Citation Nr: 0809925 Decision Date: 03/26/08 Archive Date: 04/09/08 DOCKET NO. 04-29 837 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an increased rating for patellofemoral syndrome and plica syndrome, status post arthroscopic excision of plica of the left knee (left knee disability), currently evaluated as 10 percent disabling, to include the issue of whether the reduction in rating from 20 percent to 10 percent, effective May 1, 2001, was proper. 2. Entitlement to a disability rating in excess of 10 percent for patellofemoral syndrome and plica syndrome, status post arthroscopic excision of plica of the right knee (right knee disability). 3. Entitlement to service connection for arthritis of the knees, claimed as secondary to service-connected bilateral knee disabilities. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Sarah E. Abraham, Associate Counsel INTRODUCTION The veteran had active military service from February 1983 to May 1986. These matters come before the Board of Veterans' Appeals (Board) on appeal of November 2000 and February 2001 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The veteran's claims file has subsequently been moved to the RO in New Orleans, Louisiana. The veteran testified at a Board hearing in October 2007. The issues of entitlement to increased ratings for bilateral knee disabilities and entitlement to service connection for arthritis of the knees are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Material improvement of the veteran's left knee disability since it was evaluated as 20 percent disabling has not been shown. CONCLUSION OF LAW The criteria for restoration of the 20 percent evaluation, for left knee disability, effective May 1, 2001, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 3.344 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board restores the 20 percent rating for the veteran's left knee disability, effective the date of the reduction, which represents a complete grant of the benefit sought on appeal. Thus, no discussion of VA's duties to notify and assist is required. The veteran challenges the reduction of the evaluation of his left knee disability on the basis that the disability has not improved. The United States Court of Appeals for Veterans Claims (Court) has identified "at least four specific requirements" applicable to rating reductions in the pertinent regulation (38 C.F.R. § 3.344): (1) the Board must review "the entire record of examinations and the medical- industrial history. . . to ascertain whether the recent examination is full and complete"; (2) "[e]xaminations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction"; (3) "[r]atings on account of diseases subject to temporary and episodic improvement, [. . . ] will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated"; and (4) "[al]though material improvement in the physical or mental condition is clearly reflected, the rating agency will [consider] whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life" Brown v. Brown, 5 Vet. App. 413, 419 (1993), quoting 38 C.F.R. § 3.344(a). Service connection for a left knee disability was granted effective January 21, 1987, and a 10 percent rating was assigned. In a January 1989 rating decision, the evaluation for a left knee disability was reduced to zero percent, effective April 1, 1989. The RO, in a June 1992 rating decision, granted an increased rating to 10 percent, effective September 5, 1991. In September 1997, the RO granted a temporary 100 percent rating, due to convalescence from knee surgery, from July 19 to August 31, 1992. Thereafter, a 20 percent rating was assigned, effective September 1, 1992. In a February 2, 2001 rating decision, the RO decreased the veteran's left knee disability rating to 10 percent, effective May 1, 2001. Within the September 1997 rating decision, the RO cited several medical records upon which it based the assignment of a 20 percent disability rating. In January and July 1993, the veteran reported pain and crepitus of the left knee, and numbness in the legs with prolonged sitting. In March and July 1997, the veteran complained of popping, clicking, locking, and pain in his left knee. He was proscribed a knee brace in March 1997; joint line tenderness and crepitus were noted in July 1997. The evidence considered in reducing the veteran's evaluation included an October 2000 VA examination that showed the veteran had pain on motion, and that he wore a brace. Private medical records, dated from July 2000 to January 2004, reflect the veteran's consistent reports of muscular and joint pain. Here, the symptoms upon which the RO apparently based the 20 percent evaluation in effect from September 1, 1992 - April 30, 2001, included pain, crepitus, and the use of a knee brace. As set out above, these manifestations of the left knee disability essentially still exist. Thus, the overall description of the veteran's complaints and findings do not appear to have meaningfully changed during this time. Accordingly, a basis upon which to reduce his disability evaluation has not been presented, and restoration of the veteran's 20 percent disability evaluation, effective May 1, 2001, is granted. ORDER Subject to the law and regulations governing payment of monetary benefits, a 20 percent rating for a left knee disability is restored, effective May 1, 2001. REMAND As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). The Board finds that the veteran has not received appropriate notice, as required by the VCAA regarding the remaining issues on appeal. With respect to the veteran's claim for service connection, he contends that his arthritis of the knees is secondary to his service-connected bilateral knee disabilities. While the notice provided to the veteran addressed the requirements for an award of service connection on a direct basis, the requirements for an award of secondary service connection were not given to the veteran, as provided for by 38 C.F.R. § 3.310. See also Allen v. Brown, 7 Vet. App. 439 (1995). This should be accomplished. During the pendency of the appeal, the United States Court of Appeals for Veterans Claims (Court) issued a decision in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), holding that, upon receipt of an application for service connection, VA is required to notify a claimant of what information and evidence will substantiate the elements of the claim including that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In the present case, the veteran has not been notified of either of these requirements. On remand, the veteran should be provided notice that informs him of the type of information and evidence that is needed to establish a disability rating and an effective date. Also during the pendency of this appeal, the Court issued an opinion in Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet. App. January 30, 2008). The Court held in part that VA's duty to notify a claimant seeking an increased evaluation included advising the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. On remand, the veteran should be provided notice that informs him of the appropriate diagnostic codes and how they are used as they pertain to his claims for increased ratings for his bilateral knee disabilities. At the October 2007 Board hearing, the veteran indicated that he received private medical care for the disabilities at issue at facilities in Shreveport, Louisiana, and Cleveland, Ohio. These documents are not of record. The RO should seek to obtain them. Finally, the Board notes that the most recent VA examination was conducted in December 2004. The veteran should be scheduled for a new VA examination in order to assess the current severity of his bilateral knee disabilities, as well as the etiology of any arthritis of the knees found present. Accordingly, the case is REMANDED for the following action: 1. VA should provide the veteran notice which includes the content required for his particular claims under current law and particularly provides: a) The requirements for an award of service connection on a secondary basis, as set forth by 38 C.F.R. § 3.310. b) The information and evidence necessary to establish a disability rating and the effective date for any potential award of benefits as required by the Court in Dingess/Hartman. c) The appropriate diagnostic codes and an explanation as to how they are used, as required by the Court in Vazquez- Flores v. Peake. 2. The RO should contact the veteran in order to obtain the names and addresses of the medical facilities and/or physicians in Shreveport, Louisiana, and Cleveland, Ohio, from whom he received treatment for his bilateral knee disabilities. These facilities and/or physicians should then be contacted in order to attempt to obtain the veteran's private medical records. 3. Next, schedule the veteran for a VA examination in order to determine the current severity of his bilateral knee disabilities, and etiology of any knee arthritis found present. The complete claims folder should be made available to the examiner prior to the examination. A notation that a complete review of the veteran's records took place should be included in the examination report, along with an indication that the veteran's complete medical history was considered when formulating any and all opinions. Any tests or specialized evaluations deemed necessary should be conducted. It is also requested that the examiner render an opinion as to whether it is as likely as not that any knee arthritis found present is related to service, any incident therein, or is caused or aggravated by the veteran's currently service connected knee disabilities, ("patello femoral syndrome and plica syndrome, left knee, post operative arthroscopic excision of plica" and "patellofemoral syndrome and plical syndrome, right knee, postoperative excision of plica"). A complete rationale for any opinion expressed should be included in the examination report. 4. After the development requested above has been completed to the extent possible, review the record. If the benefits sought on appeal remain denied, furnish a supplemental statement of the case (SSOC) to the veteran and his representative and give them the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs