Citation Nr: 1324397 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 11-12 889 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Whether the reduction from 50 percent to 10 percent for traumatic arthritis of the right knee, effective March 1, 2010, was appropriate. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from October 1980 to December 1987. This case comes to the Board of Veterans' Appeals (Board) on appeal of a December 2009 rating decision of the Pittsburgh, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied a rating in excess of 30 percent for the residuals of an injury of the right knee and reduced the separate evaluation for right knee arthritis from 50 percent to 10 percent. In August 2012, a travel board hearing was held before the undersigned in Pittsburgh, Pennsylvania. A transcript of the hearing is associated with the Veteran's claims file. In a February 2013 decision, the Board denied a rating in excess of 30 percent for the residuals of an injury of the right knee, rated based on recurrent subluxation and lateral instability, and remanded the issue regarding reduction of the separate evaluation for right knee arthritis from 50 percent to 10 percent for due process reasons. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. In October 2008, the RO notified the Veteran of an October 2008 rating decision that issued a proposal to reduce the rating for his service-connected traumatic arthritis of the right knee, based on limitation of extension, from 50 percent to 0 percent. 2. A December 2009 rating decision implemented the disability rating reduction, from 50 percent to 10 percent, for the service-connected traumatic arthritis of the right knee, based on limitation of extension, effective March 1, 2010. 3. At the time of the effective date of reduction, in March 2010, the 50 percent disability rating for the Veteran's traumatic arthritis of the right knee based on limitation of extension had been in effect for less than five years. 4. At the time of the December 2009 rating decision, the evidence showed a material improvement in the traumatic arthritis of the right knee based on limitation of extension, reasonably certain to be maintained under the conditions of ordinary life and work. CONCLUSION OF LAW The RO's decision to reduce the rating for the service-connected traumatic arthritis of the right knee from 50 percent to10 percent 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 (Code) 5260 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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. 2012); 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 October 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). With regard to the duty to assist, the Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured. The Veteran was afforded VA medical examinations in September 2008, November 2009, and July 2011. The Board finds that the opinions obtained are adequate. The opinions were provided by qualified medical professionals and were predicated on a full reading of all available records. The examiners also provided a detailed rationale for the opinion rendered. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Neither the Veteran nor the representative has challenged the adequacy of the examinations obtained. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Accordingly, the Board finds that VA's duty to assist, including with respect to obtaining a VA examination or opinion, has been met. 38 C.F.R. § 3.159(c)(4) (2011). Reduction of Rating for Right Knee Traumatic Arthritis A Veteran's disability evaluation will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C.A. § 1155. The United States Court of Appeals for Veterans Claims (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 (2012); 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). 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. It is noted that the 50 percent rating for arthritis of the right knee was not in effect for 5 years. 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 October 2008 rating decision and letter, and the effective date of the reduction was March 1, 2010. The RO satisfied the requirements 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), which provides that reexaminations disclosing improvement will warrant reduction in rating. Service connection for the residuals of an injury of the right knee with traumatic arthritis was granted by the RO in a March 1998 rating decision, when a 20 percent rating was initially awarded, effective May 27, 1997, under the provisions of Diagnostic Code 5010-5258. This rating was increased to 30 percent by rating decision of the RO dated in November 2003, effective August 18, 2003. The appeal of this 30 percent rating was addressed in the February 2013 rating decision and need not be discussed further. In a June 2006 decision, the RO granted a separate evaluation for arthritis of the right knee, awarding a 50 percent rating under the provisions of Diagnostic Code 5261 for limitation of extension of the knee joint. The effective date of the award was set at December 22, 2005. The Veteran's combined evaluation was 60 percent in accordance with the amputation rule. See 38 C.F.R. § 4.68 (2012). In a December 2009 rating decision, the RO reduced the Veteran's rating for degenerative joint disease of the right knee, limitation of extension, from 50 percent to 10 percent, effective March 1, 2010. The RO found that the range of motion of the Veteran's right knee had improved. The Veteran appealed the reduction. 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. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriated diagnostic codes for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, an evaluation of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion. These 10 percent evaluations are 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. In the absence of limitation of motion, a 10 percent evaluation will be assigned where there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups. A 20 percent evaluation will be assigned where there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. 4.71a, Code 5003. Limitation of flexion of the leg to 45 degrees warrants a 10 percent rating. A 20 percent rating requires that flexion be limited to 30 degrees. 38 C.F.R. § 4.71a, Code 5260. Limitation of extension to 10 degrees warrants a 10 percent rating. A 20 percent rating requires that extension be limited to 15 degrees. Extension limited to 20 degrees warrants a 30 percent rating. A 40 percent rating requires extension to be limited to 30 degrees. A 50 percent rating is awarded for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Code 5261. Under VAOPGCPREC 9-2004 (September 17, 2004), separate ratings under Diagnostic Code 5260 and Diagnostic Code 5261 may be assigned for limitation of flexion and limitation of extension of a single knee joint. When evaluating a musculoskeletal disability based upon a range of motion, consideration is given to the degree of any additional limitation upon motion due to functional loss. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). This includes the analysis of additional functional impairment above and beyond the limitation of motion objectively demonstrated involving such factors as painful motion, weakness, incoordination, and fatigability, etc., particularly during times when these symptoms "flare up," such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. Id; see also 38 C.F.R. §§ 4.40, 4.45 and 4.59. On March 2006 VA examination, range of motion of the Veteran's right knee was found to be extension to -45 degrees and flexion to 45 degrees. The Veteran was unable to do repetitive range of motion due to exquisite pain. Based upon this examination, the RO awarded a separate 50 percent rating for limitation of extension of the right knee. The Veteran underwent a VA examination in September 2008. Physical examination showed that range of motion of the right knee was from 0 degrees extension to 110 degrees flexion. Pain increased beginning at 110 degrees. Weakness, easy fatigability, and decreased endurance were noted with range of motion. The most limiting factor was pain. Repetition did not change the degrees of range of motion or increase the pain. The diagnosis was degenerative arthritis of the right knee. On November 2009 VA examination, range of motion of the Veteran's right knee was from 0 degrees extension to 60 degrees flexion. The Veteran felt it was too painful to perform repetitive range of motion so this test was not conducted. X-rays showed severe narrowing of the lateral compartment of the knee and moderate narrowing of the medial compartment of the knee. Tricompartmental osteophytes were also noted as was suprapatellar knee effusion. The diagnosis was degenerative arthritis of the right knee. Examination was conducted by VA in July 2011. At that time, the Veteran was not able to do any significant range of motion in a weightbearing position, with motion from 0 degrees extension to 40 degrees flexion. In a seated position, range of motion was also from 0 degrees extension to 40 degrees flexion. There was weakness, decreased endurance, and easy fatigability with repetitive range of motion, but repetition did not change degrees of motion or increase the pain. The diagnosis was moderate to severe osteoarthritis of the right knee. The initial award of a 50 percent rating for arthritis of the right knee was based upon a lack of extension of the right knee of 45 degrees. On examinations in September 2008, November 2009 and July 2011 the Veteran was able to extend his right knee to 0 degrees. The Board recognizes that the Veteran's overall knee disorder remains significant as noted by the separate 30 percent rating that is not subject to this appeal, but the rating reduction concerns only the Veteran's rating for arthritis, which was initially granted on the basis of Code 5261 for limitation of extension. In light of the evidence of record, the Board finds that the Veteran's disability rating was properly reduced as there is a showing of material improvement that is reasonably certain to be maintained at the time that the RO implemented the reduction. Indeed, the Veteran has had three examinations all of which show extension to 0 degrees. The current 10 percent award is based upon limitation of flexion, which is now shown to be to 40 degrees, which corresponds to the current 10 percent rating. It is noted that the Veteran has not met the criteria for a separate rating of 20 percent which would require limitation of flexion to 30 degrees. The sustained improvement has been demonstrated by the findings of the three VA compensation examinations. The RO reduced the evaluation for limitation of extension of the right knee from 50 percent to 10 percent. The reduction effectuated by the RO was based on two VA examinations and confirmed by a third. The facts establish that there has been material improvement and therefore, the reduction is proper. All of the VA examinations contain specific findings as to the ranges of motion of the Veteran's right knee and considered the DeLuca criteria, commenting on whether the Veteran's range of motion was additionally limited after repetition by pain, weakness, fatigue, lack of endurance, or incoordination. See DeLuca, supra. Furthermore, considering the limited scope of Diagnostic Codes 5260 and 5261, the examinations showing the Veteran's range of motion in degrees were also sufficient for a finding of sustained improvement. The Board has also considered the Veteran's lay statements regarding the severity of his disability. The Board acknowledges the Veteran's belief that his symptoms are of such severity as to warrant the higher rating for his knee disorder; however, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. While the Board finds the Veteran competent to testify as to his symptoms, the medical findings, which directly address the criteria under which the service-connected disabilities are evaluated, are more probative and credible than his assessment of the severity of his disabilities. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Therefore, the preponderance of the more probative medical evidence is against the claim, and the Veteran's claim for restoration of the 50 percent rating is denied. ORDER Reduction from 50 percent to 10 percent for traumatic arthritis of the right knee, effective March 1, 2010, was appropriate and restoration of a 50 percent evaluation for traumatic arthritis of the right knee is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs