Citation Nr: 1640339	
Decision Date: 10/11/16    Archive Date: 10/27/16

DOCKET NO.  07-15 988	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUES

1.  Entitlement to restoration of a 20 percent evaluation for right knee strain.

2.  Entitlement to an evaluation in excess of 20 percent for right knee strain.

3.  Entitlement to an evaluation in excess of 10 percent for left knee strain.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran



ATTORNEY FOR THE BOARD

A. Adamson, Counsel


INTRODUCTION

The Veteran served on active duty from July 1992 to July 1999.  These matters come before the Board of Veterans' Appeals (Board) on appeal from June 2008 and May 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office in Indianapolis, Indiana (RO).  The June 2008 rating decision reduced the evaluation for service-connected right knee strain from 20 percent to 10 percent, effective September 1, 2008.  The May 2009 rating decision denied entitlement to an evaluation in excess of 10 percent for right knee strain and denied entitlement to an evaluation in excess of 10 percent for left knee strain.  In that the decision below restores the 20 percent rating assigned for the right knee, the increased rating issue has been recharacterized in the case caption, above, to properly reflect the 20 percent rating assigned.

These matters were previously before the Board in August 2010, February 2012 and March 2015 when they were remanded for additional development.  They are again before the Board for appellate adjudication.

The issues of entitlement to an evaluation in excess of 20 percent for right knee strain and entitlement to an evaluation in excess of 10 percent for left knee strain are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The June 2008 rating decision that reduced the 20 percent rating for right knee strain did not expressly consider whether there was actual improvement in the Veteran's ability to function under the ordinary conditions of life and work.
CONCLUSION OF LAW

The reduction of the Veteran's right knee strain disability from 20 to 10 percent; effective September 1, 2008, was improper.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13 (2015); Brown v. Brown, 5 Vet. App. 413, 420 (1993).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran contends that the symptoms of his right knee strain worsened, rather than improved, such that a reduction in the 20 percent evaluation previously assigned was not warranted. 

The Veteran was in receipt of a 20 percent evaluation for right knee strain when the RO proposed to reduce the rating to 10 percent in September 2007; the rating was reduced to 10 percent by rating action in March 2009.  The Veteran perfected an appeal to this rating decision, giving rise to this appeal.  

Generally, in reduction cases 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, afforded an opportunity for a predetermination hearing, and furnished detailed reasons of the proposed reduction.  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. § 3.105 (e), (i). 

Congress has provided that a veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred.  38 U.S.C.A. § 1155 (West 2014).  When VA 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 disability rating, VA is required to comply with several general 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 (2015); Brown v. Brown, 5 Vet. App. 413, 420 (1993).  Section 4.1 provides: "It is ... essential, both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history."  Similarly, 38 C.F.R. § 4.2  provides:  "It is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present."  Thus, "[t]hese provisions impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon review of the entire history of the veteran's disability."  Brown (Kevin) v. Brown, 5 Vet. App. 413, 420 (1993); Schafrath v. Derwinski, 1 Vet. App. 589, 594   (1991). 

Moreover, 38 C.F.R. § 4.13 provides:  "When any change in evaluation is to be made, the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms."  Based on the regulations quoted above, VA is required in any rating-reduction case "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."  Brown (Kevin), 5 Vet. App. at 421. Furthermore, 38 C.F.R. § 4.10 provides that "[t]he basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment," and 38 C.F.R. § 4.2 directs that "[e]ach disability must be considered from the point of view of the veteran working or seeking work." "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." 

In certain rating reduction cases, VA benefits recipients are to be afforded greater protections.  38 C.F.R. § 3.344 (2015).  The Board notes that, in this case, the 20 percent rating for right knee strain had been in effect since January 2, 2004, and the effective date of the reduction was September 1, 2008.  Because the rating was in effect less than five years, the provisions of 38 C.F.R. § 3.344 (a) and (b) pertaining to stabilized ratings are not applicable.  See 38 C.F.R. § 3.344(c) (2015) (reexaminations disclosing improvement in disabilities that have not become stabilized will warrant reduction in the rating).  Although in this case, the Board is not required to comply with the special VA rating-reduction protections in § 3.344, the Board is required to comply with the more general VA regulations discussed above.  38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13 (2015). 

The law provides that where a rating reduction was made without observance of law, although a remand for compliance with that law would normally be an adequate remedy, in a rating reduction case the erroneous reduction must be vacated and the prior rating restored.  Schafrath, 1 Vet. App. at 595. 

Again, in any reduction case, regardless of how long the rating has been in effect, the RO has an obligation to ensure that the reduction was based upon a review of the entire history of the Veteran's disability; that there has been an actual change in the condition and, that that improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work.  See Brown, 5 Vet. App. at 420-421. 

In this case, the RO reduced the 20 percent evaluation assigned for the Veteran's right knee strain to 10 percent based primarily on a June 2007 VA examination that showed the right knee strain was manifested by pain, but with normal range of motion.  The RO reduced the rating in the rating decision one year later.  The RO did not offer any discussion or analysis of the Veteran's current findings with respect to the regulations pertaining to rating reduction cases, and simply applied the rating criteria to the objective findings from the single VA examination.  The RO did not discuss or otherwise indicate whether there had been any actual improvement in the Veteran's right knee disability, or its effect on his ability to function under the ordinary conditions of life and work.  Moreover, shortly following the reduction, the Veteran submitted a statement indicating that he was on medication due to a back injury at the time of the June 2007 VA examination, and that this short-term medication had impacted the functionality of his knee.  He indicated that he was no longer on that back medication and his knee had actually worsened and not improved.  The RO did not address the Veteran's statement whatsoever. 

Thus, because the RO did not discuss or otherwise indicate whether there had been any actual improvement in the Veteran's right knee disability, or its effect on his ability to function under the ordinary conditions of life and work, the Board finds the RO's June 2008 rating decision reducing the 20 percent rating to 10 percent to have been improper and it is, therefore, void ab initio.  Accordingly, the 20 percent evaluation for the Veteran's right knee strain is restored.


ORDER

Restoration of the 20 percent evaluation assigned for right knee strain is granted.  


REMAND

The Board finds that additional evidentiary development is required prior to adjudication of the remaining issues on appeal.

The Veteran is seeking an increase in his rating for the service-connected right and left knee strain.  He is presently rated as 20 percent disabled for the right knee and 10 percent disabled for the left, both under Diagnostic Code 5260.  The most recent examination of the knees occurred in December 2013.  At the time of his June 2016 hearing, the Veteran reported that the severity of disability in both knees has worsened since December 2013.  See hearing transcript at page 4.  In particular, he reported instability in his knees, particularly around stairs, treadmills and with increased activity.  Id. at page 8.  He also reported that he is on his sixth pair of knee braces.  Id. at page 12.  At the time of the December 2013 examination, normal stability was noted on physical examination and the Veteran's knee disabilities were characterized as manifested by pain, with a clicking sound and difficulty climbing stairs and squatting.  Thus, the Veteran's hearing testimony is indicative of a possible worsening of the left and right knee disabilities in the nearly three years that has passed since the last examination.  VA's duty to assist includes the conduct of a thorough and comprehensive medical examination.  Robinette v. Brown, 8 Vet. App. 69, 76 (1995).  This includes providing a new medical examination when a Veteran asserts or provides evidence that a disability has worsened and the available evidence is too old for an adequate evaluation of the current condition.  Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (finding that the Board should have ordered a contemporaneous examination of Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating).   Because the December 2013 VA examination findings appear to not be representative of the current severity of the knee disabilities on appeal, the claim must be remanded as a new VA examination is warranted.

Also, in a recent decision, Correia v. McDonald, 28 Vet. App. 158 (2016), the Court determined that the final sentence of 38 C.F.R. § 4.59 requires VA examinations to include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  While both knees are disabled, such that measurement of the opposite undamaged joint is not possible, there is a need for testing for pain on both active and passive motion and when weight-bearing and nonweight-bearing.  Neither the December 2013 examiner, nor any other VA examiners during the pendency of this claim have conducted Correia compliant testing.  A remand is, therefore, also required in order to obtain an adequate examination and opinion under the current law.  

Furthermore, the most recent VA outpatient treatment records within the claims file were added to the claims file in December 2013 and are dated in June 2013.  On remand, the RO should obtain and associate with the record all updated VA treatment records related to the knee disabilities.  38 C.F.R. § 3.159(c)(2) (2015).


Accordingly, the case is REMANDED for the following action:

1.  Obtain relevant and ongoing VA treatment records related to treatment of the Veteran's right and left knee disabilities from June 2013 to the present.  If any requested records are not available, the record should be annotated to reflect such and the Veteran notified.

2.  Once the record is complete to the extent possible, the Veteran should be afforded a VA knee examination in order to determine the current severity of his service-connected right and left knee strain.  All pertinent evidence should be made available to and reviewed by the examiner.  The examiner must make all findings relative to rating the Veteran's right and left knee disabilities, to include any instability associated with the underlying knee disabilities.  This includes joint testing for pain on both active and passive motion, and in weight bearing and nonweight-bearing.  If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.  In addition to dictating objective test results, the examiner's report should fully describe the effects of the Veteran's disability on his occupational functioning and daily activities.  The RO or Appeals Management Center (AMC) should ensure that the examiner provides all information required for rating purposes.

3.  Review the record to ensure that the foregoing requested development has been completed.  In particular, review the requested medical opinions to ensure that they are responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998).

4.  After the development requested above has been completed, the record should again be reviewed.  If any benefits sought on appeal remain denied, the Veteran and his representative should be furnished with a supplemental statement of the case and given the opportunity to respond.  The case should then be returned to the Board for further appellate consideration, if in order.

The Veteran has the right to submit additional evidence and argument on the 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 2014).



______________________________________________
TANYA SMITH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs