Citation Nr: 1803308 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-16 553 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to a total disability rating based upon individual unemployability (TDIU). 2. Entitlement to an increased rating for major depressive disorder. 3. Whether the reduction of a disability rating for right knee chronic intrapatellar tendinitis and anterior cruciate ligament laxity from 10 percent to noncompensable, effective May 19, 2014, was proper. 4. Entitlement to an increased rating for right knee disabilities, to include ACL laxity and right knee patellofemoral syndrome with meniscal and ACL tears. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and J.H. ATTORNEY FOR THE BOARD S. Owen, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1987 to December 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2012 and November 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which granted service connection for major depressive disorder, evaluated as 30 percent disabling, denied an increased evaluation for a right knee disability, and denied entitlement to TDIU. The Veteran filed a timely notice of disagreement in June 2013. Jurisdiction has since transferred to Seattle, Washington. In May 2017, the Veteran testified at a videoconference hearing before the undersigned Veteran's Law Judge. A transcript of the hearing is associated with the claims file. During the hearing, the Veteran indicated that an increased rating claim for a skin disability had been appealed, and testimony on the issue was taken. However, a review of the record reflects that in an August 2012 rating decision, the RO granted an increased evaluation for the Veteran's service-connected skin disability. The Veteran did not file a timely notice of disagreement with that decision. In February 2015, the Veteran again filed an increased rating claim for her skin disability. In July 2015, the RO proposed to reduce the evaluation, and in a January 2016 decision implemented the rating reduction effective April 1, 2016. The Veteran did not file a timely notice of disagreement with the rating reduction decision. Thus, while the Veteran indicated that the issue had been properly appealed, this was incorrect. Therefore, the claim is not before the Board, and the issue is not included on the title page. The Board notes that in May 2017, the Veteran filed an increased rating claim for her skin disability. In June 2017, the RO granted an increased evaluation of 60 percent. If the Veteran wishes to file a notice of disagreement with the decision, she has until June 2018 to do so. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this case should take into consideration the existence of this electronic record. The issue of entitlement to an increased rating for right knee disabilities is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. During the May 2017 Board hearing and prior to the promulgation of a decision in the appeal, the Veteran, through her representative, withdrew her appeal of the issue of entitlement to TDIU. 2. During the May 2017 Board hearing and prior to the promulgation of a decision in the appeal, the Veteran, through her representative, withdrew her appeal of the issue of entitlement to an increased rating for major depressive disorder. 3. The Veteran's right knee ACL laxity was evaluated at 10 percent disabling, effective December 19, 1991. 4. In July 2016, the RO reduced the Veteran's evaluation for right knee ACL laxity from 10 percent to noncompensable, effective May 19, 2014. 5. The evidence of record reflects does not reflect that the Veteran's right knee ACL laxity rating was based on fraud. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for the issue of entitlement to TDIU have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for withdrawal of the appeal for the issue of entitlement to an increased rating for major depressive disorder have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 3. Restoration of a 10 percent disability rating for right knee ACL laxity under DC 5257 is warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.344, 4.3, 4.7, 4.85, Diagnostic Code (DC) 5257 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawn Claims An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by a veteran or by his or her authorized representative. Id. During the May 2017 Board hearing, and prior to the promulgation of a decision in the appeal, the Veteran, through her representative, withdrew the appeal for entitlement to TDIU and entitlement to an increased rating for major depressive disorder. See May 2017 hearing transcript. As to these issues, there remain no allegations of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review these claims and they are dismissed. Propriety of Rating Reduction A veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155; Greyzck v. West, 12 Vet. App. 288, 292 (1999). Where a reduction in an evaluation of a service-connected disability 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 must be prepared setting forth all material facts and reasons, and the RO must notify the veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. The veteran is also to be informed that he may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. If no additional evidence is 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). VA's General Counsel has held that the provisions of 38 C.F.R. § 3.105(e) do not apply where there is no reduction in the amount of compensation payable. VAOPGCPREC 71-91 (Nov. 1991); VAOPGCPREC 29- 97 (Aug. 1997). It reasoned that this regulation is only applicable where there is both a reduction in evaluation and a reduction or discontinuance of compensation payable. 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. VA benefits recipients may be afforded greater protections under 38 C.F.R. § 3.344(a) & (b), which sets forth the criteria for reduction of ratings in effect for five years or more. 38 C.F.R. § 3.344(a) & (b) stipulate that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction and prohibit a reduction on the basis of a single examination. Brown v. Brown, 5 Vet. App. 413, 417-18 (1995). However, with respect to other disabilities that are likely to improve (i.e., those in effect for less than five years), re-examinations disclosing improvement in disabilities will warrant a rating reduction. 38 C.F.R. § 3.344(c). Specifically, it is necessary to ascertain, based upon a review of the entire recorded history of the condition, whether the evidence reflects an actual change in disability and whether examination reports reflecting change are based upon thorough examinations. In addition, it must be determined that an improvement in a disability has actually occurred and that such 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; 38 C.F.R. § 3.344(c). The Veteran contends that the rating reduction of the 10 percent rating assigned for her laxity of the right knee was improper and that restoration is warranted. In a June 1992 rating decision, the RO granted service connection for right knee chronic intrapatellar tendinitis and anterior cruciate ligament laxity and assigned a 10 percent rating under Diagnostic Code 5257, effective from December 19, 1991. The current appeal arises from a claim for increase received at the RO in March 2012. In November 2012, the RO continued a 10 percent rating. The Veteran filed a timely notice of disagreement, and in a March 2014 rating decision, the RO continued a 10 percent rating for laxity under DC 5257, and granted a 10 percent rating based on painful motion under Diagnostic Code 5260. The RO continued to adjudicate the claim, and in a January 2015 rating decision, the RO continued a 10 percent rating under DC 5257, and granted an increased 20 percent rating under DC 5258, which the RO changed from DC 5260. In February 2016, the RO notified the Veteran that the ratings for her knees were impermissibly pyramided, and proposed to reduce her rating under DC 5257 from 10 percent to 0 percent and include the rating under DC 5258. Evaluation of a knee disability under DC 5257 or 5260, or both, does not, as a matter of law, preclude separate evaluation of a meniscal disability of the same knee under DC 5258, or vice versa. Rather, entitlement to a separate evaluation in a given case depends on whether the manifestations of the disability for which a separate evaluation is being sought have already been compensated by an assigned evaluation under a different DC. See Lyles v. Shulkin, No. 16-0994 (November 29, 2017). Therefore, separate ratings can be assigned where appropriate symptomatology is shown. This fact has an impact on the ability of any VA adjudicator to change diagnostic codes as has been done in this case. Rather than simply assigning a more appropriate code, the RO, in effect, reduced the rating for ACL laxity under Diagnostic Code 5257 to 0 percent, and assigned a separate disability rating for a new right knee disability-dislocated semilunar cartilage with limited motion-under Diagnostic Code 5258. While changing a diagnostic code is certainly within the province of VA adjudicators, the Court has held in a case involving a similar fact pattern to this case, that a change from one diagnostic code to another will be treated as a rating reduction under the first diagnostic code, and therefore the provisions for preservation of disability ratings need to be addressed. See Murray v. Shinseki, 24 Vet. App. 420 (2011). The specific holding in Murray, was that a change of Diagnostic Codes-from 5257 to 5010-based on evidence that there was knee arthritis but no evidence of what had previously been rated as knee laxity, when the rating under 5257 had been in effect for over 20 years (and thus was protected pursuant to 38 C.F.R. § 3.951), "effectively reduced [claimant Murray's] protected disability rating to 0 percent and assigned a new, separate 10 percent disability rating" for arthritis. According to the holding in Murray, such a reduction warranted reversal. In pertinent part, 38 C.F.R. § 3.951 states that "[a] disability which has been continuously rated at or above any evaluation of disability for 20 or more years for compensation purposes . . . will not be reduced to less than such evaluation except upon a showing that such rating was based on fraud." In the case before the Board, at the time of the purported change in diagnostic codes, the rating under Diagnostic Code 5257 had been in effect from December 19, 1991 until May 19, 2014, or more than 20 years. Furthermore, the record does not reflect that the RO has alleged that the rating was based on fraud. Therefore, in accordance with Murray, the Board finds that the reduction of the rating under Diagnostic Code 5257 from 10 percent to 0 percent was not in accordance with VA law. The Board accordingly finds that restoration of the 10 percent rating under Diagnostic Code 5257 is warranted. ORDER The appeal on the issue of entitlement to TDIU has been withdrawn and is dismissed. The appeal on the issue of entitlement to an increased rating for major depressive disorder has been withdrawn and is dismissed. Restoration of a 10 percent disability rating for right knee ACL laxity under DC 5257 is granted. REMAND The Veteran contends that her service-connected right knee disabilities warrant higher ratings than what is assigned. As discussed above, the Board has restored the Veteran's rating under DC 5257. Therefore, the Veteran is rated at 10 percent for ACL laxity as residual of right knee degenerative joint disease under Diagnostic Code 5257 and at 20 percent for right knee patellofemoral syndrome with meniscus and ACL tears under Diagnostic Code 5258. The Veteran was afforded VA examinations in May 2012 and June 2015. The Veteran also provided a knee DBQ in August 2014. The Board finds that these examination reports are inadequate for rating purposes. Specifically, VA regulations provide that joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing. 38 C.F.R. § 4.59. While the examiners recorded the Veteran's range of motion, the reports do not specify whether testing was done for pain on both active and passive motion, in weight-bearing and nonweight-bearing. Therefore, the examination reports are ambiguous on whether these levels of testing were done. Furthermore, the June 2015 VA examination report reflects that the examiner did not review the Veteran's records, including the e-folder or paper claims file. The June 2015 examiner found that the Veteran did not have a meniscal condition or recurrent effusion, while the June 2014 DBQ reflects a history of recurrent effusion and a meniscal condition. As the June 2015 examiner did not review the Veteran's records, it is not clear whether the June 2015 report is inaccurate or if there was improvement in the Veteran's condition. Therefore, the Board finds that a remand is warranted for a new VA examination and medical opinion as to the severity of the Veteran's current right knee disabilities. Any outstanding, pertinent VA outpatient treatment records and private treatment records identified by the Veteran should be obtained. The most recent VA outpatient treatment records on file are dated in April 2016. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the Veteran's electronic claims file any outstanding VA treatment records dated since April 2016 and any private treatment records identified by the Veteran. 2. Schedule the Veteran for a VA examination to assess the current severity of her service-connected right knee disabilities. The record and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must conduct any testing deemed necessary and provide all findings such as range of motion, stability, etc. The examiner must utilize the appropriate Disability Benefits Questionnaire. The examiner must pay particular attention to the following: (a) The examination must include testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing. (b) The examiner must provide an opinion on additional loss of range of motion due to pain, weakness, fatigability, and/or incoordination. If there is such additional loss of range of motion, the examiner should express that loss in degrees of additional lost motion. (c) The examiner must provide an opinion as to whether there is additional loss of range of motion during flare-ups. If there is such additional loss of range of motion, the examiner should express that loss in degrees of additional lost motion. To the extent possible, the examiner is asked to estimate the loss of motion of the bilateral knees during flare-ups and due to pain currently and as reported in the May 2012 and June 2015 VA examination reports and August 2014 DBQ. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions, based on his or her clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. After completing the above, and any other development as may be indicated, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and her representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. 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 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). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs