Citation Nr: 1415433 Decision Date: 04/08/14 Archive Date: 04/15/14 DOCKET NO. 09-25 765 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES Entitlement to a compensable disability rating for right knee patellofemoral syndrome, to include the propriety of a rating reduction from 30 percent to a noncompensable disability rating, effective May 13, 2008. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from February 1984 through February 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah, which denied the Veteran's claim for a disability rating in excess of 10 percent for right knee patellofemoral syndrome, and, reduced the disability rating assigned for the Veteran's service-connected left knee patellofemoral syndrome from 30 percent to a noncompensable (zero percent) disability rating, effective May 13, 2008. In his July 2009 substantive appeal, the Veteran requested that a Board hearing be scheduled in this matter. Accordingly, VA scheduled a Board hearing; however, after multiple postponements at the Veteran's request, the Veteran notified VA in February 2010, the Veteran notified VA that he wished to cancel his hearing. Neither the Veteran nor his representative has made a renewed request for a hearing. In October 2012, the Board denied the Veteran's claims for a higher disability rating in excess of 10 percent for left knee patellofemoral syndrome, determined that the reduction of the disability rating for the Veteran's right knee patellofemoral syndrome was proper, and denied the Veteran's claim of entitlement to a compensable disability rating for right knee patellofemoral syndrome. The Veteran subsequently appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2013 Joint Motion for Partial Remand, counsel for the Veteran and the Secretary of VA (the parties) asserted that the Board erred by impermissibly characterizing the issue concerning the aforementioned reduction in terms of the Veteran's entitlement to a restoration of his previous rating, and moreover, failed to apply the proper laws and regulations governing the propriety of a reduction of a disability rating. This motion was granted by the Court, thereby vacating the Board's previous determination vis-à-vis the reduction of the disability rating assigned for right knee patellofemoral syndrome and remanding that issue to the Board for action consistent with the terms of the parties' partial joint motion. Notably, the partial joint motion does not impact the Board's previous denial of a disability rating in excess of 10 percent for left knee patellofemoral syndrome. Accordingly, that portion of the Board's October 2012 is affirmed and does not remain on appeal. This appeal also initially included the issue of the Veteran's entitlement to a compensable disability rating for service-connected residuals of a left ankle fracture. The Veteran's appeal as to this issue was not perfected in a subsequent substantive appeal. Accordingly, this issue also does not remain before the Board on appeal. The issue of the Veteran's entitlement to an increased disability rating for left knee patellofemoral syndrome, currently rated as 10 percent disabling, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and that issue is REFERRED to the AOJ for appropriate action. Having determined below that the reduction of the disability rating from 30 percent to a noncompensable disability rating for right knee patellofemoral syndrome, effective May 13, 2008 was improper, the issue of the Veteran's entitlement to a disability rating in excess of 30 percent for right knee patellofemoral syndrome is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Reduction of the disability rating assigned for the Veteran's service-connected right patellofemoral syndrome from 30 percent to a noncompensable disability rating, effective May 13, 2008, was effectuated in an August 2008 rating decision. 2. The evidence since 2008 does not show actual improvement of the Veteran's right knee patellofemoral syndrome or in the Veteran's ability to function under the ordinary conditions of life and work due to his right knee disability. CONCLUSION OF LAW The reduction of the disability rating for right knee patellofemoral syndrome from 30 percent to a noncompensable disability rating is improper. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 3.105(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and 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. VA's notice requirements apply to all five elements of a service-connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. Such notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In relation to the issue concerning the propriety of the reduction of the Veteran's right knee patellofemoral syndrome rating, the Board notes that the appeal on that issue stems from disagreement with 38 C.F.R. § 3.105(e) reductions and is not based on a claim or application for benefits. As discussed more fully below, the regulations pertaining to the reduction of evaluations for compensation contain their own notification and due process requirements. See 38 C.F.R. § 3.105(e), (i). For this reason, the Board concludes that the VCAA does not apply to the claim regarding the propriety of reducing the Veteran's disability rating decided herein. Propriety of Reduction of Disability Rating for Right Patellofemoral Syndrome As noted above, an August 2008 rating decision reduced the disability rating assigned for the Veteran's right knee patellofemoral syndrome from 30 percent to a noncompensable disability rating, effective May 13, 2008. The Veteran challenges the propriety of the effectuated reduction. Initially, the Board notes that where the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance and setting forth all material facts and reasons must be prepared. The appellant must be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. The appellant is also to be informed that he or she may request a predetermination hearing, provided that the request is received by the VA within 30 days from the date of the notice. If additional evidence is not received within the 60 day period and no hearing is requested, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the veteran expires. 38 C.F.R. § 3.105(e) (2013). Here, the Veteran was not provided any of the notice prescribed by 38 C.F.R. § 3.105(e). Nonetheless, the reduction at issue did not result in any change to the Veteran's combined disability rating. In that regard, the Board notes that even after the reduction at issue, the Veteran's combined disability rating remained unchanged at 90 percent. As the amount of disability benefit payments is calculated based upon the Veteran's combined disability rating, and, as the August 2008 reduction of the disability rating assigned for right knee patellofemoral syndrome did not result in any change to the Veteran's combined disability rating, the reduction at issue cannot be said to have resulted in a reduction or discontinuance of compensation payments to the Veteran. Accordingly, the notice and procedural requirements set forth under 38 C.F.R. § 3.105(e) do not apply in this case. 38 C.F.R. § 3.344(a) 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. It is essential that the entire record of examinations and the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. Examinations less full and complete than those upon which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc., will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, though material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. The provisions above apply to ratings which have continued for long periods at the same level (five years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Re-examinations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating. 38 C.F.R. § 3.344(c). Records in the claims file show that the pre-reduction rating of 30 percent for the Veteran's right knee patellofemoral syndrome had been in effect since March 1, 2004. This 30 percent disability continued unabated until the reduction at issue, which, as noted above, was effective from May 13, 2008. Accordingly, the pre-reduction 30 percent disability rating for right knee patellofemoral syndrome was in effect for less than five years before it was effectively reduced. See Brown v. Brown, 5 Vet. App. 413, 418 (1993) (noting that the duration of a rating must be measured from the effective date assigned that rating until the effective date of the actual reduction). As such, the special provisions pertaining to reductions of ratings that have been in effect for five years or more under 38 C.F.R. § 3.344 (a) and (b) are not applicable to this case. Subject to the foregoing, the Board notes that in considering the propriety of a rating reduction, VA must ascertain in all such cases, 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). The August 2008 rating decision effectuating the reduction at issue expresses that VA's decision to reduce the disability rating for right patellofemoral syndrome was based upon information obtained from private treatment records and a May 2008 VA examination. Treatment records from Hill Air Force Base Family Medical Clinic dated January 2008 note that the Veteran complained of ongoing and chronic knee pain. An examination at that time revealed swelling in the right knee; however, demonstrated range of motion in the right knee was full and there was no evidence of instability during anterior and posterior drawer tests and Lachman's tests. X-rays of the right knee were normal and without any evidence of fracture, dislocation, arthritis or osteochondritis. Concurrent with the above treatment, the Veteran also sought treatment for his right knee at Davis Family Physicians, where he reported right knee pain, locking, and popping. During examination, cracking and popping were noted in the right knee, as well as crepitus and grinding. Range of motion testing was apparently not performed. Also in January 2008, the Veteran began a course of physical therapy at Rock Run Physical Therapy. At that time, he continued to report popping, clicking, catching, and swelling in his right knee, but again, acknowledged that these symptoms seemed to be worse in his left knee. Overall, he described right knee pain symptoms as being a five out of 10 in severity. Occupationally, he reported that he was working as a human resources employee, which entailed desk work, walking, and some more physical duties including shoveling snow and some maintenance work. Notably, the Veteran did not report any difficulty with performing his occupational duties. A physical examination of the right knee revealed normal range of motion, although pain was apparently reported during resisted extension exercises. Stability testing at that time apparently was productive of slight patellar hypermobility. In March 2008, the Veteran returned complaining primarily of left knee pain. Examination and treatment were focused upon the left knee and no specific right knee findings were noted at that time. Later that month, he was referred for an orthopedic examination of his ongoing knee complaints. At that time, the veteran reported that he was having popping, locking, catching, and swelling in his knees, more so in his left knee. A physical examination of the right knee revealed no swelling and full motion. Valgus and varus stress tests and Lachman's tests again did not reveal any instability in the right knee. Peripatellar pain and grinding was present during patellar apprehension and grind; however, the examining physician opined again that this was more pronounced in the left knee. Repeat range of motion testing performed a month later, in April 2008, revealed right knee extension to zero degrees and flexion to 135 degrees. Once again, there was no evidence of instability. The records also show that the Veteran continued receiving physical therapy at Rock Run Physical Therapy through April 2008. Therapy records from that date reflect that the Veteran's right knee symptoms were essentially unchanged from those reported during his January 2008 intake. Similarly, objective findings from the physical examination continued to indicate full right knee motion, albeit with reported pain during resisted extension. Occupationally, the Veteran continued to report the same employment as a human resources worker and still did not report any impairment of his occupational duties. As noted above, the Veteran was afforded a VA examination in May 2008; however, the Board notes that the May 2008 VA examination appeared to center primarily around disabilities in the Veteran's left knee, left ankle, and headaches. Notably, the examination appears to omit any discussion of the medical history concerning the Veteran's right knee, and also, does not note any specific subjective complaints regarding the right knee or any reported functional impairment attributable specifically to the right knee. Nonetheless, the Board notes that the examiner performed a thorough physical examination of both knees. Pertinent to the right knee, the examination did not reveal any evidence of edema, effusion, weakness, tenderness, redness, heat, subluxation or guarding of movement. There was also no evidence of locking, genu recurvatum, or crepitus. Demonstrated range of motion in the right knee included full extension to zero degrees and flexion to 140 degrees. Repetitive motion was not productive of further loss of joint function due to pain, fatigue, weakness, lack of coordination, or lack of endurance. Stability tests of the medial and lateral collateral ligaments, anterior and posterior cruciate ligaments, and medial and lateral meniscus were normal. X-rays of the right knee were not performed. In August 2009, the Veteran was afforded a new VA examination of his knees. At that time, the Veteran reported progressive right knee pain that was described as being constant with a severity of six out of 10. He stated that he had flare-ups of pain upon standing after being seated and that pain levels subsided and returned to an apparent baseline of six out of 10 after walking for a short distance. He also reported that his knee pain occasionally woke him at night. He stated that he wore a knee brace three times a week for up to two hours. He also reported frequent popping and occasional locking in his knees, stating that locking occurred three or four times per week, usually after being seated. In that regard, he elaborated that his knees pop and lock when he stands, but that he was able to unlock his knees by stretching his legs. He denied having any instances of giving way. Functionally, he reported that he had difficulty playing with his children due to his knee pain and that he was unable to run or play basketball or baseball. He also stated that he was able to lift only up to 10 pounds, but acknowledged that he remained able to perform all of his own personal needs. Occupationally, he reported that he was still working a sedentary administrative job at Hill Air Force Base and denied missing any time from work due to his knee problems. During physical examination, the Veteran demonstrated a slightly antalgic gait, but moved freely without assistive devices. Demonstrated right knee range of motion included full extension to zero degrees and flexion to 130 degrees. Mild pain was reported by the Veteran throughout motion; nonetheless, repetitive motion of the knees did not result in any further functional loss due to pain, weakness, impaired endurance, fatigue, incoordination, or flare-ups. The knees were noted as being "quite stable." Examination of the patella revealed mild patella pain during compression and crepitus. However, there was no evidence of swelling or inflammation or tenderness of the knees. X-rays of the knees were normal and without any evidence of fracture, malalignment, osteophyte formation, or joint effusion. As discussed above, a veteran's disability rating shall not be reduced unless an actual improvement in the disability is shown to have occurred. Upon consideration of the foregoing evidence, and a comparison of the demonstrated symptomatology at the time of the assignment of the Veteran's pre-reduction 30 percent disability rating versus the demonstrated symptomatology demonstrated since that time, the Board concludes that the evidence does not show actual improvement in the Veteran's right knee condition. Accordingly, the effectuated reduction of the disability rating from 30 percent to a noncompensable disability rating for right knee patellofemoral syndrome was improper. The Board notes that the pre-reduction 30 percent disability rating was assigned in a June 2004 rating decision which relied largely upon the objective findings noted in a May 2004 VA examination. During that examination, the Veteran complained of intermittent right knee pain, popping, locking, and grating which were aggravated by standing or kneeling. According to the Veteran, the locking in his right knee occurred when he attempted to stand from a kneeling position. Functionally, the Veteran reported that he was unable to run or jog. An examination of the right knee at that time revealed palpable tenderness over the right knee with positive McMurray's findings. Demonstrated range of motion included a loss of 20 degrees of extension and flexion limited to 100 degrees, with five degrees of varus angulation in the right knee joint. Grade 3 subpatellar crepitation was also noted in the right knee during flexion and extension movements. Generally, contemporaneous treatment records from Hill Air Force Base Family Medical Clinic and various private treatment providers dating from 2003 through 2004 do not indicate any different right knee findings. The Board notes that the evidence indicates that the Veteran has had some functional improvement in his right knee, to include recovery of essentially full right knee motion and improvement in his right knee crepitation. Also, whereas testing performed during the May 2004 VA examination indicated some positive McMurray's findings in the right knee, repeated stability testing performed on the right knee from 2008 through the present indicated the absence of McMurray's findings, and in fact, showed that the Veteran's right knee was stable. Notwithstanding the same, upon consideration of the evidence at this time, the Board also notes that other symptoms in the right knee, such as pain, popping, and locking, have persisted. Also, in terms of the Veteran's daily and occupational functioning, the evidence does not show any appreciable change or improvement. In that regard, the Veteran continues to report independence in attending to his personal needs, but ongoing altered gait and limitations in his ability to run, jog, participate in sports, or play with his children. Occupationally, the Board notes that the Veteran has continued working in a sedentary human resources position at Hill Air Force Base while performing the physical tasks required of his position. In that regard, the Board notes that the evidence shows that the Veteran was able to maintain a high level of occupational functioning which included the ability to perform tasks such as shoveling snow and performing maintenance around his office. Nonetheless, being mindful that the touchstone consideration is actual improvement in the Veteran's ability to function, the Board is unable to conclude that the evidence since 2008 shows any actual improvement because the Veteran's general symptoms and level of functioning have not changed appreciably. Further, the Board notes that the August 2008 reduction was not based upon a thorough examination of the Veteran's right knee disability. Toward that end, and as noted above, the May 2008 examination, the findings of which served as the primary basis for VA's decision to reduce the Veteran's disability rating, was apparently focused upon disabilities in the Veteran's left knee, left ankle, and headaches. Perhaps for that reason, the examination did not include any discussion of the Veteran's medical history or current complaints vis-à-vis the Veteran's right knee. Although the Board recognizes that a thorough clinical examination of the Veteran's right knee was performed, in the absence of any discussion of the Veteran's right knee complaints, history, and current functional loss, the May 2008 examination would not appear to provide adequate basis for considering whether the Veteran's right knee disability was marked by any actual improvement in function, despite the clinical improvements noted in the examiner's report. Under the circumstances, the Board also concludes that the May 2008 VA examination was an inadequate basis for the August 2008 reduction. In view of the foregoing, the August 2008 reduction of the disability rating assigned for right knee patellofemoral syndrome from 30 percent to a noncompensable disability rating, effective May 13, 2008, was not in accordance with the law and was improper. As such, the Board has no legal option but to restore the 30 percent disability rating for the right knee patellofemoral syndrome. 38 U.S.C.A. § 1155 (West 2002). ORDER The rating reduction from 30 percent to a noncompensable disability rating for right knee patellofemoral syndrome, effective May 13, 2008, was improper thus, entitlement to restoration of a 30 percent disability rating for right knee patellofemoral syndrome is granted, effective May 13, 2008, subject to the laws and regulations governing the awards of monetary benefits. REMAND In his claims submissions, the Veteran has alleged that his right knee condition has worsened. Based upon these assertions, VA has treated the issues concerning the Veteran's right knee disability as including a claim of entitlement to a higher disability rating for right knee patellofemoral syndrome. Indeed, the issue concerning the Veteran's right knee was characterized and adjudicated as such in the RO's June 2009 Statement of the Case and September 2009 Supplemental Statement of the Case. As discussed above, the Veteran as most recently afforded a VA examination of his right knee in August 2009. In a December 2013 statement, the Veteran appears to allege that his right knee disability has worsened, as he alleges that he has had increased pain and instability in his right knee and required steroid injections in December 2013 for pain management. Given the Veteran's allegations, and, as nearly five years have passed since the Veteran's most recent VA examination, the Veteran should be afforded a new VA examination to assess the current symptoms and severity of his right knee patellofemoral syndrome. 38 C.F.R. § 3.159(c)(4). Prior to arranging the examination directed above, and in order to insure that the most complete and up-to-date evidence has been associated with the claims file, the Veteran should also be asked to identify any treatment providers who have rendered treatment for his right knee since November 2013, to include the reported steroid injections received in December 2013. VA must then also make efforts to obtain any treatment records that are identified by the Veteran. 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. A letter should be sent to the Veteran explaining, in terms of 38 U.S.C.A. §§ 5103 and 5103A, the need for additional evidence regarding his claim of entitlement to an increased disability rating for right knee patellofemoral syndrome, currently rated as 30 percent disabling. This letter must also inform the Veteran about the information and evidence that is necessary to substantiate his claim and provide notification of both the type of evidence that VA will seek to obtain and the type of evidence that is expected to be furnished by the Veteran. The letter must also notify the Veteran that VA is undertaking efforts to arrange a VA examination of his right knee. The Veteran should be advised that it remains his responsibility to report for any scheduled VA examinations and to cooperate with the development of his claim; failure to report without good cause may result in denial of his claim. The Veteran should also be provided a VA 21-4142 release and be asked to identify the name(s) and current address(es) for any treatment providers who have provided treatment for his right knee since November 2013, to include the provider who administered the reported steroid injections in December 2013. 2. Make efforts to obtain records for any treatment identified by the Veteran. Any records obtained as a result of such efforts should be associated with the claims file. If such efforts yield negative results, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 3. After the above development has been completed to the extent possible, the Veteran should be afforded a VA examination, performed by an appropriate physician, to determine the current symptoms, manifestations, and severity of the Veteran's right knee patellofemoral syndrome. The claims folder must be made available to the examiner, and, the examiner must review the entire claims file in conjunction with the examination. All tests and studies deemed necessary by the examiner should be performed, to include physical inspection of the right knee, range of motion testing, repetitive motion testing, and stability testing. All findings from such testing should be expressed. The examiner should also describe any loss of daily or occupational function that is attributable to the right knee patellofemoral syndrome, and to document all objective evidence of the symptoms resulting in such functional loss. Any and all opinions must be accompanied by a complete rationale. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 4. If the Veteran fails to report to the scheduled examination(s), the RO must obtain and associate with the claims file a copy of any notice(s) of the dates and times of the examinations sent to the Veteran by the pertinent VA medical facility. 5. After completion of the above development, the issue of entitlement to an increased disability rating for right knee patellofemoral syndrome, currently rated as 30 percent disabling, should be readjudicated. If the determination remains adverse to the Veteran, he and his representative should be furnished with a supplemental SOC and be given an opportunity to respond. 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. 2013). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs