Citation Nr: 18154504 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 12-08 170 DATE: November 30, 2018 ORDER Restoration of a 20 percent rating for status post meniscectomy and plica excision, right knee, from March 1, 2011, is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to an increased rating for degenerative disc disease of the lumbar spine and facet joint arthropathy of the lumbar spine currently evaluated as 20 percent disabling, is dismissed. Entitlement to an increased rating for service connected left lower extremity lumbar pseudo radicular pain syndrome currently rated at 10 percent disabling, is dismissed. Entitlement to an increased rating for service connected right lower extremity lumbar pseudo radicular pain syndrome currently rated at 0 percent disabling, is dismissed. FINDING OF FACT 1. A January 2005 rating decision granted service connection for a status post meniscectomy and plica excision, right knee, and assigned a 10 percent rating, effective March 15, 2004. 2. A December 2006 rating decision awarded an increased rating for status post meniscectomy and plica excision, right knee, and assigned a 20 percent rating, effective May 18, 2006. 3. A September 2010 rating decision notified the Veteran of a proposed rating decision to reduce the ratings for the status post meniscectomy and plica excision, right knee, from 20 percent to 10 percent; the RO implemented the proposed reductions in a December 2010 rating decision, effective March 1, 2011. 4. The VA examination reports, on which the reduction for the status post meniscectomy and plica excision, right knee, was based, did not provide an adequate basis for the reductions. 5. On September 18, 2016, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of the issues of increased rating for bilateral lower extremity lumbar pseudo radicular pain syndrome and degenerative disc disease of the lumbar spine and facet joint arthropathy of the lumbar spine was requested. CONCLUSION OF LAW The reduction of the rating for the left knee disability from 20 percent to 10 percent, effective March 1, 2011, is void ab initio. The criteria for withdrawal of an appeal by the Veteran (or his or her authorized representative) have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1992 to July 2001. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which reduced the rating for status post meniscectomy and plica excision, right knee from 20 to 10 percent, effective March 1, 2011. The Veteran was scheduled for a Board hearing on July 1, 2016. The Veteran failed to appear for the requested hearing. Another hearing was scheduled on February 27, 2017. The Veteran requested that hearing be rescheduled since his wife was having oral surgery around that same time. The hearing was rescheduled for August 10, 2017. The notice for the new hearing date was returned undeliverable. The Veteran was scheduled for a new hearing on October 1, 2018 and notice was sent to his custodian. The Veteran failed to appear for the hearing and to date has not provided good cause for failing to appear. With regard to the propriety of the rating assigned for status post meniscectomy and plica excision, right knee, the provisions of 38 C.F.R. § 3.105 (e) allow for the reduction in evaluation of a service-connected disability when considered warranted by the evidence, but only after following certain procedural guidelines. See also 38 C.F.R. § 4.1 (a disability may require re-ratings over time in accordance with changes in law, medical knowledge, and the Veteran’s condition). Per a September 2010 rating decision evaluation of status post meniscectomy and plica excision, right knee was proposed to be reduced. The Veteran was notified of the decision in an October 2010 letter and the reasons for the reduction. Action taken to reduce the rating from 30 percent to 10 percent disabling, effective March 1, 2011 was taken pursuant to 38 C.F.R. § 3.105 (e) in a December 2010 rating decision. Thus, it is clear that the Veteran was given 60 days to present additional evidence to show that compensation payments should be continued at the 20 percent level. It should also be pointed out that the initial reduction, taken within less than five years from the award of the 20 percent rating, is not governed by the provisions of 38 C.F.R. § 3.344 (a)-(b) regarding stabilization of ratings. See Collier v. Derwinski, 2 Vet. App. 247, 249 (1992). Instead, a rating may be reduced on the basis of examination showing improvement. 38 C.F.R. § 3.344 (c). These matters were remanded in August 2016 for a hearing to be scheduled. This case has since been returned to the Board for appellate review, after the RO substantially complied with the Board’s remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). REDUCTIONS In any case involving a rating reduction, the fact-finder must ascertain, based upon a review of the entire record, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon a thorough examination. The provisions of 38 C.F.R. § 3.344 (a) require a review of the entire record of examinations and the medical-industrial history to ascertain whether the recent examination was full and complete. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings will not be reduced on any one examination, except where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated, and it is reasonably certain that any material improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344. If doubt remains, after according due consideration to all the evidence developed by the several items discussed in 38 C.F.R. § 3.344 (a), the rating agency will continue the rating in effect, citing the former diagnosis with the new diagnosis in parentheses. 38 C.F.R. § 3.344 (b). The provisions of paragraphs 3.344(a) and 3.344(b) apply to ratings which have continued for long periods at the same level (5 years or more). 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 reduction in rating. 38 C.F.R. § 3.344 (c). The rating at issue had been in effect for less than 5 years at the time of the reduction. Thus, 38 C.F.R. § 3.344 (a) and (b) are not for application. Nevertheless, in any case to warrant a reduction, it must be determined not only that an improvement in the disability level has actually occurred, but also that such improvement actually reflects an improvement in the ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420-21 (1993) (citing 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13). The reduction of a rating generally must have been supported by the evidence on file at the time of the reduction, but pertinent post-reduction evidence favorable to restoring the rating must also be considered. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). If there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt shall be resolved in favor of the Veteran. In other words, a rating reduction must be supported by a preponderance of the evidence. 38 U.S.C. § 5107 (a); see also Brown, 5 Vet. App. at 421. 1. Whether the reduction from a 20 percent to a 10 percent rating for right knee status post meniscectomy and plica excision was proper. Historically, a January 2005 rating decision granted service connection for a right knee status post meniscectomy and plica excision and assigned 10 percent rating under Diagnostic Codes (DCs) 5099-5003, effective March 15, 2004. In a December 2006 rating decision, the RO changed the DCs for the right knee status post meniscectomy and plica excision to DCs 5010-5260 and increased the disability rating to 20 percent disabling, effective May 18, 2006. Following an August 2010 VA examinations, the RO proposed to reduce the rating for right knee status post meniscectomy and plica excision in a September 2010 rating decision. Subsequently, in an December 2010 rating decision, the RO reduced the rating for the right knee status post meniscectomy and plica excision from 20 percent to 10 percent effective March 1, 2011. On appeal, the Veteran contends that the reduction of his right knee disability was improper. The Veteran’s knee disability was rated as 20 percent disabling under 38 C.F.R. § 4.71a DC 5010-5260 for leg flexion limitation to 30 degrees prior to reduction and is currently rated under DC 5259 at 10 percent disabling. The Veteran’s right knee disability was rated under DCs 5010-5260 prior to the reduction. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. Under DC 5010, applicable to traumatic arthritis, traumatic arthritis is rated as degenerative arthritis under DC 5003. DC 5003 provides for rating on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint involved. Under DC 5260, limitation of flexion of a leg warrants a 10 percent rating is if flexion is limited to 45 degrees, and a 20 percent rating is warranted if flexion is limited to 30 degrees. 38 C.F.R. § 4.71a. The Veteran’s right knee disability is currently rated under DC 5259. DC 5259 assigns a 10 percent rating when the joint remains “symptomatic” following removal of the meniscus. 38 C.F.R. § 4.71a. Normal range of motion of the knee is 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that 38 C.F.R. § 4.59 creates range of motion testing requirements with which VA must comply. 38 C.F.R. § 4.59 provides, “The 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.” The RO based the 20 percent disability rating for the right knee disability on the result of an August 2006 VA joints examination report based on flexion limited to 30 degrees. A VA joints exam in August 2010 showed objective evidence of crepitus tenderness and guarding of movement. Flexion was 0 to 115 with normal extension. Painful motion began at 110 degrees and ended at 115 degrees. Extension was without pain. There was objective evidence of pain on active motion and with repetitive motion but there were no additional limitations after three repetitions of range of motion. The examiner diagnosed right knee patellofemoral joint syndrome status post mastectomy and plica excision of the right knee. When examined in July 2011 the Veteran reported continued pain to the right knee and use of a cane for ambulation. He reported his right knee joint symptoms included a give way sensation, instability, pain, stiffness, weakness, decreased speed of joint motion, and having locking episodes one to three times a month. The flare ups were reported as being severe and occurred three times a week and last from 1 to 2 days. The flare ups were precipitated when walking upstairs or up/down a hill or with prolonged sitting. He reported the flare ups were alleviated with elevation, medication, and rest. He reported not being able to stand for more than a few minutes and could not walk more than a few yards. The physical examination noted an antalgic gait and that the Veteran used a cane with standing and walking. The right knee had tenderness crepitus, and guarding of movement. There was no evidence for instability, patellar abnormality, no effusion, dislocation or locking noted. The examiner noted the meniscus has been surgically removed. There was no abnormality of the tendons or bursae. The summary of the range of motion for the right knee flexion 0 to 110 degrees with full extension. There was objective evidence of pain on motion and following repetitive motion. The additional loss of motion was due to pain with flexion from 0 to 100 degrees with full extension X ray findings referred to minimal arthritis and MRI findings for chondromalacia patella and persistent lateral joint space effusion. The reduction from a 20 percent to a 10 percent rating for the Veteran’s left knee disability was predicated primarily on the August 2010 VA medical examination, which indicated that the range of motion testing of the left knee, at worst, was to 110 degrees for flexion and testing for extension was normal. The Veteran was given another examination in July 2011 which resulted in similar findings. The above evidence reflects, however, that the August 2010 and July 2011 examinations failed to address pain on passive motion, or specify ranges of motion on weight-bearing and non-weight-bearing for both the joint in question and the paired joint. This was contrary to Correia, 28 Vet. App. at 16-70 (the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint). Thus, they are inadequate for adjudication purposes and cannot be the basis of the rating reduction. Schafrath v. Derwinski, 1 Vet. App. at 594 (reduction cannot be based upon an incomplete examination report). Thus, because the RO relied on an inadequate examination reports in reducing the rating, the reduction from 20 to 10 percent for left knee disability is void ab initio, and the 20 percent rating is restored. WITHDRAWN ISSUES The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In his September 2016 Statement in Support of Claim, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew the issues of entitlement to an increased rating for degenerative disc disease of the lumbar spine and facet joint arthropathy of the lumbar spine and bilateral lower extremity lumbar pseudo radicular pain syndrome. As the Veteran has withdrawn these appeals and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review these issues on appeal and they are dismissed. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Whitley, Associate Counsel