Citation Nr: 18145593 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 14-06 960A DATE: October 29, 2018 ORDER Restoration of rating to 40 percent, effective September 1, 2014, for degenerative joint disease right knee disability is granted. Entitlement to an initial rating in excess of 40 percent for degenerative joint disease right knee is denied. FINDINGS OF FACT 1. The reduction of the Veteran’s rating from 40 percent to 10 percent was not proper and is therefore reversed. 2. For the entire period on appeal the Veteran’s degenerative disc disease of the right knee did not manifest in a limitation of extension of more than 30 degrees or a limitation of flexion of 60 degrees or less. Further, there is no evidence of ankylosis, recurrent subluxation, lateral instability or deformity of the tibia or fibula. CONCLUSIONS OF LAW 1. The reduction from 40 percent to 10 percent for degenerative joint disease of the right knee was not proper, and restoration of the 40 percent rating is warranted from September 1, 2014. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.3, 4.7, 4.71a, Diagnostic Code 5261. 2. The criteria for entitlement to a rating in excess of 40 percent for degenerative joint disease right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.7, 4.71a, Diagnostic Code 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1951 to August 1955. The Veteran died in November 2014. The RO found that the appellant is a dependent eligible to seek substitution regarding the Veteran’s pending claim, and is the proper appellant in this case. See June 2017 Request for Substitution of Claimant Upon Death of Claimant. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2010 and June 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2018, the appellant testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript is associated with the evidentiary record. Propriety of reduction for right knee disability from 40 percent to 10 percent. Legal Criteria 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. When a veteran’s disability rating is reduced by a RO without following the applicable regulations, the reduction is void ab initio. Greyzck v. West, 12 Vet. App. 288, 292 (1999). Where a disability has been service connected for less than five years there must be an adequate re-examination that discloses improvement in the Veteran’s condition. See 38 C.F.R. § 3.344(c). A rating reduction for a disability that has been service connected for five years or more requires evidence of a material improvement in the disability under the ordinary conditions of life. See 38 C.F.R. § 3.344(a); Payton v. Derwinski, 1 Vet. App. 282, 286-287 (1992). VA is also 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. These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of the veteran’s disability. Schafrath, 1 Vet. App. at 594. Such review requires VA 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. 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. See Faust v. West, 13 Vet. App. 342, 350 (2000). 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 v. Derwinski, 1 Vet. App. 589, 595 (1991). Facts and Analysis A June 2010 Rating Decision granted service connection for degenerative joint disease of the right knee with a rating of 40 percent, effective September 22, 2009. The Veteran filed an application for increased rating in October 2010 alleging worsening of his knee disability. See October 2010 Veteran Supplemental Claim. The claim was denied in December 2010. Thereafter, the Veteran filed a May 2011 notice of disagreement with the June 2010 rating decision. Subsequently, the Veteran was afforded a VA examination in January 2014. Following the examination, the RO issued a rating decision proposing a rating reduction to 10 percent. See January 2014 Rating Decision. Notification of the proposed rating reduction along with notice of the Veteran’s right to submit evidence within 60 days and request a personal hearing within 30 days was provided to the Veteran in a letter dated March 2014. See March 2014 Notification Letter. Following the Veteran’s failure to submit additional evidence or request a hearing within the requisite time period, the Veteran’s rating was reduced to 10 percent effective September 1, 2014. See June 2014 Rating Decision-Narrative. The Board finds that prior to reduction of rating, all procedures set forth in 38 C.F.R. § 3.105 were complied with. Nonetheless, for the reasons discussed below, the rating reduction was improper and must be reversed. The Veteran’s disability was 21 days short of being service connected for five years. However, even applying the less restrictive standard of 38 C.F.R. § 3.344(c) which requires only an adequate re-examination that discloses improvement in the Veteran’s condition (rather than evidence of material improvement under 3.344(a)), the Veteran’s rating reduction was improper and must be reversed. In connection with his initial claim for service connection, the Veteran underwent a VA examination in March 2010. He reported pain that is mild to moderate constantly, and some stiffness. He denied weakness, flare ups, and instability. The Veteran’s March 2010 VA examination noted 30 to 90 degrees with pain throughout the arc of motion and extension short of 30 degrees. Range of motion testing did not change on repetitive use testing. He had no functional limitation on standing or walking although he did walk very slowly on account of pain and did require frequent stops. He had stable ACL, PCL, MCL, and LCL and negative McMurray testing. During the period at issue, the Veteran was afforded an examination in January 2014. See January 2014 C&P Exam. The January 2014 examination noted right knee flexion to 110 degrees, and extension to 10 degrees. His range of motion did not change after repetitive use testing. There was pain to palpation. Muscle strength testing was normal and joint stability tests were also normal. There was no evidence of recurrent patellar subluxation/dislocation or meniscal conditions. The Veteran did not use any assistive devices. It was noted that the Veteran started to use a walker about three to four years earlier after an unrelated CABG. He was independent in his ability to sit and stand. While the January 2014 examination shows some increased range of motion compared to his March 2010 examination, the Veteran’s symptoms must also be taken into consideration. The Veteran reported that the examiner forced his knee during the range of motion test. See March 2014 Form 9. At the Board hearing, the appellant testified that immediately after the 2014 VA exam, the Veteran told her that the examiner forced his knee during the examination. The Veteran also reported to the appellant that he was in pain during the entire examination. See May 2018 Hearing Transcript. In viewing the evidence in the light most favorable to the Veteran, and considering the Veteran’s reports of constant pain throughout the examination, the Board finds that the Veteran’s increased range of motion does not actually reflect an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. Faust v. West, 13 Vet. App. 342. Accordingly, the rating reduction was improper and should be reversed. Entitlement to a rating in excess of 40 percent for degenerative joint disease right knee. General Rating Principles Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. 38 C.F.R. § 4.59 (discussing facial expressions such as wincing, muscle spasm, crepitation, etc.). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Excess fatigability and incoordination should be considered in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45. The Board will consider not only the criteria of the currently assigned diagnostic code, but also the criteria of other potentially applicable diagnostic codes. Rating Principles: Knee The Veteran’s degenerative joint disease of the right knee has been rated at 40 percent, under Diagnostic Code 5261. Under the diagnostic code, a rating of 40 percent is warranted if there is evidence showing extension limited to 30 degrees. The next highest rating is 50 percent, which warrants evidence of extension limited to 45 degrees. This is the highest rating under Diagnostic Code 5261. Under Diagnostic Code 5260, flexion limited to 60 percent is noncompensable, and flexion limited to 45 degrees warrants a 10 percent rating. Diagnostic code 5257 addresses recurrent subluxation or lateral instability of the knee. A rating of 10 percent is awarded for slight instability, 20 percent for moderate instability and 30 percent for severe instability. A knee disability can also be rated under Diagnostic code 5256, 5258, 5259, 5262 and 5263. Here, the record contains no evidence of ankylosis, dislocation of cartilage, removal of cartilage, impairment of the tibia and fibula, or genu recurvatum. Facts and Analysis The Veteran was examined in March 2010 and January 2014, as reflected above. At the hearing, the appellant reported that the Veteran experienced frequent falls and required the use of both a motorized scooter and walker. She further testified that because of his worsening right leg disability he no longer engaged in many of the activities he enjoyed such as fishing, spending time with his grandchildren and dancing. See May 2018 Hearing Transcript. The record contains treatment records from June 2010 through June 2014. Treatment records show that the Veteran reported falling as a result of his right knee locking up in September 2010 and September 2012. See December 2010 Medical Treatment Records, see also March 2013 CAPRI. Treatment records show that in September 2010 the Veteran reported having two or more falls in the past six months. See Medical Treatment Record Government Facility at 6, 8. In September 2012 the Veteran reported two falls since his previous visit, due to his knee locking up. The Veteran was also noted to use a cane. See March 2013 CAPRI. The Veteran reported a fall in January 2013 after his right knee locked up. See February 2013 Medical Treatment Record Government Facility. The Veteran also reported a recent fall in February 2014. See June 2014 CAPRI at 20. As discussed above, the Veteran’s March 2010 and January 2014 VA examinations noted no knee instability following testing. Based on the evidence of record, a rating in excess of 40 percent is not warranted. The highest rating under diagnostic code 5261 is 50 percent. This requires evidence of extension limited to 45 degrees. There is no evidence that the Veteran’s flexion was limited beyond 30 degrees. While the record notes some pain on range of motion, these symptoms are contemplated by the 40 percent rating. Based on the evidence, the Veteran is not entitled to a rating in excess of 40 percent. The Veteran’s flexion has not been shown to be limited to 45 degrees to warrant a 10 percent rating under diagnostic code 5260. Diagnostic code 5257 affords rating for recurrent subluxation or lateral instability. As discussed above, the Veteran endorsed falling as a result of his knee buckling on several occasions. However, both the Veteran’s VA examinations noted no instability to his knee. During his June 2010 VA examination, the Veteran denied any symptoms of weakness, flare-ups or instability. See June 2010 VA Examination at 1. The Veteran underwent a Lachman test during his January 2014 examination, which was normal. The Lachman’s test is specifically designed to assess knee instability. Further, the Veteran’s right knee was normal with no posterior instability or medial-lateral instability following testing. The Veteran was also noted to have no history of recurrent patellar subluxation/dislocation. See January 2014 C&P Exam at 3. Although the Veteran is credible to reports his symptoms including falling, the Board finds that the results of a tests designed specifically to assess instability has more probative value. Accordingly, the Veteran is not entitled to a rating for knee instability. Moreover, based on no evidence of ankylosis, subluxation, dislocation, impairment of the tibia and fibula and genu recurvatum, the Veteran’s disability does not warrant evaluation under any other diagnostic code. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Wimbish, Associate Counsel