Citation Nr: 1312579	
Decision Date: 04/16/13    Archive Date: 05/02/13

DOCKET NO.  10-08 221A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office in Anchorage, Alaska


THE ISSUES

1.  Entitlement to restoration of a 20 percent rating for arthritis of the right knee.

2.  Entitlement to a restoration of a 20 percent rating for arthritis of the left knee. 

3.  Entitlement to a rating in excess of 10 percent for limitation of motion of the right knee.

4.  Entitlement to a rating in excess of 10 percent for limitation of motion of the left knee. 

REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

M. Turner, Counsel


INTRODUCTION

The Veteran served on active duty from October 1985 to October 1991.

This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from a rating decision issued by the Regional Office (RO) in Anchorage, Alaska.  In an October 2011 decision, the Board denied the Veteran's claims for restoration of the 20 percent ratings for his bilateral knee instability.  The Veteran appealed to the Court of Appeals for Veterans Claims (Court).  In a Joint Motion for Remand which was granted by the Court in June 2012 the parties agreed to vacate the Board's decision and remand the claim to the Board for further adjudication.

The Veteran testified at a hearing before the undersigned Veterans Law Judge in June 2011. 

The issues of entitlement to higher ratings for limitation of motion of the right and left knees are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.

FINDINGS OF FACT

1.   In September 2008, the RO notified the Veteran of an August 2008 rating decision issued as a proposal to reduce the rating for his instability due to arthritis of the bilateral knees from 20 percent to noncompensable for each knee.

2.  An April 2009 rating decision implemented the disability rating reduction from 20 percent to noncompensable for instability of each of the Veteran's knees.

3.  At the time of the effective date of the reduction in July 2009, the 20 percent ratings for each of the Veteran's knees had been in effect for more than five years.

4.  At the time of the April 2009 rating decision the evidence showed a material improvement in the instability of the Veteran's knees that was reasonably certain to be maintained under the ordinary conditions of life and work. 


CONCLUSIONS OF LAW

1.  The RO's decision to reduce the rating for the service connected instability of the right knee from 20 percent to noncompensable was proper.  38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.105, 3.159, 3.344, 4.71a, diagnostic code 5257.

2.  The RO's decision to reduce the rating for the service connected instability of the left knee from 20 percent to noncompensable was proper.  38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.105, 3.159, 3.344, 4.71a, diagnostic code 5257


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VCAA

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).

Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

In this case, the Veteran was notified of the proposed rating action in a letter of September 2008. That letter described the process by which a rating reduction occurs, and identified further steps for the Veteran to take in challenging the reduction. 

Based on the foregoing, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b).

Next, VA has a duty to assist the Veteran in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2009). Private and VA records have been obtained. Furthermore, the Veteran was afforded VA examinations in March 2007 and March 2008 in which the examiners took down the Veteran's history, considered lay evidence, and reached conclusions based on their examination that were consistent with the record. The examinations are found to be adequate.

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).  In addition to the evidence discussed above, the Veteran's statements in support of the claim are also of record, including testimony provided at a June 2011 hearing before the undersigned. The Board has carefully considered such statements and concludes that no available outstanding evidence has been identified. Additionally, the Board has reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim.

For the above reasons, 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).

Reductions

The Veteran contends that the ratings for each of his knees should not have been decreased from 20 percent.  He denied that his knee symptoms had improved, instead claiming that his knee problems got worse since the 20 percent rating was assigned in 2002. 

A Veteran's disability evaluation will not be reduced unless an improvement in the disability is shown to have occurred. The Court has held that when an RO reduces a Veteran's disability rating without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999).

Prior to reducing a Veteran's disability rating, VA is required to comply with 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. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13 (2010); see also Brown v. Brown, 5 Vet. App. 413, 420 (1993).  These provisions impose a requirement that VA rating reductions be based upon review of the entire history of the Veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). 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. See Faust v. West, 13 Vet. App. 342, 350 (2000).

Section 38 C.F.R. § 3.344 provides that rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. However, the provisions of 38 C.F.R. § 3.344 specify that ratings on account of diseases subject to temporary or episodic improvement will not be reduced on any one examination, except in those instance where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. The regulations provide further, that these considerations are required for ratings which have continued for long periods at the same level (five years or more), and that they do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant a reduction in rating.

Under 38 C.F.R. § 3.344, the RO must find the following: (1) based on a review of the entire record, the examination forming the basis for the reduction is full and complete, and at least as full and complete as the examination upon which the rating was originally based; (2) the record clearly reflects a finding of material improvement; and (3) it is reasonably certain that the material improvement found will be maintained under the ordinary conditions of life. See Kitchens v. Brown, 7 Vet. App. 320 (1995); Brown, 5 Vet. App. 413, 419 (1993).

Generally, when reduction in the evaluation of a service-connected disability is contemplated and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore. The beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. §§ 3.103, 3.105(e). Here, notice was sent in an August 2008 rating decision and a September 2008 letter, and the effective date of the reduction was July 1, 2009. The RO satisfied the requirements by allowing a 60-day period to expire before assigning the reduction effective date.

The issue is whether the reduction was proper based on the evidence of record. Where a disability rating has continued at the same level for less than five years, that analysis is conducted under 38 C.F.R. § 3.344(c). Where, as here, a disability rating has continued at the same level for five or more years, the analysis is conducted under 38 C.F.R. § 3.344(a) and (b).  In this case, the Veteran's 20 percent disability rating was awarded effective January 2002, and was reduced effective July 1, 2009, more than 5 years later. Accordingly, 38 C.F.R. § 3.344(a) and (b) apply. Under 38 C.F.R. § 3.344(a) and (b), only evidence of sustained material improvement that is reasonably certain to be maintained, as shown by full and complete examinations, can justify a reduction. If there is any doubt, the rating in effect will be continued. See Brown, 5 Vet. App. at 417-18 (1995).

The Veteran has arthritis of the knees.  In July 2002, the Veteran was granted a 20 percent evaluation for moderate instability of the bilateral knees effective January 14, 2002 under Diagnostic Code 5010-5257.  This was based on the findings of a VA examination of June 2002 which identified moderate laxity in the collateral ligaments, both lateral and medial, bilaterally. 

Hyphenated diagnostic codes are used when a rating under one Code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27 (2010).  Diagnostic Code 5010 reflects that the Veteran's disabilities include arthritis. Diagnostic Code 5010 provides that traumatic arthritis be rated as degenerative arthritis under Diagnostic Code 5003. Diagnostic Code 5003 provides in turn that degenerative arthritis is rated under the appropriate diagnostic codes for the specific joint involved.

Diagnostic Code 5257 provides ratings for other impairment of the knee that includes recurrent subluxation or lateral instability. 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; and severe recurrent subluxation or lateral instability of the knee is rated 30 percent disabling. 38 C.F.R. § 4.71a. Separate disability ratings are possible for arthritis with limitation of motion under Diagnostic Codes 5003 and instability of a knee under Diagnostic Code 5257. See VAOPGCPREC 23-97. When x-ray findings of arthritis are present and a Veteran's knee disability is rated under Diagnostic Code 5257, the Veteran would be entitled to a separate compensable rating under Diagnostic Code 5003 if the arthritis results in noncompensable limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98.

In this case it is clear that the 20 percent ratings for each of the Veteran's knees were assigned based on the finding of moderate instability of each knee.  The rating decision specifically noted that there was moderate instability.  The decision also noted range of motion, which was normal.  

The Veteran's knees were reexamined in March 2007. At that time, the Veteran reported that his right knee gave out several times and he almost fell.  He reported instability of the right knee, and pain and stiffness of both knees.  He had moderate flare ups every one to two months.  However, there was no objective evidence of instability on examination.  Range of motion of the right knee was slightly limited to 0 to 120 degrees and range of motion of the left knee was 0 to 130 degrees with pain beginning at 120 degrees.  The Veteran reported that he had not missed any time from work due to his knee disabilities.  The examiner assessed the Veteran's knee disabilities as significantly affecting employment, with limitations including decreased mobility, problems with lifting and carrying, decreased strength of the lower extremity, and pain.  As a result, the Veteran was assigned different duties at work.  

The 20 percent evaluation was continued in a rating decision of May 2007. However, RO indicated that there had been improvement, but sustained improvement had not been definitively established. Therefore, a future examination was scheduled. 

The Veteran was reexamined in March 2008.  At that time the Veteran reported that he always wore special shoes and a brace for his knees.  The Veteran reported that he was able to stand for 15-30 minutes and was unable to walk more than a few yards.  He reported pain, stiffness, tenderness, and weakness of the knees.  He reported weekly flare ups during which time the Veteran limited his activity.  The Veteran had 0-125 degrees of flexion with both knees.  The Veteran had tenderness and painful movement of both knees.  He had bumps consistent with Osgood-Schlatters disease and there was tenderness over the medial joint line of the left knee and the lateral meniscus of the right knee.  There was no objective evidence of instability.  The Veteran's knee disability was assessed to have significant effects on the Veteran's occupation, including decreased lower extremity strength and pain.  The Veteran reported that he had to curtail his work by having his work partner do the heavier work.  The examiner noted that the Veteran had installed a grab bar at his home for getting off the toilet.  He could no longer jog or hunt, and he could only fish for a short period of time.

At his hearing in June 2011 the Veteran reported he used Z-coils in his shoes to help his knee pain.  He used an infrared machine and sauna.  He felt that he was in danger of being demoted at work because he could not perform all of the duties required by his job.  He had stopped doing work on towers because he had great difficulty climbing stairs.  He subjectively felt instability of the knee and reported that he fell down several times.  He used a knee brace.  The Veteran reported that he had good range of motion but he had difficulty kneeling and activities like that.  He had difficulty driving long distances due to knee pain.  He had recurrent swelling of the knee depending on what duties he performed at work.

The Board finds that the Veteran's disability rating was properly reduced as there was material improvement in the stability of the Veteran's knees.  The Veteran had moderate laxity of the knees at the June 2002 examination but there was no objective instability found in either the March 2007 examination or the March 2008 examination.  While the Veteran reported that he experienced instability of the knees and at times had almost fallen, this is refuted by the normal findings on two VA examinations of the bilateral knees.  The increased stability of the Veteran's knees was reasonably likely to be maintained over time, insofar as two separate examinations one year apart had both documented that the Veteran's knees were now stable.  Furthermore, the improvement was under ordinary conditions of life.  There is no indication that he stopped or even reduced using his lower extremities.  Clearly, the examination disclosed that he had the ability to walk and stand without instability being demonstrated.  It is not alleged or shown that he used a wheelchair or crutches or that he was unable to ambulate at work.  When function of the knee is considered it is clear that he had improvement under ordinary conditions of life. 

While the Veteran indicated that his knee pain got worse since 2002 and caused increased problems standing, walking, and squatting, it is clear that the original 20 percent ratings were based on instability alone and that this improved since 2002, at which time moderate laxity of the bilateral knees was found in contrast to no instability at the March 2007 and March 2008 examinations.  Despite the Veteran's claims of increased pain causing additional functional impairment, there was no objective evidence of instability and the Veteran was able to perform normal activities such as walking and standing, although limited by pain.  However, aside from the Veteran's assertions that his knees were unstable, there was no actual evidence of instability of either knee under ordinary conditions of life and work.  Since the instability improved, the decision to reduce an evaluation that was based upon instability was fully supported.


ORDER

Restoration of a 20 percent evaluation for instability of the right knee is denied.

Restoration of a 20 percent evaluation for instability of the left knee is denied.


REMAND

In part, the Joint Motion referenced functional impairment other than instability.  The Veteran was last examined with respect to his knees in March 2008 and he was assigned a 10 percent evaluation for each knee based on painful motion thereafter.  That examination is now five years old and the record does not contain any more recent information about range of motion of the Veteran's knees.  The Veteran submitted a letter in June 2011 in which he claimed that his knee disabilities became worse since March 2008.  In light of these facts, the Veteran should be afforded a new examination to determine the current severity of his left and right knee limitation of motion.  See VAOGCPREC 11-95 (April 7, 1995) (where a claimant asserts to the Board that there has been a further increase in the severity of his disability subsequent to the RO decision, the duty to assist may require that the Board remand the issue for additional evidentiary development, including a new examination). 

Accordingly, the case is REMANDED for the following action:

1. Afford the Veteran a VA orthopedic examination to determine the current severity of the limitation of motion of each of the Veteran's knees.  All symptoms and functional effects of the Veteran's bilateral knee disabilities should be fully documented in the report of examination.  Limitation of motion of the knees initially and after repetitive use should be documented.  

2.  The AOJ is reminded that instability is to be separately rated from limitation of motion.

3.  After completion of the above development, the Veteran's claims for higher ratings for limitation of motion of the bilateral knees should be re-adjudicated.  If the determination remains less than fully favorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) and given an opportunity to respond thereto. 

Thereafter, if necessary, the case should be returned to the Board for appellate disposition.  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. 2012).




______________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs