Citation Nr: 1801626 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-21 368 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Propriety of the reduction of the rating for right knee strain with shin splints and remote stress fractures of the right leg (right knee disability) from 10 percent to a noncompensable evaluation, effective September 13, 2012. 2. Entitlement to a disability evaluation in excess of 10 percent for right knee disability. 3. Propriety of the reduction of the rating for left knee with shin splints and remote stress fractures of the left leg (left knee disability) from 10 percent to a noncompensable evaluation, effective September 13, 2012. 4. Entitlement to a disability evaluation in excess of 10 percent for right knee disability. 5. Entitlement to an increased rating for post traumatic stress disorder (PTSD), currently rated as 10 percent disabling prior to May 12, 2014 and 30 percent disabling from that date. 6. Entitlement to an evaluation in excess of 10 percent for degenerative joint disease (DJD) of the thoracic spine. 7. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran served on active duty from August 2002 to September 2008. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In August 2017, the Veteran testified before the undersigned; a transcript of that hearing has been associated with the claims file. Following the hearing, the record was held open for a 30-day period to allow for the submission of additional evidence. The Veteran subsequently submitted statements from his mother and R.K.M. along with a waiver of initial AOJ consideration. With respect to the TDIU claim, the United States Court of Appeals for Veterans Claims (Court) held in Rice v. Shinseki, 22 Vet. App. 447 (2009), that a claim of entitlement to TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. In June 2012, the Veteran submitted an application for increased compensation based on unemployability due to all of his service-connected disabilities. Although the record reflects that the Veteran has worked since that time, during his hearing, he testified that he only worked two to three days a week at eight or nine different jobs in the past five or six years. In August 2017 statement, the Veteran's mother reported that the he has difficulty with keeping a job. The Board accordingly finds that this issue is presently before it pursuant to Rice, and must be considered in adjudication of this appeal. The issues of entitlement to increased evaluations for bilateral knee disabilities, DJD of the thoracic spine, and PTSD are addressed in the REMAND portion of the decision below and REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The reduction of the assigned rating for the Veteran's service-connected right knee disability from 10 to 0 percent from September 13, 2012, was not proper, as the evidence did not show overall improvement so as to warrant the reduction. 2. The reduction of the assigned rating for the Veteran's service-connected left knee disability from 10 to 0 percent from September 13, 2012, was not proper, as the evidence did not show overall improvement so as to warrant the reduction. CONCLUSIONS OF LAW 1. The criteria for restoration of a 10 percent disability rating for right knee disability since September 13, 2012 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.10, 4.13, 4.97, DC 6522 (2017). 2. The criteria for restoration of a 10 percent disability rating for left knee disability since September 13, 2012 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.10, 4.13, 4.97, DC 6522 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION This appeal arises out of the Veteran's disagreement with a decision to reduce his disability rating for service-connected bilateral knee disabilities, effective September 13, 2012. The circumstances under which an evaluation may be reduced are specifically limited and carefully circumscribed by regulations promulgated by the Secretary of VA. Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992). VA 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 regulations governing disability compensation and pension. Where an evaluation has been in effect for less than five years, the service-connected disorder has not become stabilized, and/or the disability is likely to improve, an evaluation may be reduced based upon "reexaminations disclosing improvement, physical or mental," of the disability. 38 C.F.R. § 3.344(c). The United States Court of Appeals for Veterans' Claims (Court) has clarified that: 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. Brown (Kevin) v. Brown, 5 Vet. App. 413, 421 (1993). By way of background, on June 2009 VA examination, the Veteran reported constant pain in both knees and legs. He described increased pain with standing and walking so he avoided lengthy shopping trips. He no longer ran or played sports. On examination, active range of motion of the right knee was 0 to 130 degrees with no pain and no loss of motion secondary to pain, weakness, or lack of endurance on repetition. Active range of motion of the left knee was from 0 to 135 degrees with no pain. On repetition range of motion was from 0 to 130 degrees due to increased pain. There was tenderness to palpation. In in August 2009 rating decision, the RO granted service connection for patellofemoral syndrome of the bilateral knees and assigned each knee a 10 percent disability rating, effective August 26, 2008 due to painful or limited motion of the knee joint. In June 2012, the Veteran filed a claim seeking an increased rating for his bilateral knee disabilities. The Veteran was afforded a VA examination on September 13, 2012. At the time of the examination, the Veteran claimed that his knee disabilities have increased in severity since his last VA examination. He reported constant pain in both knees that he described as sharp. He noted aggravating activities such as walking long distances, standing for prolonged periods, or sitting with knees flexed for prolonged periods. Range of motion was from 0 to 140 degrees with no objective painful motion. There was no additional limitation in range of motion following repetitive-use testing. There was no functional loss and/or functional impairment of the knee and lower leg, including after repetitive-use testing. There was no tenderness or pain to palpation. Muscle strength testing was normal. There was no instability or subluxation. The Veteran had shin-splints. In a September 2012 rating decision, the RO decreased the rating for the Veteran's bilateral knee disabilities from 10 to 0 percent based on the VA examiner's report with no objective findings of painful or limited motion or subluxation or lateral instability of the knees. The Veteran appealed the decision. During his August 2017 hearing, the Veteran reported that his knee pain has not gone away and has been constant since he was first granted service connection. He contended that his experienced knee pain continuously since he was granted service connection and that a reduction in rating should not have happened on the account of no longer having pain and painful motion. A review of VA treatment records dated in November 2009, March 2010 and November 2011, included an impression of knee arthralgia with history of stress fractures, currently stable. He was to continue to use Naproxen, 500 mg twice a day as needed, for pain. A July 2010 treatment record documented knee pain in the rheumatology notes. A pain assessment dated around the same time, provided a pain rating of 5 for right knee pain. Treatment records dated in January, August 2012, and December 2012; October 2013; and June 2015 included knee arthralgia as an active problem. An October 2012 mental health record documented knee pain as an Axis III physical disorder for his PTSD diagnosis. Overall, the Veteran's right and left knee symptoms were similar on the June 2009 and September 2012 VA examinations. Additionally, during both examinations, he reported constant knee pain as well as increased pain with walking and standing. Furthermore, VA treatment records documented continuous knee pain. In the absence of any specific and objective findings of material improvement of the Veteran's disability, the reduction was not proper. In giving the Veteran the benefit of the doubt, and considering the evidence of record as a whole, the Board finds that the restoration of a 10 percent rating for the right and left knee disabilities since September 13, 2012, is warranted. To this extent, the appeal is granted. The Board wishes to make clear that the Veteran's claim for a rating higher than 10 percent remains at issue, and will be discussed in the Remand section below. (CONTINUED ON NEXT PAGE) ORDER Restoration of a 10 percent rating for right knee disability since September 13, 2012 is granted. Restoration of a 10 percent rating for left knee disability since September 13, 2012 is granted. REMAND During his August 2017 hearing, the Veteran suggested that his PTSD symptoms have increased in severity since he was last examined in October 2015. More specifically, the Veteran reported that he had problems with getting out of bed some days and only worked two or three days a week now. He described challenges with remembering what he needed to do and with staying on task. Indeed, at the time of his October 2015 examination, he did not report any work-related problems. A remand is necessary in order to afford the Veteran another VA examination or examinations that accurately assess the current severity of his PTSD disability. Palczewski v. Nicholson, 21 Vet. App 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). With respect to the Veteran's increased rating claims for the knees and back, in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the Court recently held that when a VA examiner is asked to opine as to additional functional loss during flare-ups of a musculoskeletal disability, and the examiner states that he or she is unable to offer such an opinion without resorting to speculation, such opinion must be based on all procurable and assembled medical evidence, to include eliciting relevant information from the veteran as to the flare-i.e. the frequency, duration, characteristics, severity, or functional loss, and such opinion cannot be based on the insufficient knowledge of the specific examiner. In October 2015, the Veteran underwent a VA examination to evaluate the nature and severity of his thoracic spine disability and both knees. The October 2015 VA examiner noted the that it was not possible to describe any additional limitations in terms of degrees of range of motion lost due to pain, weakness, fatigability, or incoordination during flare-ups or repetitive use over a period of time, as it would require pure speculation to explain. It is unclear whether the October 2015 examiner's inability to estimate as to additional function loss of the knees and back during flare-ups was based on consideration of all procurable information. The Veteran recently testified that he sometimes had flare-ups of knee symptoms as well as a loss of range of motion associated with bending down and kneeling for a long period. Regarding his back, he claimed that he had constant back pain and missed work due to flare-ups of back pain several times a month that lasted a day or two. On remand, the AOJ should obtain a new VA examination including assessments of any functional loss during flare ups, or upon repetitive motion. See id.; see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As previously mentioned, in June 2012, the Veteran submitted an application for increased compensation based on unemployability due to all of his service-connected disabilities. Although the record reflects that the Veteran has worked since that time, during his hearing, he testified that he only worked two to three days a week at eight or nine different jobs in the past five or six years. In August 2017 statement, the Veteran's mother reported that the Veteran has difficulty with keeping a job. Therefore, the AOJ should undertake appropriate development to obtain any additional evidence pertinent to the TDIU claim, to include regarding the Veteran's work history. During his August 2017 hearing, the Veteran reported that during the course of the appeal, he sought treatment at the Vet Center for his PTSD; however, such treatment records have not been associated with the claims file. Additionally, given the time that will pass during the processing of this remand, updated VA treatment records since December 2016 should be associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. The AOJ should undertake any necessary development to obtain any additional evidence pertinent to the issue of TDIU, to include regarding the Veteran's work history. Specifically, the AOJ should request that the Veteran complete and return an updated VA Form 21-8940, Veteran's Application for Increased Compensation Based on Individual Unemployability. All records and responses received should be associated with the evidentiary record. 2. Advise the Veteran and his representative that the Veteran may submit evidence documenting any attempts to obtain employment, to include the number and status of job applications filed, to include any rejection letters of employment. The Veteran may also submit evidence documenting any past or prospective marginal employment (employment secured or followed that resulted in earned annual income that did not exceed the poverty threshold for one person). 3. Provide the Veteran an opportunity to identify any outstanding private or VA treatment records referable to his claims, to include any Vet Center treatment records since August 2008 and updated VA treatment records since December 2016. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. 4. Schedule the Veteran for a VA examination with an appropriate professional to determine the extent and severity of his service-connected PTSD. The entire record, to include a copy of this Remand, must be made available to and be reviewed by the examiner, and the examination report should note that review. Any indicated evaluations, studies, and tests should be conducted. The examiner should identify the severity of all current manifestations of his service-connected PTSD, as well as the impact that such has on his social and occupational functioning. The examiner is asked to provide a full description of any functional effects that the Veteran's PTSD has on his activities of daily living, to include his ability to work. The rationale for all opinions offered should be provided. 5. Schedule the Veteran for a VA examination with an appropriate professional to determine the extent and severity of his service-connected bilateral knee disabilities. (A) All indicated tests should be performed, including range of motion findings expressed in degrees and in relation to normal range of motion; (B) The examination must include testing results of both knee joints for pain on both active and passive motion, and in weight-bearing and nonweight-bearing. The examiner should assess where pain begins on the Veteran's initial range of motion and upon repetitive testing. Further, the examiner should also describe any pain, weakened movement, excess fatigability, and incoordination present; (C) The examiner must estimate any functional loss in terms of additional degrees of limited motion of both knees experienced during flare-ups and repetitive use over time. If the examiner cannot provide the above-requested opinion without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran's description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner's medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The examiner should also consider the Veteran's testimony indicating that he sometimes had flare-ups of knee symptoms as well as a loss of range of motion associated with bending down and kneeling for a long period. See August 2017 hearing transcript, p 13. The rationale for all opinions offered should be provided. 6. Schedule the Veteran for a VA examination with an appropriate professional to determine the extent and severity of his service-connected thoracic spine disability. (A) All indicated tests should be performed, including range of motion findings expressed in degrees and in relation to normal range of motion; (B) The examination must include testing results of joint pain on both active and passive motion, and in weight-bearing and nonweight-bearing. The examiner should assess where pain begins on the Veteran's initial range of motion and upon repetitive testing. Further, the examiner should also describe any pain, weakened movement, excess fatigability, and incoordination present; (C) The examiner must estimate any functional loss in terms of additional degrees of limited motion of the thoracic spine experienced during flare-ups and repetitive use over time. If the examiner cannot provide the above-requested opinion without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran's description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner's medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The examiner should consider, the Veteran's August 2017 testimony indicating that he misses work due to flare-ups of back pain several times a month and lasting a day or two. See August 2017 hearing testimony, P 10. (D) The examiner must report whether the Veteran experiences incapacitating episodes (physician-prescribed bed rest) and the frequency and total duration of such episodes over the course of a year; (E) If the disability is manifested by neurological deficits, the examiner should identify with specificity the precise nerve or nerves (if any) that are affected, or seemingly affected. For each affected nerve, the examiner should indicate, with respect to each affected extremity, whether the impairment is best characterized as neuritis, neuralgia, or paralysis, and should describe the relative severity thereof (i.e., whether any noted neuritis, neuralgia, or incomplete paralysis is mild, moderate, or severe). The examiner should address the Veteran's contentions of numbness in his legs after sitting for an extended period. See August 2017 hearing transcript, p 11. A complete medical rationale for all opinions expressed must be provided. 7. Thereafter, and after any further development deemed necessary, adjudicate the issue of entitlement to a TDIU and readjudicate the remaining issues on appeal. If any benefit sought on appeal is denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and afforded the appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. 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. §§ 5109B, 7112 (West 2012). ______________________________________________ V. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs