Citation Nr: 18161321 Decision Date: 12/31/18 Archive Date: 12/31/18 DOCKET NO. 15-46 621 DATE: December 31, 2018 ORDER Restoration of the 10 percent rating for right knee instability until March 31, 2016 – but no later – is granted. Entitlement to a rating in excess of 10 percent for osteoarthritis of the right knee is denied. FINDINGS OF FACT 1. The Agency of Original Jurisdiction (AOJ) did not comply with the relevant procedures for reducing an evaluation when it assigned December 1, 2015, as the effective date for the reduction from 10 percent disabling to non-compensably disabling for right knee instability, in that it failed to wait until the last day of the month after a 60 day period from the January 2016 notice to reduce the rating. 2. At the time of the assignment of a compensable evaluation for right knee instability, a VA examination report revealed the presence of right knee instability; multiple examinations since that time have failed to reveal the presence of right knee instability establishing an improvement in this aspect of the knee impairment under the ordinary conditions of life and work. 3. The Veteran’s right knee disability is productive of painful motion and swelling; he has full extension and flexion greater than 60 degrees. CONCLUSIONS OF LAW 1. From March 31, 2016, the reduction in the evaluation for right knee instability from 10 percent to noncompensable was proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), 3.344, 4.71a, Diagnostic Code (DC) 5257 2. The criteria for entitlement to a rating in excess of 10 percent for osteoarthritis of the right knee have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.40, 4.45, 4.59, 4.71a, DC 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating Disability evaluations are determined by comparing a Veteran’s symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran is presumed to be seeking the maximum possible evaluation. AB v. Brown, 6 Vet. App. 35 (1993). Separate ratings can be assigned for separate periods of time based on the facts found – a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Where functional loss due to pain on motion is alleged, 38 C.F.R. §§ 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). A finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). As required by 38 C.F.R. § 4.59, joints should be tested for pain on both active and passive motion, in weight bearing and non-weight bearing, and if possible, with the range of opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). The evaluation of the same disability under various diagnoses, known as “pyramiding,” is to be avoided. 38 C.F.R. § 4.14. The knee can be rated under Diagnostic Codes (DC) 5256-5263. 38 C.F.R. § 4.71a. Assigning multiple ratings for the Veteran’s right knee disability based on the same symptoms or manifestations would constitute prohibited pyramiding. 38 C.F.R. § 4.14. However, lateral instability and degenerative arthritis of the knee may be rated separately under DCs 5257 and 5003. VAOPGCPREC 23-97 (1997). Separate ratings may also be granted based on limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same joint. VAOPGCPREC 9-2004. In addition, under 38 C.F.R. § 4.71a, DC 5010, traumatic arthritis is rated as degenerative arthritis under 38 C.F.R. § 4.71a, DC 5003. Degenerative arthritis is rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved. The knee is considered a major joint. 38 C.F.R. § 4.45(f). Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. However, where the Veteran shows noncompensable limitation of motion, but painful motion and functional impairment are evident, the Veteran is entitled to a 10 percent rating. See DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995), Mitchell v. Shinseki, 25 Vet. App. 32 (2011); VAOPGCPREC 9-98. Additional rating criteria are found under DCs 5256 (ankylosis of the knee), 5262 (impairment of the tibia and fibula), and 5263 (genu recurvatum acquired, traumatic, with weakness and insecurity in weight-bearing objectively). The Veteran asserts that his right knee disability is more disabling than reflected in his current rating. The Veteran’s service-connected knee disability is rated 10 percent disabling under DC 5010-5260 and noncompensable under DC 5257. In a May 2014 statement, the Veteran indicated that his knee has gotten vastly worse and it is hard to walk up and down stairs. Similarly, a June 2014 VA treatment note indicates the Veteran reported right knee pain becoming progressively worse causing difficulty sleeping and climbing stairs. He denied edema and recent injury to the knee. A September 2014 VA examination showed osteoarthritis of the right knee. Range of motion testing showed flexion to 130 degrees and extension to 0 degrees. There was no objective evidence of painful motion. The was no additional loss of range of motion with repetitive-use testing. The Veteran showed less movement than normal, disturbance of locomotion, and interference with sitting, standing and weight-bearing. The examination was negative for weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy of disuse, and instability of station. The Veteran showed full (5/5) muscle strength with knee flexion and extension. Joint stability tests were normal. There was no evidence of patellar subluxation or dislocation. The examiner further stated that the Veteran’s right knee instability resolved. July 2015 private treatment records show the Veteran underwent a right knee x-ray revealing severe arthritis. The medical service provider indicated that due to the severity of the Veteran’s arthritis referral to an orthopedic specialist to consider injections or possible joint replacement would be appropriate. The Veteran reported swelling and pain. During the September 2015 VA examination, the Veteran reported flare-ups of the knee occurring approximately every two weeks resulting in pain. The Veteran had full range of motion with flexion to 140 degrees and extension to 0 degrees. There was no evidence of pain with weight bearing. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was also no crepitus shown. The examiner noted that the exam was being conducted during a flare-up and the Veteran’s functional ability was not significantly limited by pain, weakness, fatigability, or incoordination. The Veteran showed full (5/5) muscle strength with flexion and extension. There was no muscle atrophy or ankylosis. Joint stability tests were normal. The Veteran underwent an additional examination in March 2017. The Veteran reported daily flares manifesting in pain. Range of motion testing showed flexion to 120 degrees and extension to 0 degrees. The Veteran showed no additional limitation of motion with repetitive use testing. There was pain with both flexion and extension. There was no pain with weight bearing. There was objective evidence of localized tenderness or pain on palpation of the joint and soft tissue of the entire knee. There was also crepitus shown. The Veteran showed reduced (4/5) muscle strength with flexion and extension. There was no muscle atrophy or ankylosis. There was no evidence of recurrent subluxation or lateral instability. There was a history of recurrent effusion. Joint stability testing was normal. 1. Entitlement to restoration of a compensable rating for right knee instability until March 31, 2016. The Veteran filed an increase rating claim for his right knee disability. In a November 2014 rating decision, the regional office (RO) continued the Veteran’s 10 percent rating for osteoarthritis and proposed to discontinue the Veteran’s 10 percent rating for right knee instability. Notice of the proposed action and the Veteran’s relevant procedural rights were sent to the Veteran in a November 2014 letter. A November 2015 rating decision reduced the Veteran’s evaluation for instability of the right knee to noncompensable effective December 1, 2015. The Veteran appealed the reduction of his evaluation for right knee instability. See February 2016 Notice of Disagreement; September 2017 VA Form 9. When reduction in the evaluation of a service-connected disability is contemplated and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified at his latest address of record of the contemplated action and furnished detailed reasons therefor. The beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e). In addition, 38 C.F.R. § 3.344 provides that rating agencies will handle cases affected by change of medical findings or diagnosis, to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. It is essential that the entire record of examination and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. Examinations which are less thorough than those on which payments were originally based will not be used as a basis for reduction. Ratings for diseases subject to temporary or episodic improvement will not be reduced based on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, where material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). However, the provisions of 38 C.F.R. § 3.344(c) specify that the above considerations are required for ratings which have continued for long periods at the same level (five years or more), and do not apply to disabilities which have not become stabilized and are likely to improve. Therefore, reexaminations disclosing improvement, physical or mental, in these disabilities will warrant a reduction in rating. 38 C.F.R. § 3.344. Under 38 C.F.R. § 3.105(e), once final rating action is taken, the award will be reduced or discontinued effective the last day of the month in which the 60-day period from the date of notice to the Veteran of the final rating action expires. In the present case, the 10 percent rating was in effect from January 13, 2011. A November 27, 2015, rating decision reduced the rating for right knee instability to 0 percent, effective December 1, 2015. Although the notice letter to the Veteran is not dated, the receipt date in VBMS suggests it was not mailed until January 5, 2016. Therefore, the AOJ did not assign a deferred effective date in accordance with 38 C.F.R. § 3.105(e). The correct effective date of the reduction would have been March 31, 2016 (the last day of the month after a 60-day period from January 5, 2016). Notably, if the AOJ had assigned the correct effective date for the reduction, the 10 percent rating for the right knee instability would have been continued for more than 5 years because it was initially assigned on January 13, 2011. Ratings that have continued for 5 years or longer are afforded greater protections than those that have been in effect for less than 5 years. See 38 C.F.R. § 3.344. As the AOJ reduced the rating assigned for the Veteran’s right knee instability prematurely, the 10 percent rating for the right knee instability did not continue for 5 years as it should have, and the provisions of 38 C.F.R. § 3.344(a), which specify the additional requirements that must be met before reducing ratings that have continued for at least 5 years, were not addressed. In Schafrath v. Derwinski, 1 Vet. App. 589, 596 (1991), the United States Court of Appeals for Veterans Claims held that reinstatement of a pre-reduction rating is warranted “[w]hen the issue raised is a rating reduction and the Court determines that the reduction was made without observance of law,” including 38 C.F.R. § 3.105(e) and § 3.344(a). Id. at 596. However, while the AOJ did not specifically address 38 C.F.R. § 3.344(a), its requirements were met. The September 2014 VA examination and VA treatment records showed that there was no longer right knee instability and, in turn, that such improvement would be maintained under the ordinary conditions of life. The September 2014 examiner performed multiple stability tests and found the instability, which was not noted to be subject to temporary or episodic improvement, had resolved. Notably, while the January 2011 VA examination report that led to the instability evaluation indicated there was right knee instability, there is no indication stability testing was performed during that examination. Accordingly, as the only error was the assignment of the effective date, a full nullification of the reduction is not appropriate, but the 10 percent rating for right knee instability should be restored until March 31, 2016. See VAOPGCPREC 31-97 (Aug. 29, 1997) (stating that the reduction of a disability rating, if otherwise supportable, is not rendered void ab initio by virtue of error in the assignment of the effective date). 2. Entitlement to a rating in excess of 10 percent for osteoarthritis of the right knee. The Veteran’s service-connected knee disability is rated 10 percent disabling under DC 5010-5260. Under DC 5260, a noncompensable rating will be assigned for limitation of flexion of the leg to 60 degrees; a 10 percent rating will be assigned for limitation of flexion of the leg to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the leg to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the leg to 15 degrees. See 38 C.F.R. § 4.71a, DC 5260. The preponderance of the evidence shows that the Veteran’s right knee more nearly approximates the criteria for a 10 percent rating. At worse, the Veteran’s flexion is limited to 120 degrees. Thus, an increased rating under DC 5260 is not warranted. In addition, the Veteran consistently showed full extension to 0 degrees. As such, a compensable rating under DC 5261 is not warranted. Furthermore, as the evidence does not show that the Veteran has ankylosis, impairment of the tibia and fibula, or genu recurvatum, ratings under Codes 5256, 5262, or 5263 are not warranted. Although the Veteran’s reports of pain appear to have increased and the arthritis itself may have progressed, multiple evaluations of the knee have not demonstrated a corresponding increase in functional impairment. In sum, the Veteran’s osteoarthritis has produced painful (non-compensable limited) motion and swelling. A rating in excess of 10 percent is not warranted. In reaching the above decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine does not apply. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Williams, Associate Counsel