Citation Nr: 18157961 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 16-62 555 DATE: December 13, 2018 ORDER As the reduction in evaluation of limitation of extension associated with left knee patellofemoral arthritis from 30 percent to 0 percent was proper, the appeal is denied. FINDING OF FACT At the time of the reduction in evaluation of limitation of extension associated with left knee patellofemoral arthritis from 30 percent to 0 percent, there was a showing of improvement in disability, as evidenced by extension limited to less than 10 degrees. CONCLUSION OF LAW The criteria for restoration of a 30 percent rating for limitation of extension associated with left knee patellofemoral arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.71a, Diagnostic Code 5261. REASONS AND BASES FOR FINDING AND CONCLUSION An April 2016 rating decision reduced the evaluation of left knee patellofemoral arthritis, specifically the associated limitation of extension, from 30 percent to 0 percent, effective July 1, 2016. An October 2017 rating decision increased the evaluation of limitation of extension to 30 degrees effective October 16, 2017. Thus, the question remaining on appeal is whether restoration of the 30 percent rating is warranted at any time prior to that date. The issue regarding the effective date developed for appeal is encompassed by the question of restoration and will not be separately addressed. The Veteran has not asserted that his disability warrants a rating in excess of 30 percent, so an increased rating is not at issue. 1. Restoration of a 30 percent rating for limitation of extension associated with left knee patellofemoral arthritis With respect to rating reductions, general regulatory requirements for disability ratings must be met in making a determination regarding whether improvement is shown. Brown v. Brown, 5 Vet. App. 413 (1993). The entire recorded history of the disability must be reviewed. 38 C.F.R. §§ 4.1, 4.2 (2018). The evidence must reflect an actual change in the disability and not merely a difference in the thoroughness of the examination or in the use of descriptive terms. 38 C.F.R. § 4.13 (2018). It must further show that the disability has improved in such a manner that the Veteran’s ability to function under the ordinary conditions of life and work has been enhanced. 38 C.F.R. §§ 4.2, 4.10 (2018); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). From a procedural standpoint, the Veteran’s limitation of extension associated with the left knee patellofemoral arthritis was appropriately reduced. A rating decision proposing the reduction in evaluation was issued in November 2015. 38 C.F.R. § 3.105(e) (2018). The rationale for the proposed reduction was set forth in that rating decision. In January 2016 the Veteran’s representative at the time submitted argument against the proposed reduction. Then, a rating decision reducing the evaluation of the disability was issued in April 2016. Thus, the Veteran received proper notice, and the procedural requirements of 38 C.F.R. § 3.105(e) were met. Historically, a July 2011 rating decision assigned the 30 percent rating for the limitation of extension associated with left knee patellofemoral arthritis effective November 13, 2009. That decision was based on a May 2011 VA examination report which revealed complaints of constant left knee pain and a finding of extension limited to 20 degrees, which warrants a 30 percent rating under Diagnostic Code 5261. 38 C.F.R. § 4.71a (2018). In the April 2016 rating decision, the Agency of Original Jurisdiction reduced the evaluation of the Veteran’s limitation of extension associated with the left knee patellofemoral arthritis from 30 percent to 0 percent effective July 1, 2016. That decision was based on July 2014 and May 2015 VA examination reports. The July 2014 report reflects complaints of pain with walking and extension limited to 10 degrees, even after repetitive use testing. The report also reflects flexion limited to 20 degrees. More importantly, the report reflects the examiner’s comments that the Veteran displayed normal range of motion while walking and maneuvering onto the examination table but displayed incredibly limited range of motion and severe pain with even very light palpation during the examination and that there was no other reasonable explanation for this except intentional malingering, and that while the Veteran reported severe pain with any contact he was able to sit comfortably and move normally without apparent pain. The May 2015 report reflects extension limited to 5 degrees, even after repetitive use testing. While the July 2014 examination revealed extension limited to 10 degrees, which warrants a 10 percent rating under Diagnostic Code 5261, given the examiner’s comments of malingering during range of motion testing and no pain outside of such testing, the Board observes that the finding was not reflective of the Veteran’s actual disability picture and that it was inflated. Thus, the Board finds that his extension was limited to less than 10 degrees, which does not meet the criteria for a compensable rating under Diagnostic Code 5261. The finding of extension limited to 5 degrees at the May 2015 examination falls squarely within the criteria for a 0 percent rating under Diagnostic Code 5261. Compared to the May 2011 finding of extension limited to 20 degrees, the Board observes that both examinations since that time revealed improvement in that range of motion. The Veteran’s limitation of extension no longer meets the criteria for a 30 percent rating, but rather a 0 percent rating. Moreover, there is evidence to suggest that such improvement applied to the ordinary conditions of life and work. The July 2014 examiner commented that the Veteran had normal range of motion while walking and sat and moved without pain outside of range of motion testing. The May 2015 examination revealed that the Veteran’s limitation of extension remained at 5 degrees after repetitive use testing, indicating his level of disability throughout the day. Thus, the reduction in evaluation of the Veteran’s limitation of extension associated with left knee patellofemoral arthritis from 30 percent to 0 percent was proper. Given the above, the Board finds that there was a showing of improvement in disability at the time of the reduction in evaluation of limitation of extension associated with left knee patellofemoral arthritis from 30 percent to 0 percent. Thus, the reduction in evaluation was proper. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b) (West 2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. W. Kim, Counsel