Citation Nr: 18150127 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 15-14 597 DATE: November 14, 2018 ORDER New and material evidence having been received, reopening of the claim of entitlement to service connection for polycystic kidney disease is granted. Entitlement to a rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted. Entitlement to restoration of the 20 percent rating for a service-connected lumbar spine disability, effective November 27, 2012, is granted. Entitlement to restoration of the 10 percent rating for a service-connected right knee patellofemoral syndrome, effective November 27, 2012, is granted. REMANDED Entitlement to service connection for polycystic kidney disease is remanded. Entitlement to a rating in excess of 20 percent for a lumbar spine disability is remanded. Entitlement to a rating in excess of 10 percent for right knee patellofemoral syndrome is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. An unappealed March 2006 rating decision denied entitlement to service-connection for polycystic kidney disease. 2. The evidence received since the March 2006 rating decision is new and raises a reasonable possibility of substantiating the claim for entitlement to service connection for polycystic kidney disease. 3. A February 2013 rating decision reduced the disability rating assigned the service-connected lumbar spine from 20 percent to 10 percent disabling. 4. At the time of the reduction for lumbar spine, the 20 percent rating had been in effect for a period of less than five years. 5. The VA examination on which the lumbar spine reduction was based did not provide an adequate basis for the reduction. 6. A February 2013 rating decision reduced the disability rating assigned the service-connected right knee disability from 10 percent disabling to noncompensable. 7. At the time of the reduction for right knee disability, the 10 percent rating had been in effect for a period of more than five years. 8. The rating reduction for the right knee disability did not comport with applicable statutes and regulations. 9. Throughout the period on appeal, the Veteran’s PTSD more closely approximated symptomatology productive of occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. New and material evidence has been received sufficient to reopen a claim of entitlement to service connection for polycystic kidney disease. 38 U.S.C. § 5108 (2014); 38 C.F.R. § 3.156 (2018). 2. The reduction of the lumbar spine rating is void ab initio, and the criteria for restoration of the 20 percent rating have been met. 38 U.S.C. § 1155 (2014); 38 C.F.R. §§ 3.344, 4.1 – 4.71a, Diagnostic Code 5270 (2018). 3. The reduction of the right knee rating is void ab initio, and the criteria for restoration of the 10 percent rating have been met. 38 U.S.C. § 1155 (2014); 38 C.F.R. §§ 3.344 (2018). 4. The criteria for rating of 70 percent, but no higher, for the Veteran’s PTSD are met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Marine Corps from March 2002 to March 2006 and earned the Combat Action Ribbon. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The RO construed an October 2012 correspondence as an increased rating claim for the Veteran’s lumbar spine and right knee disabilities. After reviewing the evidence, the RO instead reduced the ratings assigned for these service-connected disabilities. In perfecting his appeal, the Veteran has continued to argue that increased ratings are warranted. Therefore, both the propriety of the reduction and whether higher ratings are warranted are at issue in this appeal. Claim to Reopen Polycystic Kidney Disease In a March 2006 rating decision, the Veteran was denied entitlement to service connection for polycystic kidney disease on the basis that there was insufficient evidence to show that the Veteran’s kidney disease had been aggravated by service. The Veteran did not appeal that decision. The evidence that has been received since the March 2006 rating decision includes service treatment records. At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). The regulation further identifies service records related to a claimed in-service event, injury, or disease as relevant service department records. 38 C.F.R. § 3.156 (c)(1)(i). The Board notes that new service treatment records were associated with the claims file in May 2015. However, the records are duplicative with respect to the kidney claim. Thus, reconsideration of the claim is not warranted. Additional evidence received since the March 2006 rating decision includes various VA medical records, VA examinations, and relevant lay statements. The Board finds that the additional evidence is new and material. In this regard, it is neither cumulative nor redundant of the evidence previously of record, and raises a reasonable possibility of substantiating the claim. Therefore, the claim of entitlement to service connection for polycystic kidney disease is reopened. Restoration In this case, the RO reduced both the lumbar spine and the right knee disability ratings without first notifying the Veteran or providing him the opportunity to submit additional evidence in response to a rating reduction proposal. See 38 C.F.R. § 3.105 (e). However, the amount of compensation paid to the Veteran did not change as a result of the rating reductions contained in the February 2013 rating decision. As the overall amount of compensation was not reduced due to the implementation of the rating reduction, the procedural protections of 38 C.F.R. § 3.105(e) are not applicable to the current case. Lumbar Spine A March 2006 rating decision granted, in pertinent part, entitlement to service connection for a lumbar spine disability and assigned a 10 percent disability rating, effective March 18, 2006. A February 2011 rating decision granted an increased disability rating for the Veteran’s lumbar spine disability from 10 percent to 20 percent disabling, effective July 14, 2010, the date in which the Veteran’s application for an increased rating was received by VA. In the February 2013 rating decision, the Veteran’s lumbar spine disability and right knee patellofemoral syndrome were reduced to 10 percent disabling and noncompensable, respectively, effective November 27, 2012 (the date of the VA examination that the RO based its reductions on). The 20 percent rating for the Veteran’s lumbar spine was in effect from July 14, 2010, to November 27, 2012. As that rating was in effect for less than five years, the provisions of 38 C.F.R. § 3.344 (a), (b), which provide additional regulatory hurdles to rating reductions, also do not apply. 38 C.F.R. § 3.344 (c) provides that ratings in effect for less than five years can be reduced upon a showing that the disability has improved. 38 C.F.R. § 3.344 (c) references disability ratings which have not been continued for 5 years or more (which applies to the disabilities at issue in this case) and states that “[r]eexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating.” The United States Court of Appeals for Veterans Claims (Court) stated in Greyzck v. West, 12 Vet. App. 288 (1999) that “[t]he Court has consistently held that where a [VA regional office (RO)] reduces a veteran’s disability rating without following the applicable VA regulations, the reduction is void ab initio.” The Court cited Schafrath v. Derwinski, 1 Vet. App. 589 (1991), which stated that “the Board’s decision to reduce the veteran’s rating was void ab initio since it was made without regard to numerous operative regulations. Hence, he should not be subject to the effects of an unlawful rating reduction and that reduction must be vacated and the prior rating restored.” One regulation discussed by the Court was 38 C.F.R. § 4.40, which discusses functional loss in regard to disabilities of the musculoskeletal system. 38 C.F.R. § 4.2 states that “[i]f a diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.” The Court has also stated that “the RO and Board are required in any rating-reduction case 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.” See Brown v. Brown, 5 Vet. App. 413 (1993). The Court in that decision referenced 38 C.F.R. § 4.13, which states that “[w]hen any change in evaluation is to be made, the rating agency should assure itself that there has been an actual change in the conditions, for better or worse, and not merely a difference in thoroughness of the examination or in use of descriptive terms.” The Court held in Correia v. McDonald, 28 Vet. App. 158 (2016) that “to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of” 38 C.F.R. § 4.59. The referenced portion of 38 C.F.R. § 4.59 states that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with the range of the opposite undamaged joint.” Here, as noted above, the March 2013 rating decision that reduced the Veteran’s disability ratings referenced that such reductions were effective the date of the November 27, 2012 VA examination that documented improvement. The Board finds the November 2012 inadequate. Specifically, the VA examination does not comply with the criteria set forth in the holding of Correia. The reduction in the lumbar spine disability rating is therefore void ab initio and the prior 20 percent disability rating must be restored. The claim is therefore granted. Right Knee Patellofemoral Syndrome The March 2006 rating decision also granted entitlement to service connection for right knee patellofemoral syndrome and assigned a 10 percent disability rating, effective March 18, 2006. The 10 percent rating for the right knee was in effect from March 18, 2006 to November 27, 2012. In cases where a rating has been in effect for 5 years or more, the rating agency must make reasonably certain that the improvement will be maintained under the conditions of ordinary life even if material improvement in the physical or mental condition is clearly reflected. Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). A rating that has been in effect for 5 years or more may not be reduced on the basis of only one examination in cases where the disability is the result of a disease subject to periodic or episodic improvement. 38 C.F.R. § 3.344 (a). The 5-year period is calculated from the effective date of the rating to the effective date of the reduction. Brown v. Brown, 5 Vet. App. 413, 419 (1993). Furthermore, under 38 C.F.R. § 3.344, the RO must find the following: (1) based on a review of the entire record, the examination forming the basis for the reduction is full and complete, and at least as full and complete as the examination upon which the rating was originally based; (2) the record clearly reflects a finding of material improvement; and (3) it is reasonably certain that the material improvement found will be maintained under the ordinary conditions of life. See Kitchens v. Brown, 7 Vet. App. 320 (1995); Brown v. Brown, 5 Vet. App. 413 (1993). If doubt remains, after according due consideration to all the evidence, the rating agency will continue the rating in effect. 38 C.F.R. § 3.344 (b). The rating decision and statement of the case (SOC) pertaining to the rating reductions must reflect full consideration of the procedural due process provisions of 38 C.F.R. § 3.344 (a)-(b). The reduction is void because the provisions of 38 C.F.R. § 3.344 were not met. The February 2013 rating decision found that the record demonstrates sustained improvement. However, the RO did not address whether any improvement in the disability actually reflected an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. See 38 C.F.R. §§ 4.1, 4.2, 4.13; see also Brown, 5 Vet. App. at 420-22; Schafrath, 1 Vet. App. at 594. There also was no finding that the examination used as a basis of reduction was as complete as those upon which payment was authorized or continued. The Board emphasizes that failure to consider and apply the provisions of 38 C.F.R. § 3.344, if applicable, renders a rating decision void ab initio. Such an omission is error and not in accordance with the law. See Greyzck, 12 Vet. App. at 292. Accordingly, the 10 percent rating must be restored. Given the outcome warranted in view of this procedural error, the Board need not address, from an evidentiary standpoint, the actual merits of the reduction. Increased Rating Claim PTSD The Veteran asserts that he is entitled to a higher rating for his PTSD, as his symptoms are more severe than those contemplated by the currently assigned rating. For the period on appeal, the Veteran’s PTSD has been rated as 50 percent disabling under the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. Pursuant to the rating formula, a 50 percent rating requires occupational and social impairment, but with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete task); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted for even greater occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Code 9411 (2018). The maximum rating of 100 percent requires total occupational and social impairment due to such symptoms as: grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. The use of the term “such as” in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant’s social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013), the U.S. Court of Appeals for the Federal Circuit stated that “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” “Although the veteran’s symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran’s level of [occupational and social] impairment.” Id. The Board finds that the Veteran’s PTSD symptoms warrant a 70 percent evaluation. At a December 2012 VA examination, the Veteran reported that he was married with 3 young children. The examiner opined that the Veteran’s PTSD was most productive of occupational and social impairment with reduced reliability and productivity. The examiner reported that the Veteran’s PTSD was productive of anxiety, depression, irritability, chronic sleep impairment, avoidant behavior, suspiciousness, hypervigilance, panic attacks that occurred more than once per week, disturbances in mood and motivation, and difficulty adapting to stressful circumstances. The Veteran denied experiencing homicidal or suicidal ideations or intent, as well as hallucinations or delusions. The Veteran reported that he and his wife and children lived together and that he was able to perform basic household tasks and perform self-care. The Veteran indicated that he enjoyed playing video games, and that he occasionally went to church. The Veteran reported that he experienced mood swings, manic-like tendencies, and occasional decreases in focus. He denied obsessive compulsive activities. His thought process and communication was grossly intact. On examination, the Veteran’s speech was articulate, thought process was logical, and motor function was grossly intact. The Veteran appeared anxious and was slightly irritable at times. He appeared to have difficulty with short-term memory. Long-term memory, concentration skills, organizational and planning skills, and language and comprehension skills appeared grossly intact. In a July 2014 private Disability Benefits Questionnaire (DBQ), the psychologist opined that the Veteran’s PTSD was most productive of occupational and social impairment with deficiencies in most areas. The Veteran reported that he lived with his wife, 3 children, as well as his mother, father and brother in-law. He indicated that his wife provided a great support system, but that he was otherwise socially isolated and withdrawn. The psychologist reported that the Veteran’s PTSD was productive of anxiety, depression, chronic sleep impairment, hypervigilance, difficulty concentrating, irritability, exaggerated startle response, avoidant behavior, feelings of detachment, diminished interest in activities, suspiciousness, panic attacks that occurred weekly or less often, mild memory loss, disturbances in mood, auditory hallucinations, persistent danger of hurting self or others, neglect of personal appearance or hygiene, intermittent inability to perform activities of daily living, difficulty in establishing and maintaining effective work or social relationships, inability to establish effective relationships, and difficulty adapting to stressful circumstances. On examination, the Veteran’s attention and speech were normal, and concentration was variable. Thought content was appropriate and goal oriented, and judgement was intact. He appeared anxious and nervous, with restricted affect. A review of the record shows that the Veteran receives treatment at the VA Medical Center for various disabilities. However, there is no indication that his PTSD symptoms as recorded during these visits are manifestly different than those reported at his VA examinations. Based on the evidence of record, lay and medical, the Board finds that the Veteran is entitled to an initial 70 percent rating for the entire period on appeal. In this regard, the Veteran’s overall disability picture more closely approximates the criteria for a 70 percent rating, which contemplates occupational and social impairment with deficiencies in most areas. The Board considered the lay statements of record describing symptoms, and considers them to be probative, but finds that they are representative of symptomatology that most closely approximates a rating of 70 percent. In this regard, the Veteran reported frequent panic attacks, intrusive memories, avoidance, irritability, anxiety, hypervigilance, exaggerated startle response, feelings of detachment, delusions, impaired impulse control, decreased focus, sleep disturbance, depression affecting ability to function, and an inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. The record reflects that although the Veteran has been unemployed for several years, his symptoms have not been consistent with total occupational and social impairment such that a 100 percent disability rating is warranted. Although he reported passive homicidal ideation in July 2014 and passive suicidal ideation in December 2012, the Board finds that this does not equate to a persistent danger of hurting self or others. While the July 2014 provider reported a persistent danger of hurting self and others and persistent delusions, her report provides no additional detail. There is no indication from the record that the Veteran had obsessional rituals which interfered with his routine activities. The only mention of hallucinations is found in the July 2014 report, which notes that the Veteran hears voices calling his name. As such, this symptom does not appear to be persistent. Although the Veteran is socially isolated, he has a good relationship with his wife and children and attends church. In addition, the Veteran has not displayed gross impairment in thought process or communication. He has not displayed disorientation to time or place. Although testing in December 2012 revealed “some deficits of working memory and short-term memory,” there is no evidence of memory loss for names of close relatives, his prior occupations, or his own name. Notably, the Veteran attended college until approximately 2014. The December 2012 VA examiner found the Veteran capable of managing his own financial affairs. While the July 2014 provider indicated that the Veteran’s wife has to remind him to brush his teeth, shower, and shave, there is no evidence that he is unable to perform these daily activities. Accordingly, the Board finds that the Veteran’s PTSD symptoms most nearly approximate a 70 percent rating. Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). REASONS FOR REMAND The Board finds that additional development is required before the remaining claims on appeal are decided. Service Connection- Polycystic Kidney Disease The Veteran’s December 2001 enlistment examination reveals that all systems were normal. During a November 2005 VA examination, the Veteran stated that he was diagnosed with polycystic disease in 2002. The diagnosis was status post polycystic kidney disease, with the examiner noting that the Veteran was diagnosed during service and that current kidney function was normal. It does not appear that the examiner reviewed the service treatment records. The examiner did not provide a nexus opinion. During a November 2012 VA examination, the examiner noted that the Veteran had been diagnosed with cystic kidney disorder in 2005. The Veteran reported that he developed kidney problems in 2000 after being tackled, and that he experienced subsequent blood in his urine. The Veteran reported that he avoided using medications due to concerns of further damaging his kidneys. The Veteran also indicated that he had no active kidney problems at that time. The examiner opined that the Veteran’s kidney disease was less likely than not proximately due to or the result of medication used to treat his service-connected lumbar spine disability, and/or his right and left knee disabilities. He did not provide an opinion with respect to direct service connection. However, he noted that polycystic kidney disease is a genetic disorder. The question of whether there was a pre-existing disability is raised by the record. Every veteran is presumed sound at entry, except as to defects noted at entry or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior to service and was not aggravated by service. 38 C.F.R. § 3.304 (b). Thus, on remand an addendum opinion is required. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Increased Rating- Lumbar Spine In November 2012, the Veteran was afforded a VA examination to access the severity of his service-connected lumbar spine disability. A review of that examination report shows that the findings reported are not in compliance with the requirements outlined in Correia v. McDonald, 28 Vet. App. 158 (2016) or Sharp v. Shulkin, 29 Vet. App. 26 (2017). Therefore, the Veteran should be afforded a new VA examination to determine the currently level of severity of all impairment resulting from his lumbar spine disability. Increased Rating- Right Knee Patellofemoral Syndrome In November 2012, the Veteran was afforded a VA examination to access the severity of his service-connected right knee patellofemoral syndrome. A review of that examination report shows that the findings reported are not in compliance with the requirements outlined in Correia, 28 Vet. App. 158 or Sharp, 29 Vet. App. 26. Therefore, the Veteran should be afforded a new VA examination to determine the currently level of severity of all impairment resulting from his right knee patellofemoral syndrome. Entitlement to TDIU The Board also notes that the issue of entitlement to TDIU is inextricably intertwined with the increased rating claims remanded herein. Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. The matter is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of the Veteran’s polycystic kidney disease. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. a) Is it clear and unmistakable that the Veteran’s polycystic kidney disease existed prior to service? If yes, is it clear and unmistakable that the polycystic kidney disease was not aggravated beyond the normal progression by active service? If no, is it at least as likely as not (50 percent probability or greater) that such disorder had its onset during service or is otherwise related to service? The examiner should address the relevant STRs and any lay statements regarding the onset and continuity of his symptoms. Please note, however, that the Veteran’s lay statements alone are not sufficient upon which to base a finding that a disability clearly and unmistakably existed prior to service. b) Is it at least as likely as not that the Veteran’s polycystic kidney disease was caused by any of the service-connected disabilities, to include the medications taken for such? c) Is it at least as likely as not that polycystic kidney disease was aggravated by any of the Veteran’s service-connected disabilities, to include the medications taken for such? The rationale for all opinions expressed must be provided. 2. Schedule the Veteran for an appropriate VA examination to determine the current level of severity of all impairment resulting from his lumbar spine disability. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. The examiner should provide all information required for rating purposes, to include all information required by Correia and Sharp. (Continued on the next page)   3. Schedule the Veteran for an appropriate VA examination to determine the current level of severity of all impairment resulting from his right knee patellofemoral syndrome. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. The examiner should provide all information required for rating purposes, to include all information required by Correia and Sharp. 4. Then, readjudicate the remaining issues on appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. REBECCA N. POULSON Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. O’Donnell, Associate Counsel