Citation Nr: 1515407 Decision Date: 04/09/15 Archive Date: 04/21/15 DOCKET NO. 10-08 221A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUES 1. Entitlement to a 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. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Nichols, Associate 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 appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Anchorage, Alaska. In October 2011, the Board denied the Veteran's claims for restoration of the 20 percent ratings for his bilateral knee instability. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court). In a Joint Motion for Remand (JMR), 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. By way of an April 2013 decision, the Board denied entitlement to the restoration of the 20 percent ratings for the bilateral knee instability due to arthritis. Another JMR was granted by the Court with respect to these issues in December 2013 because of the parties' agreement that the Board, in its April 2013 decision, did not provide sufficient reasons and bases for how there was evidence of "material improvement" of the Veteran's knee disabilities under the ordinary conditions of life and work. The case was remanded back to the Board for action consistent with the JMR. 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 reduction of the rating for arthritis of the right knee from 20 percent to 10 percent effective on July 1, 2009, was proper. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.105(e), 3.344, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5010-5257 (2014). 2. The reduction of the rating for arthritis of the left knee from 20 percent to 10 percent effective on July 1, 2009, was proper. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.105(e), 3.344, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5010-5257 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist 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 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014). 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. Private and VA records have been obtained. Furthermore, the Veteran was afforded VA examinations in 2007, 2008, and 2013 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). During the June 2011 Board hearing, the undersigned Veterans Law Judge (VLJ) clarified the issues on appeal, identified potential evidentiary deficits, and clarified the type of evidence that would support the appellant's claim. The actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing. See 38 C.F.R. § 3.103. 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). II. Pertinent Law and Analysis The Veteran contends that the reduction of his 20 percent rating to 10 percent for the bilateral arthritis of the knees was not proper. When determining whether a reduction was proper, there are two sequential questions that must be addressed. First, whether the RO satisfied the procedural requirements for a reduction, as set forth in 38 C.F.R. § 3.105. If so, the second question concerns whether the evidence shows an improvement in the severity of the service-connected disability, as defined in 38 C.F.R. § 3.344. With regard to the initial question, when a reduction in the evaluation of a service-connected disability is considered warranted 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 Veteran must be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor. Additionally, a veteran must be given notice that he has (1) 60 days to present additional evidence to show that compensation payments should be continued at the present level, and (2) 30 days to request a predetermination hearing. 38 C.F.R. § 3.105(e), (i). If additional evidence is not received within that period, 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 a veteran of the final rating action expires. Also, if a predetermination hearing is not requested or if a veteran failed without good cause to report for a scheduled predetermination hearing, the final action will be based solely upon the evidence of record. If a predetermination hearing was conducted, the final action will be based on evidence and testimony adduced at the hearing as well as the other evidence of record, including any additional evidence obtained following the hearing pursuant to necessary development. If a reduction is then found warranted, the effective date of such reduction shall be 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. 38 C.F.R. § 3.105. In cases where a rating has been in effect for less than 5 years the disability in question has not become stabilized and is likely to improve, reexaminations disclosing improvement, physical or mental, in these disabilities will warrant a rating reduction. 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. Without regard to whether a rating has been in effect for five years or more, a rating reduction is warranted only where the evidence contains thorough medical examinations demonstrating an actual improvement in disability. See 38 C.F.R. § 4.13. In other words, the provisions of 38 C.F.R. §§ 4.2 and 4.10 require that "in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that the 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, 420 (1993). Moreover, reports of examination must be interpreted in the light of the whole evidentiary history and reconciled with the various reports into a consistent picture, so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. In short, "the Board must 'establish, by a preponderance of the evidence and in compliance [with] 38 C.F.R. § 3.344, that a rating reduction is warranted.'" Green v. Nicholson, 21 Vet. App. 512 (2006). If there is any doubt, the rating in effect will be continued. See Brown, 5 Vet. App. at 417-18. In the present case, as a preliminary matter, the Board finds that the procedural requirements of 3.105 were satisfied in this rating reduction. 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. See 38 C.F.R. § 3.105. Accordingly, the remaining question is whether the reduction in the disability ratings is warranted based on the medical and lay evidence of record. The Veteran has arthritis of the bilateral 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 (2014). 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 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. 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 knees were 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. 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 Veteran was afforded a VA examination in August 2013. The objective findings on this examination showed flexion from 0 to 120 for each knee (a slight loss of range of motion from previous examination). However, the examiner also noted that it is expected that the Veteran would lose 20 degrees of additional range of motion loss due to pain or use or during flare-ups. Objective testing for stability were all normal. The Veteran reported that his pain is constant and under the patellar bone bilaterally. Aggravating factors were sitting for long periods of time, bending ,kneeling as well as driving. He has not missed work in the last 12 months because of pain. X-ray findings show that mild degenertiave changes to the patellofemoral joints were grossly stable. 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. There was also no objective instability noted at the August 2013 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 three VA examinations of the bilateral knees. The increased stability of the Veteran's knees was reasonably likely to be maintained over time, insofar as three separate examinations - two within a one year period and another years later - 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. He used a knee brace at times but he was still able to ambulate. 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. The Veteran was still able to work during the pertinent time period. 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 objective findings of instability upon testing at the March 2007, March 2008, and August 2013 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. In other words, he was able to use his knees under ordinary conditions of life. However, aside from the Veteran's assertions that his knees were unstable, there was no confirmed objective evidence of instability of either knee. In fact, the Veteran, at his VA examinations in 2007 and 2013, he had not missed a day of work in the last 12 months because of knee pain. In 2008, work was said to have been curtailed due to the pain in his knees. The Board recognizes that the Veteran may have had to make certain adjustments at work or home to help alleviate or mitigate his knee pain; however, as indicated above, the preponderance of the evidence shows material improvement, including how he functions under ordinary conditions of life. Again, the Board points to the fact that the objective evidence of record displays a consistent disability picture of no instability from the March 2007 examination going forward. This is coupled with the fact that the Veteran, in 2013, indicated that he has not missed a day of work in 12 months. It is apparent that although some activities at work and home are limited by pain, the Veteran is very much able to be functional with his knees under ordinary conditions of work and life. He can ambulate, he can still drive, and he can still work. Since the instability improved, the decision to reduce an evaluation that was based upon instability was fully supported. The examinations show that the prior RO decision to reduce the Veteran's rating to 10 percent was correct. 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. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs