Citation Nr: 18158177 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 15-12 912 DATE: December 14, 2018 ORDER Restoration of the 20 percent rating for left knee meniscus injury, post-operative with instability, effective November 1, 2014, is granted. REMANDED Entitlement to service connection for a right ankle disability, to include as secondary to a service-connected left hip, knee, ankle, or foot disability, is remanded. Entitlement to a rating in excess of 20 percent for left knee meniscus injury, post-operative with instability is remanded. FINDINGS OF FACT 1. At the time of the August 2014 rating decision, the 20 percent rating for the Veteran’s left knee meniscus injury, post-operative with instability, had been in effect since October 17, 2008, which was a period of more than five years. 2. The November 2012 VA examination on which the reduction was based did not establish that there was material improvement that could be maintained under the ordinary conditions of life. CONCLUSION OF LAW The reduction in rating from 20 percent to 10 percent for left knee meniscus injury, post-operative with instability, effective November 1, 2014, was improper. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 3.344 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active military service from April 1984 to February 1987. These matters come before the Board of Veterans’ Appeals (Board) on appeal from November 2012 and August 2014 rating decisions issued by the VA Regional Office (RO) in Cleveland, Ohio. In connection with this appeal, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in July 2017 and accepted that hearing in lieu of an in-person hearing before a member of the Board. A transcript of that hearing has been associated with the claims file. Whether the reduction in rating from 20 percent to 10 percent for left knee meniscus injury, post-operative with instability, effective November 1, 2014, was proper. The Veteran has contended that the disability rating assigned for the left knee meniscus injury, post-operative with instability (“left knee disability”), should not have been reduced from 20 percent to 10 percent. In resolving the issue, the Board must first address whether VA followed the procedural protections for reductions in evaluations when it reduced the Veteran’s left knee disability rating from 20 percent to 10 percent. In a February 2009 rating decision, the RO granted an increased rating of 20 percent for the Veteran’s left knee disability, effective October 17, 2008. In November 2012, the RO proposed to reduce the Veteran’s left knee disability rating from 20 percent to 10 percent. A rating decision containing all of the information required by 38 C.F.R. § 3.105(e) (2018), which include the proposed reduction in compensation payable and 60-day response period, was sent to the Veteran and his representative in November 2012. In an August 2014 rating decision, the RO reduced the rating for the Veteran’s left knee disability from 20 percent to 10 percent, effective November 1, 2014. Having found that the procedural protections of 38 C.F.R. § 3.105(e) do apply, and have been satisfied, the Board turns to the question of whether the rating reduction for the Veteran’s left knee disability was proper. At the time of the August 2014 rating decision, the Veteran’s assigned rating of 20 percent had been in effect for more than five years. The Board notes that VA benefits recipients are to be afforded greater protections in instances where a rating has been in effect at the same level for more than five years. 38 C.F.R. § 3.344 (a) and (b). Specifically, 38 C.F.R. § 3.344 (a) provides that the entire record of examinations and the claimant’s medical and industrial history must be reviewed. Examinations that are “less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction.” Id. The regulation further provides that even where material improvement in a disability is shown, the RO must consider whether that improvement will be maintained under the ordinary conditions of life. Id. An October 2001 VA treatment note documented that the Veteran was issued bilateral knee braces to prevent any falling when his knees gave out. A VA orthopedic consultation conducted in June 2006 revealed no gross instability with varus or valgus stressing of either knee. In addition, no laxity was noted in Lachman testing. A December 2008 VA examination report, upon which the 20 percent rating was originally based, reflected that the Veteran complained of constant pain with flare-ups in his left knee. He reported that his left knee was aggravated with bending, going up and down the stairs, and with weight-bearing. In addition, he experienced problems with weakness, stiffness, popping, and locking in his left knee. His left knee would give out which led to subsequent falls. He used a left knee brace. Upon physical examination, the Veteran had a significant left limp. Active and passive flexion was 120 degrees with pain and discomfort. Left knee extension was normal. There was evidence of tenderness and crepitus. The anterior drawer and McMurray test results were positive. In reducing the Veteran’s left knee disability rating to 10 percent in August 2014, the RO relied primarily on a November 2012 VA examination report. The November 2012 VA examination noted that the Veteran complained of increased pain and stiffness in his left knee. He reported flare-ups that impacted prolonged sitting, standing, and walking. Upon physical examination, left knee flexion was 110 degrees and his extension was normal. Following repetitive use, left knee flexion and extension did not change. There was evidence of left knee tenderness or pain to palpitation. Joint stability test results were normal. He continued to wear a knee brace. September 2015 and October 2016 VA examination reports noted that the Veteran continued to wear bilateral knee braces, particularly if walking on uneven ground or with activity. In July 2017, the Veteran and his wife testified that his knee instability was a daily concern. Both stated that he needed a support device to prevent any falls when his knees would give out. He reported that he was provided knee hinge braces to strengthen and stabilize his knees. The Board notes that the Veteran is competent to report his left knee symptoms and his perception of its severity. Layno v. Brown, 6 Vet. App. 465, 470. Based on the foregoing, the Board finds that the RO did not address whether reexamination disclosed sustained material improvement in the Veteran’s left knee disability. Rather, the RO reduced the rating without consideration of the Veteran’s continued use of a left knee brace for stability and strength. Moreover, the Board finds that the November 2012 VA examination did not reflect that any improvement would be maintained under the ordinary conditions of life and work. Thus, as compared to overall VA examination findings and VA treatment records, the Veteran’s overall disability picture had not improved appreciably. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). Accordingly, when resolving reasonable doubt in favor of the Veteran, the Board concludes that the reduction in rating from 20 percent to 10 percent for the Veteran’s left knee disability, effective November 1, 2014, was improper, and the 20 percent rating is therefore restored. REASONS FOR REMAND 1. Entitlement to service connection for a right ankle disability The Veteran has asserted that he has a right ankle disability that is secondarily-related to his service-connected left hip, knee, ankle, and/or foot disabilities. Specifically, he stated that he has overcompensated for a number of years by placing pressure and weight on his right ankle to offset any pressure on his left ankle and/or bilateral knee disabilities. A review of post-service treatment records reflected that the Veteran complained of right ankle pain in as early as December 2002. A January 2003 X-ray revealed an osseous fragment adjacent to the tip of the right lateral malleolus. In September 2012, the Veteran was afforded a VA examination. The examiner determined that the Veteran’s right ankle X-ray findings were within normal limits. As a result of the normal findings, the examiner opined that the Veteran’s right ankle pain was less likely as not caused by or the result of the Veteran’s service-connected bilateral knee disability. The Veteran was provided an additional VA examination in December 2014 and October 2016. The examiners diagnosed bilateral ankle arthritis. In July 2017, the Veteran’s private orthopedic surgeon found no significant arthritic degeneration in the Veteran’s right ankle and he stated that the Veteran’s X-ray findings were relatively benign. However, a physical examination revealed synovitis. He opined that it was highly likely that the Veteran’s right ankle irritation and inflammation was due to his persistent favoring of the left ankle. The Board finds that an additional VA examination is warranted to determine the nature and etiology of the Veteran’s right ankle disability. In this regard, the Board finds that it is unclear whether the VA examiners diagnosis of right ankle arthritis is supported by the record. Further, the Veteran’s private orthopedic surgeon diagnosed right ankle synovitis, but did not clarify whether the right ankle disability was caused or aggravated by the Veteran’s service-connected left hip, knee, ankle, and/or foot disability due to favoring of or overcompensating on his right ankle. 2. Entitlement to a rating in excess of 20 percent for left knee meniscus injury, post-operative with instability The Veteran was last afforded a VA examination in October 2016. In July 2017, the Veteran indicated that the severity of his service-connected left knee meniscus injury, post-operative with instability, had increased since that time. Therefore, the Board finds that the Veteran should be provided a new VA examination to determine the current level of severity of all impairment resulting from his left knee meniscus injury, post-operative with instability. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any currently present right ankle disability. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and the review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present right ankle disability, to include right ankle synovitis, was caused or aggravated (chronically worsened) by a service-connected left hip, knee, ankle, and/or foot disability, to specifically include any altered gait and/or body mechanics resulting from such. The rationale for all opinions expressed must be provided. 3. Then, schedule the Veteran for a VA examination to determine the current level of severity of all impairment resulting from his service-connected left knee meniscus injury, post-operative with instability. The claims file must be made available to, and reviewed by the examiner. Any indicated studies must be performed. The examiner should provide all information required for rating purposes. 4. Confirm that the VA examination reports and all medical opinions provided comport with this remand, and undertake any other development determined to be warranted. 5. Then, readjudicate the claims. If a decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Ware, Associate Counsel