Citation Nr: 18152185 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 17-36 014 DATE: November 21, 2018 ORDER The 20 percent rating for left knee status postoperative arthroscopic surgery with chondromalacia and degenerative joint disease is restored. The 20 percent rating for right knee degenerative joint disease is restored. REMANDED Entitlement to a rating in excess of 20 percent for left knee status postoperative arthroscopic surgery with chondromalacia and degenerative joint disease is remanded. Entitlement to a rating in excess of 20 percent for right knee degenerative joint disease is remanded. FINDINGS OF FACT 1. In a January 2016 rating decision, the RO reduced the Veteran’s rating from 20 percent to 10 percent for both the left and right knee disabilities. 2. At the time of the April 1, 2016 effective date of these reductions, the 20 percent ratings for the Veteran’s left and right knee disabilities had been in effect for more than five years. 3. The VA examination that served as the basis for these reductions was inadequate. CONCLUSIONS OF LAW 1. The reduction of the rating for a service-connected left knee disability was improper and restoration of the 20 percent rating effective April 1, 2016 is warranted. 38 U.S.C. §§ 1155, 5103; 38 C.F.R. §§3.102, 3.105, 3.344, 4.71a, Diagnostic Code 5010-5260. 2. The reduction of the rating for a service-connected right knee disability was improper and restoration of the 20 percent rating effective April 1, 2016 is warranted. 38 U.S.C. §§ 1155, 5103; 38 C.F.R. §§3.102, 3.105, 3.344, 4.71a, Diagnostic Code 5003-5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1995 to December 1998. Following the January 2016 final rating decision reducing the ratings for his left and right knee disabilities, the Veteran filed a March 2016 increase rating claim of his right and left knee disabilities. Thereafter, he was issued a July 2016 rating decision denying an increase rating for these disabilities. The Board must liberally construe the Veteran’s September 2016 notice of disagreement. See 38 C.F.R. § 20.201; Szemraj v. Principi, 357 F.3d 1370 (Fed. Cir. 2004); Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (VA has an obligation to liberally construe the pleadings of a claimant to discern all issues raised in the record); Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006) (VA is required to construe all of a pro se Veteran’s pleadings sympathetically); Ingram v. Nicholson, 21 Vet. App. 232, 243 (2007). Since this notice of disagreement was submitted within one year of the final rating decision reducing the ratings for his knee disabilities and the temporal proximity of his increase rating claims to these reductions, the Board finds that the Veteran did not agree with the rating reduction for his left and right knee. This finding is further supported by the Veteran’s November 2015 correspondence submitting additional evidence in response to the proposed reductions. Consequently, these rating reductions are on appeal, along with the Veteran’s increased rating claims. 1. Rating Reduction: Left knee 2. Rating Reduction: Right knee A rating reduction is warranted only where the evidence demonstrates an actual improvement in the disability. See 38 C.F.R. § 4.13. The Board must establish, by a preponderance of the evidence and in compliance with 38 C.F.R. § 3.344, that a rating reduction is warranted. Green v. Nicholson, 21 Vet. App. 512 (2006). If there is any doubt, the rating in effect will be continued. See Brown v. Brown, 5 Vet. App. 413, 417-18 (1993). In the instant case, these rating reductions resulted in a reduction of VA compensation being paid to the Veteran as the overall, combined disability rating was reduced by 10 percent. Thus, the procedural protections of 38 C.F.R. § 3.105(e) apply. Moreover, the Veteran is entitled to the protections under 38 C.F.R. § 3.344(a) and (b). The 20 percent ratings for his knee disabilities were awarded effective January 22, 2010, and were reduced effective April 1, 2016. Accordingly, these disability ratings were in effect for more than five years. Therefore, only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction in this case. See 38 C.F.R. §§ 4.2, 4.10; Brown v. Brown, 5 Vet. App. 413, 420 (1993). Such reports of examination must be interpreted in the light of the whole evidentiary history and reconciled with the various reports into a consistent picture, so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. These provisions also prohibit a reduction on the basis of a single examination. See Brown v. Brown, 5 Vet. App. 413, 417-18 (1995). These reductions were improper because they were based on a single, inadequate VA examination, and failed to adhere to the protections under 38 C.F.R. § 3.344. The January 2016 final rating decision indicates that the basis for the reduction was only the October 2015 VA knee examination. This is impermissible. See Brown, supra. Moreover, the October 2015 VA knee examination is inadequate due to the examiner’s failure to provide an opinion on whether the Veteran’s flare-ups resulted in additional functional loss. The Court in Sharp v. Shulkin noted that for a joint examination to be adequate, the examiner “must express an opinion on whether pain could significantly limit” a veteran’s functional ability, and that determination “should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.” The Court stated that the examiner must “obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment [resulting from flare-ups] from the veterans themselves.” Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017). When flare-ups are reported, the examiner must offer opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans; and the examiner’s determination should, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups. See id. at 34-36. The Veteran reported flare-ups during the October 2015 examination, to include that his left knee had episodes of pain, locking, swelling and giving out. The examiner did not attempt to give an opinion on the additional functional limitation caused by flare-ups, because the Veteran was not being evaluated during a flare-up and so this examination is inadequate. As these reductions were based on an inadequate examination, they are void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999) (when an RO reduces a Veteran’s disability rating without following the applicable regulations, the reduction is void ab initio). Finally, the provisions of 38 C.F.R. § 3.344 were not met. The final January 2016 rating decision is absent for consideration by the RO of whether there was sustained material improvement of the Veteran’s knee disabilities. The RO also did not address whether any improvement in these knee disabilities 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, supra. In sum, the Board finds that the rating reductions of the left and right knee disabilities from 20 to 10 percent were based on a single and inadequate examination, as well as improper consideration of the governing regulations. Based on the forgoing, restoration of a 20 percent rating for both the left and right knee disabilities is warranted effective April 1, 2016. REASONS FOR REMAND 1. Increase Rating: Left knee 2. Increase Rating: Right knee As indicated above, the VA examination of record does not comply with Sharp v. Shulkin. The Veteran has complained of flare-ups as manifested by pain, locking, swelling and giving out. His September 2016 notice of disagreement further spoke of incapacitating episodes. Accordingly, this matter is remanded for an examination compliant with Sharp to adequately address the Veteran’s reported flare-ups and resulting functional limitation. Moreover, the pertinent medical evidence indicates that the Veteran has a left knee meniscal condition. Separate ratings for knee disabilities may be assigned for disability of the same joint, if none of the symptomatology on which each rating is based is duplicative or overlapping. See VAOPGCPREC 9-04 (2004); 69 Fed. Reg. 59,990 (2004); 38 C.F.R. § 4.14. Recently, the Court has found that there is no bar to the assignment of an additional rating for a meniscal disability, in conjunction to the other knee diagnostic codes contemplating functional impairment due to limitation of motion, instability, and subluxation. See Lyles v. Shulkin, No. 16-0994, slip op. at 8-10 (Vet. App. Nov. 29, 2017). As this matter is being remanded, the RO should consider any possible entitlement the Veteran might have to a separate rating for his left knee meniscal disability. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and severity of his service-connected left and right knee disabilities. All necessary tests and studies should be accomplished. The examination report must include a complete rationale for all opinions expressed. (a.) The VA examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, or incoordination associated with the left and right knee. If pain on motion is observed, the VA examiner should indicate the point at which pain begins. To the extent possible, the VA examiner should express any additional functional loss in terms of additional degrees of limited motion. (b.) The examiner should also state whether the examination is taking place during a period of flare-ups. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairments he experiences during a flare-up and/or after repeated use over time. (c.) Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time, to include swelling and incapacitating episodes as provided in his September 2016 notice of disagreement. 2. Thereafter, readjudicate the claim and give consideration as to whether a separate rating is warranted for a left knee meniscal disability, in conjunction to whether an increase is warranted under the other applicable knee diagnostic codes. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Dellarco, Associate Counsel