Citation Nr: 18143433 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 16-27 542 DATE: October 19, 2018 ORDER The discontinuance of the 10 percent disability rating assigned for right knee degenerative arthritis with limited extension, effective February 3, 2015, was improper and that disability rating is restored. REMANDED Entitlement to an initial disability rating higher than 10 percent for right knee degenerative arthritis with limited flexion is remanded. Entitlement to a disability rating higher than 10 percent for right knee degenerative arthritis with limited extension is remanded. Entitlement to a compensable initial disability rating for right foot osteoarthritis is remanded. Entitlement to a compensable initial disability rating for left foot osteoarthritis is remanded. FINDINGS OF FACT 1. A 10 percent disability rating assigned for right knee degenerative arthritis with limited extension was discontinued in an April 2015 rating decision, effective February 3, 2015. 2. The Veteran has not experienced actual improvement in his right knee degenerative arthritis with limited extension. CONCLUSION OF LAW The discontinuance of the disability rating assigned for right knee degenerative arthritis with limited extension, effective from February 3, 2015, was improper and the previously assigned 10 percent disability rating is restored. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 3.105 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty from June 1967 through April 1969. 1. Whether the discontinuance of the 10 percent disability rating assigned for right knee degenerative arthritis with limited extension, effective February 3, 2015, was proper. The record shows that service connection for right knee degenerative arthritis with limited extension was granted to the Veteran in a May 2013 rating decision, effective from October 20, 2010. A 10 percent initial disability rating was assigned pursuant to the criteria under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5261, which are the criteria used to rate disabilities marked by decreased leg extension. In April 2014, the Veteran filed a claim seeking a higher disability rating for his service-connected right knee disability. An April 2015 rating decision reduced the disability rating assigned based on loss of extension and assigned a 10 percent disability rating pursuant to 38 C.F.R. § 4.71a, DC 5260 for demonstrated loss of right leg flexion. The Veteran subsequently appealed. The Board construes his appeal as not only asserting entitlement to a higher initial disability rating for his right knee disability due to lost flexion, but also, as asserting disagreement with the effectuated reduction of the rating assigned for the disability due to lost extension while also asserting entitlement to a higher disability rating based on lost extension. Notably, a May 2016 Statement of the Case (SOC) explains that, "[a] compensable evaluation for painful limitation of extension and a separate evaluation of painful flexion is prohibited by statutory regulation." For that reason, the agency of original jurisdiction (AOJ) explains, the disability rating that had been assigned for limitation of right leg extension was being discontinued while a new disability rating based on painful flexion was being assigned for the Veteran's right knee disability. The AOJ emphasized, "[n]o reduction in the evaluation of your right knee was made." Hence, the AOJ acted apparently to discontinue the rating that had been assigned based on loss of right leg extension, and in its place, awarded a 10 percent disability rating based on loss of right leg flexion. At the outset, the Board points out that the AOJ was mistaken in its May 2016 SOC. Separate disability ratings may be assigned for limitation of flexion and extension of the same joint. See VAOPGCPREC 09-04 (September 17, 2004). In that regard, when a Veteran has both a compensable level of limitation of flexion and a compensable level of limitation of extension of the same leg, the limitations must be rated separately in order to compensate adequately the functional loss associated with injury to the leg. Id. The regulations impose certain notice and procedural requirements upon VA in instances where a reduction in the rating assigned for a service-connected disability or employability status is considered warranted, and the lower rating would result in a reduction or discontinuance of compensation payments currently being made. 38 C.F.R. § 3.105 (e) (2017). Here, the discontinuance of the disability rating assigned for limited flexion in the Veteran's right knee did not result in any change in the Veteran's combined disability rating, and hence, did not result in any actual reduction in the Veteran's benefits. As such, the procedural requirements mandated under 38 C.F.R. § 3.105 (e) are not applicable. Notwithstanding the above, there are several other general VA regulations that apply to all rating reductions, regardless of how long the disability rating at issue has been in effect. Brown v. Brown, 5 Vet. App. 413, 420-21 (1993). Under 38 C.F.R. § 4.1, each disability must be viewed in relation to its history. That regulation requires also that for application of the rating schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition. Id. As to interpretation of examination reports, 38 C.F.R. § 4.2 requires that if the examination report does not contain sufficient detail, it is incumbent on the rating board to return the report as inadequate for evaluation purposes. The United States Court of Appeals for Veterans Claims (CAVC) has also stated that examination reports on which the reduction are based must be adequate. Tucker v. Derwinski, 2 Vet. App. 201 (1992). Also, 38 C.F.R. § 4.13 provides that 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. Additionally, in order for a rating reduction to be proper, the evidence must not only show that an improvement in a disability has actually occurred, but also, that such improvement reflects improvement in the ability to function under ordinary conditions of life and work. Id.; see also 38 C.F.R. §§ 4.2, 4.10 (2017). The records show that the Veteran has had longstanding right knee degenerative joint disease that was first observed radiologically in x-rays taken during VA treatment in July 2000. During an October 2000 VA examination, the Veteran reported that pain and impairment in his right knee had worsened to the degree that he was no longer able to operate an automobile with a manual transmission. He stated that he also had difficulty walking up stairs and hills. During VA treatment in June 2010, the Veteran demonstrated full right leg extension, however, x-rays showed bone-on-bone osteoarthritis in the right knee. During an April 2013 examination, the Veteran reported further progression of his right knee disability. Indeed, a physical examination revealed that the Veteran's right leg extension was limited to 10 degrees. During re-examination in February 2015, the Veteran reported ongoing right knee pain and right leg extension that was limited to 5 degrees. During private treatment in January 2016 with Dr. F.B.L., the Veteran reported that his right knee pain had worsened to the point that it interfered with his quality of life. Range of motion tests were apparently not conducted, but a physical examination did show that the Veteran had a varus alignment in his right knee and that he ambulated with a limp that favored his right leg. Dr. F.B.L. diagnosed severe right knee osteoarthritis and advised the Veteran that he was a good candidate for a total right knee replacement. Physical examinations conducted during VA treatment in March and July 2017 revealed that the Veteran was able to produce full extension to zero degrees. Still, crepitus was present throughout motion and the Veteran continued to report pain. In an October 2018 statement, the Veteran reported continuing progression of his right knee disability and that he was scheduled to undergo a total right knee replacement in October 2018. Overall, the record indicates right leg extension findings that waiver from being full to being 10 degrees short of full. Although the more recent examinations and treatment record indicate that the Veteran's right leg extension has returned to being full, the other medical evidence indicates that the Veteran's right knee problems have been marked by ongoing loss of function that includes continuing inability to stand or walk for prolonged periods, walk up stairs and hills, and operate a manual transmission automobile. Moreover, the evidence shows that the Veteran has experienced continuing progression of the degeneration in his right knee to the point that he has reportedly undergone a recent total right knee replacement procedure. Given the apparent wavering nature of the Veteran's loss of right leg extension, the apparent progression of the degeneration in the Veteran's right knee, and ongoing associated loss of function, the Board concludes that the evidence does not show that there has been actual improvement in the Veteran's loss of right knee extension. Based on the foregoing, the discontinuance of the 10 percent disability assigned for right knee degenerative arthritis with limited extension, effective February 3, 2015, was improper. As such, that rating is restored. REASONS FOR REMAND 1. Entitlement to an initial disability rating higher than 10 percent for right knee degenerative arthritis with limited flexion and to a disability rating higher than 10 percent for right knee degenerative arthritis with limited extension are remanded. The Veteran asserts in a statement received in October 2018 that he has experienced overall worsening in his right knee disability and that he was scheduled to undergo a total right knee replacement surgery at Northwest Hospital on October 1, 2018. He reported also that he had been receiving ongoing treatment at the VA medical center (VAMC) in Seattle, Washington and was also receiving ongoing private treatment for his right knee from Dr. F. at Northwest Hospital Joint and Hand Center. Records in the claims file show that the most recent VA treatment records associated with the claims file pertain to treatment received by the Veteran in July 2018. Moreover, there is no indication in the claims file that VA has undertaken any efforts to date to obtain the records for treatment received by the Veteran from Dr. F. or at Northwest Hospital Joint and Hand Center. Similarly, the records indicate no previous VA efforts to obtain records pertinent to the Veteran's right knee replacement surgery at Northwest Hospital. VA should undertake efforts now to obtain the records for VA treatment received by the Veteran since July 2018, as well as records for private treatment received from Dr. F. at Northwest Hospital Joint and Hand Center and for reported right knee replacement surgery on October 1, 2018. 38 C.F.R. § 3.159 (c)(1) and (2) (2017). Additionally, the facts asserted by the Veteran in his October 2018 statement indicate that he has experienced some progression and worsening in his right knee disability since his previous February 2015 VA knee examination. Given the same, after the foregoing records have been obtained, the Veteran should also be afforded a new VA examination to determine the current symptoms and impairment associated with his right knee disabilities. 38 C.F.R. § 3.159 (c)(4) (2017). 2. Entitlement to compensable initial disability ratings for right and left foot osteoarthritis are remanded. The Veteran contends in his claims submissions and lay statements that the service connected disabilities in his feet have been manifested by instability in his ankles which has required the use of braces on both ankles. Indeed, VA treatment records document that the Veteran has been prescribed Pitchie braces to be used on both ankles. Although the evidence indicates that the Veteran's service connected foot disabilities include some degree of impairment involving his ankles, the previous February 2015 VA examination of his foot disabilities did not include any examination of the Veteran's ankles. In the absence of such an examination, the examiner was unable to render any findings with respect to any instability, lost motion, or other lost function in the Veteran's ankles and feet. For this reason, the February 2015 foot examination is incomplete. The Veteran should be afforded a new examination of his feet and ankles to determine the current symptoms and impairment associated with his foot disabilities. 38 C.F.R. § 3.159 (c)(4) (2017). The matters are REMANDED for the following action: 1. The Veteran should be asked whether he has additional evidence pertaining to his right knee and bilateral foot disabilities. Records for relevant VA treatment received by the Veteran since July 2018 should be associated with the record. If such records are not available, such unavailability should be documented in the record. The Veteran and his representative should be notified of unsuccessful efforts in order to allow them the opportunity to obtain and submit those records for VA review. 2. Obtain the records for treatment received by the Veteran from Dr. F. and Northwest Hospital Joint and Hand Center and the records for the Veteran's total right knee replacement surgery on October 1, 2018 at Northwest Hospital and any associated hospitalization and/or physical therapy. If such records are not available, such unavailability should be documented in the record. The Veteran and his representative should be notified of unsuccessful efforts in order to allow them the opportunity to obtain and submit those records for VA review. 3. Thereafter, schedule the Veteran for a joints examination of his knees, feet, and ankles by an appropriate clinician to determine the severity of symptoms and functional impairment associated with the Veteran's service-connected bilateral knee and bilateral foot disabilities. The examiner should conduct all necessary tests and studies. The claims file should be reviewed in conjunction with the examination. (CONTINUED ON NEXT PAGE) 4. After completion of the above development, the issues remaining on appeal should be readjudicated. If the determination remains adverse to the Veteran, he should be furnished with a SSOC and be given an opportunity to respond. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D.S. Lee, Counsel