Citation Nr: 18143669 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 17-00 275 DATE: October 19, 2018 ORDER The reduction in the rating for the Veteran’s left knee medial and lateral meniscus compartment instability was not proper, and the 10 percent rating is restored effective August 1, 2015. The reduction in the rating for the Veteran’s right knee medial and lateral meniscus compartment instability was not proper, and the 10 percent rating is restored effective August 1, 2015. The reduction in the rating for the Veteran’s intervertebral disc syndrome with L5-S1 spondylolisthesis was not proper, and the 40 percent rating is restored effective August 1, 2015. FINDINGS OF FACT 1. A May 2015 rating decision reduced the evaluation for the Veteran’s left knee medial and lateral meniscus compartment instability from 10 percent to noncompensable, right knee medial and lateral meniscus compartment instability from 10 percent to noncompensable, and intervertebral disc syndrome with L5-S1 spondylolisthesis from 40 percent to 20 percent effective August 1, 2015, after meeting all due process requirements in executing the reductions. 2. The Veteran’s left knee medial and lateral meniscus compartment instability, right knee medial and lateral meniscus compartment instability, and intervertebral disc syndrome with L5-S1 spondylolisthesis do not show actual improvement under the normal circumstances of life and work. CONCLUSIONS OF LAW 1. The reduction in the rating for the Veteran’s rating for left knee medial and lateral meniscus compartment instability from 10 percent to noncompensable was not proper and the 10 percent rating is restored effective August 1, 2015. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.105, 4.71a Diagnostic Code (DC) 5257. 2. The reduction in the rating for the Veteran’s rating for right knee medial and lateral meniscus compartment instability from 10 percent to noncompensable was not proper and the 10 percent rating is restored effective August 1, 2015. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.105, 4.71a Diagnostic Code (DC) 5257. 3. The reduction in the rating for the Veteran’s rating for intervertebral disc syndrome with L5-S1 spondylolisthesis from 40 percent to 20 percent was not proper, and the 40 percent rating is restored effective August 1, 2015. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.105, 4.71a Diagnostic Code (DC) 5243-5239. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from December 2006 to February 2012. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In November 2014, the RO proposed to reduce the Veteran’s evaluation for left knee medial and lateral meniscus compartment instability from 10 percent to noncompensable, right knee medial and lateral meniscus compartment instability from 10 percent to noncompensable, and intervertebral disc syndrome from 40 percent to 20 percent. The reduction was accomplished in an May 2015 rating decision, and made effective August 1, 2015. The RO complied with the procedural safeguards regarding the manner which the Veteran was given notice of and the implementation of the reduction. See 38 C.F.R. § 3.105. A rating reduction is not proper unless the Veteran’s disability shows actual improvement in his ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000). VA has the burden of establishing that the disability has improved. A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating issue. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated (although post-reduction medical evidence may be considered in the context of considering whether actual improvement was demonstrated). Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). 1. Contentions The Veteran contends that the reduction of his ratings for left and right knee medial and lateral meniscus compartment instability and intervertebral disc syndrome were improper. Specifically, he states that a DATE examiner did not do a comprehensive examination and did not use the proper instrument to measure range of motion of his joints. He contends that his low back condition did not improve and that it is so severe that surgery has been PROPOSED and that it disturbs his sleep. He also notes that his knees have not improved, he has severe instability and pain when bending to sit and stand, and his knees buckle occasionally. He reports that all of these conditions prevent him from being able to stand of sit for long periods of time. See January 2016 notice of disagreement; December 2016 VA Form 9; Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). 2. Left and right knee medial and lateral meniscus compartment instability The previously-assigned 10 percent evaluations for left and right medial and lateral meniscus compartment instability were awarded by a May 2012 rating decision and effective February 29, 2012 under 38 C.F.R. § 4.71a, DC 5257. Pursuant to DC 5257, recurrent subluxation or lateral instability of a knee is assigned a 10 percent disabling for a slight impairment; a 20 percent disabling for a moderate impairment; and a 30 percent disabling for a severe impairment. Here, the previously-assigned 10 percent evaluations were based upon a November 2010 VA examination, at which the Veteran reported stiffness, swelling, redness, giving way, locking, tenderness, and pain. The examination showed that medial and lateral meniscus of right and left knees were abnormal with slight degree of severity. The examiner noted the objective findings regarding knee stability are limitation in bending, climbing, squatting, and lifting heavy items in his work as a mechanic. He further noted the effect of the condition on the claimant’s daily activities were limitation in in raking the yard, cutting the grass, vacuuming the house, and bending of lifting anything greater than ten pounds. The reductions were based upon an April 2015 Disability Benefits Questionnaire (DBQ). The April 2015 DBQ lists bilateral knee instability as a diagnosis and specifically states that there is no change in his left and right knee medial and lateral meniscus compartment instability and his condition is active. However, joint stability testing was normal and the examiner noted no recurrent subluxation. At the examination, the Veteran reported flare-ups impacting the function of his knee and noted that the condition has gotten worse, to include swelling and pain. Further, the examiner noted limited capacity to bend and lift as well as limited tolerance for standing, walking and running. As the Veteran continues to report instability and flare-ups, resolving all doubt in the Veteran’s favor, the weight of the evidence does not establish sustained improvement in the Veteran’s condition under the ordinary conditions of life and work. Accordingly, the reductions in disability rating were improper, and the separate 10 percent ratings for the Veteran’s left and right knee medial and lateral meniscus compartment instability are restored effective August 1, 2015. 3. Intervertebral disc syndrome The previously-assigned 40 percent evaluation for intervertebral disc syndrome with L5-S1 spondylolisthesis was awarded by a May 2012 rating decision and made effective February 29, 2012. The condition was coded as 38 C.F.R. § 4.71a, DC 5243-5239, which is evaluated under the general rating formula for diseases and injuries of the spine. The 40 percent evaluation was based upon a November 2010 VA examination, which showed flexion to 30 degrees. Under the general rating formula for diseases and injuries of the spine, a 20 percent disability rating is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less; or, when there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating requires unfavorable ankylosis of the entire spine. The notes listed below apply to the General Rating Formula for Diseases and Injuries of the Spine: Note (1) Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (0 degrees) always represents favorable ankylosis. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS), a 60 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. For purposes of evaluation under Diagnostic Code 5243 (Intervertebral Disc Syndrome), an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, The Spine, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). If intervertebral disc syndrome is presented in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes, or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a, The Spine, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (2). The reduction was based upon an April 2015 DBQ. Range of motion testing showed forward flexion of 40 degrees. However, the Veteran also reported flare-ups that he described as painful and the feeling of puss in his lower back. The examiner noted that this condition caused limited ability to bend and lift. While the Board acknowledges that the April 2015 DBQ indicates some improvement in the Veteran’s range of motion, the Board finds that this does not represent sustained improvement. Since that time, the U.S. Court of Appeals for Veteran’s Claims (the Court) has issued a decision in Sharp v. Shulkin, 29 Vet. App. 26 (2017) concerning the adequacy of VA orthopedic examinations. In Sharp, the Court held that a VA examiner must “elicit relevant information as to the veteran’s flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran’s functional loss due to flares based on all the evidence of record, including the veteran’s lay information, or explain why she could not do so.” The April 2015 DBQ upon which the reduction was based does not state whether it was conducted during a flare-up or estimate the additional functional loss during flare-ups; and therefore, it is not in compliance with Sharp. A May 2018 VA examination shows that the Veteran again reported flare-ups of his back condition approximately three times per week which required him to sit down, take Motrin, use hot showers or ice, and wait for the pain to improve. Range of motion testing shows forward flexion of 50 degrees. However, the examiner noted that the examination was not conducted during a flare-up and that he was unable to say without speculation whether pain, weakness, fatigability, or incoordination significantly limit functional ability with flare-up. Accordingly, the May 2018 VA examination is also not in compliance with Sharp. Further, an August 2015 physical therapy record from the Naval Hospital in Camp Lejeune showed active range of motion on the thoracolumbar spine was 30 degrees on trial three. As the weight of the evidence does not establish sustained improvement in the Veteran’s intervertebral disc syndrome with L5-S1 spondylolisthesis under the ordinary conditions of life and work, the reduction in disability rating was improper and the 40 percent rating is restored effective August 1, 2015. C. BOSELY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Samuelson, Counsel