Citation Nr: 1208331 Decision Date: 03/05/12 Archive Date: 03/16/12 DOCKET NO. 08-09 891A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). 2. Propriety of the reduction of the disability ratings for the Veteran's service connected bilateral knee disability from 20 percent to 10 percent. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. D. Anderson, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1978 to January 1999. This matter comes to the Board of Veterans' Appeals (Board) on appeal from April 2006, January 2007, and July 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A hearing was held before the undersigned Veterans' Law Judge in May 2009, and a transcript of that hearing is of record. In September 2009, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. for additional development. The action specified in the September 2009 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran's acquired psychiatric disability did not have onset in service and was not caused or aggravated by the Veteran's active military service. 2. Throughout the period on appeal, the Veteran's right and left knee disabilities have been appropriately rated as 10 percent disabling. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an acquired psychiatric disability, to include PTSD, have not been met. 38 U.S.C.A. § 1110, 1131 (West 2002 & Supp. 2010); 38 C.F.R. § 3.303, 3.304 (2011). 2. A reduction of the Veteran's service connected bilateral knee disability from 20 percent to 10 percent disabling was proper. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107, 5112 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.105, 3.344, 4.56, 4.71a, Diagnostic Codes 5003, 5020, 5257, 5260, 5261 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. Waiver As an initial matter, the Veteran submitted additional medical evidence in March 2011, which did not include a waiver of RO review. VA regulations provide that any pertinent evidence submitted by an appellant without waiver of RO consideration must be referred to the RO for review and preparation of an SSOC. 38 C.F.R. § 20.1304 (2011). However, the Board finds that referral to the RO for review is not warranted because the evidence submitted by the Veteran is not pertinent to the issues on appeal. The Veteran has submitted records of physical therapy treatment for his bilateral knee disability. These records merely confirm that the Veteran continues to suffer from bilateral knee problems, which is not at issue in this case. There is nothing in these records that would support the grant of a 20 percent disability rating for the Veteran's service connected knee disabilities. Accordingly, they are not relevant to the Veteran's claim. The Veteran has also submitted copies of VA treatment records, showing treatment for an acquired psychiatric disability in February 2011. However, these records are cumulative of other VA treatment records showing treatment for an acquired psychiatric disability and therefore are not relevant to the Veteran's claim. The issue in this case is not whether the Veteran suffers from an acquired psychiatric disability but whether that disability is related to service. While the new evidence has been reviewed, because the additional evidence is not pertinent to the issues on appeal, the Board will proceed to adjudicate the Veteran's claims. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2011). In general, service connection requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2011). Establishing service connection for PTSD requires specific findings. These are (1) a current medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in- service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in- service stressor. See 38 C.F.R. § 3.304(f) (2010). The diagnosis of PTSD must comply with the criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders, 4th edition, of the American Psychiatric Association (DSM-IV). Id. See also 38 C.F.R. § 4.125(a) (2010). If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f). See 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) (pertaining to combat veterans); Gaines v. West, 11 Vet. App. 353 (1998) (Board must make a specific finding as to whether the veteran engaged in combat). The ordinary meaning of the phrase "engaged in combat with the enemy," as used in 38 U.S.C.A. § 1154(b), requires that a veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. VAOPGCPREC 12-99 (Oct. 18, 1999). Service in a combat zone does not establish that a veteran engaged in combat with the enemy. Id. Whether the veteran engaged in combat with the enemy is determined through the receipt of certain recognized military citations or other supportive evidence. West v. Brown, 7 Vet. App. 70 (1994). Previously, if VA determined either that the veteran did not engage in combat with the enemy or that the veteran did engage in combat, but that the alleged stressor was not combat related, the veteran's lay testimony, by itself, was not sufficient to establish the occurrence of the alleged stressor. Instead, the record had to contain credible supporting evidence that corroborates the veteran's testimony or statements. Cohen v. Brown, 10 Vet. App. 128, 147 (1997); Moreau v. Brown, 9 Vet. App. 389, 395 (1996). However, VA has recently amended its regulations governing service connection for PTSD by liberalizing the evidentiary standard for establishing the required in-service stressor where the following requirements are satisfied: First, the veteran must have experienced, witnessed, or have been confronted by an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, and the veteran's response to the event or circumstance must have involved a psychological or psycho-physiological state of fear, helplessness, or horror. 75 Fed. Reg. 39852 (July 13, 2010) (to be codified at 38 C.F.R. § 3.304(f)). Second, a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, must confirm that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor. Id. Additionally, there must be in the record no clear and convincing evidence to the contrary, and the claimed stressor must be consistent with the places, types, and circumstances of the veteran's service. Id. These revised regulations became effective July 13, 2010, and apply in cases like the Veteran's which were appealed to the Board prior to July 13, 2010, but not decided by the Board as of that date. 75 Fed. Reg. 41092 (July 15, 2010) (to be codified at 38 C.F.R. § 3.304(f)). Here, the Veteran did not engage in combat with the enemy nor does he allege he suffered from a physical or sexual assault during his military service. Additionally, the Veteran has not claimed that he experienced, witnessed, or was confronted by an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, making the new PTSD provisions irrelevant. Rather, in his written and oral statements, the Veteran claims that the continuous pressure to perform and the demands of his military duties, particularly when he was a drill sergeant and was responsible for training recruits, led to sleep disturbances, anxiety, and irritability which began in service and have worsened since that time. Additionally, the Veteran has reported that during his active service some of the recruits he was training filed complaints alleging that the Veteran had behaved inappropriately and that these allegations were investigated by the military, although the Board was unable to confirm this from a review of the Veteran's service personnel records. There is no evidence that the Veteran was ever the subject of an investigation or disciplinary action. There is also no evidence in the Veteran's service treatment records that he was ever treated for a psychiatric disorder during his active service. No chronic psychiatric condition was noted at the Veteran's separation examination in November 1998; and the Veteran denied experiencing any psychological problems such as frequent trouble sleeping, depression or excessive worry, or nervous trouble of any sort on a Report of Medical History completed at the same time, providing factual evidence against his own claim. The Veteran's service personnel records show that the Veteran received excellent evaluations from his superiors throughout his twenty years of active service, with frequent recommendations that the Veteran receive advanced training and promotion ahead of his peers, providing more evidence against his claim. Post service, the earliest evidence of complaints of or treatment for an acquired psychiatric disability is in May 2005, almost six years after separation from service. Significantly, the Board notes that the Veteran filed a claim for service connection for a number of disabilities in 1999, after his separation from service, but did not file a claim for an acquired psychiatric disability at that time. At this time, his own actions provide factual evidence against his claims. Since 2005, the Veteran has been diagnosed by his VA treatment providers with depression with psychotic features, PTSD, and bipolar disorder, as well as having Cluster A and Cluster C personality traits. VA treatment records show that the Veteran has complained of symptoms such as a depressed mood, irritability, angry outbursts, difficulty getting along with others, difficulty sleeping, nightmares of his military service, auditory hallucinations, and a sensation that others are watching him. In support of his claim, the Veteran has submitted statements from his spouse, A.W.; his former employer, D.R.; and a former military colleague, C.J.. The Veteran's spouse testified that during the Veteran's military service, she observed that the Veteran had trouble sleeping and that his sleep was restless and troubled. C.J. testified that the Veteran was assigned to his company from December 1990 to June 1992 and that during this time period, the Veteran was assigned as the sole drill sergeant to a group of fifty six new recruits, a task that was normally shared with two other drill sergeants. C.J. testified that the Veteran was a conscientious worker who put in long hours and that eventually signs of stress became apparent to his commanding officers. The Veteran was assigned to a less stressful position, where according to C.J., he did very well. D.R. of West Florida Teen Challenge Boys Ranch, where the Veteran worked as a drill instructor from June 2002 to April 2005, reported that the Veteran's position was highly stressful and that he had witnessed angry verbal outbursts by the Veteran directed at both cadets and other staff members. He noted that during one outburst, a cadet was injured and had to be taken to the hospital. Charges related to the incident were filed by local law enforcement, and the Veteran was terminated from his position. D.R. opined that the Veteran was simply not able to handle the stress of an employment setting and expressed his belief that the Veteran's military service had played a role in this development. Records from the Social Security Administration (SSA) are of record, including a March 2006 letter from the Veteran to the SSA, asking them to expedite a claim for disability benefits because he and his spouse are in poor health and suffering from severe financial hardship. In October 2009, the Veteran was afforded a VA examination. Following an interview, a review of the Veteran's claims file, and the administration of psychological testing, the examiner diagnosed the Veteran with depressive disorder not otherwise specified and malingering. He reported that the Veteran gave a very "atypical" account of auditory hallucinations, gave an account of sleep difficulties that is inconsistent with the record, and that psychological test results indicated that the Veteran is feigning or exaggerating psychological symptoms. He also described the Veteran's attitude towards the examiner as "manipulative", and noted that the Veteran did not appear to put forth his best effort during testing of his memory and mental status. He opined that the Veteran's acquired psychiatric disability was not caused or aggravated by the Veteran's active military service because the Veteran did not receive any mental health treatment in service and because the Veteran attributed his depressive symptoms to recent stressors, not to his military service. The Board must find that this examination provides particularly negative evidence against all of the Veteran's claims, undermining his credibility with the Board. Based on a careful review of all the evidence, the Board finds that entitlement to service connection for an acquired psychiatric disability must be denied. The Board recognizes that the Veteran is competent to describe observable psychiatric symptoms such as mood swings, irritability, and sleep problems and to report when he experienced those symptoms. However, competency is distinct from credibility, and the Board finds that the Veteran is not credible, at least to the extent he attributes his current psychological problems to service. While the Board is willing to accept that the duties the Veteran performed during his military service were stressful, the Veteran's claims that his current psychological problems are the result of this stress are not supported by the other evidence of record. As noted above, the Veteran's service treatment records are negative for any complaints of, or treatment for, an acquired psychiatric disability, and the Veteran himself denied any psychological problems on a Report of Medical History completed at separation from service, providing highly probative evidence against the Veteran's claims. Additionally, the Board notes that the Veteran filed a claim for entitlement to service connection shortly after separation from service, but an acquired psychiatric disability was not one of the conditions for which the Veteran was seeking service connection. If the Veteran truly was suffering from psychological problems since service, as he now claims, the Board would expect him to seek treatment or benefits for his acquired psychiatric disability at the same time he filed his initial claim. Instead, the Veteran did not seek treatment, or file a claim for, entitlement to service connection for an acquired psychiatric disability for almost six years after separation from service. The Board does not believe it is a coincidence that approximately a month after he was fired from his last job (after being charged with child abuse) that the Veteran was seeking treatment for psychological problems, which he then, at that time, attributed to memories of his stressful military service, and filing a claim for VA disability benefits. Credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest may affect the credibility of a claimant's testimony). Here, the record reflects that both the Veteran and his spouse are in poor physical health and suffering from financial hardship, giving them a strong pecuniary motive to seek VA benefits and undermining their credibility. If, as the Veteran reported in his March 2006 letter to the SSA, he and his spouse are both physically disabled and are in such dire financial straits that they have had to liquidate their savings, refinance their mortgage, and borrow money, the idea that the Veteran's symptoms of depression and anxiety are due to his military service rather than these current stressors is implausible and provide a strong basis for a finding that the Veteran is not telling the VA the truth regarding the nature of his problems. Finally, the opinion of the October 2009 VA examiner that the Veteran is malingering provides highly probative evidence against the Veteran's claim. In reaching his conclusion, the examiner relied not only on his professional observations of the Veteran's behavior and symptomotology, but also a review of the Veteran's claims folder and objective psychological testing. None of the Veteran's treatment providers has offered an opinion concerning the etiology of the Veteran's acquired psychiatric disability, leaving only the Veteran's own statements and the opinion of the Veteran's former employer D.J., that the Veteran's military service contributed to his current problems which, on a factual basis, the Board does not believe. The Board can find no evidence of record that D.J. has any training as a psychologist or psychiatrist that would qualify him to offer such an opinion. In other words, he (like the Veteran) is a layman, not a medical expert. The Board recognizes that there is no bright line rule that laypersons are not competent to offer etiology opinions. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology). Evidence, however, must be competent evidence in order to be weighed by the Board. Whether a layperson is competent to provide an opinion as to the etiology of a condition depends on the facts of the particular case. In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew support from Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) for support for its holding. Id. In a footnote in Jandreau, the Federal Circuit addressed whether a layperson could provide evidence regarding a diagnosis of a condition and explained that "[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although the Veteran and D.J. seek to offer etiology opinions rather than provide diagnoses, the reasoning expressed in Jandreau is applicable. The Board finds that the question of whether the Veteran currently has an acquired psychiatric disability due to his military service is too complex to be addressed by a layperson. This connection or etiology is not amenable to observation alone. Rather it requires specialized training about psychiatric illnesses. Hence, neither the Veteran's nor D.J's opinion of the etiology of the Veteran's current disability is competent evidence and is entitled to low probative weight. For all the above reasons, entitlement to service connection for an acquired psychiatric disability, to include PTSD, must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2011). Rating Reduction The law provides that, when a rating has continued for a long period at the same level (i.e., five years or more), a reduction may be accomplished when the rating agency determines that evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). However, where a rating has been in effect for less than five years, the regulatory requirements under 38 C.F.R. § 3.344(a) and (b) are inapplicable, as set forth in 38 C.F.R. § 3.344 (c). In such cases, an adequate reexamination that discloses improvement in the condition will warrant reduction in rating. See 38 C.F.R. § 3.344 (c); 3.343(a). In the present case, the Veteran's 20 percent rating had been in effect for less than a five-year period at the time the Veteran's disability was evaluated and the RO proposed to reduce the Veteran's disability rating. Specifically, the Veteran's 20 percent disability rating became effective in September 2004. Following a September 2006 VA examination, in February 2007, the RO proposed to reduce the Veteran's rating. As a result, the requirements under 38 C.F.R. § 3.344(a) and (b) do not apply. Nevertheless, the Court has held that several general regulations are applicable to all rating reduction cases, without regard for how long a particular rating has been in effect. The Court has stated that certain regulations "impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon a review of the entire history of the veteran's disability." Brown v. Brown, 5 Vet. App. 413, 420 (referring to 38 C.F.R. §§ 4.1, 4.2, 4.13). A rating reduction requires an inquiry as to "whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations." See Brown, 5 Vet. App. at 421. Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved. This is in stark contrast to a case involving a claim for an increased (i.e., higher) rating, in which it is the Veteran's responsibility to show the disability has worsened. A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating issue. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had demonstrated actual improvement. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). The question of whether a disability has improved involves consideration of the applicable rating criteria. The Veteran's bilateral knee disability is currently rated under Diagnostic Code 5020, which provides that synovitis will be rated on limitation of motion of the affected parts, as degenerative arthritis under DC 5003. See 38 C.F.R. §§ 4.71a, Diagnostic Code 5020 (2011). Full range of motion of the knee is from 0 degrees to 140 degrees in extension and flexion. See 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code (DC) 5260, a 10 percent rating is assigned when flexion is limited to 45 degrees and a 20 percent disability rating is assigned when flexion is limited to 30 degrees. Under 38 C.F.R. § 4.71a, DC 5261, a non-compensable rating is assigned when knee extension is limited to 5 degrees; when extension is limited to 10 degrees, a 10 percent rating may be assigned; and when extension is limited to 15 percent. DC 5003 provides that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate DC for the specific joint or joints involved (DC 5200, etc.). When the limitation of motion of a specific joint or joints is non-compensable under the appropriate DC, then a 10 percent rating is assigned for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under DC 5003. DC 5003 also provides that limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is assigned for degenerative arthritis with x-ray evidence of the involvement of 2 or more major joints or 2 or more minor joint groups. A maximum 20 percent rating is assigned under DC 5003 for degenerative arthritis with x-ray evidence of the involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations. See 38 C.F.R. § 4.71a, DC 5003 (2010). Note (1) to DC 5003 states that the ratings based on x-ray findings will not be combined with ratings based on limitation of motion. Note (2) to DC 5003 states that ratings based on x-ray findings will not be used in rating DC's 5013 to 5024 (to include DC 5020 for synovitis). Id. The Veteran's disability was previously rated under DC 5257, under which other impairment of the knee is assigned a 30 percent evaluation for severe recurrent subluxation or lateral instability; a 20 percent evaluation for moderate recurrent subluxation or lateral instability; and a 10 percent evaluation for slight recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2011). Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology, and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, painful movement, swelling, deformity, or disuse atrophy. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). A VA treatment note from September 2006 shows that the Veteran had full range of motion of his knees with some mild crepitus observed, providing highly probative evidence against this claim. An October 2006 x-ray of both knees showed cartilage space to be well maintained. There was no significant osteophyte formation, periarticular calcification, or evidence of erosion. Slight ossification of the quadriceps tendon insertions on the patella was incidentally noted. An October 2006 orthopedic consultation noted complaints of bilateral knee pain of many years duration with no specific injury. On examination, the Veteran had range of motion from 0 degrees extension to 120 degrees flexion bilaterally. No limp, effusions, or crepitance were observed. All the Veteran's ligaments were stable, but both patella drifted slightly laterally in flexion. McMurray's test and patellar compression tests were negative. The examiner noted that the Veteran's recent x-rays were normal for his age, with no evidence of osteoarthritis. The Veteran was diagnosed with bilateral knee arthralgia. Bracing, physical therapy, and anti-inflammatory medication were recommended. The Veteran was afforded a VA examination in September 2006. The Veteran complained of dull knee pain with sharp exacerbations bilaterally. He reported that this affected his level of physical activity, as he can no longer walk for more than a few blocks without resting and activities such as running and jumping exacerbate the pain. However, he could still perform most of his activities of daily living. The Veteran reported to the examination wearing braces on both knees. The right and left knees had an asymmetrical appearance, with mild synovitis affecting the suprapatellar pouch, bilaterally. On palpitation, there was painful medial plica synovialis bilaterally. Lachman and McMurray's tests were negative. The medial and lateral collateral ligaments were intact, with patella tracking in the midline. The Veteran was capable of tandem walk and able to walk on his heels and toes with minimal discomfort. He was diagnosed with reactive synovitis and plica synovialis syndrome of the left and right knees. In the examination report, the examiner reported that the Veteran's range of motion was from 70 degrees extension to 90 degrees flexion bilaterally, with increased pain, fatigue, weakness, and lack of endurance following repetition, but no additional decrease in the range of motion. However, documentation from the RO notes that the ROM values were incorrectly reported and an addendum with the correct values added in CAPRI. Unfortunately, it appears that the RO failed to include the addendum in the claims folder, but according to the January 2007 RO decision that proposed to decrease the Veteran's rating, the Veteran's range of motion is from 0 degrees extension to 90 degrees flexion bilaterally, with pain at 70 degrees of flexion. A March 2007 VA treatment note documents continuing complaints of chronic bilateral knee pain, with painful weight bearing. The Veteran reported that he is unable to squat, run, or climb stairs. On examination, the Veteran had full range of motion. His ligaments were intact. There was some tenderness over the patella with crepitus and tenderness over the medical joint line. At the May 2009 Board hearing, the Veteran complained of knee pain with instability and giving way, which interfere with his ability to perform his daily activities. In November 2009, the Veteran was afforded another VA examination of his knee disability. The Veteran continued to report bilateral knee pain, as well as stiffness, weakness, and occasional swelling and giving way. He also described flare-up several times a week lasting from a few hours to a day. The Veteran was wearing knee braces and using a cane for assistance. His gait was mildly antalgic, but there was no abnormal shoe wear. There was no overt effusion, but there was tenderness to palpation at the medial, lateral, and patellofemoral joints in both knees. McMurray's test was positive for medial joint line pain bilaterally, but Lachman's test was negative. The Veteran's ligaments were all intact. Flexion was from 0 degrees extension to 140 degrees of flexion bilaterally with pain at the end range of motion. On repetitive testing, there was no additional limitation of motion due to pain, fatigue, weakness, or incoordination, and range of motion values were unchanged from baseline testing. The examiner noted that bilateral knee x-rays in October 2006 were normal. An MRI of the right knee in May 2007 showed truncation of the posterior horn of the medial meniscus, but no evidence of a tear. A May 2007 MRI of the left knee was normal. The Veteran was diagnosed with bilateral knee arthralgia. Based on all the above evidence, the Board finds that it was not improper for the RO to reduce the Veteran's disability ratings for his left and right knees from 20 percent to 10 percent. There is no evidence that either extension or flexion is sufficiently limited to warrant even a compensable disability rating in either knee. Additionally, while the Veteran has reported subjective symptoms of weakness and giving way, the Veteran's ligaments were found to be intact on all of his examination and no evidence of recurrent subluxation or lateral instability was ever noted. Thus, even a 10 percent disability rating for slight recurrent subluxation or lateral instability is not warranted. While the Board acknowledges that the Veteran is competent to report observable symptoms and that a finding of instability does not necessarily require objective medical evidence, in this case, the Board finds that the objective medical evidence as reported in VA treatment notes and VA examination reports is more probative than the Veteran's lay testimony, which has been found to be not credible for reasons noted in the Veteran's claim for PTSD. His statements and actions (for example, attending examinations with knee braces) are entitled to extremely low probative value. The Veteran's subjective complaints of pain and limited function appear disproportionate to the objective evidence. Even considering functional impairment caused by pain and weakness, the Veteran has minimal, if any, loss of motion bilaterally and there was no instability or subluxation noted. An x-rays of the Veteran's knees was normal, as was an MRI of the left knee. An MRI of the right knee showed only truncation of the posterior horn of the medial meniscus, but no tear. Additionally, as the Board has discussed in great detail above, there is evidence that the Veteran is, unfortately, exaggerating his symptoms in order to obtain benefits. Accordingly, the Board finds that there is no evidence from October 2007 when the Veteran's disability ratings were reduced through the entire period on appeal that would permit assignment of a disability rating in excess of 10 percent for the Veteran's service connection bilateral knee disability. Accordingly, the reduction from 20 percent to 10 percent disabling for the Veteran's service connected bilateral knee disability was proper. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2011). The Duty to Notify and Assist 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the VCAA duty to notify for the Veteran's claim for an acquired psychiatric disability was satisfied by letters sent to the Veteran in October 2005 and May 2006. These letters informed the Veteran of was evidence was required to substantiate his claim and of VA and the Veteran's respective duties for obtaining evidence. The Veteran was also informed of how VA assigns disability ratings and effective dates. There are specific procedural requirements applicable to rating reductions. If a reduction in the evaluation is considered warranted and the lower evaluation would result in a reduction or discontinuance of the compensation payments currently being made, the RO must issue a rating proposing the reduction and setting forth all material facts and reasons. 38 C.F.R. § 3.105(e). A period of 60 days is allowed for response. Id. The RO must notify the beneficiary that he or she will be given 60 days to present evidence to show that compensation payments should be continued at the present level. Id. Additionally, the beneficiary must be notified as to the right to a predetermination hearing. 38 C.F.R. § 3.105(i). Furthermore, the effective date of the reduction will be the last day of the month in which a 60 day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e),(i). In January 2007, the RO issued a rating decision setting forth all material facts and reasons for reducing the rating assigned for the Veteran's bilateral knee disability from 20 percent to 10 percent. In an accompanying letter, dated February 2007, the RO informed the Veteran that he could submit evidence to show that the rating should not be reduced and suggested what evidence would be the most probative. The RO also informed the Veteran that he could request, and VA would then afford him, a personal hearing to present evidence or argument on any point. In a July 2007 rating decision the RO reduced the disability rating for the Veteran's bilateral knee disability from 20 percent to 10 percent, effective October 1, 2007. These actions by the RO complied with the duties to notify and assist, as well as the timing requirements for effecting the reduction, as specified in 38 C.F.R. § 3.105. VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records, as well as VA treatment records and SSA records. The veteran submitted private medical records and was provided an opportunity to set forth his contentions during the May 2009 hearing before the undersigned Veterans Law Judge. The appellant was afforded a VA medical examination in September 2006, October 2009, and November 2009. The September 2006 and November 2009 examinations are based upon reviews of the claims folder, and thoroughly discuss the nature and severity of the Veteran's disability as well as the functional impairments resulting therefrom. The October 2009 examination is adequate and probative for VA purposes because the examiner relied on sufficient facts and data, provided a rationale for the opinion rendered, and there is no reason to believe that the examiner did not reliably apply reliable scientific principles to the facts and data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER The appeal is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs