Citation Nr: 1306512 Decision Date: 02/26/13 Archive Date: 03/01/13 DOCKET NO. 10-05 741 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE 1. Whether the reduction from a 50 percent to 10 percent disability evaluation for posttraumatic arthritis with patellofemoral syndrome of the left knee, effective August 1, 2008, was proper. 2. Entitlement to an evaluation in excess of 10 percent for left knee posttraumatic arthritis with patellofemoral syndrome from August 1, 2008 to April 1, 2012. 3. Entitlement to an increased rating for left knee posttraumatic arthritis with patellofemoral syndrome, currently evaluated as 20 percent disabling. ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from June 1976 to June 1996. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from a May 2008 rating decision of the VA Regional Office (RO) in Jackson, Mississippi that reduced the 50 percent rating for the service-connected left knee disorder from 50 to 10 percent, effective August 1, 2008. By rating action dated in July 2012, the 10 percent rating for left knee posttraumatic arthritis with patellofemoral syndrome was increased to 20 percent, effective from April 2, 2012. Following review of the record, the issues of entitlement to increased ratings for left knee posttraumatic arthritis with patellofemoral syndrome are addressed in the REMAND portion of the document below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. A January 2007 rating decision granted a 50 percent rating for left knee patellofemoral syndrome, effective from October 17, 2006. 2. By a letter dated in February 2008, the RO notified the Veteran that the clinical evidence reflected improvement of the left knee disability, and that VA proposed to reduce the rating from 50 percent to 10 percent disabling. 3. Effective August 1, 2008, the Veteran's left knee disability was manifested by periarticular pathology, and full extension and flexion between 90-110 degrees. There was no additional loss of motion with repetitive motion. 4. A May 2008 rating decision reduced the 50 percent rating to 10 percent for left knee posttraumatic arthritis with patellofemoral syndrome, effective August 1, 2008. CONCLUSION OF LAW The 50 percent rating for left knee posttraumatic arthritis with patellofemoral syndrome was properly reduced to 10 percent, effective August 1, 2008; the criteria for restoration of the higher rating are not met. 38 U.S.C.A. §§ 1155; 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.105(e), 3.159, 3.321(b)(1), 3.344, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257, 5260, 5261 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION With respect to the rating reduction for the Veteran's left knee disability, the procedural framework and safeguards set forth in 38 C.F.R. § 3.105(e) governing rating reductions were explained to Veteran in adequate detail in a February 2008 letter prior to the effectuation of the rating reduction on August 1, 2008. The appellant was provided sufficient opportunity to present additional argument and evidence in opposition to the reduction. In this case, VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claim, to include VA examinations. He was provided the opportunity to present pertinent evidence in support of the claim. There is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). The claim is ready to be considered on the merits. Pertinent Law and Regulations Historically, service connection was established for left knee patellofemoral syndrome by rating action dated in November 1996. A 10 percent disability evaluation was assigned. A January 2007 rating decision granted a 50 percent evaluation, effective from October 17, 2006, based on a December 2006 VA examination. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (2011). The Board attempts to determine the extent to which the Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life and is based, as far as practicable, on average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (2012). Slight recurrent subluxation or lateral instability of the knee is rated 10 percent disabling. Moderate recurrent subluxation or lateral instability of the knee is rated 20 percent disabling. Severe recurrent subluxation or lateral instability of the knee is rated 30 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Arthritis due to trauma, substantiated by X-ray findings, is rated as degenerative arthritis. See 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2012). Degenerative arthritis established by X-ray findings will be rated based on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). The normal range of knee motion is from 0 to 140 degrees. See 38 C.F.R. § 4.71a, Plate II (2012). Limitation of motion of the knee is evaluated under 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261 (2012). When flexion of the knee is limited to 45 degrees, a 10 percent rating may be assigned. Flexion limited to 30 degrees warrants a 20 percent evaluation. A 30 percent rating may be assigned when flexion of the leg is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2012). When extension of the knee is limited to 10 degrees, a 10 percent evaluation may be assigned. When extension is limited to 15 degrees, a 20 percent evaluation may be assigned. When limited to 20 degrees, a 30 percent rating is warranted. If extension is limited to 30 degrees, a 40 percent evaluation is warranted. A 50 percent evaluation may be assigned when extension of the leg is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2012). When evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups. See 38 C.F.R. §§ 4.71a, 4.40, 4.45 (2011); DeLuca v. Brown, 8 Vet.App. 202, 204-7 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet.App 7 (1996). With any form of arthritis, painful motion is an important factor of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59 (2012). The law provides that a Veteran's disability will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C.A. § 1155. When an RO makes a rating reduction without following the applicable regulations, the reduction is void ab initio. Greyzck v. West, 12 Vet.App. 288, 292 (1999). For reductions in rating to be properly accomplished, specific requirements must be met. See 38 C.F.R. § 3.344; see also Dofflemyer v. Derwinski, 2 Vet.App. 277 (1992). However, the provisions of 38 C.F.R. §§ 3.344(a) and (b), which govern reductions of a rating in effect for five or more years, do not apply in this case because the rating at issue was in effect from October 17, 2006 through August 1, 2008, a period of less than five years. For a disability rating in effect for less than five years, an adequate reexamination that discloses improvement in the condition will warrant reduction in rating. 38 C.F.R. § 3.344(c). In considering the propriety of a reduction, the Board must focus on the evidence of record available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the disorder has demonstrated actual improvement. Dofflemyer, 2 Vet.App. at 281-282. Factual Background Initially, the Board notes that the record does not indicate, and the Veteran does not contend that the procedural requirements for the rating reduction are not in compliance. See 38 C.F.R. § 3.105(e) (2010). Therefore, the Board will focus on whether the evidence supported the reduction action. The Veteran filed a claim for an increased rating for service-connected left knee disability in October 2006. He was afforded a VA examination in December 2006. At that time, he reported that the joint frequently gave way. He also described suffering from aching and throbbing 90 percent of the time. It was reported, however, that the appellant performed all his activities of daily living unassisted, wore a brace but did not use a cane or crutches. He related that he was a truck driver and that the left knee hurt and swelled when he used a clutch while driving the truck. He said he had great deal of difficulty walking when the knee swelled. On examination in December 2006, the Veteran was observed to limp slightly. There was no palpable effusion or observable inflammation of the left knee. The anterior left knee was not tender. It was reported that when he attempted to extend the knee, pain was severe at 36 degrees. Extension was from 50 degrees to 36 degrees. In the prone position, range of motion was from 10 to 60 degrees. Marked pain was noted 60 degrees. On repetitive motion, range of motion was from 10 to 42 degrees. It was reported that left knee extension demonstrated some objective signs of pain such as wincing. Testing for stability revealed normal findings, including the Lachman, drawer and collateral ligament tests. The McMurray test was strongly positive. An X-ray of the left knee showed medial joint compartment narrowing. There were some minor signs of arthritis such as mild juxta-articular spurring. Following examination, the diagnoses were left knee patellofemoral syndrome, traumatic arthritis and dislocation of the patella that had resolved. By rating action dated in January 2006, the 10 percent rating for left knee patellofemoral syndrome was increased to 50 percent, effective from October 17, 2006, primarily based on limitation of extension in excess of 45 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5261. The Veteran underwent a VA examination in January 2008. He stated that since the previous evaluation, dull and aching left knee pain continued with an intensity of two on a 10 scale (2/10). The appellant reported flare-ups of pain three times a week on average, and said that walking too long, standing, or climbing stairs provoked pain for which he had been prescribed Celebrex and Lortab. He said that the medication had been effective and controlled his pain. Associated symptoms were reported to include left knee stiffness, swelling, giving way and locking at times. The appellant stated that he used a neoprene brace for support but did utilize a cane or crutch. It was reported that the appellant was functionally independent in all basic activities of daily living, but that left knee pain interfered when he has to depress the clutch in his manual gear truck. The appellant recalled that he had been incapacitated a few time in the past due to knee pain but that no physician had given him any prescription for complete rest during the past 12 months or so. On examination, the Veteran walked with a slight limp favoring the left leg. It was reported that he was not able to squat due to right knee pain. The left knee revealed that patella movement was within proper tracking. The examiner noted that he/she could not manually dislocate or sublux the patella. There was evidence of patellar pain as noted through the movement of the patella. There was no effusion or deformity. Occasional crepitus was noted. Flexion was from zero to 90 degrees actively, and zero to 110 degrees passively. It was reported that the Veteran had full extension. The medio-lateral, collateral ligament, anterior and posterior cruciate ligaments, Lachman's, drawer and McMurray tests were all negative. There was evidence of pain throughout range of motion and increasing pain was noted at the ends of motion, particularly in the passive range. Left knee repetitive movements failed to show any change in range of motion. The Veteran was observed to display muscle guarding and grunted throughout range of motion secondary to pain. The examiner opined that the appellant was functionally independent in all basic activities of daily living. He related that left knee physical activity provoked flare-ups of pain but did not limit occupational opportunity. An X-ray of the left knee yielded a diagnosis of a narrowed medial compartment with degenerative changes. Following physical examination the diagnosis was left knee residual patellofemoral syndrome with traumatic arthritis and a mild genu varus deformity. By rating action and letter dated in February 2008, VA proposed to reduce the disability rating for the left knee from 50 percent to 10 percent disabling. The accompanying letter advised the Veteran of his rights regarding reductions, including the right to request a hearing and to submit additional evidence. Received in April 2008 from I. R. Martin, III, M.D., was the report of a physical examination performed in January 2008. Among other things, it was reported that the Veteran complained of bilateral knee pain for which he took Celebrex. He denied recent injury to the knees but stated that squatting hurt. It was noted that he had bilateral anterior and posterior knee pain with the left slightly worse than the right. On physical examination, there was no effusion. He had medial greater than lateral joint line tenderness. The McMurray test caused pain medially but not laterally. The Veteran had pain with patellofemoral compression. The anterior and posterior drawer sign was stable. An X-ray of the left knee showed normal bony mineralization with mild hypertrophy of the tibial eminences. Early osteophytes were present. No fracture or dislocation was appreciated. Following examination, the physician stated that the Veteran's knees probably had a combination of chondromalacia and meniscal tears. The appellant related that at that point, they were not really bad enough to consider surgical intervention. By rating action dated in May 2008, the 50 percent disability rating for the left knee was reduced to 10 percent, effective from August 1, 2008 Legal Analysis After considering the pertinent clinical history, the Board finds that the May 2008 rating action reducing the disability evaluation for the Veteran's left knee from 50 to 10 percent meets the regulatory standards of 38 C.F.R. § 3.344 and was proper. The evidence demonstrates that improvement occurred. In applying the rating criteria, the evidence reflects that extension of the left knee was limited to 50 degrees on VA examination in December 2006. This warranted a 50 percent disability evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5261. Flexion was no more than 60 degrees. Significantly, in January 2008, clinical examination demonstrated that the Veteran had full extension, and flexion between 90 and 110 degrees. Extension to zero degrees and flexion between 90 and 110 degrees warrant zero percent (noncompensable) evaluations. 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. As such, the January 2008 examination report reflects an improvement in the appellant's left knee extension and flexion. Although the Veteran continued to report locking and giving way, there was no competent finding of either subluxation or lateral instability that would have warranted a separate compensable rating under 38 C.F.R. § 4.71a, Diagnostic Code 5257. Repetitive motion studies did not reveal any additional loss of motion. The evidence reflects that on VA examination in January 2008, left knee disability was manifested by complaints of pain, stiffness, tenderness, crepitus, occasional locking and minor arthritic changes without evidence of compensable limitation of motion. Such symptoms on the whole are emblematic of left knee periarticular pathology. Painful, unstable or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint for which no more than a 10 percent disability rating was warranted. See 38 C.F.R. § 4.59 (2012). It was reported that the appellant was functionally independent in all basic activities of daily living and that knee pain did not limit occupational opportunity. Thus, even when taking the appellant's complaints of pain and flare-ups of pain into consideration, the Veteran's service-connected left knee was properly compensated by assigning no more than a 10 percent rating effective August 1, 2008. The degree of impairment shown on VA examination in 2006 was not demonstrated when he was evaluated in 2008. The evidence supports the decision to reduce the rating to 10 percent for left knee posttraumatic arthritis with patellofemoral syndrome effective August 1, 2008. The claim to restore the 50 percent rating is therefore denied. In reaching this determination, the Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the appellant's claim in this regard, this doctrine is not for application. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Entitlement to restoration of a 50 percent rating for left knee posttraumatic arthritis with patellofemoral syndrome is denied. REMAND The Veteran asserts that the symptoms associated with his left knee disability are more disabling than reflected by the currently assigned 10 percent disability evaluation and warrant a higher rating. Review of the record reflects that the issue on appeal has been essentially framed at all times as whether the reduction to 10 percent for posttraumatic arthritis with patellofemoral syndrome of the left knee, effective August 1, 2008, was proper. The Veteran wrote in August 2008 requesting reevaluation of the left knee. The RO noted on an April 2011 rating decision that the Veteran's claim for an increased rating for the left knee was not addressed on at that time because it was already on appeal. The record discloses, however, that the Veteran has never been provided notice of the Veterans Claims Assistance Act (VCAA) of 2000, Pub. L. No.106-475, 114 Stat.2096 (2000) with respect to the issue of entitlement to an increased rating for left knee posttraumatic arthritis with patellofemoral syndrome. The VCAA and its implementing regulations require that VA provide specific notice to claimants regarding information needed to complete an application for benefits, as well as specific notice regarding information or evidence required to substantiate a claim. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The record reflects that the RO has sent various VCAA notice letters to the Veteran, but none addresses what is required for a higher rating for the left knee. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might not be able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the agency of original jurisdiction's (AOJ) initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ). See also Prickett v. Nicholson, 20 Vet.App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as with a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). The Veteran must therefore be given the required notice with respect to the remaining issues on appeal. Accordingly, the case must be remanded in order to comply with the statutory requirements of the VCAA. Accordingly, this case is REMANDED for the following actions: 1. Review the claims file and ensure that all notification and development actions required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002 & Supp. 2012), the implementing regulations found at 38 C.F.R. § 3.159 (2012), and any other legal precedent are fully complied with and satisfied. The Veteran should specifically be told what is required to substantiate the claims for an increased rating for the left knee, and of the information and evidence needed to substantiate his claims. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); see also Charles v. Principi, 16 Vet. App. 370, 373-374 (2002). 2. After taking any further development deemed appropriate, readjudicate the issues on appeal. If a benefit sought is not granted, issue the appellant a supplemental statement of the case and afford an opportunity to respond. Thereafter, the claims folder should be returned to the Board for further consideration. The appellant has the right to submit additional evidence and argument on the 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 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. 2012). ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans Appeals Department of Veterans Affairs