Citation Nr: 18151678 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 16-49 582 DATE: November 20, 2018 ORDER Restoration of a rating of 30 percent for right knee tenosynovitis with limitation of extension and degenerative arthritis, from the effective date of the reduction, is granted. REMANDED Service connection for a low back disability is remanded. Service connection for a left knee disability is remanded. Entitlement to a disability rating in excess of 30 percent for right knee tenosynovitis with limitation of extension and degenerative arthritis is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The reduction of the rating for right knee tenosynovitis with limitation of extension and degenerative arthritis from 30 percent to noncompensable, effective October 1, 2017, failed to comply with applicable law and regulations. CONCLUSION OF LAW Reduction of the rating for right knee tenosynovitis with limitation of extension and degenerative arthritis from 30 percent to noncompensable, effective October 1, 2017, was not proper. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.2, 4.10, 4.13, 4.85, Diagnostic Codes 5024-5261 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from May 1979 to October 1979. These matters are on appeal from March 2016 and July 2017 rating decisions. The Board acknowledges that the Veteran submitted a Rapid Appeals Modernization Program (RAMP) opt-in election form that was received by VA on July 30, 2018. However, the appeals for these claims have already been activated at the Board and they are therefore no longer eligible for the RAMP program at this time. Accordingly, the Board will undertake appellate review of the case. 1. Right Knee Tenosynovitis with Limitation of Extension and Degenerative Arthritis – Rating Reduction Where a reduction in the rating of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons. The Agency of Original Jurisdiction (AOJ) must also notify the Veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. 38 C.F.R. § 3.105 (e) (2017). These procedural requirements were satisfied in a November 2016 rating decision. In Brown v. Brown, 5 Vet. App. 413 (1993), the U. S. Court of Appeals for Veterans Claims (Court) identified general regulatory requirements that are applicable to all rating reductions, including those which have been in effect for less than five years. Id. at 417. Pursuant to 38 C.F.R. § 4.1, it is essential, both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history. Id. at 420. Similarly, 38 C.F.R. § 4.2 establishes that “[i]t is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of the disability present.” Id. The Court has held that these provisions “impose a clear requirement” that rating reductions be based on the entire history of a veteran’s disability. Id. Furthermore, the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. 38 C.F.R. § 4.13. Additionally, in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work. See Brown, 5 Vet. App. at 420-421; see also 38 C.F.R. §§ 3.344(c), 4.2, 4.10 (2017). A claim as to whether a rating reduction was proper must be resolved in the Veteran’s favor unless VA concludes that a fair preponderance of evidence weighs against the claim. Brown, 5 Vet. App. at 421. When VA reduces a veteran’s disability rating without observing applicable laws and regulations, the rating is void ab initio and not in accordance with the law. See Hayes v. Brown, 9 Vet. App. 67, 73 (1996) (citing Kitchens v. Brown, 7 Vet. App. 320, 325 (1995)). In reducing the Veteran’s disability rating for right knee tenosynovitis with limitation of extension and degenerative arthritis from 30 percent to noncompensable, effective October 1, 2017, the AOJ in its July 2017 rating decision cited the results of a November 2016 VA examination. The decision explained how the results of that examination did not meet the criteria for a 10 percent rating. However, the AOJ’s decision contains no consideration of the Veteran’s history other than that examination and no finding that the record reflected any actual improvement in the Veteran’s ability to function under ordinary conditions of life and work. The AOJ’s November 2017 Statement of the Case (SOC) cites a subsequent VA examination but also contains no such analysis. Because the AOJ failed to consider and apply the applicable laws and regulations in its reduction of the Veteran’s disability rating for right knee tenosynovitis with limitation of extension and degenerative arthritis, the prior 30 percent rating must be restored, effective October 1, 2017. REASONS FOR REMAND 1. Service connection for a low back disability is remanded. VA must provide an examination with regard to a claim for disability compensation when there is competent evidence of a disability that may be associated with an in-service disease, injury or event, but there is insufficient information to make a decision on the claim. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). During a September 2013 private treatment appointment, the Veteran reported low back pain; on examination, lateral flexion was moderately to markedly restricted. During a January 2016 VA examination of his knees, the Veteran reported that his knee symptoms affected his lower back as he walked. In his June 2016 Notice of Disagreement (NOD), the Veteran ascribed his low back symptoms to favoring the other side of his body due to his service-connected right knee disability. In a July 2018 statement, the Veteran reported that a VA treatment provider had told him that his right knee had affected his low back and provided that provider’s name and contact information. The threshold for determining whether the evidence “indicates” that there “may” be a nexus between a current disability and an in-service event, injury, or disease is a low one. Id., at 83. This evidence meets that threshold, and an examination is necessary. In addition, every veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disabilities noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C. § 1111 (2012). If a condition is noted on an entrance examination report, the presumption of soundness does not attach - the only benefits that can be awarded are for aggravation of such condition by application of 38 U.S.C. § 1153 (2012) and 38 C.F.R. § 3.306 (2017). Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). However, a history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1). During the Veteran’s March 1979 entrance examination, the examiner found the Veteran’s spine to be normal. The presumption of soundness therefore attaches. At the time of the examination, the Veteran also denied any history of recurrent back pain. However, an August 1979 service treatment record notes a six-year history of low back pain and a provisional diagnosis of thoracic scoliosis. The record thus indicates that the Veteran might have had a back disability prior to his active duty service and an opinion is needed to address this. 2. Service connection for a left knee disability is remanded. During a January 2016 VA examination of his knees, the Veteran reported flare ups of stiffness and swelling in his left knee. The examiner noted pain on flexion and extension but found that it did not cause functional loss. The examiner also noted pain with weight bearing, that the Veteran was unable to complete repetitive use testing of his left knee due to pain, and that left knee symptoms included decreased movement and interference with sitting or standing. In his June 2016 Notice of Disagreement (NOD), the Veteran ascribed his left knee symptoms to favoring the other side of his body due to his service-connected right knee disability. In a July 2018 statement, the Veteran reported that a VA treatment provider had told him that his right knee had affected his left knee and provided that provider’s name and contact information. A remand is necessary to obtain an additional opinion reflecting the decision in Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018), that “pain in the absence of a presently-diagnosed condition can cause functional impairment.” 3. Entitlement to a disability rating in excess of 30 percent for right knee tenosynovitis with limitation of extension and degenerative arthritis is remanded. In a December 2017 statement, the Veteran reported that his VA treatment provider, J. W., PA-C, had found his right knee to have worsened and had determined that it is “impossible to heal or get better.” The Veteran provided the treatment provider’s name and contact information “for her to be contacted.” On remand, the AOJ should contact this treatment provider as the Veteran has requested. 4. Entitlement to a TDIU is remanded. A VA examiner in January 2016 found that the Veteran was unable to work due to knee symptoms including pain and difficulty with walking and standing. In an August 2017 statement, the Veteran contended that he was unemployed due to “[l]ack of mobility of my knee.” The Board finds that the issue of entitlement to a TDIU has been raised by these statements in connection with the claims on appeal for an increased rating for the Veteran’s right knee tenosynovitis with limitation of extension and degenerative arthritis and for service connection for a left knee disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the AOJ should develop a claim for a TDIU. The matters are REMANDED for the following action: 1. Provide the Veteran and his representative with notice concerning how to substantiate the claim for a TDIU, to include providing him with a VA Form 21-8940. 2. Contact the VA treatment provider identified by the Veteran in his December 2017 and July 2018 letters, J.W., PA-C, as requested by the Veteran and request a statement from her regarding severity of his service-connected right knee tenosynovitis with limitation of extension and degenerative arthritis. 3. Schedule the Veteran for an examination with an appropriate clinician for his low back disability. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner is advised that, even if there is no diagnosable pathology of the low back, he or she must consider pain to constitute a disability if it causes functional impairment. The examiner should provide opinions as to the following: a. whether a low back disability clearly and unmistakably existed prior to service entrance and, if so, b. whether any such disability was clearly and unmistakably not aggravated (i.e., not worsened beyond the natural progression) during or as a result of service. c. If the examiner does not find that a low back disability clearly and unmistakably existed prior to service entrance, then the examiner must provide opinions as to the following: i. whether it is at least as likely as not (a probability of 50 percent or greater) that any current low back disability had its origin in service, or; is related to the Veteran’s active service, or; if arthritis is present, whether it manifested within one year after separation from service. ii. whether it is as least as likely as not that any current low back disability was caused by the Veteran’s service-connected right knee disabilities. iii. whether it is as least as likely as not that any current low back disability was aggravated beyond its natural progression by the Veteran’s service-connected right knee disabilities. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the August 1979 service treatment record noting a six-year history of low back pain. The rationale for any opinion expressed should be provided. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 4. Arrange for an opinion by an appropriate clinician to determine the etiology of the Veteran’s left knee disability. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. A new examination is only required if deemed necessary by the examiner. The examiner is advised that, even if there is no diagnosable pathology of the left knee, he or she must consider pain to constitute a disability if it causes functional impairment. The examiner should provide opinions as to the following: a. whether it is at least as likely as not (a probability of 50 percent or greater) that any current left knee disability had its origin in service or within one year thereafter or is related to the Veteran’s active service. b. whether it is as least as likely as not that any current left knee disability was caused by the Veteran’s service-connected right knee disabilities. c. whether it is as least as likely as not that any current left knee disability was aggravated beyond its natural progression by the Veteran’s service-connected right knee disabilities. The rationale for any opinion expressed should be provided. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. (Continued on the next page)   5. Readjudicate the claims, including the TDIU claim. If any decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Ryan Frank, Counsel