Citation Nr: 1433307 Decision Date: 07/25/14 Archive Date: 07/29/14 DOCKET NO. 11-10 638 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Whether the reduction of the disability rating for prepatellar syndrome of the left knee with residuals from 20 percent to 10 percent was proper. 2. Whether the reduction of the disability rating for progressive degenerative right knee disease and residuals from 20 percent to 10 percent was proper. 3. Whether the reduction of the disability rating for progressive degenerative disc disease and degenerative joint disease of the lumbar spine from 30 percent to 10 percent was proper. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran served on active duty from June 1977 to August 1980 and from December 1980 to June 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, in which the above-listed reductions were effectuated. The Veteran's Virtual VA claims file contains only evidence that is duplicative of evidence contained in the paper claims file. The Veterans Benefits Management System electronic file contains no evidence. FINDINGS OF FACT 1. The March 2009 rating decision that assigned separate 20 percent ratings for the Veteran's prepatellar syndrome of the left knee with residuals and progressive degenerative right knee disease and residuals contained clear and unmistakable error (CUE). 2. The June 2005 rating decision that granted service connection for progressive degenerative disc disease and degenerative joint disease of the lumbar spine and assigned a 30 percent disability rating contained CUE. 3. The Veteran was notified of the proposed reductions at his latest address of record, furnished detailed reasons, provided 30 days to request a hearing, and given 60 days from the date of the notice for the presentation of additional evidence to show that the compensation payments should be continued at their present level. CONCLUSIONS OF LAW 1. Reduction of the disability rating for prepatellar syndrome of the left knee with residuals from 20 percent to 10 percent was proper. 38 U.S.C.A. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.104, 3.105, 4.40, 4.45, 4.71a, Diagnostic Code 5099-5260 (2013). 2. Reduction of the disability rating for progressive degenerative right knee disease and residuals from 20 percent to 10 percent was proper. 38 U.S.C.A. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.104, 3.105, 4.40, 4.45, 4.71a, Diagnostic Code 5003-5260 (2013). 3. Reduction of the disability rating for progressive degenerative disc disease and degenerative joint disease of the lumbar spine from 30 percent to 10 percent was proper. 38 U.S.C.A. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.104, 3.105, 4.40, 4.45, 4.71a, Diagnostic Code 5243 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Initially, the Board notes that the Veterans Claims Assistance Act of 2000 (VCAA) is inapplicable to CUE claims. As this is the basis for the decision in this case, the VCAA need not be discussed herein. Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc); 38 C.F.R. § 20.1411(c). Procedural History In a June 2005 rating decision, the RO granted entitlement to service connection for progressive degenerative disc disease and degenerative joint disease of the lumbar spine and assigned a 30 percent rating, effective October 29, 2004. It also granted entitlement to service connection for progressive degenerative right knee disease and residuals and prepatellar syndrome of the left knee with residuals and assigned a 10 percent rating to each knee disability. In an April 2007 rating decision, the RO continued all three ratings, noting that, while some improvement in the Veteran's lumbar spine disability was shown, it was not sustained improvement. In a March 2009 rating decision, the RO continued the 30 percent rating for progressive degenerative disc disease and degenerative joint disease of the lumbar spine, noting that, while some improvement in the Veteran's lumbar spine disability was shown, it was not sustained improvement. In that decision, the RO also assigned 20 percent ratings to each of the Veteran's knee disabilities, effective November 6, 2008. In an April 2010 rating decision, the RO determined that there had been CUE in the June 2005 rating decision to the extent that it assigned a 30 percent rating for the lumbar spine disability and that there had been CUE in the March 2009 rating decision to the extent that it increased the ratings for the left and right knee disabilities to 20 percent. The RO proposed to reduce the rating for the lumbar spine disability to 10 percent and the left and right knee disabilities to 10 percent each. These reductions were later effectuated in a July 2010 rating decision. CUE Analysis Unappealed RO decisions are final, and a final RO decision is not subject to revision on the same factual basis except by duly constituted appellate authorities, or on the basis of CUE, as provided in 38 C.F.R. § 3.105(a). See 38 C.F.R. § 3.104(a). If the evidence establishes CUE, the prior decision will be reversed or amended; finding of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. Id. In determining whether a prior determination involves CUE, the Court has established a three-prong test. The three prongs are: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than simple disagreement on how the facts were weighed or evaluated), or the statutory/regulatory provisions extant at that time were not correctly applied; (2) the error must be 'undebatable' and of the sort which, if it had not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (citing Russell v. Principi, 3 Vet. App. 310, 313- 14 (1992) (en banc)). CUE is a very specific and rare kind of "error." It is the kind of error in fact or law that, when called to the attention of later reviewers, compels the conclusion, to which reasonable minds could not differ, that the result would manifestly have been different but for the error. Even when the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be ipso facto clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993) (citing Russell, 3 Vet. App. at 313-14). A determination of CUE must be based on the record and the law that existed at the time of the prior adjudication. Baldwin v. West, 13 Vet. App. 1 (1999); Caffrey v. Brown, 6 Vet. App. 377 (1994). In this case, the Board finds that CUE in the June 2005 and March 2009 rating decisions is shown for the following reasons. With regard to the June 2005 rating decision, the Board finds that the incorrect regulatory provisions were used in rating the Veteran's spine disability. Specifically, while the RO assigned a 30 percent rating to the Veteran's lumbar spine disability, the Board notes that such an evaluation is not available for this spinal segment under the applicable regulations. The General Rating Formula for Diseases and Injuries of the Spine, in effect at the time of the June 2005 rating decision and presently, provides for a 30 percent rating only with regard to the cervical spine. The rating criteria do not contemplate a 30 percent rating applicable to any disability involving the thoracolumbar spine. "Thoracolumbar" is defined as, "Relating to the thoracic and lumbar portions of the vertebral column." STEDMAN'S MEDICAL DICTIONARY 1829 (27th ed., 2000). Therefore, as the Veteran's service-connected disability is one of the lumbar spine, a 30 percent rating under the General Rating Formula for Diseases of Injuries of the Spine is not legally available. Likewise, a 30 percent rating is not available for any spine disability under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2005). Therefore, the Board concludes that the correct regulatory provisions extant at the time of the June 2005 rating decision were not correctly applied. A 30 percent rating cannot be assigned to a lumbar spine disability under the regulations in effect at the time of the June 2005 rating decision. There can be no debate as to the misapplication of this regulation, as the rating criteria clearly do not contemplate a 30 percent rating for a lumbar spine disability. Moreover, because a 30 percent rating is unavailable under the relevant regulations, a correct application of the laws and regulations would have manifestly changed the outcome of the rating assigned to this disability in June 2005. Finally, and has been discussed above, the finding of CUE is based upon the record and law that existed at the time of the June 2005 adjudication. Therefore, the Board finds that there was CUE in the June 2005 rating decision that assigned a 30 percent rating to the service-connected disability of progressive degenerative disc disease and degenerative joint disease of the lumbar spine. Regarding the March 2009 rating decision, the Board also finds that there is CUE in that decision to the extent that it assigned a 20 percent disability rating to the Veteran's progressive degenerative right knee disease and residuals and the prepatellar syndrome of the left knee with residuals for the following reasons. In this case, the correct facts were before the adjudicator, having been accurately reported from the December 2008 VA examination report. However, the regulatory provisions were not correctly applied. The disabilities of both knees were rated under the criteria of 38 C.F.R. § 4.71a, Diagnostic Code 5260, which provided for a 10 percent rating with flexion of the leg limited to 45 degrees and a 20 percent rating with flexion limited to 30 degrees. When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. The provisions of 38 C.F.R. § 4.40 state that 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. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). In this case, the regulatory provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.71a, Diagnostic Code 5260 were incorrectly applied in assigning a 20 percent rating to each of the Veteran's knee disabilities in the March 2009 rating decision. While the Veteran reported increased pain in his knees, there is no lay or medical evidence even suggesting that this and other factors functionally limited the Veteran's flexion of either leg to 30 degrees or less. The Veteran flexed both knees to 110 degrees on examination in December 2008, and there was no additional limitation following repetitive motion. Furthermore, while the Veteran complained of pain with motion of the knees, there is no lay or medical evidence suggesting that limitation of flexion of either knee was ever functionally restricted to 30 degrees or less. In the March 2009 rating decision, the RO incorrectly assigned a 20 percent rating, noting that a 20 percent rating is assigned for leg flexion limited to 30 degrees. The Veteran's knee disabilities never resulted in flexion limited to any more than 110 degrees, a fact noted in the rating decision, even when considering functional limitation addressing the criteria associated with 38 C.F.R. §§ 4.40 and 4.45 and DeLuca, supra. As such, the Board finds that the regulatory provisions extant at the time of the March 2009 rating decision were incorrectly applied. This error is undebatable because there is no lay or medical evidence of any flexion of either knee being functionally limited to 30 degrees or any measurement in close proximity to 30 degrees. If the regulatory provisions had been correctly applied, the outcome of the March 2009 rating decision would have been manifestly different, and the 10 percent disability ratings would have been continued. Finally, this determination that CUE is found in the March 2009 rating decision is made based only on the record and law that existed at the time of the adjudication. Therefore, the Board finds that there was CUE in the March 2009 rating decision that assigned 20 percent ratings to the Veteran's progressive degenerative right knee disease and residuals and prepatellar syndrome of the left knee with residuals. Rating Reduction As described above, the Board finds that the RO correctly determined that there was CUE in the June 2005 and March 2009 rating decisions. This finding resulted in the Veteran's disability ratings being reduced. Procedurally, where a reduction in an evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons. In addition, the RO must notify a veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. A veteran must be informed that he may request a predetermination hearing, provided that the request is received by the VA within 30 days from the date of the notice. If no additional evidence is received within the 60 day period and no hearing is requested, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the Veteran expires. 38 C.F.R. § 3.105(e). In this case, the proper procedures were followed for implementing the reductions. The RO proposed the reduction in an April 2010 rating decision that was mailed to the Veteran that same month. It contained all material facts and reasons for the reduction. He was told in the accompanying letter that he had 60 days to present additional evidence showing that his compensation should continue at the then-present level. He was told that he had a right to a hearing, provided that it was requested within 30 days from the date of the notice. The Veteran did not request a hearing, and the final rating action was issued in July 2010, with the reductions to be effective October 1, 2010, which was more than 60 days after the date of the notice of the proposed reduction. Therefore, there was compliance with all requisite procedural matters. Accordingly, the Board concludes that the RO was correct in finding CUE in the June 2005 and March 2009 rating decisions and properly reduced the Veteran's ratings. ORDER The reduction of the disability rating for prepatellar syndrome of the left knee with residuals from 20 percent to 10 percent was proper, and the claim is denied. The reduction of the disability rating for progressive degenerative right knee disease and residuals from 20 percent to 10 percent was proper, and the claim is denied. The reduction of the disability rating for progressive degenerative disc disease and degenerative joint disease of the lumbar spine from 30 percent to 10 percent was proper, and the claim is denied. ______________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs