Citation Nr: 18161158 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 18-24 400 DATE: December 28, 2018 ORDER The 40 percent rating for right knee strain is restored REMANDED Entitlement to service connection for moderate degenerative changes of the cervical spine is remanded. Entitlement to service connection for depressive disorder is remanded. Entitlement to a rating in excess of 20 percent for lumbar spondylosis is remanded. Entitlement to a rating in excess of 40 percent for right knee strain is remanded. Entitlement to a rating in excess of 10 percent for left knee degenerative joint disease is remanded. Entitlement to a rating in excess of 10 percent for scar, residual injury right ring finger is remanded. Entitlement to a total disability rating due to unemployability (TDIU) is remanded. FINDING OF FACT The evidence of record at the time of the July 2016 rating decision failed to establish objective improvement in the Veteran’s right knee disability. CONCLUSION OF LAW The reduction in the rating for the right knee disability from 40 percent to 10 percent, effective July 11, 2017, was improper, and restoration of the prior rating is warranted. 38 U.S.C. §§ 1155, 5107, 5112 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261 (2017) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1977 to June 1977, from June 1979 to January 1981, and from July 2010 to August 2011, with additional periods of Reserve service. This matter came before the Board of Veterans Appeals (Board) on appeal from July 2015, July 2016 and October 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veteran’s Law Judge during a November 2018 Travel Board hearing. Propriety of the rating reduction from 40 percent to 10 percent for right knee strain, effective July 11, 2017 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 a change are based upon a thorough examination. 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). Any reduction is subject to general VA regulations applicable to all rating reductions. Brown, 5 Vet. App. at 420. In all cases, accurate and fully descriptive medical examinations are required and if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for rating purposes. 38 C.F.R. §§ 4.1, 4.2; Brown, 5 Vet. App. at 420 (holding that rating reductions not subject to § 3.344 are still subject to general VA regulations, including 38 C.F.R. §§ 4.1, 4.2). Evaluations of joint disabilities must include a consideration of functional loss due to the factors listed under 38 C.F.R. § 4.45, including pain on movement. see also Schafrath v. Derwinski, 1 Vet. App. 589, 592 (applying §§ 4.40 and 4.45 to rating reductions). With regards to joints, the testing for pain on motion must include assessment of active and passive motion, in weight-bearing and with non-weight-bearing. 38 C.F.R. § 4.59; see Correia v. McDonald, 28 Vet. App. 158 (2016). The July 2016 rating decision, which proposed the reduction, based the reduction on the results of a June 2016 VA examination. In July 2016, the United States Court of Appeals for Veterans Claims issued a decision in Correia v. McDonald, 28 Vet. App. 158 (2016), which held that 38 C.F.R. § 4.59 requires VA joint examinations to include testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. The Board finds that the June 2016 VA examination did not meet the Correia requirements. While the examiner conducted range of motion (ROM) testing and noted pain on flexion and extension, the examiner did not address whether the ROM testing was conducted on active or passive motion and in weight-bearing and non-weight-bearing. Moreover, while the examiner noted pain on flexion and extension, he did not note the point at which pain began. The examination is therefore inadequate for rating purposes. As the June 2016 VA examination formed the basis of the reduction and that examination was inadequate, the Board finds that the reduction was improper. The Board finds that the record at the time of the decision did not contain other competent evidence of record supporting a finding of objective improvement in the Veteran’s disabilities. As such, restoration of the prior rating is warranted. Brown, 5 Vet. App. at 420–21; Dofflemeyer, 2 Vet. App. 277. The Veteran’s entitlement to an increased rating for his bilateral knee disabilities is addressed further in the remand section. REASONS FOR REMAND 1. Entitlement to service connection for moderate degenerative changes of the cervical spine is remanded. At his November 2018 hearing, the Veteran reported that he was injured when he fell while boarding a helicopter in Iraq. A July 2015 VA examination found that the Veteran’s neck disability was not related to service as service treatment records were silent for neck complaints or treatment and a June 2011 post-deployment health assessment (PDHA) was silent for a neck condition. An opinion based on the absence of a disability in service, as this one, is inadequate and therefore a new opinion is needed. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Moreover, while the examiner referenced the June 2011 PDHA, there is no indication that the examiner considered the October 2011 PDHA, which notes that the Veteran reported exposure to blasts and explosions while deployed. In addition, the Board notes that the report contains no indication that the examiner considered the Veteran’s reports of an injury while boarding a helicopter. The complete medical record and the Veteran’s statements should be addressed upon remand. The Board also notes that some of the treatment records contained in the file require translation. Upon remand, the Board asks that they be translated into English. 2. Entitlement to service connection for depressive disorder is remanded. A July 2015 VA examination diagnosed major depressive disorder, which the examiner opined was not related to service. The examiner stated that the Veteran had no combat experience, though he noted the multiple mortar attacks to the base where the Veteran was stationed in Iraq. The examiner also stated that the Veteran had not sought treatment until 2014 after he broke up with his girlfriend. The Board finds that the opinion is inadequate due to its reliance upon inaccurate facts. First, the Veteran’s DD-214 indicates that he was awarded the combat action badge and the Board finds that he is therefore a combat veteran. In addition, May 2013 VA treatment records note that the Veteran sought treatment for depressive symptoms which he reported having since returning from Iraq and that he reported mortar attacks on the base and seeing multiple dead and wounded. A new examination and opinion—based on full review of the record and supported by stated rationale—is needed to fairly resolve the issue on appeal. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). 3. Entitlement to a rating in excess of 20 percent for lumbar spondylosis is remanded. 4. Entitlement to a rating in excess of 40 percent for right knee strain is remanded. 5. Entitlement to a rating in excess of 10 percent for left knee degenerative joint disease is remanded. 6. Entitlement to a rating in excess of 10 percent for scar, residual injury right ring finger is remanded. At the November 2018 Travel Board hearing, the Veteran testified that his lumbar spine, bilateral knee and right ring finger scar disabilities have worsened in severity since the last VA examinations in 2017. As the evidence of record suggests his service-connected disability has increased in severity since the most recent VA examination, the Board finds that the Veteran should be afforded new examinations. See Snuffer v. Gober, 10 Vet. App. 400 (1997). 7. Entitlement to a total disability rating due to unemployability (TDIU) is remanded. The issue of entitlement to TDIU must also be remanded as it is inextricably intertwined with the issue of increased ratings for the lumbar spine, bilateral knee and right ring finger scar disabilities. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when the adjudication of one issue could have “significant impact” on the other issue). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from December 2018 to the Present. 2. Identify all records contained in the file requiring translation, and have them translated into English. 3. After the development outlined in (1)-(2), schedule the Veteran for an appropriate VA examination, to determine the etiology of any current cervical spine disability. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current cervical spine disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran’s active service. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding a fall from a helicopter in service and the onset and persistence of his symptoms. 4. After the development outlined in (1)-(2), schedule the Veteran for an appropriate VA examination, to determine the etiology of any current acquired psychiatric disability, to include depressive disorder. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current acquired psychiatric disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran’s active service. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding the onset and persistence of his symptoms. Attention is requested to May 2013 VA treatment records noting complaints of depressive symptoms since service. 5. After the development outlined in (1)-(2), schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his lumbar spine and bilateral knee disabilities. The claim file should be made available to and reviewed by the examiner and the examination report should state a review of the file was completed. All necessary tests should be performed and all findings should be reported in detail. The examiner should identify all lumbar spine and bilateral knee pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. If pain is noted, the point during range of motion at which pain starts must be clearly indicated. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 6. After the development outlined in (1)-(2), schedule the Veteran for an appropriate VA examination to determine the current level of severity of his right ring finger scar. The examiner should review the file and provide a complete rationale for all opinions expressed. 7. If upon completion of the above action the appeal 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 A. Arnold, Associate Counsel