Citation Nr: 20002802 Decision Date: 01/14/20 Archive Date: 01/13/20 DOCKET NO. 14-42 532 DATE: January 14, 2020 ORDER As the reduction in the Veteran’s disability rating for right knee injury with chondromalacia and instability from 30 percent to 0 percent was not proper, the 30 percent rating is restored, effective June 1, 2016. REMANDED The claim of entitlement to a disability rating higher than 30 percent for right knee injury with chondromalacia and instability is remanded. The claim of entitlement to a disability rating higher than 10 percent for post traumatic arthritis of the right knee with limited motion is remanded. FINDING OF FACT The March 2016 rating decision in which the agency of original jurisdiction (AOJ) reduced the disability rating for right knee injury with chondromalacia and instability from 30 percent to 0 percent reflects that the AOJ failed to consider, and to apply, the provisions of 38 C.F.R. § 3.344, the primary regulation governing rating reductions. CONCLUSION OF LAW As the AOJ’s reduction of the rating for service-connected right knee injury with chondromalacia and instability from 30 percent to 0, effective June 1, 2016, was not in accordance with law, the criteria for restoration of the 30 percent rating from that date are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1978 to February 1979. This appeal to the Board of Veterans’ Appeals (Board) arose from an October 2011 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, in which the RO denied entitlement to a disability rating higher than 30 percent for right knee injury with chondromalacia and instability, and a disability rating higher than 10 percent for post traumatic arthritis right knee with limited motion. The Veteran timely disagreed with the denial of the higher rating claims and perfected an appeal as to these claims. In a March 2016 rating decision, the RO decreased the disability rating for the Veteran’s right knee injury with chondromalacia and instability from 30 percent to noncompensable (0 percent), effective June 1, 2016. As this action occurred during the pendency of the appeal for higher ratings, the Board must initially address whether the reduction in the instability disability rating was proper. In July 2019, the Veteran testified during a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Propriety of Rating Reduction Congress has provided that a veteran's disability will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. When the agency of original jurisdiction (AOJ) reduces a rating without following the applicable regulations, the reduction is void ab initio. Greyzck v. West, 12 Vet. App. 288, 292 (1999). For reductions in ratings to be properly accomplished, specific requirements must be met. See 38 C.F.R. § 3.344; see also Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). In this case, based on an October 2014 VA examination, the RO, in the March 2016 rating decision, reduced the rating for the Veteran's service-connected right knee injury with chondromalacia and instability from 30 percent to 0 percent, effective June 1, 2016. Historically, service connection for right knee chondromalacia was granted in a July 1984 rating decision. An initial 10 percent rating was granted, effective October 13, 1998. The 30 percent rating was awarded based on the report of a February 1999 VA examination report which noted marked laxity of the medial and collateral structures of the knee. The Veteran filed a claim for higher rating for service-connected right knee disability in March 2011. A July 2011 VA examiner noted that the Veteran’s right knee showed medial collateral ligamentous instability. Based on the examination, the RO continued the 30 percent disability rating in the October 2011 rating decision. Following examination of the Veteran’s right knee in October 2014, the RO proposed to reduce her disability rating for the right knee injury with chondromalacia and instability, from 30 percent to 0 percent, in a November 2014 rating decision. Ultimately, the reduction was effectuated in the March 2016 rating decision. The cited basis for the reduction was that VA examinations and treatment records indicated no instability of the right knee. At the time of reduction, the Veteran’s 30 percent disability rating based on right knee instability had been in effect for more than 5 years (from October 13, 1998, to May 30, 2016). See Brown (Kevin) v. Brown, 5 Vet. App. 413, 418 (1993) (the duration of the rating is measured from the effective date assigned the rating until the effective date of the actual reduction and not the date of the RO’s proposal or ordering of a reduction). As regards disability ratings in effect for a period of 5 years or more, the provisions of 38 C.F.R. § 3.344 (a) and (b) are for application. See 38 C.F.R. § 3.344(c). Where a veteran's schedular rating has been both stable and continuous for 5 years or more, the rating may be reduced only if the examination on which the reduction is based is at least as full and complete as that used to establish the higher evaluation. 38 C.F.R. § 3.344(a). Ratings for disease subject to temporary or episodic improvement will not be reduced on the basis of any one examination, except in those instances where the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Id. Moreover, though material improvement in a mental or physical 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. Id. 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 has demonstrated actual improvement. Cf. Dofflemyer, 2 Vet. App. at 281-82. Care must be taken, however, to ensure that a change in an examiner's evaluation reflects an actual change in the veteran's condition, and not merely a difference in the thoroughness of the examination or in descriptive terms, when viewed in relation to the prior disability history. In addition, it must be determined that an improvement in a disability has actually occurred, and that such improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. See 38 C.F.R. §§ 4.1, 4.2, 4.13; see also Brown, 5 Vet. App. at 420-22; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved. This is in stark contrast to a case involving a claim for an increased (i.e., higher) rating, in which it is the Veteran's responsibility to show the disability has worsened. A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating issue. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). As noted above, as of the effective date of the reduction, the 30 percent rating for the right knee injury with chondromalacia and instability, under Diagnostic Code 5257, had been in effect for more than 5 years; hence, the provisions of 38 C.F.R. § 3.344(a) and (b) are for application. However, the March 2016 rating decision that reduced the rating reflects that the RO failed to consider, and provide notice of, the provisions of 38 C.F.R. § 3.344, the primary regulation governing rating reductions. Moreover, the RO did not address whether the VA examination used as a basis for the reduction was as full and complete as the examination on which the 30 percent rating was established, or whether the evidence demonstrated material improvement that would be maintained under the ordinary conditions of life. See 38 C.F.R. § 3.344(a); Kitchens v. Brown, 7 Vet. App. 320 (1995). In addition, neither the October 2011 rating decision which proposed the reduction, nor the November 2014 rating decision that effectuated the reduction, included discussion of, or citation to, 38 C.F.R. § 3.344. The Board emphasizes that failure to consider and apply the provisions of 38 C.F.R. § 3.344, when applicable, renders the decision void ab initio. Such an omission is error and not in accordance with the law. See Greyzck, 12 Vet. App. at 292. See also Hayes v. Brown, 9 Vet. App. 67, 73 (1996); Dofflemyer, 2 Vet. App. 277. Accordingly, given the facts noted above, the 30 percent rating assigned for right knee injury with chondromalacia and instability is restored, effective June 1, 2016. REASONS FOR REMAND The Board’s review of the claims file reveals that further AOJ action on the higher rating claims on appeal, prior to appellate consideration, is warranted. The severity of the Veteran’s right knee disabilities was last evaluated via VA examination in October 2014. During her July 2019 Board hearing, the Veteran described experiencing worsening symptoms, including increased instability and more painful motion, since the prior examination. Thus, the Board finds that remand is necessary to afford the Veteran a contemporaneous VA examination to fully assess the severity of her service-connected right knee disabilities. Cf. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). The Board additionally notes that during the October 2014 VA examination, the examiner noted that the Veteran reported having flare-ups of right knee disability. Notably, however, the VA examiner indicated in the report that she could not provide an opinion as to whether the Veteran had decreased range of motion during flare-ups without mere speculation. The Board notes that the United States Court of Appeals for Veterans Claims (Court), in Sharp v. Shulkin, 29 Vet. App. 26 (2017), addressed the adequacy of such “mere speculation” opinions, and explained that case law and VA guidelines do not require direct observation of functional impairment after repetitive use or during a flare-up as a prerequisite to offering an opinion consistent with DeLuca v. Brown, 8 Vet. App. 202 (1995). Indeed, it is not expected that such observation will usually occur; therefore, it is anticipated that VA “examiners will offer opinions based on estimates derived from information procured from all relevant sources, including the lay statements of veterans.” Id. at 35. Here, the examiner did not address any additional evidence, to include the Veteran’s lay reports, as to what additional functional limitation was present during flare-ups. The examiner also did not address what additional functional limitation was present after repeated use of the affected right knee joint. Moreover, the Board observes that in another precedential opinion, in Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations for musculoskeletal disabilities include joint testing for pain on both active and passive motion, in weight bearing and non-weight bearing. Thus, the Court’s holding establishes additional requirements that must be met, in order to find that a VA examination is adequate, and such requirements have not been met in this case. Accordingly, remand of the higher rating claims on appeal is warranted for new VA examination of the Veteran’s right knee knee to obtain clinical findings properly responsive to the considerations addressed in Sharp and Correia. See 38 C.F.R. § 4.2. Prior to arranging for the Veteran to undergo new VA examination, to ensure that all due process requirements are met, and the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. As for VA records, the claims file currently includes VA outpatient treatment records dated through July 2012. Accordingly, the AOJ should obtain all outstanding records of VA evaluation and/or treatment of the Veteran dated since July 2012. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the remaining claims on appeal (particularly, regarding private (non-VA) treatment), explaining that she has a full one-year period for response. See 38 U.S.C. § § 5103(b)(1); but see also 38 U.S.C. § § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the higher rating claims on appeal. Adjudication of each claim should include consideration of whether staged rating of the disability—assignment of higher ratings distinct periods of time, based on the facts found—is appropriate. These matters are hereby REMANDED for the following action: 1. Obtain complete copies of all outstanding records of VA evaluation and/or treatment of the Veteran, dated since July 2012. Follow the procedures set forth in 38 C.F.R. § 3.159(c) regarding requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and her representative a letter requesting that the Veteran provide sufficient information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to either claim on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) records. Clearly explain to the Veteran that she has a full one-year period to respond (although VA may decide a claim within the one-year period). 3. If the Veteran responds, assist her in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA examination of her right knee by an appropriate medical professional. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated individual, and the examination report should reflect consideration of the Veteran’s documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should conduct range of motion testing (expressed in degrees) of the right knee on both active motion and passive motion, and in weight bearing and non-weight bearing (as appropriate). The examiner should also conduct range of motion testing of the left knee, for comparison purposes. 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 so state, and explain why. The examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the right knee disability. If pain on motion is observed, the examiner should indicate the point at which motion-limiting pain begins. If the examination is not conducted during a flare-up, based on examination results and the Veteran’s documented history and assertions, the examiner should also indicate whether, and to what extent, the Veteran experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use Specifically, with respect to reported flare-ups, the examiner must describe the frequency, duration, characteristics, severity, and functional loss during flare-ups of right knee disability. To the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. Also, considering the examination findings and the Veteran’s reports, including as to experiencing multiple falls due to instability, the examiner should assess the severity of recurrent subluxation or lateral instability of the right knee as slight, moderate, or severe. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the higher rating claims on appeal (to include all evidence added to the electronic claims file since the last adjudication) and legal authority (to include, with respect to each claim, consideration of whether staged rating of the disability is appropriate). JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Wilson, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.