Citation Nr: 1312345 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 10-45 651 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to restoration of a 20 percent evaluation for patellofemoral syndrome of the right knee. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran had active service from November 1988 to December 1991. This matter comes before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran requested a hearing before a Veterans Law Judge in November 2010 substantive appeal; a hearing was scheduled for April 2012, but the Veteran failed to report. The Board notes that a Virtual VA e-file exists for this Veteran. This e-file was reviewed for new or relevant information; aside from VA treatment records dating to January 2012, the e-file otherwise contains duplicative information that is already in the claims file or information that is not relevant to the instant appeal. Moreover, the treatment records contained in the e-file are the subject of a January 2012 supplemental statement of the case by the RO. FINDING OF FACT The record contains no indication that the appellant's service-connected right knee disability exhibited improvement as of March 23, 2010, and the reduction in the disability rating for right knee patellofemoral syndrome from 20 to 10 percent as of that date was therefore improper. CONCLUSION OF LAW Restoration of the 20 percent disability rating for patellofemoral syndrome of the right knee is warranted. 38 U.S.C.A. §§ 1155 , 5110, 5112, 5107 (West 2002); 38 C.F.R. §§ 3.344, 3.500, 4.1, 4.10, 4.71a, Diagnostic Code 5257 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Under the Veterans Claims Assistance Act (VCAA), VA is required to advise a claimant of the information and evidence not of record that is necessary to substantiate a claim. See 38 U.S.C.A. § 5103 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012). VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim, unless no reasonable possibility exists that such assistance would aid in substantiating that claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). In light of the favorable decision below, the Board finds that any deficiency in VA's VCAA notice or development actions is harmless error. Factual Background Service connection for a right knee disability was originally granted in an April 1992 rating decision. A 20 percent evaluation was assigned in a May 2003 rating decision. This decision was based on an April 2003 VA examination. At the time of that examination, the Veteran reported constant pain in the right knee with occasional flare ups lasting up to four days. He endorsed occasional locking. On physical examination, the right knee had mild effusion with tenderness in the medial joint line. Range of motion testing revealed 105 degrees of flexion and zero degrees of extension. McMurray's test was negative but there was laxity in the anterior cruciate ligament on drawer testing. The medial collateral ligaments were negative for looseness. Patella grind test was positive. The diagnosis was patellofemoral syndrome/internal derangement of the right knee with mild to moderate functional loss secondary to pain, weakness, and lack of endurance. VA outpatient records reflect that a February 2006 X-ray study was negative. The interpreting radiologist indicated that a small calcification was noted near the insertion of the patellar ligament and that there was no fracture or dislocation. He also noted that joint spaces were preserved. In April 2006 the Veteran had no swelling in the knees. Range of motion of the knees was full. There was mild crepitation and tenderness over the lateral joint space and medial femoral condyle. McMurray's and Lachman's tests were negative. The assessment was right knee pain attributed to internal derangement with areas of maximal tenderness involving the lateral joint space and medial femoral condyle. The Veteran submitted a claim for an increased disability rating for the right knee disability in November 2008. On VA fee basis examination in January 2009, the Veteran endorsed weakness, stiffness, swelling, lack of endurance, and locking. The examiner noted that the Veteran did not have heat, redness, giving way, fatigability, or dislocation. The Veteran reported constant aching pain inside the knee. Physical examination revealed tenderness. There was no sign of effusion, edema, weakness, redness, heat, or guarding. There was no subluxation. The examiner noted crepitus but no genu recurvatum or locking pain. Range of motion testing revealed flexion to 140 degrees and extension to zero degrees. The examiner noted that joint function was additionally limited by pain but did not describe the extent of the additional limitation or indicate the point during motion at which pain was reported. Anterior and posterior cruciate ligaments were stable, as were the medial and lateral collateral ligaments. The examiner indicated that X-rays of the right knee showed degenerative arthritic changes. The diagnosis was patellofemoral syndrome with degenerative joint disease. In a February 2009 rating decision, the RO continued a 20 percent evaluation for patellofemoral syndrome. It noted that recent evidence showed some improvement and that a future examination would be scheduled. An additional VA fee basis examination was carried out on March 23, 2010. The Veteran reported weakness, stiffness, locking, tenderness, and pain. He denied swelling, heat, redness, giving way, lack of endurance, fatigability, deformity, drainage, effusion, subluxation and dislocation. He endorsed flare ups as often as once per day, lasting for two hours. He assessed the severity of his pain as 10/10. He stated that during flare ups, he could not bend his knee. On physical examination, there was tenderness of the right knee. There were no signs of edema, instability, abnormal movement, malalignment, or drainage. There was no subluxation. There was no locking pain, genu recurvatum, or crepitus. Range of motion testing revealed flexion to 140 degrees and extension to zero degrees, to include following repetitive movement. The examiner did not describe whether pain was evident during range of motion testing. He noted that an X-ray was within normal limits, but that there was patellar tendon calcification. Ligaments were noted to be stable. In an April 2010 rating decision, the RO reduced the disability rating for right knee patellofemoral syndrome from 20 to 10 percent, effective the date of the last VA fee basis examination, March 23, 2010. Analysis VA's Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.10 (2012). In VA's Rating Schedule, separate diagnostic codes identify the various disabilities. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10. Over a period of many years, a Veteran's disability claim may require reratings in accordance with changes in laws, medical knowledge, and his or her physical or mental condition. 38 C.F.R. § 4.1. For disability ratings in effect for less than five years, reexaminations disclosing improvement, physical or mental, in a service-connected disability will warrant a reduction in rating. 38 C.F.R. § 3.344(c) (2012). Prior to reducing a Veteran's disability rating, VA is required to "comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect." Faust v. West, 13 Vet. App. 342, 349 (2000), citing 38 C.F.R. §§ 4.1 , 4.2, 4.10. These general provisions "impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon review of the entire history of the Veteran's disability." Id., citing Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The U.S. Court of Appeals for Veterans Claims (Court) has held that such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Thus, in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. Brown v. Brown , 5 Vet. App. 413, 421 (1993); see also Schafrath, 1 Vet. App. at 594 ("[t]hese requirements for evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based on a single, incomplete[,] or inaccurate report and to enable VA to make a more precise evaluation of the level of disability and of any changes in the condition"); see also 38 C.F.R. § 3.344(c ). Under VA's Rating Schedule, instability of the knee is evaluated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under that Diagnostic Code, a 10 percent evaluation is warranted where impairment of the knee involves slight subluxation or lateral instability. A 20 percent evaluation is warranted where the impairment is moderate, and a 30 percent evaluation will be assigned where the impairment is severe. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As a preliminary matter, the Board finds that the procedural safeguards outlined in section 3.105(e) are not for application in this case. Prior to the April 2010 rating decision implementing the reduction at issue in this case, the appellant had been receiving compensation at the 20 percent rate since March 4, 2003. His combined evaluation for compensation was 20 percent. A December 2006 rating decision awarded service connection for migraine headaches and assigned a 30 percent evaluation; this award resulted in a combined evaluation for compensation of 40 percent. Although the April 2010 rating decision reduced the rating assigned for his service-connected right knee disability from 20 to 10 percent, effective March 23, 2010, the reduction in this disability rating did not result in a reduction of compensation payments. The Veteran's combined evaluation for compensation of 40 percent remained in place. Under these circumstances, the appellant's compensation payments were not reduced and compliance with the prereduction procedural safeguards delineated in 38 C.F.R. § 3.105(e) was not required. VAOPGCPREC 71-91 (Nov. 7, 1991); see also O'Connell v. Nicholson, 21 Vet. App. 89, 92 (Vet. App. 2007). Where, as here, a reduction in evaluation of a service-connected disability was considered by the RO to have been warranted and the lower evaluation did not result in a reduction of compensation payments, the effective date of the rating was to be fixed in accordance with the facts found. 38 U.S.C.A. § 5112(a) (West 2002); 38 C.F.R. § 3.500 (2012). Stated differently, if the record establishes an actual improvement in the appellant's service-connected disability, and if the medical records reflecting such an improvement are based upon thorough examinations, the reduction may be effectuated as of the date in improvement of the physical condition. Id.; Brown, 5 Vet. App. at 421. Section 3.344(c) also requires improvement, even when the evaluation is in effect less than 5 years. Again, that is what took place procedurally in this case with respect to the assignment of the effective date of the reduction. 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. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). Applying the facts in this case to the criteria discussed above, the Board finds the evidence before the RO at the time of the April 2010 rating decision included inadequate VA examination reports that did not definitively demonstrate improvement of the service-connected patellofemoral syndrome. Thus, they cannot be used as the basis to determine actual improvement in the Veteran's service-connected right knee disability as of March 23, 2010. The January 2009 examination report indicated full range of motion but noted that motion was limited by pain following repetitive use. It did not, however, describe the point during range of motion at which pain was evident. This report also indicates that X-rays revealed arthritic changes. According to the April 2010 rating decision, the RO determined that the appellant's right knee disability had improved based on full range of motion and a lack of evidence of pain during the March 23, 2010 fee basis examination. However, the report of that examination (conducted by the same physician who carried out the January 2009 examination) includes a chart that provides the examiner a space to indicate the point at which the patient has pain during range of motion. It is unclear whether the examiner merely failed to fill out that portion of the form, or whether he did not include that information because there was no pain on motion. Notably, during the January 2009 examination, this examiner did indicate that pain caused additional functional limitation but did not identify the point at which pain began. Moreover, the physician indicated that X-rays were within normal limits. He did not reconcile this statement with his previous report in January 2009 of degenerative arthritic changes. In light of these discrepancies and the Veteran's repeated complaints of pain on motion, the Board questions whether there was in fact an absence of pain on motion. Moreover, there is a conflict in the examining physician's reports regarding whether degenerative changes are present in the Veteran's right knee. The Board acknowledges that the VVA e-file includes a report indicating that the Veteran did not appear for an examination that was scheduled for November 2011. According to 38 C.F.R. § 3.655(a), (b), when entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination, and a claimant, without good cause, fails to report for such examination, or reexamination; and the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. However, the Board notes that the examination was scheduled in response to the Veteran's substantive appeal stating his belief that his right knee disability met the criteria for a 20 percent evaluation. In essence, the examination was scheduled at the request of the Veteran presumably for the purpose of allowing him to demonstrate the severity of his right knee disability. Because the issue before the Board is the propriety of the reduction carried out in the prior April 2010 rating decision, the Board has determined that his failure to report for a the subsequent examination is not detrimental to his claim for restoration. In other words, it would be inconsistent with the review of an appeal on reduction to penalize the appellant for a failure to appear for an examination that was scheduled solely for the purpose of supporting the appellant's subsequent claim for an increase. In sum, the March 2010 fee basis examination upon which the reduction was based was not adequate for the purpose of evaluating the disability. Under these circumstances, the Board finds that the RO failed to observe the applicable law and regulation in reducing the disability rating assigned for the appellant's service-connected right knee disability from 20 to 10 percent, effective March 23, 2010. Under these circumstances, the reduction is void ab initio. Brown, 5 Vet. App. at 422; Kitchens v. Brown, 7 Vet. App. 320, 325 (1995). ORDER Entitlement to restoration of a 20 percent evaluation for patellofemoral syndrome of the right knee is granted. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs