Citation Nr: 1315037 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 09-50 991 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether the reduction of a disability evaluation for chondromalacia of the right knee, from 30 percent to 10 percent, effective September 1, 2009, was proper. 2. Whether the reduction of a disability evaluation for chondromalacia of the left knee, from 30 percent to 10 percent, effective September 1, 2009, was proper. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and friend ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1977 to August 1981, and from June 1986 to June 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2009 rating decision of the Columbia, South Carolina, Department of Veterans Affairs (VA) Regional Office (RO). In April 2011, the Board denied the claims at issue. Thereafter, the Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In September 2011, the Court granted a joint motion for vacatur and remand. In March 2012, the Board remanded the case to the Appeals Management Center (AMC) for further development of the record. The AMC completed the requested development, and the case has been returned to the Board for further consideration. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Virtual VA electronic claims file has been reviewed; a review of the documents in such file reveals that it contains VA treatment records pertinent to the issues on appeal. As noted in April 2011, at his October 2010 videoconference hearing, the appellant contended that his knee disorders are more severely disabling than reflected at his March 2009 VA examination. This statement represents a new claim of entitlement to increased ratings for each knee disorder, to include the question of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders. Rice v. Shinseki, 22 Vet. App. 447 (2009). These claims, however, have yet to be adjudicated by the RO. Accordingly, they are again referred to the RO for immediate consideration. FINDINGS OF FACT 1. Effective September 1, 2009, the Veteran's right knee chondromalacia was manifested by full extension to zero degrees and flexion to 120 degrees. There was no additional loss of motion with repetitive motion. 2. Effective September 1, 2009, the Veteran's left knee chondromalacia was manifested by full extension to zero degrees and flexion to 100 degrees. There was no additional loss of motion with repetitive motion. CONCLUSIONS OF LAW 1. The reduction of the rating for the Veteran's chondromalacia of the right knee was proper, and the requirements for restoration have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.105(e), 3.344, 4.20, 4.71a, Diagnostic Codes 5260, 5261 (2012). 2. The reduction of the rating for the Veteran's chondromalacia of the left knee was proper, and the requirements for restoration have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.105(e), 3.344, 4.71a, Diagnostic Codes 5260, 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist With respect to rating reductions for the Veteran's knee disabilities, 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 March 2009 letter prior to the rating reduction in September 2009. The appellant was provided sufficient opportunity to present additional argument and evidence in opposition to the reduction. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. The claims file contains the Veteran's service treatment records, VA medical records, the reports of various VA examinations, testimony from the Veteran's October 2010 Board hearing, and records obtained from the Social Security Administration. Pursuant to the March 2012 remand, all VA treatment records from May 2007 to August 2012 have been acquired and associated with the Veteran's Virtual VA electronic claims file. These records were reviewed by the AMC, which issued a supplemental statement of the case in October 2012. The Veteran was provided adequate opportunity to present pertinent evidence and testimony. In sum, 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). Analysis Where reduction in the evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction of current compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. 38 C.F.R. § 3.105(e). The beneficiary will be notified at his latest address of record of the contemplated action, furnished detailed reasons for the reduction, and given 60 days for the presentation of additional evidence to show that compensation should be continued at the present level. Id. The beneficiary will also be informed that he will have an opportunity for a predetermination hearing. 38 C.F.R. § 3.105(i). Congress has provided 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). The Board notes that in this case, the 30 percent evaluations for chondromalacia of the right and left knees were in effect for less than 5 years, i.e., from March 7, 2007 to September 1, 2009, and additional requirements set forth at 38 C.F.R. § 3.344 regarding disabilities that have become stabilized are not for application. As regards disability ratings in effect for less than five years, an adequate reexamination that discloses an improvement in the disorder 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 condition had demonstrated actual improvement. Dofflemyer, 2 Vet. App. at 281-282. Historically, service connection was established for bilateral knee disorders, and a 10 percent disability evaluation was assigned for each knee. An August 2007 rating decision established a 30 percent evaluation based on a May 2007 VA examination. Concerning the reduction from 30 percent to 10 percent for both the right and left knee chondromalacia, the RO provided a VA examination in March 2009 to assess the level of severity of the Veteran's knee disabilities. Following that examination, by correspondence dated in March 2009, the Veteran was notified of the proposed reduction, advised of his rights in regards to the reductions, and given an opportunity to submit additional evidence and/or request a hearing. The Veteran did not request a hearing, but did submit a request in May 2009 that the RO obtain his most recent VA treatment records and reconsider the rating reduction. The Veteran subsequently was sent a copy of the June 2009 rating decision implementing the reductions to 10 percent for each knee, effective September 1, 2009. This effective date was not sooner than permitted by current law and regulations. 38 C.F.R. § 3.105(e) ("the award will be reduced" ... "the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires"). The Veteran's bilateral knee chondromalacia is evaluated by analogy to 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2012). The rating criteria for limitation of leg motion under 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261 provide that a rating of 10 percent may be assigned when flexion is limited to 45 degrees and when extension is limited to 10 degrees. A rating of 20 percent may be assigned when flexion is limited to 30 degrees and when extension is limited to 15 degrees. A rating of 30 percent may be assigned when flexion is limited to 15 degrees and when extension is limited to 20 degrees. The normal range of knee motion is from 0 degrees (on extension) to 140 degrees (on flexion). See 38 C.F.R. § 4.71a, Plate II. The Veteran's 30 percent rating, effective date March 7, 2007, was based on the report of a May 2007 VA examination. At that time the Veteran reported constant severe pain, locking, instability, and intermittent swelling. More importantly, while extension was to zero degrees midline with pain, flexion was only to 10 degrees with pain. The range of motion was not additionally limited by repetitive use. There was palpable tenderness bilaterally with severe grade three crepitus. The examiner noted that the Veteran's disability impacted activities of his daily life, including standing, bathing, dressing, sleeping, and chores, and that pain made it difficult for him to perform work duties. The diagnosis was severe, bilateral chondromalacia of the knees. The Veteran was afforded a new VA examination in March 2009. He reported the history of his knee injuries and stated that he experienced daily bilateral knee pain. He stated that his knees were unstable, that he had fallen, and that the knees were subject to periodic swelling and locking. The Veteran reported that he experienced daily pain and has to curtail physical activities, including standing, because of it. He stated that he quit working in 2002 due to arthritis. It was observed that the Veteran used a cane and wore braces on each knee. Upon examination the knees showed a moderate degree of bony swelling bilaterally and complaints of pain were elicited on patellar compression. The right knee showed extension to zero degrees and flexion to 120 degrees, accompanied by marked end of range pain. The left knee showed full extension to zero degrees and flexion to 100 degrees with a somewhat lesser degree of end of range pain. Range of motion was not additionally limited following repetitive use. The Veteran walked with a mild limp bilaterally. Both knees were stable to Lachman's and drawer testing. MRI reports showed degenerative changes of the right medial meniscus along with a small effusion and degenerative changes at the patellofemoral joint. The left knee showed similar degenerative changes especially at the patellofemoral joint, accompanied by a small effusion. The diagnosis was bilateral degenerative joint disease. The Veteran's VA treatment records show that he has been treated for chronic knee pain on numerous occasions. In August 2006, the Veteran complained of extreme pain in his neck, shoulders, and knees and was diagnosed with rheumatoid arthritis. In May 2007, the Veteran complained of knee pain and that there was a "pop and click" in his left knee. The Veteran also stated that he had difficulty getting out of bed. The Veteran was found to have audible crepitus in his left knee. In March 2009, the Veteran complained of having a lot of pain in his knees, which would give out at times and were constantly swollen. The Veteran reported that he had difficulty getting out of chairs and climbing up stairs, that the pain interfered with his sleep and made it difficult for him to stay in any one position for a long period of time. He stated that he had been unable to work since 2005. In July 2009 the Veteran reported that he was wearing knee braces and was diagnosed with degenerative joint disease of the knees. In March 2007, the Veteran applied for a total disability rating based on individual unemployability. The Veteran reported that he was no longer able to work as a meat cutter due to his combined disabilities in his hands, back, knees, and legs. That claim was denied, and is not shown to be part of his claim to restore the prior ratings. At the Veteran's October 2010 Board videoconference hearing, he testified that the March 2009 VA examination showed ranges of motion that were greater than his usual range. He further stated that the examination was painful and difficult to do because it required moving in a way that he did not usually move. The Veteran did not, however, offer any clinical evidence showing range of motion studies that contradicted the March 2009 findings by a trained examiner. The Veteran stated that he had difficulty shopping because extensive time on his feet required him to take breaks, either leaning or sitting, to rest his legs, and that he had been wearing elastic braces on his legs for the past year. After considering the pertinent medical history, the Board finds that the June 2009 rating action reducing the evaluations for the Veteran's knees meets the regulatory standards of 38 C.F.R. § 3.344 and was proper. The evidence shows that the March 2009 VA examination was an adequate, comprehensive reexamination that conclusively demonstrated an improvement in the Veteran's disorders since the prior May 2007 VA examination. Therefore, the reductions to 10 percent for chondromalacia of both the right and left knees, effective September 9, 2009, was appropriate. 38 C.F.R. § 3.344(c). In applying the rating criteria, flexion of the knees was shown in the previous May 2007 VA examination to be limited to only 10 degrees. This degree of limited flexion warrants a 30 percent rating. But at the March 2009 VA examination, the Veteran showed marked improvement, with flexion demonstrated to 120 degrees in the right knee and to 100 degrees in the left knee. The examiner was aware of the Veteran's limitation due to pain noting marked end of range pain in the right knee and a lesser degree of pain in the left knee. Each knee, however, showed full extension, and repetitive motion studies did not reveal any additional loss of motion. Thus, even when taking into consideration his complaints of pain, the Veteran's limitation of knee motion is properly assigned 10 percent ratings for each knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. Thus, the evidence supports the decision to reduce the 30 percent ratings to 10 percent ratings for chondromalacia of the right and left knees. In addition to the clear improvement in the Veteran's condition based on the range of motion test findings of the March 2009 examination, the Veteran also reported less severe symptoms and effects on occupational and daily functioning than he had in his previous VA examination. Where before the Veteran described having near constant pain and difficulty with simple daily activities, such as bathing, dressing, and chores, the information provided by the Veteran at the March 2009, as well as the statements he has made in his numerous VA treatment visits, show that while he has pain with prolonged standing or walking, he is not prevented from performing daily activities, such as driving and shopping. See Brown v. Brown, 5 Vet. App. 413, 420-421 (1993) (a disability's improvement should reflect improvement in ability to function under ordinary conditions of life and work). In considering DeLuca v. Brown, 8 Vet. App. 202 (1995) (evaluation of musculoskeletal disorders rated on the basis of limitation of motion requires consideration of functional losses due to pain), the evidence of record preponderates against finding that the Veteran has pain symptoms that are not contemplated by the 10 percent evaluation. While the appellant clearly has reported having regular pain during his daily life, the March 2009 examiner did not find additional functional impairment manifested by limited motion that is not contemplated in the rating assigned. The Veteran's lay statements and VA treatment records credibly show that he frequently experiences pain in his knees especially when getting up in the morning, getting up from a seated position, or after extensive walking. Nonetheless, this pain symptomatology by itself has not been shown to be further restrictive of functional motion than the March 2009 examination indicated. The Veteran has not provided any test results that would contradict the findings of the March 2009 VA examination, nor do his VA treatment records include any. Without evidence of restriction of functional limitations or painful motion that would restrict functional motion in excess of that found at the March 2009 examination, pain, alone, does not provide an additional basis for a higher evaluation. Hence, a rating in excess of 10 percent, as of September 1, 2009, is not warranted for either knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5260-5261; see DeLuca, 8 Vet. App. at 204-7. The Board emphasizes that the issue on appeal is whether the reduction for the knee disorder was proper. The issue is not whether the Veteran is entitled to increased evaluations. Dofflemyer. The Board notes, however, that the Veteran reported knee instability at his March 2009 examination, and the examiner noted laxity in the left knee and pain upon varus and valgus stress testing. The Veteran was granted separate rating evaluations of 10 percent for both right and left knee laxity in March 2009. The appellant has not perfected an appeal to that rating decision. The Veteran's symptoms associated with knee instability and laxity are not pertinent to the question whether VA properly reduced the ratings assigned based on limitation of motion, and are not before the Board for appellate consideration. As a final matter, the Board considered whether the Veteran's chondromalacia of the right and left knees presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology. 38 C.F.R. § 4.85. While the Veteran has complained that he has been unable to work, his own statements show that his chondromalacia of the bilateral knees is only one factor among many that led to leaving his work in 2002. The occupational impairment described by the March 2009 examiner is a marked improvement from the clinical findings of May 2007. The Veteran does not present with exceptional or unusual factors, and his disability from his chondromalacia of the knees alone is fully contemplated by the rating schedule. Hence, the assigned schedular evaluations are adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extra-schedular consideration is not warranted. In sum, the evidence preponderates in favor of the June 2009 reduction action. The appeal is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Entitlement to restoration of a 30 percent rating for chondromalacia of the right knee, from September 1, 2009, is denied. Entitlement to restoration of a 30 percent rating for chondromalacia of the left knee, from September 1, 2009, is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs