Citation Nr: 18156495 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 16-01 356 DATE: December 11, 2018 ORDER Reduction of the evaluation for osteoarthritis of the right knee, status post meniscectomy with limitation of extension was improper, and the 30 percent evaluation is restored effective September 1, 2014. Reduction of the evaluation for right knee instability from 10 percent to 0 percent was improper, and the 10 percent evaluation is restored effective January 24, 2015. Entitlement to special monthly compensation (SMC) for the period from January 25, 2015, based on being housebound is denied. Entitlement to SMC based on the need for the regular aid and attendance of another person is denied. FINDINGS OF FACT 1. The record does not clearly demonstrate that the Veteran’s service-connected osteoarthritis of the right knee, status post meniscectomy with limitation of extension exhibited improvement, and the reduction in the disability rating from 30 to 10 percent was therefore improper. 2. The record does not clearly demonstrate that the Veteran’s service-connected right knee instability exhibited improvement, and the reduction in the disability rating from 10 to 0 percent was therefore improper. 3. The Veteran is not shown to be blind, or nearly blind, or institutionalized in a nursing home on account of service-connected physical or mental incapacity; his service-connected disabilities are not shown to render him unable to care for most of his daily personal needs without regular assistance from others or to protect herself from the hazards and dangers of his daily environment; he has also not been rendered housebound. CONCLUSIONS OF LAW 1. Restoration of the 30 percent evaluation for the Veteran’s osteoarthritis of the right knee, status post meniscectomy with limitation of extension is warranted effective September 1, 2014. 38 U.S.C. §§ 1155, 5110, 5112, 5107 (2012); 38 C.F.R. §§ 3.344, 3.500, 4.1, 4.10, 4.71a, Diagnostic Code 5003-5621 (2017). 2. Restoration of the 10 percent evaluation for the Veteran’s right knee instability is warranted effective January 24, 2015. 38 U.S.C. §§ 1155, 5110, 5112, 5107 (2012); 38 C.F.R. §§ 3.344, 3.500, 4.1, 4.10, 4.71a, Diagnostic Code 5257 (2017). 3. For the period from January 25, 2015, the criteria for an award of SMC based on housebound status have not been met. 38 U.S.C. §§ 1114(l), (s) (2012); 38 C.F.R. §§ 3.350, 3.352 (2017). 4. The criteria for an award of SMC based on the need for regular aid and attendance of another person have not been met. 38 U.S.C. §§ 1114 (2012); 38 C.F.R. §§ 3.350, 3.352 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Rating Reductions VA’s Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.10 (2017). In VA’s Rating Schedule, separate diagnostic codes identify the various disabilities. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10. Over a period of many years, a Veteran’s disability claim may require ratings in accordance with changes in laws, medical knowledge, and his or her physical or mental condition. 38 C.F.R. § 4.1. For disability ratings in effect for less than five years, reexaminations disclosing improvement, physical or mental, in a service-connected disability will warrant a reduction in rating. 38 C.F.R. § 3.344(c) (2017). 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 had demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). Prior to reducing a Veteran’s disability rating, VA is required to “comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect.” Faust v. West, 13 Vet. App. 342, 349 (2000), citing 38 C.F.R. §§ 4.1, 4.2, 4.10. These general provisions “impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon review of the entire history of the Veteran’s disability.” Id., citing Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The Court has held that such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Thus, in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that 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, 421 (1993); see also 38 C.F.R. § 3.344(c). Degenerative or traumatic arthritis established by X-ray findings will be rated based on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is warranted for x-ray evidence of arthritis with evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is warranted for x-ray evidence of arthritis with evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. Evaluations for limitation of extension of the knee are assigned as follows: extension limited to 10 degrees is 10 percent; extension limited to 15 degrees is 20 percent; extension limited to 20 degrees is 30 percent; extension limited to 30 degrees is 40 percent; and extension limited to 45 degrees is 50 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Instability of the knee is evaluated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under that Diagnostic Code, a 10 percent evaluation is warranted where impairment of the knee involves slight subluxation or lateral instability. A 10 percent evaluation is assigned where there is slight impairment. A 20 percent evaluation is warranted where the impairment is moderate, and a 30 percent evaluation will be assigned where the impairment is severe. Impairment of the tibia and fibula will be evaluated as 20 percent disabling where there is moderate knee or ankle disability, and as 30 percent disabling where there is marked knee or ankle disability. 38 C.F.R. § 4.71a, Diagnostic Code 5262. For disabilities evaluated based on limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997); 38 C.F.R. § 4.59. The Veteran has been in receipt of VA disability benefits for his knee disabilities for many years. The 30 percent evaluation for right knee osteoarthritis was granted under Diagnostic Code 5003-5262 (arthritis with impairment of the tibia and fibula) in a December 2004 rating decision. The AOJ assigned an effective date of February 3, 1998 (the date of receipt of the Veteran’s claim for increase). In an April 2010 rating decision, the AOJ evaluated the Veteran’s right knee osteoarthritis under Diagnostic Code 5003-5261 (arthritis with limitation of extension), and has continued that characterization of the disability since then. The Veteran submitted a claim for increase in October 2012. In a December 2012 rating decision, the AOJ proposed to reduce the evaluation for right knee osteoarthritis with limitation of extension to 10 percent. In a June 2014 rating decision, the AOJ carried out the proposed reduction. It also granted service connection for lateral instability of the right knee and assigned a 10 percent evaluation. In a March 2017 rating decision, the AOJ decreased the evaluation of right knee instability to zero percent. On VA examination in March 2010, the examiner noted a flexion contracture of the right knee to 20 degrees. There was medial and lateral joint line tenderness and evidence of osteophytosis. An October 2010 VA examination report reflects right knee extension to 10 degrees. The diagnosis was severe degenerative disease of the knee, status post meniscectomy. On VA examination in November 2012, the Veteran reported pain in his right knee of 10/10 severity. He stated that flare-ups occurred every two to three days, lasting several days. Range of motion testing revealed flexion to 90 degrees with pain at 90 degrees, and extension to five degrees with no objective evidence of pain. Stability testing was normal. The examiner incorrectly stated that the Veteran had no meniscal conditions or surgical procedures for a meniscal condition. Based on this examination, the AOJ proposed to reduce the evaluation for right knee osteoarthritis from 30 to 10 percent. That reduction was carried out in June 2014. An April 2014 VA examination report indicates that right knee extension was to 10 degrees, with pain at 10 degrees. Joint stability testing revealed anterior instability bilaterally. Based on this examination, the AOJ granted a separate 10 percent evaluation for instability of the right knee. On VA examination in January 2015, the examiner indicated that the Veteran did not report flare-ups; however, he also noted the Veteran’s report of chronic knee pain that was worse with activity and cold weather. The examiner reported flexion to 120 degrees and extension to zero degrees, but did not indicate the point at which the Veteran experienced pain. He indicated that there was no instability. Based on this examination, the AOJ reduced the evaluation of right knee instability from 10 percent to zero percent. On VA examination in August 2017, the diagnosis was meniscal tear and degenerative arthritis. The Veteran endorsed flare-ups and described throbbing pain of 8/10 severity. He noted that during flares, he could not walk, stand, run, or bend. Range of motion testing revealed flexion to 90 degrees and extension to zero degrees; the examiner indicated that there was pain on examination, but did not report the point during motion at which the Veteran experienced pain. The examiner indicated that pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time, but indicated that he could not describe limitation in terms of lost range of motion. VA outpatient records for the period pertaining to this appeal include those noting the Veteran’s complaints of knee pain and his use of a cane because of difficulty ambulating. Knee braces were issued in March 2012, and an orthopedist stated that month that the Veteran was not a surgical candidate due to his severe diabetes. There are also references to the need for total knee replacement, which had been precluded by the Veteran’s uncontrolled diabetes mellitus. Having carefully reviewed the record, the Board finds that restoration of the 30 percent evaluation for osteoarthritis of the right knee and of the 10 percent evaluation for lateral instability of the right knee is in order. In this regard, it is not entirely clear that the various examination reports of record reflect improvement in the Veteran’s right knee disability. As noted in the VA outpatient records, total knee replacement has been recommended for many years, and the Veteran has been issued both a cane and braces for assistance in ambulation. While the November 2012 examination appears to reflect improved range of motion, the examiner did not discuss how the Veteran’s report of 10/10 pain and severe and frequent flare-ups might affect his range of motion. The January 2015 examination report also appears to show greater range of motion; however, the examiner did not state the point during range of motion testing at which the Veteran experienced functional loss due to pain. The August 2017 VA examiner also failed to identify the point during examination at which the Veteran experienced pain. The Board also observes that those examiners who reported no instability did not address the previous finding of such by the April 2014 VA examiner, and how their negative findings comported with the previous finding of instability. Thus, the Board has determined that it cannot be stated that the record demonstrated sustained improvement in the Veteran’s right knee disability. Accordingly, the 30 percent evaluation for osteoarthritis and the 10 percent evaluation for instability are restored. In sum, the Board finds that the AOJ failed to observe applicable law and regulation in reducing the disability ratings assigned for the appellant’s service-connected right knee disability. Under these circumstances, the reductions are void ab initio. Brown, 5 Vet. App. at 422. Special Monthly Compensation SMC is payable at a specified rate if the Veteran, as the result of service-connected disability, is permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l) (2012); 38 C.F.R. § 3.350(b) (2017). The following will be accorded consideration in determining the need for regular aid and attendance: inability of claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. “Bedridden” will be a proper basis for the determination. 38 C.F.R. § 3.352(a) (2017). For the purposes of 38 C.F.R. § 3.352(a), “bedridden” will be a proper basis for the determination of whether the Veteran requires regular aid and attendance of another person. “Bedridden” will be that condition which, through its essential character, actually requires that the Veteran remain in bed. The fact that the Veteran has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. 38 C.F.R. § 3.352(a). It is not required that all of the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable rating may be made. The particular personal functions which the Veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance, not that there is a constant need. 38 C.F.R. § 3.352(a); see also Turco v. Brown, 9 Vet. App. 222, 224 (1996) (noting that at least one factor listed in § 3.352(a) must be present for a grant of special monthly pension based on need for aid and attendance). Under 38 U.S.C. § 1114(s), SMC is also payable if the Veteran has a single service-connected disability rated as 100 percent and, (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. The second requirement is met when the Veteran is substantially confined as a direct result of service-connected disabilities to his dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his lifetime. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). As an initial matter, the Board notes that an August 2017 rating decision awarded SMC from August 1, 2014 to January 24, 2015, based on housebound status under 38 U.S.C. § 1114(s). Thus, this period will not be considered by the Board with respect to entitlement to SMC based on housebound status. On VA examination for housebound status or permanent need for regular aid and attendance in November 2015, the examiner noted that the Veteran was not hospitalized. She indicated that the Veteran was able to prepare his own meals and feed himself. She noted that he did not require assistance bathing or tending to other hygiene needs, that he was not legally blind, that he did not require nursing home care or medication management, and that he was able to manage his own financial affairs. She indicated that he could drive to appointments when necessary. As noted, an August 2017 rating decision granted SMC based on housebound status under 38 U.S.C. § 1114(s), for the period from August 1, 2014 to January 24, 2015. During this period, the Veteran had a single service-connected disability rated as 100 percent disabling and additional disabilities independently ratable at 60 percent. However, in addition to the reductions discussed above, the AOJ in February 2015 reduced the evaluation of left knee osteoarthritis to 10 percent, and left knee instability to zero percent, effective January 24, 2015. Thus, for the period beginning January 25, 2015, the Veteran does not meet the schedular criteria for SMC at the housebound rate, based on one service-connected disability rated as 100 percent disabling and separate disabilities rated at 60 percent or higher when the combined ratings table is taken into account. See generally 38 C.F.R. § 4.25. The Board notes that, for the period from January 25, 2015, service connection is in effect for PTSD, rated as 100 percent disabling; right knee limitation of flexion, evaluated as 10 percent disabling; right knee osteoarthritis, evaluated as 30 percent disabling; right knee instability, evaluated as 10 percent disabling; left knee osteoarthritis, evaluated as 10 percent disabling; and left knee instability, evaluated as zero percent disabling. In addition, the evidence of record does not demonstrate that the Veteran is unable to engage in activities outside of his home. Indeed, the November 2015 examination report indicates that the Veteran is able to drive himself to VA treatment appointments and that he is able to prepare meals and feed himself, and to tend to his own hygiene needs. Review of subsequent VA outpatient records does not disclose that the Veteran is permanently bedridden, or so helpless that he is unable to attend to his hygiene, requires assistance with feeding, or is unable to protect himself from the hazards or dangers incident to his daily environment. Additionally, the Board notes that evidence of record does not show that the Veteran’s service-connected disabilities have caused the anatomical loss or loss of use of both feet or one hand and one foot, and he is not blind in both eyes. Consequently, the Veteran can only establish entitlement to SMC under 38 U.S.C. § 1114(l) by showing his service-connected disabilities cause him to be permanently bedridden or so helpless as to be in need of regular aid and attendance under the criteria of 38 C.F.R. § 3.352(a) set forth above. On review of the record, the competent evidence does not indicate that the Veteran’s service-connected disabilities prevent him from performing any activities of daily living. The Veteran has not provided or identified any evidence to the contrary. See 38 U.S.C. § 5107(a). Based on the foregoing, the Board finds that the claim for SMC based on housebound status for the period from January 25, 2015 must be denied. Likewise, entitlement to SMC based on the need for aid and attendance is denied. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b). DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Barone, Counsel