Citation Nr: 18150071 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 14-32 788 DATE: November 14, 2018 ORDER The reduction from 30 percent to 10 percent rating for limitation of extension of service-connected left knee degenerative joint disease (DJD) being improper, restoration of the 30 percent rating, effective July 1, 2013, is granted. The reduction from 30 percent to 10 percent rating for limitation of extension of service-connected right knee DJD was proper; the appeal is denied. FINDINGS OF FACT 1. At the time of the reduction of the Veteran’s benefits, the 30 percent ratings for limitation of extension of DJD of the left and right knee had been in effect for less than five years. 2. The April 2012 VA examination of the Veteran’s knee disabilities showed improvement in limitation of extension of the left and right knee. 3. The April 2013 rating decision implementing the June 2012 rating decision, which proposed the reduction, did not reduce the left knee rating as proposed. CONCLUSIONS OF LAW 1. The reduction from 30 percent to 10 percent for limitation of extension of service-connected DJD of the left knee was improper. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.71a, Diagnostic Codes (DCs) 5260, 5261. 2. The reduction from 30 percent to 10 percent for limitation of extension of service-connected DJD of the right knee was proper. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.71a, DC 5260, 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1977 to August 1992. These claims arise from an April 2013 rating decision implementing the reduction in the disability ratings. In July 2016, the Veteran and his spouse testified at a Board hearing. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Rating Reductions Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. A veteran’s disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. Where a disability rating has been in effect less than five years, a rating reduction is warranted where reexamination of the disability discloses improvement of that disability. 38 C.F.R. § 3.344(c). The provisions of 38 C.F.R. § 3.344(a) do not apply. Generally, when reduction in the evaluation of a service-connected disability is contemplated and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The veteran must be notified at his latest address of record of the contemplated action and furnished detailed reasons therefore. The veteran must be allowed an opportunity to participate in a personal hearing, with the request received within 30 days of the notice provided, and given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e), (i). After the allotted period, if no additional evidence has been submitted, final rating action will be taken, and the rating 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 beneficiary of the final rating expires. 38 C.F.R. § 3.105(e). At the time of the reduction, both of the Veteran’s knee conditions were rated under 38 C.F.R. § 4.71a, DC 5261 which provides for ratings based on limitation of extension. Specifically, for extension limited to 45 degrees, a 50 percent rating is assigned; to 30 degrees, a 40 percent rating is assigned; to 20 degrees, a 30 percent rating is assigned; to 15 degrees, a 20 percent rating is assigned; to 10 degrees, a 10 percent rating is assigned; and to 5 degrees, a zero percent rating is assigned. 1. The propriety of the reduction of the from 30 percent to 10 percent for limitation of extension of DJD of the left knee. 2. The propriety of the reduction of the from 30 percent to 10 percent for limitation of extension of DJD of the right knee. The Veteran contends that his ratings for DJD of the left and right knees should not have been reduced from 30 percent to 10 percent, as the evidence of record was not indicative of sustained improvement. The procedural requirements of 38 C.F.R. § 3.105 were generally met other than as noted below. The Veteran was awarded his 30 percent ratings as a result of an October 2010 VA examination, at which the Veteran reported constant pain, weakness, stiffness, swelling, heat, instability/giving way, locking, fatigability, lack of endurance, and effusion. He reported pain was 10/10 all day, caused by walking or standing and alleviated by rest and medication. Flare-ups were reported. The Veteran reported being able to walk for only 10 or 15 minutes at a time. On examination, the knees were nontender and flexion was from 60 degrees to 140 degrees and extension was from negative 20 degrees to zero degrees bilaterally. No additional limitation of range of motion was reported on repetition due to pain, fatigue, weakness, lack of endurance, or incoordination. The examiner also observed that the Veteran walked with an unsteady gait. This resulted in 30 percent ratings based on limitation of extension to 20 degrees under DC 5261, effective October 23, 2009, as set forth in a December 2010 rating decision. The reductions were made on the basis of an April 2012 VA reexamination. The Veteran reported flare-ups of right knee pain daily which he treats with over-the-counter painkillers. The flare-ups prevent him from walking, or even sitting for more than a few minutes. Flare-ups of left knee pain only occurred monthly, were also alleviated by over-the-counter medication, and limited the Veteran’s ability to walk and stand. Additional disorders of gouty arthritis affecting the right ankle and foot were noted. On examination, right knee flexion with pain was to 5 degrees, right knee extension was to 5 degrees without limitation due to pain. Left knee flexion was to 75 degrees and extension was to 5 degrees without pain. Repetitive range of motion testing was not conducted because the Veteran was experiencing “too much discomfort.” Less movement than normal, weakened movement, swelling, interference with standing, sitting, and weight-bearing were noted on the right. Pain on movement was noted bilaterally. Pain on palpation was noted on the right. Muscle strength for knee flexion and extension was 3/5 on the right and 4/5 on the left. At the July 2016 Board hearing, the Veteran testified that there was no improvement in his knee disability. For instance, he had difficult standing, sits on a chair in the shower, and his wife carries him to the bathroom. He also relied on a wheelchair when needing to move long distances. As to both knees, the proposal in a June 2012 rating decision was to reduce the ratings for limitation of motion for both knee from 30 percent to 10 percent. However, for the left knee, when implementing the reduction in the April 2013 rating decision, the RO instead reduced the rating for limitation of extension to zero degrees and also characterized the reduction from 30 percent to 10 percent as pertaining to limitation of flexion under DC 5260. Although this action in a way may have resulted in the overall intent of the proposed reduction pertaining to limitation of motion as a whole, it was not the action that was proposed. The action proposed solely pertained to limitation of extension. Thus, as the reduction in question did not match the proposal, it is void ab initio regardless if there was improvement in limitation of extension of the left knee. Therefore, the 30 percent rating for limitation of the extension of the left knee is restored effective July 1, 2013. In contrast, the April 2013 rating decision did implement the reduction as proposed for the right knee. Notably, also in contrast to the left knee, the RO had granted a separate 10 percent rating for limitation of flexion of the right knee in the June 2012 rating. In consideration of this evidence, the Board concludes that the reduction was proper for the right knee. This is based on the entire evidence of record at the time of the reduction and with consideration of all applicable rating provisions. Significantly, the Board finds that there was a reexamination of the service-connected right knee disability that disclosed physical improvement. Thus, the regulations mandate a reduction as such improvement will warrant reduction in rating. See 38 C.F.R. § 3.344(c). Because the knee conditions were not stabilized and were likely to improve as the ratings were not in effect for 5 or more years, the stricter reduction provisions of 38 C.F.R. § 3.344(a) are not applicable. The most pertinent aspect of the ratings was the limitation of extension evidence as that was the basis for the ratings. The first VA examination in April 2010 showed extension of both knees to minus 20 degrees, which was taken as limited to 20 degrees. Then, upon reexamination in April 2012, extension was limited to 5 degrees. This level equates to a noncompensable level of impairment under DC 5261. As noted above, there was painful motion, flare-ups, and other factors affecting functional loss. Thus, the RO properly considered these additional factors under 38 C.F.R. § 4.40, 4.45 and 4.59, when it reduced the rating to 10 percent instead of to zero percent. The preponderance of the evidence therefore shows that the reduction was proper (burden on the Government) as there was improvement in limitation of extension of the service-connected right knee DJD. Accordingly, restoration of the 30 percent rating is not warranted. (Continued on the next page)   Subsequent to the reduction, there is additional evidence pertaining the right knee condition. To the extent the Veteran believes the limitation of extension has worsened, a claim for increase can be filed with VA on the standard claim form. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. George