Citation Nr: 18106924 Decision Date: 06/01/18 Archive Date: 05/31/18 DOCKET NO. 15-13 490 DATE: June 1, 2018 ORDER The claim for restoration of a 20 percent for traumatic arthritis, right knee is denied. The claim for restoration of a 10 percent rating for limitation of flexion, right knee is denied. FINDING OF FACT Based on 2011 VA examination findings, on two occasions, the Veteran demonstrated no worse than range of motion findings from 0 to 80 degrees for the right knee, including when incorporating objective measurements taken following observation of pain on use. CONCLUSIONS OF LAW 1. The Regional Office (RO) reduction in rating from 20 to 10 percent for traumatic arthritis, right knee was factually correct and substantiated. 2. The RO reduction in rating from 20 to 10 percent for traumatic arthritis, right knee was factually correct and substantiated. REASONS AND BASES FOR FINDING AND CONCLUSIONS There are specific particularized notice requirements which apply to a reduction in rating. The procedural safeguards afforded to the claimant in a reduction case are set forth under 38 C.F.R. § 3.105(e), and are required to be followed by VA before issuing any final rating reduction. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). Here, these procedural safeguards were properly dispensed with, so there is no due process of law violation that would inherently invalidate the RO’s reduction in rating action. Apart from this, neither the Veteran nor her representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). There was a Board videoconference hearing held October 2017 before the undersigned Veterans Law Judge (VLJ), the hearing transcript retained on file. Additionally, whereas the Board is reviewing and deciding reduction in rating issues, the Veteran has indicated intent to file the claim of an increased rating for a right knee disability, regarding the separate disability evaluations already awarded. Given that the Board is denying herein the reduction in rating claims, she maintains the opportunity to file a formal claim so doing. 38 C.F.R. § 19.9(b) Reductions Under VA law, disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where, as in this case, a disability rating has been continued for at least five years at the same level, under 38 C.F.R. § 3.344, if there are changes in essential medical findings or diagnosis, that case is to be reviewed and adjudicated so as to produce the greatest degree of stability of disability evaluation. In determining the propriety of a previous evaluation, the entire record as to medical history should be considered to ascertain whether the most recent examination is indeed a full and complete depiction of the level of disability. An examination less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. When encountering a change of diagnosis VA will exercise caution in determining whether this change in diagnosis represents no more than a progression of an earlier diagnosis, an error in prior diagnosis, or possibly a disease entity independent of the service-connected disability. 38 C.F.R. § 3.344(a). Moreover, in such cases provided doubt remains, after according due consideration to all the evidence developed by the several items discussed in the preceding paragraph (section 3.344(a)), the rating agency will continue the rating in effect under specified procedures. 38 C.F.R. § 3.344(b). A VA rating reduction must be based upon review of the entire history of the veteran’s disability, reconciling any contrary findings into a consistent picture. 38 C.F.R. § 4.2. VA must then consider whether the evidence reflects an actual change in the disability, and whether the examination reports reflecting such change are based upon thorough examinations. In any rating reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000); Brown v. Brown, 5 Vet. App. 413, 420-21 (1993). To warrant reduction in rating, it must be shown that the preponderance of the evidence supports the reduction itself, and with application of the benefit-of-the-doubt doctrine under 38 U.S.C. § 5107 (b) as required. See Brown, 5 Vet. App. at 420-21; Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). 1. Whether the RO properly reduced from 20 to 10 percent the rating for traumatic arthritis, right knee. 2. Whether the RO properly reduced from 10 percent to noncompensable the rating for limitation of flexion, right knee. Given that the previously existing disability rating scheme for the Veteran’s service-connected right knee disability has been in effect for more than 5 years now, that involving traumatic arthritis ratable based upon limitation of knee extension, and separately evaluated limitation upon knee flexion, the provisions under 38 C.F.R. § 3.344 for maintaining the stability of disability evaluations are wholly applicable. The specific rating criteria for the evaluation of knee disabilities are cited herein, followed by discussion of application to the evidence of this case. Under 38 C.F.R. § 4.71a, Diagnostic Code 5260 pertains to limitation of leg flexion, and provides for a noncompensable rating when flexion is limited to 60 degrees. A 10 percent rating requires flexion limited to 45 degrees; a 20 percent rating requires flexion limited to 30 degrees; and the highest available 30 percent rating requires flexion limited to 15 degrees. Id. Diagnostic Code 5261 provides that limitation of extension will be assigned a noncompensable rating when it is limited to 5 degrees. A 10 percent evaluation requires extension limited to 10 degrees; a 20 percent rating requires extension limited to 15 degrees; a 30 percent rating requires extension limited to 20 degrees; a 40 percent rating requires extension limited to 30 degrees; and a maximum 50 percent rating is assigned when extension is limited to 45 degrees. Id. Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Also for application is Diagnostic Code 5003, pursuant to which degenerative arthritis will be rated on the basis of limitation of motion of the specific joint or joints involved. When, however, limitation of motion at the joint(s) involved is noncompensable, a 10 percent rating is warranted for each major joint or group of minor joints affected by limitation of motion, to be combined, not added, under this diagnostic code. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Where there is no limitation of motion but X-ray evidence of involvement of two or more major joints or minor joint groups, a 10 percent rating is assigned. A 20 percent rating is assigned where the above is present but with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a. Reviewing the medical evidence in view of the foregoing criteria, the Board must reach the determination that the reduction in rating implemented by the RO by all outward measurement standards was warranted. On VA examination of February 2011, active and passive range of motion of the right knee was measured at -5 to 105 degrees. There was no further diminution of knee joint mobility due to pain, weakness, instability, or other recognized forms of functional loss, as required to be considered pursuant to the holding in DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see also 38 C.F.R. §§ 4.40, 4.45 and 4.59. Similarly on the November 2011 examination, range of motion was from 0 to 90 degrees, limited to 80 degrees when involving moderate pain on use. (These latter findings are taken from a July 2012 RO rating decision which credibly reports the examination results in pertinent part, and is the best available source given that the November 2011 examination report itself is not associated with the electronic claims file in this matter.) The preceding findings show sufficient retained capacity for joint mobility that there is not objective basis for compensable evaluation under either Diagnostic Codes 5260, or 5261. There can be substantiated a 10 percent rating pursuant to Diagnostic Code 5003 for degenerative arthritis, due to noncompensable limitation of motion. That specific degree of rating is already properly compensated by the existing awarded 10 percent for right knee degenerative arthritis. The examination history that has been reviewed appears to be full and complete. There is no indication of contrary or contravening medical history. Accordingly, the medical history meets the standard under 38 C.F.R. § 3.344 for disabilities in effect for more than 5 years. The Board has likewise considered whether there is any additional source of compensable service-connected impairment involving right knee disability or pathology, and finds to the contrary, there is not immediately recognizable clinical evidence or otherwise competent report of “other” impairment such as instability to be rated under Diagnostic Code 5257, or cartilaginous injury under Diagnostic Codes 5258 or 5259. The record therefore is indicative of requirements for the RO’s reduction in rating action in this case, and the claims for restoration in rating are denied. The preponderance of the evidence weighs against the claims on appeal. Under these circumstances, VA’s benefit of the doubt doctrine does not apply. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jason A. Lyons