Citation Nr: 18155744 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-55 807 DATE: December 6, 2018 ORDER The appeal for restoration of a 40 percent rating for left knee moderate osteoarthritis is granted; the 40 percent rating is restored, effective August 1, 2011. Entitlement to an effective date prior to August 1, 2011 for the grant of a 20 percent rating for left knee moderate osteoarthritis, having been rendered moot, is dismissed. REMANDED Entitlement to an increased rating in excess of 40 percent for left knee moderate osteoarthritis is remanded. FINDINGS OF FACT 1. The VA examination used to justify the Veteran’s reduction from 40 percent to 10 percent for left knee moderate osteoarthritis was inadequate. 2. The effective date of August 1, 2011 for the grant of a 20 percent rating for left knee moderate osteoarthritis is now moot because the Veteran’s 40 percent rating has been restored during that time period. CONCLUSIONS OF LAW 1. The criteria for restoration of a 40 percent rating for left knee moderate osteoarthritis, effective August 1, 2011, have been met. 38 U.S.C. §§ 1155, 5107, 5112 (2012); 38 C.F.R. §§ 3.105, 3.344 (2017); Tucker v. Derwinski, 2 Vet. App. 201 (1992). 2. There are no remaining questions of fact or law to be decided for the issue of entitlement to an effective date prior to August 1, 2011 for the grant of a 20 percent rating for left knee moderate osteoarthritis. 38 U.S.C. § 7104 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1979 to December 1983 and February 1986 to November 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA). 1. Whether the reduction from 40 percent to 10 percent for left knee moderate osteoarthritis, effective August 1, 2011, was proper. In a rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but also that the improvement actually reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420-21 (1993); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In considering the propriety of a reduction, the Board must focus on the evidence of record available to the AOJ at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition has demonstrated actual improvement. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). If the VA examination report justifying the rating reduction is inadequate, the reduction cannot be upheld. See Tucker v. Derwinski, 2 Vet. App. 201 (1992) (holding that the failure of the examiner in that case to review the claims file rendered the reduction decision void ab initio). At the outset, the Board notes that the Veteran’s rating was not in place for more than five years at the time of the reduction and all procedural due process requirements were fulfilled. See 38 C.F.R. §§ 3.105(e), 3.344. After review of the record, the Board finds that restoration of the Veteran’s 40 percent rating is warranted. Specifically, the April 2010 VA examination used to support the reduction is inadequate. The U.S. Court of Appeals for Veterans’ Claims (Court) has held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations must include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing circumstances, and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). Thus, the Court clarified the requirements that must be met with respect to orthopedic disability examinations prior to a finding that an examination report is adequate. Id. The Veteran’s April 2010 VA examination was inadequate because it did not include range of motion testing for either knee in passive motion, and in weight-bearing, and non-weight-bearing circumstances. Indeed, none of the VA examinations of record during the appeal period comply with Correia. See January 2014 and May 2016 VA examinations. In light of the inadequacy of the April 2010 VA examination report, the Board may not conclude that the evidence was adequate to support the rating reduction at issue. Thus, the reduction was improper, and the appeal is granted. 2. Entitlement to an effective date prior to August 1, 2011 for the grant of an increased rating of 20 percent for left knee moderate osteoarthritis. The Veteran has disagreed with the effective date of August 1, 2011 of the the grant of a 20 percent disability rating for left knee moderate osteoarthritis assigned in the November 2013 rating decision. Pursuant to the Board’s decision, the Veteran’s rating of 40 percent for left knee moderate osteoarthritis has been restored. Thus, the effective date for the increase to 20 percent is considered moot, because the Veteran’s rating is now continued at 40 percent, a benefit greater than the one sought. Accordingly, having been rendered moot, the appeal is dismissed. REASONS FOR REMAND Entitlement to an increased rating in excess of 40 percent for left knee moderate osteoarthritis is remanded. As previously discussed, VA examinations must include joint testing on both active and passive motion, and in weight-bearing and non-weight-bearing circumstances. Correia v. McDonald, 28 Vet. App. 158 (2016). Additionally, estimated ranges of motion should be provided during flare-ups, if feasible, even if the Veteran is not experiencing one during the examination. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). In this case, the VA knee examinations of record do not fully comport with the requirements of Correia or Sharp. See, e.g., May 2016 VA examination. Thus, remand is necessary for a new VA knee examination. The matter is REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records for the Veteran’s disabilities from January 2010 to March 2013 and August 2018 to the present. 2. After the above development is completed, the AOJ should arrange for an orthopedic examination of the Veteran to assess the current severity of his service-connected knee disability. The examiner must review the entire record and note such review was conducted. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. All indicated tests or studies should be completed. Range of motion measurements must be included for active and passive motion, and weight-bearing and non-weight-bearing circumstances, including for the opposite undamaged joint. If pain is noted, the point in the range of motion at which pain starts should be clearly noted. If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered; a rationale based on the fact that the Veteran is not having a flare-up at the time of the examination will not be deemed adequate. CONTINUED ON NEXT PAGE   3. If upon completion of the above action the issue remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Sandler, Associate Counsel