Citation Nr: 18150663 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 18-34 653 DATE: November 15, 2018 ORDER VA has received new and material evidence to reopen a claim of service connection for a right knee disorder. To this extent only, the appeal is granted. Reduction of a 20 percent rating for service-connected radiculopathy of the left lower extremity (LLE) was improper; restoration of a 20 percent rating is granted. REMANDED Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for left knee instability is remanded. Entitlement to a rating greater than 20 percent for a low back disorder is remanded. FINDINGS OF FACT 1. VA denied the Veteran’s claim for a right knee disorder in January 2008. The Veteran did not appeal this denial, nor did he submit new and material evidence within one year of this decision. Therefore, the decision became final. 2. The Veteran filed a claim for service connection for a right knee disorder in December 2017. He submitted new and material evidence with this claim. 3. VA service connected the Veteran's LLE radiculopathy effective August 17, 2006, and it rated it as 20 percent disabling. 4. Following an August 23, 2017 VA examination, VA reduced the 20 percent rating to 10 percent, effective the date of the examination. 5. VA did not consider pertinent law and regulations in the August 2017 rating decision and April 2018 Statement of the Case (SOC). CONCLUSIONS OF LAW 1. The January 2008 rating decision denying the claim for service connection for a right knee disorder is final based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. 2. New and material evidence since that decision has been submitted to allow the reopening of the right knee disorder claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. Restoration of a 20 percent rating for the Veteran’s service-connected radiculopathy of the LLE is warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 4.13, 4.97. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 16, 1989 to April 12, 2000 and from April 13, 2000 to August 16, 2006. His period of service from August 16, 1989 through April 12, 2000, has been determined to be honorable active service. His period of service from April 13, 2000 through August 16, 2006 has been determined to be dishonorable and a bar to VA benefits. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of August 2017 and March 2018 of the Department of Veterans Affairs (VA). The undersigned notes that the Veteran, in a letter dated April 22, 2018, said "there was a January 2008 rating decision and a December 2015 rating decision pertaining to spine, knee, and PTSD conditions that I am still awaiting closure on." For the Veteran's understanding, the Board decided the knee and spine issues in a December 2017 decision. The Board also remanded the PTSD issue in the same decision, and VA subsequently service connected the PTSD in September 2018. Issue 1: Whether VA has received new and material evidence to reopen a claim of entitlement to service connection for a right knee disorder. New and Material Evidence VA denied the Veteran’s claim for a right knee disorder in January 2008. The Veteran did not appeal this denial, nor did he submit new and material evidence within one year of this decision. Therefore, the decision became final. Under 38 U.S.C. § 7104(b), the Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim. King v. Shinseki, 23 Vet. App. 464 (2010); see DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006) (holding that res judicata generally applies to VA decisions). However, the finality of a previously disallowed claim can be overcome by the submission of new and material evidence. See 38 U.S.C. § 5108. New evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). At the time of the January 2008 denial, the record consisted of service treatment records and private medical records. Subsequently, VA received VA treatment records. This evidence was new. This evidence, which shows the Veteran has an antalgic gait and walks with a cane, was also material because it helps substantiate his claim, and it relates to a reason VA previously denied his claim. Reopening of the Veteran’s the claim for service connection for a right knee disorder based on the receipt of new and material evidence is therefore warranted. Shade v. Shinseki, 24 Vet. App. 110 (2011) (holding that the phrase “raises a reasonable possibility of substantiating the claim” in applicable regulation as “enabling rather than precluding reopening”). Issue 2: Reduction of a 20 percent rating for service-connected radiculopathy of the left lower extremity (LLE) Congress has provided that a Veteran’s disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. See 38 U.S.C. § 1155. The U.S. Court of Appeals for Veterans Claims has consistently held that when VA reduces a Veteran’s disability rating without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999) and cases cited therein. Prior to reducing a Veteran’s disability rating, VA is 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. See 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13 (2013); see also Brown v. Brown, 5 Vet. App. 413, 420 (1993). These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of a Veteran’s disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). 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 is based upon thorough examinations. Thus, in any rating-reduction case not only must it be determined that an improvement in a disability has occurred but also that that improvement reflects an improvement in a Veteran’s ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 250 (2000). In certain rating reduction cases, VA benefits recipients are to be afforded greater protections, as set forth in 38 C.F.R. § 3.344. That section provides that rating agencies will handle cases affected by change of medical findings or diagnosis to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. However, the provisions of 38 C.F.R. § 3.344(c) specify that these considerations are required for ratings which have continued for long periods at the same level (five years or more), and that they do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant a reduction in rating. 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 beneficiary must be notified of the contemplated action and be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. See 38 C.F.R. § 3.105(e). Merits Analysis VA examined the Veteran on August 23, 2017. The examiner reported the Veteran had mild, incomplete paralysis of the sciatic, musculocutaneous, and anterior tibial nerves in his left leg. VA, five days later, reduced the Veteran's radiculopathy rating to 10 percent disabling, noting that "this reduction will not reduce your overall combined evaluation." VA did not need to notify the Veteran in advance of its reduction under 38 C.F.R. § 3.105(e) because VA's action did not reduce the Veteran's compensation. However, the question remains whether VA correctly applied the substantive law and regulations regarding the reduction. As the Veteran’s 20 percent disability rating was in effect for five years or more, the provisions of 38 C.F.R. § 3.344 apply. VA relied solely upon the August 2017 VA examination report to support the disability rating reduction. It failed to make a specific determination that there was an actual improvement in the Veteran’s ability to function under the ordinary conditions of work and life as required under 38 C.F.R. §§ 4.10 and 4.13. As such, VA did not properly consider pertinent law and regulations in the August 2017 rating decision and the April 2018 SOC. As indicated above, pursuant to the Court’s holdings in Faust and Brown, in any rating reduction case not only must it be determined that an improvement in a disability has occurred but also that that improvement reflects an improvement in a Veteran’s ability to function under the ordinary conditions of life and work. See Faust, 13 Vet. App. at 350; see also Brown, 5 Vet. App. at 421. While VA set forth the relevant medical and lay evidence and indicated that there was an alleviation of the Veteran’s symptomatology, it failed to find that the improved radiculopathy reflected an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. VA's failure to make such a determination renders the reduction improper. Accordingly, the previously assigned 20 percent rating for the service-connected radiculopathy is restored as of August 23, 2017. REASONS FOR REMAND Remand is warranted for new VA compensation examinations. First, the Veteran, in his March 2018 Notice of Disagreement, stated that he was "in a lot of pain" during the February 2018 VA knee and back examinations. This flare up impeded him, and the "doctor just gave up." The back-examination report shows the examiner could not conduct range of motion testing, but noted there was no flare up. The Veteran, in a May 2018 letter, again noted his flare up and that no prior VA examiner – in 12 years of prosecuting his claims – has asserted that the Veteran malingered. Given the Veteran's history, the undersigned will remand for a new examination with a different examiner. Second, the negative nexus opinion for the Veteran's right knee claim is inadequate. It does not discuss the impact of the Veteran's antalgic gait on his right knee, nor did the examiner address aggravation. Third, in English v. Wilkie, 17-2083, the U.S. Court of Appeals for Veterans Claims held that if there is lay evidence of instability and medical evidence of a lack of instability, the Board cannot favor the medical evidence simply because it is medical evidence. The holding is consistent with the Court’s view that medical evidence is not inherently of greater probative weight than lay evidence, except when the Board specifically finds that the issue that the evidence is related to is a complex medical issue as to which lay evidence is not competent. The facts of English are like this case. Given this holding, and considering VA treatment records in which the Veteran complains of buckling in his left knee, the undersigned finds the question of a current disability – here, instability – is in equipoise. Therefore, remand is warranted for a supplemental opinion. The matter is REMANDED for the following action: 1. The Veteran has made several requests for documents from his claims file. To ensure he has a complete copy, provide the Veteran with a CD-ROM of his entire claims file. 2. After completing Directive #1, wait 30 days and then schedule the Veteran for a VA examination to determine the nature and severity of his low back disorder with a DFIFFERENT EXAMINER than the one who examined him in February 2018. 3. Obtain a supplemental opinion to the February 2018 knee examination report. VA may obtain this addendum from the examiner who examined the Veteran if this is most expedient. The examiner must answer the following questions: a) Was the Veteran’s left knee instability incurred in or is it etiologically related to his period of service? Why or why not? In answering this question, the examiner MUST presume the Veteran has left knee instability for the reasons discussed above. b) Did the Veteran’s service-connected patellofemoral syndrome of the left knee CAUSE his left knee instability? Why or why not? In answering this question, the examiner MUST presume the Veteran has left knee instability for the reasons discussed above. c) Did the Veteran’s service-connected patellofemoral syndrome of the left knee AGGRAVATE his left knee instability? Why or why not? In answering this question, the examiner MUST presume the Veteran has left knee instability for the reasons discussed above. d) Did the Veteran’s service-connected patellofemoral syndrome of the left knee CAUSE his right knee disorder? Why or why not? In answering this question, the examiner must address the relevance of the antalgic gait, which is evidenced in his VA treatment records. e) Did the Veteran’s service-connected patellofemoral syndrome of the left knee AGGRAVATE his right knee disorder? Why or why not? In answering this question, the examiner must address the relevance of the antalgic gait, which is evidenced in his VA treatment records. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Sopko, Counsel