Citation Nr: 1126281 Decision Date: 07/13/11 Archive Date: 07/19/11 DOCKET NO. 09-10 687 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether the reduction of a 20 percent evaluation for right patella fracture residuals with osteoarthritis effective July 1, 2008 was proper. 2. Entitlement to an evaluation greater than 20 percent for right patella fracture residuals with osteoarthritis. REPRESENTATION Appellant represented by: Marine Corps League WITNESSES AT HEARING ON APPEAL Appellant and Appellant's Spouse ATTORNEY FOR THE BOARD L.J. Bakke, Counsel INTRODUCTION The veteran served on active duty from February May 1979 to September 1980. This appeal arises before the Board of Veterans' Appeals (Board) from a rating decision rendered in April 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The veteran testified before the undersigned in April 2011. A transcript of the hearing is associated with the claims file. The Board notes that the issue on appeal was identified by the RO on the statement of the case as one of the propriety of reduction of evaluation of the service connected right patella fracture with osteoarthritis, and it is this issue to which the Veteran perfected his appeal in October 2008. Notwithstanding, the Veteran has, throughout this claim, consistently argued that his right knee disability has increased in severity. In the April 2011 hearing, the undersigned re-characterized the issue as involving entitlement to an increased rating for right patella fracture residuals, currently rated at 10 percent, to include the issue of whether the reduction from 20 to 10 percent was proper. As will be shown, below, the Board finds that the reduction was not proper. Remand is required to adjudicate the underlying issue of an increased rating for the right knee disability. The issues have thus been recharacterized as reflected on the front page of this decision. The Board notes that an August 2010 VA treatment entry reflects a finding of a possible right hip disability which was opined to be a likely complication of the service-connected right knee disability. The issues of entitlement to service connection for a right hip disability, back disability, a left knee disability, and disabilities manifested by numbness in both legs and an altered gait as secondary to the service-connected right knee, and for entitlement to a total disability rating for compensation purposes based on individual unemployability due to a service-connected disability (TDIU) have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issue of entitlement to an evaluation greater than 20 percent for right patella fracture residuals with osteoarthritis addressed in the REMAND portion of the decision below is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. At the time of the April 2008 rating decision, which reduced the 20 percent evaluation for right patella fracture residuals with osteoarthritis to 10 percent effective in July 2008, the 20 percent evaluation had been in effect for a period of greater than five years. 2. The medical evidence does not demonstrate sustained, material improvement in the service-connected right knee disability. CONCLUSION OF LAW The criteria for restoration of the 20 percent evaluation for right patella fracture residuals with osteoarthritis have been met. 38 U.S.C.A. § 1155, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.105, 3.344 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION In light of the favorable action taken herein, discussion of whether VA has met its duties of notification and assistance is not required, and deciding the appeal at this time is not prejudicial to the veteran. When any change in evaluation is to be made, the rating agency should assure itself that there has been an actual change in the conditions, for better or worse, and not merely a difference in thoroughness of the examinations or in use of descriptive terms. See 38 C.F.R. § 4.13 (2010). When a reduction is anticipated, the beneficiary must be notified of the proposed reduction, with notice of the reasons for the proposed reduction. Further, the beneficiary must be allowed a period of at least 60 days to submit additional evidence to show that the rating should not be reduced. After the allotted period, if no additional evidence has been submitted, final rating action will be taken and the rating 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 beneficiary of the final rating expires. 38 C.F.R. § 3.105(e) (2010). There is no question that a disability rating may be reduced. However, the circumstances under which rating reductions can occur are specifically limited and carefully circumscribed by regulations promulgated by the Secretary. Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992). In Brown v. Brown, 5 Vet. App. 413, 420 (1993), the U.S. Court of Appeals for Veterans Claims (Court) has interpreted the provisions of 38 C.F.R. § 4.13 to require that in any rating reduction case it must be ascertained, based upon a review of the entire recorded history of the disorder, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. In addition, 38 C.F.R. §§ 4.2 and 4.10 (2010) provide that in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but also that improvement in a disability actually reflects improvement in the veteran's ability to function under the ordinary conditions of life and work. The provisions of 38 C.F.R. § 3.344 also establish that there must be improvement before an evaluation is reduced. Where a rating has been in effect for greater than five years, as in this case, it is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. Moreover, 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. 38 C.F.R. § 3.344(a)(c) (2010). The burden of proof is on VA to establish that a reduction is warranted by a preponderance of the evidence. Kitchens v. Brown, 7 Vet. App. 320 (1995). In Kitchens, 7 Vet. App. at 324, the Court stated "[i]n order for the VA to reduce certain service-connected disability ratings, the requirements of 38 C.F.R. § 3.344(a) and (b) must be satisfied." This regulation requires that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction; these provisions prohibit a reduction on the basis of a single examination. See Brown, supra. Initially, the Board notes that the Veteran was provided with the required notice prior to the April 2008 rating decision that reduced the evaluation assigned his right knee disability. The RO provided the Veteran with a rating decision and accompanying letter explaining the proposed reduction in January 2008. The Veteran was given 60 days to submit additional evidence showing the reduction was not warranted. The reduction effected in the April 2008 rating decision was made effective July 1, 2008, which is more than 60 days following the January 2008 notification letter. Thus, the RO complied with the provisions set forth in 38 C.F.R. § 3.105(e). Turning to the question as to whether the reduction itself was proper, the Board notes that the 20 percent evaluation assigned the service-connected right knee disability was in effect from May 2003 through June 30, 2008 (with an assigned 100 percent evaluation for convalescence from September 2007 through October 2004 and resumption of the 20 percent evaluation beginning in November 2004), a period of greater than five years. Thus, the greater protections afforded by 38 C.F.R. § 3.344 apply herein. Only evidence of sustained material improvement that is reasonably certain to be maintained, as shown by full and complete examinations, can justify a reduction. Notwithstanding, even under 38 C.F.R. § 4.13, the medical evidence must demonstrate actual change in the disability, and that such change reflects actual improvement of the Veteran's ability to function to properly reduce an evaluation. See also 38 C.F.R. § 4.2, 4.10. If there is any doubt, the rating in effect will be continued. See Brown, supra. Service connection for right patella fracture residuals with osteoarthritis was granted in a February 1995 rating decision and evaluated as 10 percent disabling under Diagnostic Code 5010-5257. The rating decision noted the evaluation was based on painful motion and X-ray evidence of degenerative changes. An October 1994 VA examination report shows subjective complaints of swelling and locking. The report revealed objective findings of a swollen right knee tender along both sides of the tibial plateau, especially medially. A slight patellar ballotment was observed. There was no subluxation or lateral instability, and range of motion was measured at zero to 140 degrees. Results of X-rays revealed suprapatellar effusion with minimal osteoarthritis of the medial tibial plateau. The examiner diagnosed osteroarthritis in the right knee with a fractured patella by history, rule out torn medial meniscus. In September 2003, the evaluation was increased to 20 percent, effective in August 2003. The rating decision noted the evaluation was based on findings of moderate recurrent subluxation or lateral instability. An August 2003 VA examination report shows subjective complaints of pain, weakness, stiffness, swelling, heat, giving way, locking, lack of endurance, and fatigability. The Veteran reported a recent fall after his knee gave way in which he injured his back, and over 20 falls in the last 20 years. He reported 2 instances of dislocation and that he required a cane to walk when his knee is inflamed. He stated that flare-ups incapacitated him totally. The report reflects objective findings of range of motion measured at zero to 94 degrees with pain throughout. Instability was found in McMurray's test and crepitus was very noticeable on flexion and manipulation. The examiner observed the Veteran to walk with a moderate limp. The report shows a diagnosis of degenerative joint disease of the right knee. VA treatment records show that the Veteran underwent arthroscopy and meniscectomy with chondroplasty in September 2004. A September 2004 rating decision granted a temporary 100 percent evaluation from September 7, 2004 under 38 C.F.R. § 4.30. The 20 percent evaluation was continued, effective November 1, 2004. VA treatment records further show that a hinged brace was prescribed in October 2004. An October 2006 entry shows that the Veteran received a steroid injection in 2005. He was observed to have stable ligaments in the right knee with no effusion. However, he exhibited tenderness at the medial joint line and a crepitant patella. Results of X-rays showed narrowing of the patellofemoral and medial compartments consistent with moderate degenerative joint disease. In November 2007, he reported his right knee and left sciatica made it difficult to bend adequately at his job and to get up and down ladders. The examiner observed the right knee to be stiff and painful but without peripheral edema. A December 2007 entry shows the Veteran reported the right knee occasionally locked when he got out of bed and that he had recently fallen. The physician noted findings of slight right quadriceps atrophy. In January 2008, a rating decision proposed to reduce the evaluation assigned the right knee disability to 10 percent. The rating decision noted that right knee range of motion was measured at zero to 90 degrees and there was no objective evidence of instability. Separate compensable evaluations were considered but denied. The rating decision indicated that sustained improvement had been demonstrated with objective evidence of painful limited motion only. An October 2007 VA examination report shows subjective complaints of increased pain and swelling medially and posteriorly, clicking, and daily episodes of locking. He reported difficulty with kneeling and lifting heavy objects which affected his job. The report shows the Veteran reported being able to stand for 3 to 8 hours with only short rest periods, to be able to walk more than 1/4 mile but less than 1 mile, and that he needed no assistive aids for walking. The Veteran reported receiving 2 steroid injections in 2005 which helped some, and noted he had not seen a health care provider for his right knee since 2007. The examiner found right knee medial and lateral ligaments, and anterior and posterior cruciate ligaments to be stable. Range of motion measured zero to 90 degrees with pain at 70 degrees. Range of motion was additionally limited by 10 degrees due to pain on repetitive use. Flexion range of motion was impaired by pain and locking during extension. Objective observations of clicking at the medial joint line were found but no swelling or effusion. After review of 2006 and 2007 clinical tests, the examiner diagnosed degenerative joint disease right knee, residuals, fracture right patella with osteoarthritis. In January 2008, the Veteran submitted a notice of disagreement (NOD) to the proposal to reduce the evaluation assigned his right knee disability. He did not submit any medical evidence, but noted he had received treatment from 1996 to the present at VA outpatient clinics. In April 2008, the RO issued a rating decision effectuating the reduction in the right knee disability evaluation to 10 percent, effective July 1, 2008. VA treatment entries dated in January and February 2008 show findings of significant right knee pain and reduced range of motion with effusion and tenderness on palpation. Results of magnetic resonance imaging (MRI) revealed a lateral meniscus tear. The physician noted that the right knee pain had appeared gradually and caused disability over the last six months. The knee was observed to be stable but tender. Range of motion was okay but with pain. In May 2008, the Veteran was given 2 of 3 injections of Synvisc. In the entry for the 2nd injection, the physician's assistant (PA) noted that the Veteran complained of tenderness to all scars and over exaggerated tenderness to the knee. He asked about raising his service-connected evaluation. The PA observed the Veteran to flex and extend and to walk without pain. There was no heat or swelling in the right knee. In August 2008, the Veteran underwent arthroscopic surgery and chondroplasty with cobrasion and shaving. Postoperative diagnosis was osteoarthritis of the right knee. In September 2008, a rating decision granted a 100 percent evaluation effective August 8, 2008 under 38 C.F.R. § 4.30 and assigned a 10 percent evaluation, effective October 1, 2008. The rating decision noted limitation of motion measuring -12 to 115 degrees, presumably absent evidence of subluxation or lateral instability. Separate, compensable evaluations were denied. In October 2008, two months postoperatively, an entry shows findings of end stage osteoarthritis with no difference in reported symptoms, failed Synvisc injections, and therapy not helping. The PA observed the sensation to be intact in the right knee. Range of motion was measured at -12 to 95 degrees, and strength was 4+ of 5. An impression of end stage osteoarthritis was made and the PA indicated the Veteran's only remaining option was a total knee replacement. An entry dated in March 2009 shows that the diagnosis of end stage osteoarthritis was confirmed. Range of motion was measured at 30-60 degrees without pain. Any range of motion beyond this was observed to be very painful. It was again noted that the Veteran had failed Synvisc and arthroscopic surgery. The physician observed the Veteran was only 48, but the right knee was beyond repair and the only remedy was a future total knee replacement. In March 2009, the RO issued a rating decision extending the 100 percent evaluation under 38 C.F.R. § 4.30 through November 2008 and confirming the 10 percent evaluation from December 1, 2008. Separate compensable evaluations were again denied. VA treatment entries show continued treatment with end stage osteoarthritis again diagnosed in February 2009. In March 2009, VA treatment entries show that the diagnosis of end stage IV osteoarthritis was confirmed. Range of motion was measured at 30-60 degrees without pain. Any range of motion beyond this was observed to be very painful. It was again noted that the Veteran had failed Synvisc and arthroscopic surgery. The physician observed the Veteran was only 48, but the right knee was beyond repair and the only remedy was a future total knee replacement. In August 2009, the Veteran presented with persistent pain, increasing disability and failure to respond to Synvisc. Range of motion was measured at zero to 100 with pain, marked medial tenderness, antalgic gait, and varus deformity. In December 2009, an entry indicates that attempts were being made to delay total knee arthroplasty due to the Veteran's age. The diagnosis was osteoarthritis and traumatic arthritis of the right knee with effusion, pain, and deformity. Range of motion was measured at full extension and flexion to 110 degrees, at which pain was noted. Effusion and marked tenderness medially were observed. Crepitus with motion was found, but no instability. In August 2010, severe right hip pain was observed and opined to be a likely complication of the right knee problem. In September 2010, the Veteran was observed to have tenderness along the course of the medial collateral ligament and the medial joint line, effusion in the knee, and crepitus when the patella was balloted against the femoral condyles. He exhibited cruciate instability. The impression was of significant internal derangement of the right knee. Management with brace and cane was recommended, given the Veteran's age and that he was no longer climbing roofs as he was previously. The Veteran testified in April 2011 that his right knee, in essence, had not improved. Rather, the prognosis was that he would need a total knee replacement. He testified that instability was still a problem, and that he also continued to experience episodes of collapse, weakness, stiffness, fatigue, muscle atrophy, and swelling in the right knee. Pain was a constant 7-8 of 10 if he took pain medication, and 9-10 of 10 if he didn't. He was prescribed a brace and uses a cane. It is noted that the Veteran is competent to testify as to his symptoms. See Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009). Moreover, his testimony is consistent with the disability picture portrayed in the medical evidence. The medical evidence delineated above reflects that the Veteran did not show improvement in his right knee disability at the time of the April 2008 rating decision. Rather, VA treatment records showed continued treatment with MRI evidence of a meniscus tear in January-February 2008. In fact, further surgery was required in August 2008. While the RO acknowledged this, awarding a 100 percent evaluation under 38 C.F.R. § 4.30, it continued the 10 percent evaluation. It is noted that the medical evidence reflects that a PA in May 2008 felt the Veteran over exaggerated tenderness in his right knee, and that the Veteran specifically asked about increasing his service-connected right knee evaluation. Notwithstanding, clinical findings of a meniscus tear in April 2008 with subsequent need for further surgery in August 2008 and postoperative findings of end stage osteoarthritis and a prognosis of total knee replacement in October 2008 argue definitively against any finding of improvement in the right knee condition-let alone one of sustained improvement. Moreover, subsequent entries continue to confirm end stage osteoarthritis, traumatic arthritis, pain, and findings of effusion and deformity. In summary, the above medical evidence does not show improvement with actual change in the service-connected right knee disability productive of improvement in the Veteran's ability to function-let alone sustained material improvement. Accordingly, the preponderance of the evidence cannot be found to be against restoration of the previous 20 percent evaluation. Accordingly, restoration of the 20 percent evaluation for right patella fracture residuals with osteoarthritis is therefore warranted. ORDER Restoration of the 20 percent evaluation for right patella fracture residuals with osteoarthritis is granted, effective July 1, 2008. REMAND The Veteran seeks an increased evaluation for his right knee disability. The Board notes that the Veteran underwent surgery for his right knee disability in August 2008. VA examination has not been conducted since then. This must be done. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(c)(4) (2010). In addition, the Board notes that the medical evidence in this case reflects clinical findings of osteoarthritis, traumatic arthritis, meniscus tear, and effusion. In addition, he has been observed to exhibit painful and limited motion, instability, an antalgic gait, and deformity. This is not intended to be an exhaustive list of the Veteran's right knee impairment. However, it is intended to demonstrate that the Veteran's right knee disability involves symptoms for which separate, compensable evaluations must be considered. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994) (separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition); see also VAOPGCPREC 23-97 (July 1, 1997); VAOPGCPREC 9-98 (August 14, 1998). Accordingly, the case is REMANDED for the following action: 1. The RO should contact the Veteran and request that he identify any additional medical treatment he has received for his right knee disability. The RO should take appropriate steps to secure copies of any such treatment reports identified by the Veteran which are not in the record on appeal, to include any updated VA treatment records. Efforts to obtain these records should also be memorialized in the Veteran's VA claims folder. 2. For #1 above, also request that the Veteran provide any such records he may have in his possession. The RO should document all actions taken to obtain the identified records. A failure to respond or a negative reply to any request must be noted in writing and associated with the claims folder. If the requested records are unavailable, notify the Veteran and his representative in accordance with the provisions of 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(e) (2010). 3. The RO should schedule the Veteran for a VA examination by the appropriate professionals to determine the nature and extent of his service-connected right knee disability. The claims folder must be made available to the examiner for review. A notation to the effect that this record review took place must be included in the report of the examiner. All appropriate tests and studies (and consultations, if warranted) should be accomplished, and all clinical findings should be reported in detail. The examiner should set forth all examination findings, along with the complete rationale for the conclusions reached in the examination report. Any and all right knee pathology must be fully diagnosed and described in detail. For any additional right knee pathology identified, the examiner must provide an opinion as to whether it is at least as likely as not that such pathology is part and parcel of the service connected right knee disability or in any other way the result of the service-connected right knee disability, to include aggravation of a nonservice connected disability by the service connected right knee disability. 4. The Veteran must be given adequate notice of the date and place of any requested examinations. A copy of all notifications, including the address where the notice was sent must be associated with the claims folder. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 5. After completing the requested notification and development, and any additional notification and/or development deemed warranted, the RO should readjudicate the claim in light of all pertinent evidence and legal authority. 6. If the claim is denied, in whole or in part, the RO should provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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. 2010). ______________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs