Citation Nr: 18150804 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 15-46 443 DATE: November 15, 2018 ORDER Restoration of a 20 percent rating for left knee instability, effective May 1, 2013, is granted, subject to the laws and regulations governing the payment of monetary awards. Restoration of a 20 percent rating for degenerative joint disease of the left knee based upon limitation of motion, effective May 1, 2013, is granted, subject to the laws and regulations governing the payment of monetary awards. FINDINGS OF FACT 1. The evidence of record at the time of the reduction failed to demonstrate a sustained improvement in the Veteran’s service-connected left knee instability under ordinary conditions of life and work. 2. The evidence of record at the time of the reduction failed to demonstrate a sustained improvement in the Veteran’s service-connected degenerative joint disease of the left knee under ordinary conditions of life and work. CONCLUSIONS OF LAW 1. The reduction of the assigned rating for service-connected left knee instability from 20 to zero percent was improper, and restoration of the 20 percent rating, effective May 1, 2013, is warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.2, 4.10, 4.13, 4.71a (2017). 2. The reduction of the assigned rating for service-connected degenerative joint disease of the left knee based upon limitation of motion from 20 to 10 percent was improper, and restoration of the 20 percent rating, effective May 1, 2013, is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.2, 4.10, 4.13, 4.71a. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The record reflects the Veteran served on active duty in the United States Army from June 1987 to November 1987. This matter is before the Board of Veterans’ Appeals (Board) on appeal from rating decisions promulgated in August and November 2012 by a Department of Veterans Affairs (VA) Regional Office (RO). The Board acknowledges that both reductions were initially effective February 1, 2013. However, the record reflects a temporary total rating was assigned for the degenerative joint disease pursuant to 38 C.F.R. § 4.30, effective January 10, 2013, with the 10 percent rating being resumed from May 1, 2013. The Board has characterized and addressed the issues accordingly. Reductions The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in evaluation of a service-connected disability when warranted by the evidence, but only after following certain procedural guidelines. The RO must issue a rating action proposing the reduction and setting forth all material facts and reasons for the reduction. The veteran must then be given 60 days to submit additional evidence and to request a predetermination hearing. Then a rating action will be taken to effectuate the reduction. 38 C.F.R. § 3.105(e). The effective date of the reduction will be the last day of the month in which a 60-day period from the date of notice to the veteran of the final action expires. 38 C.F.R. § 3.105 (e), (i)(2)(i). In this case, an August 2012 rating decision proposed to reduce the assigned 20 percent rating for left knee instability to zero percent and the 20 percent rating for left knee limitation of motion to 10 percent. The Veteran was informed of that proposal, including his right to submit additional evidence and to request a hearing. Thereafter, a November 2012 rating decision effectuated these proposed reductions, both effective February 1, 2013. Consequently, the Board finds proper procedures were followed in reducing these assigned ratings and now will address the merits of these rating reductions. Regulations “impose a clear requirement that VA rating reductions . . . be based upon a review of the entire history of the Veteran’s disability.” Brown v. Brown, 5 Vet. App. 413, 420 (1993); 38 C.F.R. §§ 4.1, 4.2, 4.13. 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). The evidence must reflect an actual change in the Veteran’s condition and not merely a difference in the thoroughness of the examination or in the use of descriptive terms. 38 C.F.R. § 4.13. It must also be determined that any such improvement also reflects an improvement in the veteran’s ability to function under ordinary conditions of life and work. 38 C.F.R. §§ 4.2, 4.10; Brown, supra. Significantly, in a rating reduction case, 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 evaluating whether the condition has demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104(a) (2012). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran’s demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). 1. The reduction of the assigned rating for service-connected left knee instability from 20 to zero percent Under Diagnostic Code 5257, slight impairment of either knee, including recurrent subluxation or lateral instability, warrants a 10 percent evaluation. A 20 percent evaluation requires moderate impairment, while a 30 percent evaluation requires severe impairment. 38 C.F.R. § 4.71a. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The terms “mild,” “moderate,” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The use of terminology such as “moderate” or “severe” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Board does note, for reference and illustrative purposes, that the definitions for “mild” include not very severe. WEBSTER'S II NEW COLLEGE DICTIONARY at 694 (1995). In addition, a synonym for “mild” is “slight” and definitions for “slight” includes small in size, degree, or amount. Id at 1038. The definitions for “moderate” include of average or medium quantity, quality, or extent. Id. at 704. Finally, definitions for “severe” include extremely intense. Id. at 1012. It is also noted that the term “moderately severe” includes impairment that is considered more than “moderate” but not to the extent as to be considered “severe.” In this case, the record reflects the assigned rating for left knee instability was reduced based upon a January 2012 VA examination report, wherein the VA examiner found there was no instability of the left knee. Various medical treatment records also contain such findings. However, the Veteran’s lay statements indicate he continues to have instability. For example, he has indicated his left knee has not improved. Further, he has reported his left knee giving way, to include on VA examination in January 2012. Moreover, the VA examination and treatment records note use of a knee brace, which appears to be based upon his complaints of instability. The Board also notes the Veteran underwent left medial unicompartmental knee arthroscopy in January 2013. The fact that his left knee warranted surgery at that time is probative evidence against sustained improvement in the left knee disability. In view of the foregoing, the evidence of record reflects continued symptoms of instability, and therefore, the Veteran’s left knee warrants a compensable rating under Diagnostic Code 5257 during the period on appeal. This is particularly true when taking into consideration that pertinent regulatory provisions mandate resolving any reasonable doubt regarding the degree of disability in favor of the claimant, and where there is a question as to which of two evaluations applies, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. §§ 4.3 4.7. The Board also notes that since the time of the January 2012 VA examination, and the reduction of the assigned rating for left knee instability, the Court has issued the recent decision of English v. Wilkie, No. 17-2083 (U.S. Vet. App. November 1, 2018), which held that under Diagnostic Code 5257 VA cannot find objective medical evidence categorically more probative than lay evidence without explaining why that is the case. The Court explained that (1) objective medical evidence of knee instability is not required and (2) objective medical evidence is not categorically more probative than lay evidence. In view of the foregoing, the Board finds the evidence of record does not demonstrate the level of improvement in the Veteran’s left knee instability under ordinary conditions of life and work so as to warrant a rating reduction in this case. Therefore, the reduction of the assigned rating for the left knee instability from 20 to zero percent was not proper, and restoration of the 20 percent rating, effective May 1, 2013, is warranted. 2. The reduction of the assigned rating for service-connected degenerative joint disease of the left knee based upon limitation of motion from 20 to 10 percent Diagnostic Code 5260 provides for limitation of flexion of the leg. Where flexion is limited to 60 degrees, a 0 percent rating is provided; when flexion is limited to 45 degrees, 10 percent is assigned; when flexion is limited to 30 degrees, 20 percent is assigned; and when flexion is limited to 15 degrees, 30 percent is assigned. 38 C.F.R. § 4.71a. Diagnostic Code 5261 provides for limitation of the extension of the leg. When there is limitation of extension of the leg to 5 degrees, a zero percent rating is assigned; when the limitation is to 10 degrees, a 10 percent rating is assignable; when the limitation is to 15 degrees, 20 percent is assigned; when extension is limited to 20 degrees, 30 percent is assigned; when extension is limited to 30 degrees, 40 percent is assigned; and when it is limited to 45 degrees, 50 percent is assigned. 38 C.F.R. § 4.71a. The Board notes that full range of motion of the knee consists of 0 degrees extension and 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. In VAOPGCPREC 9-2004 VA’s Office of General Counsel held in that separate ratings under Diagnostic Codes 5260 and 5261 may be assigned for disability of the same joint. However, the record reflects the 20 percent rating was assigned pursuant to limitation of flexion under Diagnostic Code 5260. Moreover, the record has consistently indicated the Veteran’s left knee has not warranted a compensable rating under Diagnostic Code 5261 based upon limitation of extension. As such, the focus of this appeal will be the limitation of flexion pursuant to Diagnostic Code 5261. In this case, the Board observes that the reduction in the assigned rating for left knee limitation of motion was based, among other things, on the January 2012 VA examination report, which shows the left knee had flexion to 140 degrees and no change after repetitive motion testing. As such, it does not appear the Veteran had limitation of flexion to the extent necessary for a 20 percent rating under Diagnostic Code 5260. However, the Board must find that the relevant examination findings are not adequate for purpose of reducing the assigned rating. In pertinent part, the Board notes the record reflects the Veteran’s consistent reports of left knee pain. Relevant regulatory provisions require special consideration regarding the effect of pain in evaluating such disabilities. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Here, it does not appear adequate consideration was given to these provisions. In addition, the Board takes note that since the time of the January 2012 VA examination and the effective date of the rating decision, the Court has issued a decision in Sharp v. Shulkin, 29 Vet. App. 26 (2017) concerning the adequacy of VA orthopedic examinations, to include consideration of the effect of pain on range of motion findings. Here, it does not appear the January 2012 VA examination report fulfills the requirements outlined in Sharp. Further, the record reflects the Veteran has used medication to treat his service-connected left knee, to include his complaints of pain. The Court has held that in assigning a disability rating, VA may not consider the ameliorative effects of medication where such effects are not explicitly contemplated by the rating criteria. See Jones v. Shinseki, 26 Vet. App. 56 (2012). Here, it does not appear the January 2012 VA examination, or the rating decision which effectuated the rating reduction in this case, adequately addressed the effect of the Veteran’s use of such medications. As a result, the Board finds the examination results do not reflect the type of improvement necessary to support a rating reduction in this case. Finally, the January 2013 left knee surgery does not support the finding of sustained improvement in the disability.   In view of the foregoing, the Board must find the record does not demonstrate the Veteran’s service-connected degenerative joint disease of the left knee had the type of actual improvement in his range of motion under the ordinary conditions of life and work as to warrant a rating reduction. Thus, the 20 percent rating must be restored. M. M. CELLI Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD John Kitlas, Counsel