubt and prevail upon the issue. 38 U.S.C. § 5107(b).

Resolving any reasonable doubt in favor of the Veteran, the Board finds that the Veteran's neurological abnormalities are reasonably related to his service-connected lumbar spine condition. Accordingly, the claim for a separate rating for neurological abnormalities related to lumbar spine disability is granted.

Increased Rating

1. Entitlement to a rating in excess of 10 percent for service-connected right knee disability

See section 2.

2. Entitlement to a rating in excess of 10 percent for service-connected left knee disability

The Veteran has contended that his knees should receive an increased rating.

In considering the evidence of records and the laws and regulations, as set forth above, the Board concludes that the Veteran is not entitled to a rating in excess of 10 percent for bilateral knees instability.

The Veteran's right knee and left knee were rated under DC 5257 for knee instability with traumatic degenerative arthritis at 10 percent each from July 10, 1987.

The Veteran had a VA examination in April 2017. At the examination, the VA doctor reported that the Veteran refused to move his knees and that he was malingering. See C&P Examination received April 2017.

Then he had another examination in October 2017. The same VA doctor performed the October 2017 examination. The doctor stated that the Veteran did not have a disability and that he was trying to deceive the examiner. The doctor stated that there was significant symptom magnification during the examination. See C&P Examination received October 2017.

The Board remanded the claim in December 2020 for a new rating examination.

There have been many attempts to obtain a
10, 1987.

The Board remanded the claim in December 2020 for a new rating examination.

There have been many attempts to obtain a new rating examination of the Veteran's knees.

Records document that the Veteran was deported by ICE. See VA 21-4193 Notice to Veterans Administration of Veteran or Beneficiary Incarcerated in Penal Institution dated January 2019 and CAPRI dated June 2025.

Since the Veteran no longer resides in the USA he has been sent many examination requests. See e.g. Claim Examination Enclosure, and Examination request dated December 2022, Exam request dated April 2023, Exam request and Subsequent Development Letter dated January 2024.

The Board notes that the January 2024 communications were also sent to the Veteran's representative and not returned. However, the Veteran has failed to attend a bilateral knee examination.

In February 2024, the Veteran sent the VA some medical records including a note that he is diagnosed with schizophrenia. He also included a letter from January 2009 from a doctor that stated that the Veteran needed to use a motorized wheelchair to propel himself and that he was totally non-ambulatory. See Medical Treatment Record-Government Facility received February 2024.

While the Board is sympathetic to the potential difficulty in attending an examination, the Board still finds that an examination is required to properly rate the Veteran's knees.

The Veteran has also been able to attend other examinations. For example, in January 2021, the Veteran had a VA examination for peripheral nerves condition performed outside the USA by a contractor. The Board also notes that the January 2021 examination did not negate the need for a knee examination to determine the extent of any knee disability, apart from other conditions. See Medical Treatment Record-Government Facility received January 2021.

The VA again requested a bilateral knee examination in March 2025. See Examination request, Subsequent Development Letter, and VA 21-2507 a Request for Physical Examination, dated March 2025.

The Veteran has provided no good cause for his failure to attend such examinations and has not asked for these examinations to be rescheduled. As the AOJ made appropriate efforts to schedule the examination, the Board finds that the AOJ has substantially complied with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998).

According to VA regulation, when a claimant, without good cause, fails to report for a necessary examination scheduled in conjunction with a claim for an increase in the rating for a service-connected disability, the claim shall be denied. See 38 C.F.R. § 3.655 (directing the mandatory denial in this circumstance given the express "shall" language used in this governing VA regulation).

When a veteran misses a scheduled VA examination, the Board must consider (1) whether the examination was necessary to establish entitlement to the benefit sought, and (2) whether the Veteran lacked good cause to miss the scheduled examination. See Turk v. Peake, 21 Vet. App. 565 (2008).

(Continued on the next page)

Here, the Board finds that a VA examination regarding the Veteran's bilateral knee disability on appeal was necessary to assess its severity. The Veteran has not provided justifiable reason or explanation (i.e., the required good cause) for his failure to report for a knee examination. Additionally, even if some communications were returned, the Veteran's representative has received VA letters, and the Veteran has sent in other documents for other claims. The Board finds that there is no good cause for the Veteran's failure to attend an examination for his bilateral knee condition. Accordingly, the Veteran's claim for increased rating of his bilateral knee disability is denied pursuant to 38 C.F.R. § 3.655.

B. MULLINS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Parnell, C. E.

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.

claims. The Board finds that there is no good cause for the Veteran's failure to attend an examination for his bilateral knee condition. Accordingly, the Veteran's claim for increased rating of his bilateral knee disability is denied pursuant to 38 C.F.R. § 3.655.

B. MULLINS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Parnell, C. E.

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