Citation Nr: 1807886 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 14-41 813 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether the reduction in the rating of service-connected residuals, meniscectomy tears right medial and lateral menisci with degenerative changes and spurring from 30 percent to 20 percent, effective December 13, 2011, was proper. 2. Entitlement to a rating in excess of 30 percent disabling for service-connected residuals, meniscectomy tears right medial and lateral menisci with degenerative changes and spurring. 3. Entitlement to a rating in excess of 10 percent disabling for service-connected right knee instability. 4. Entitlement to a compensable rating for service-connected right knee limited extension. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Unger, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1957 to April 1977. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg Florida, which reduced the evaluation for the Veteran's service-connected residuals, meniscectomy tears right medial and lateral menisci with degenerative changes and spurring from 30 percent to 20 percent effective December 13, 2011, and assigned separate evaluations for right knee instability and slight limited extension of the right knee. In this regard, the Board notes that the Veteran's February 2012 notice of disagreement specifically disagreed with the propriety of the reduction and noted that the condition had in fact worsened. However as will be discussed in the remand portion below, the RO only addressed the propriety of the reduction in the statement of the case (SOC), as such the claim for an increased rating must be remanded in order to afford the Veteran a SOC on the claim. See Manlincon v. West, 12 Vet. App. 238 (1999). The Veteran testified before the undersigned Veteran's law judge at a videoconference hearing in December 2017. A transcript of the hearing has been associated with the record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2014). The issues of entitlement to increased ratings for the Veteran's right knee conditions are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A December 2011 rating decision reduced the evaluation for the Veteran's service-connected residuals, meniscectomy tears right medial and lateral menisci with degenerative changes and spurring from 30 percent to 20 percent, effective December 13, 2011. 2. At the time of the December 2011 rating decision, the 30 percent rating for the Veteran's service-connected residuals, meniscectomy tears right medial and lateral menisci with degenerative changes and spurring had been in effect for more than five years. 3. The evidence of record at the time of the December 2011 rating decision failed to demonstrate a sustained improvement in the Veteran's service-connected residuals, meniscectomy tears right medial and lateral menisci with degenerative changes and spurring. CONCLUSION OF LAW The reduction of the evaluation for residuals, meniscectomy tears right medial and lateral menisci with degenerative changes and spurring from 30 percent to 20 percent was improper, and restoration of the 30 percent disability rating from December 13, 2011, is warranted. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.105, 3.344, Part 4, including §§ 4.7, 4.71a, Diagnostic Codes 5257-5256 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION As the Board's decision to grant restoration of the Veteran's 30 percent disability rating for his residuals, meniscectomy tears right medial and lateral menisci with degenerative changes and spurring, effective December 13, 2011, herein constitutes a complete grant of the benefit sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. This appeal arises out of the Veteran's disagreement with a decision to reduce his disability rating from 30 to 20 percent for his service-connected residuals, meniscectomy tears right medial and lateral menisci with degenerative changes and spurring, effective December 13, 2011. A claim stemming from a rating reduction action is a claim as to whether the reduction was proper, not whether the Veteran is entitled to an increased rating. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992). Regulations provide that where the reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, rating action will be taken. The reduction will be made effective the last day of the month in which a 60-day period from the date of notice to the payee expires. The Veteran will be notified of the proposed reduction, that he has 60 days to present evidence showing why the reduction should not be implemented, and that he may request a hearing. 38 C.F.R. § 3.105 (e). In the instant case, the Board observes that the RO complied with § 3.105(e) in that the reduction did not result in a reduction or discontinuance of compensation payments, therefore no notification of the proposed reduction was required. The criteria governing certain rating reductions for certain service-connected disabilities is found in 38 C.F.R. § 3.344. The United States Court of Appeals for Veterans Claims (Court) stated that this regulation applied to ratings that had been continued for long periods of time at the same level (five years or more). Brown v. Brown, 5 Vet. App. 413 (1993). In the present case, the 30 percent rating was in effect from May 13, 2004, more than 5 years, and thus the provisions of 38 C.F.R. § 3.344 pertaining to stabilization of disability evaluations do apply, and reexamination disclosing improvement will not warrant a rating reduction. 38 C.F.R. § 3.344 (c). In addition, the Court noted in Brown that there are several general VA regulations that apply to all rating reductions regardless of whether the rating has been in effect for five years or more. Id. at 420-421. Specifically, 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history. Furthermore, 38 C.F.R. § 4.13 provides that the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. Additionally, in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work. Brown, 5 Vet. App. at 420-21; see 38 C.F.R. §§ 4.2, 4.10. A claim as to whether a rating reduction was proper must be resolved in the Veteran's favor unless the Board concludes that a fair preponderance of evidence weighs against the claim. Brown, 5 Vet. App. at 421. In considering the propriety of a reduction, the Board must focus on the evidence of record available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition had demonstrated actual improvement. Dofflemyer, supra, at 277. Accordingly, the Board must determine whether the evidence of record as of December 2011 established that the Veteran's right knee disability no longer warranted a 30 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5257-5256. Diagnostic Code 5256 provides that ankylosis of the knee with favorable angle in full extension, or in slight flexion between 0 and 10 degrees warrants a 30 percent rating, in flexion between 10 and 20 degrees warrants a 40 percent rating, in flexion between 20 and 45 degrees warrants a 50 percent rating, and extremely unfavorable, in flexion at any angle of 45 degrees or more warrants a 60 percent rating. The Board notes that the RO changed the Diagnostic Code under which the Veteran's condition was rated from Diagnostic Codes 5257-5256 to 5258. However, the RO provided no explanation or rationale for this change and it does not appear to benefit the Veteran. Therefore, the Board finds that returning to the original diagnostic codes is appropriate. In an August 2004 rating decision, the RO awarded a 30 percent rating for residuals, meniscectomy tears right medial and lateral menisci with degenerative changes and spurring based on evidence of flexion in the right knee from 10 to 110 degrees with a flexion contracture with no range of motion from 0 to 10 degrees. The examiner found the Veteran to be passively mobile beyond 110 degrees with pain. Otherwise, the Veteran's knee was stable, his medial and lateral ligaments were unremarkable with negative anterior and posterior drawer tests. His Lachman's test was negative with a good endpoint. McMurray's test was negative, joint line pain and parapateller pain was noted as was some mild to moderate weakness at 4/5 both on flexion and extension. X-rays revealed degenerative joint disease. A rating decision in April 2010 continued the Veteran's 30 percent rating. The RO noted that VA treatment records were reviewed but were not sufficient to show symptomatology warranting an increased evaluation. VA examination conducted in March 2010 revealed objective evidence of mildly antalgic gait with normal weight bearing, mild varus deformity and focal tenderness. There was no edema or effusion, range of motion was recorded as flexion to 100 degrees and extension to 0 degrees with pain. No additional limitations or pain with repetitive motion was noted. In December 2011, the Veteran was scheduled for a periodic VA examination to determine the current severity of his right knee disability. Upon examination, the examiner noted right flexion to 100 degrees with evidence of painful motion at 90 degrees and extension to 5 degrees. The Veteran was able to perform repetitive-use testing with no additional limitation in ROM. However, the examiner did note functional loss and/or impairment in the Veteran's right knee in less movement than normal, pain on movement, deformity, atrophy of disuse, and disturbance of locomotion. The examiner noted tenderness or pain on palpation, and anterior, posterior, and medial-lateral instability. The examiner found no patellar subluxation or dislocation. The examiner noted frequent episodes of joint "locking," pain, and effusion. Furthermore, the examiner found evidence of the Veteran's meniscectomy in that he experienced instability, pain, varus deformity, atrophy and had a scar. X-ray evidence indicated that the Veteran's DJD was more prominent than previously noted. The examiner failed to discuss whether the Veteran had any ankylosis. Furthermore, the examiner noted that a review of the Veteran's claims file was not conducted. In his February 2012 notice of disagreement, the Veteran indicated that his condition had not improved, but worsened. He also felt that the VA examination was inadequate as the examination was conducted by a nurse practitioner rather than an orthopedic physician. Furthermore, he contends that he attempted to present the nurse practitioner with documentation of worsening and she refused his documentation. The Veteran alleges that the nurse practitioner also did not review his X-ray evidence. Therefore, the Veteran contends that the report did not adequately reflect the Veteran's condition. After a thorough review of the evidence, the Board finds that the record does not show that the Veteran's right knee disability improved so as to warrant a rating reduction under the appropriate rating criteria. Importantly, the claims file was not available for review at the December 2011 examination. In other words, the examination did not contemplate the complete medical history of the disability. Moreover, the examiner made no mention of any ankylosis as was the basis for the Veteran's prior rating. Furthermore, while the examiner did find objective symptoms of tenderness and painful movement, and additional limitation after repetitive use, she did not proffer an opinion as to any additional limitations during flare-ups in terms of degrees pursuant to 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59; see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). These deficiencies arguably show that this examination was lacking in thoroughness. Further, any documented improvement in the Veteran's condition did not clearly reflect improvement in the Veteran's ability to function under ordinary conditions of life and work. Significantly, the Veteran filed for a total disability rating based on individual unemployability indicating that he stopped working in November 2011. VA treatment records also continued to show chronic knee pain. Importantly, as opposed to showing any improvement, the medical evidence of record demonstrates a steady decline in the Veteran's right knee disability. Moreover, the Veteran's statements of record continued to report pain and functional limitations with respect to his work and activities of daily living. Under these circumstances, the evidence clearly did not demonstrate improvement in ability to function under ordinary conditions of life and work. In sum, the Board finds that based on the evidence at the time of the reduction, the Veteran's service-connected right knee disability still demonstrated functional limitations to warrant a 30 percent disability rating. Accordingly, based on the analysis above, the reduction of the Veteran's residuals, meniscectomy tears right medial and lateral menisci with degenerative changes and spurring was improper and restoration of a 30 percent rating is warranted from December 13, 2011, the effective date of the reduction. ORDER Restoration of a 30 percent rating for residuals, meniscectomy tears right medial and lateral menisci with degenerative changes and spurring effective December 13, 2011, is granted, subject to the law and regulations governing the payment of monetary benefits. REMAND Although the Board regrets the delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A (West 2014); 38 C.F.R. § 3.159 (2017). Relevant to the Veteran's claims for increased ratings for his right knee conditions, the Court has held that, where the record does not adequately reveal the current state of claimant's disabilities, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the last examination. Allday v. Brown, 7 Vet. App. 517, 526 (1995). The record reflects that the Veteran was most recently afforded a VA Knee and Lower Leg Conditions DBQ in December 2011. The Board finds that a contemporaneous examination is necessary as so much time has passed and the Veteran has alleged significantly worsening symptoms. Specifically, the Veteran alleged that his conditions are far worse than is represented by his current rating. Therefore, the Board finds that a remand is required in order to determine the Veteran's current level of impairment with regard to his service-connected right knee conditions. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). With respect to the claim for a higher rating for residuals, meniscectomy tears right medial and lateral menisci with degenerative changes and spurring, the December 2011 rating decision decreased the Veteran's evaluation from 30 percent to 20 percent, effective December 13, 2011. Thereafter, in February 2012, the Veteran entered a notice of disagreement as to the reduction and claimed that the condition had in fact worsened and was deserving of a higher rating. Therefore, the Board finds that the Veteran has raised the issue of an increased rating. When there has been an initial AOJ adjudication of a claim and a notice of disagreement as to its denial, the claimant is entitled to a SOC. See 38 C.F.R. § 19.26. Thus, remand for issuance of a SOC on this issue is necessary. Manlincon v. West, 12 Vet. App. 238 (1999). However, this issue will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Finally, due to the amount of time which will pass on remand, updated treatment records should be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Provide the Veteran with a SOC regarding the issue of entitlement to a higher rating for residuals, meniscectomy tears right medial and lateral menisci with degenerative changes and spurring. Advise the Veteran of the time period in which to perfect his appeal. If the Veteran perfects his appeal of this issue in a timely fashion, then return the case to the Board for its review, as appropriate. 2. Obtain updated VA treatment records. 3. The Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his service-connected right knee conditions. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2014). ______________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs