Citation Nr: A20019082 Decision Date: 12/21/20 Archive Date: 12/21/20 DOCKET NO. 191213-50340 DATE: December 21, 2020 ORDER Entitlement to restoration of a 20 percent rating for left knee strain (previously rated as left knee limitation of extension), effective October 8, 2018 is granted. Entitlement to a restoration of a 10 percent for left knee strain (previously rated as left knee limitation of flexion), effective October 8, 2018 is granted. Entitlement to restoration of a 10 percent rating for right knee strain (previously rated as right knee limitation of flexion), effective October 8, 2018 is granted. FINDINGS OF FACT 1. At the time of the reduction, the Veteran’s service-connected compensable rating for left knee limitation of extension had been in effect for less than five years. 2. Evidence establishing improvement in the Veteran’s left knee limitation of extension, such that his ability to function under the ordinary conditions of life and work were bettered, was not of record at the time of the November 2018 rating decision. 3. At the time of the reductions, the Veteran’s service-connected compensable rating for left knee limitation of flexion and right knee limitation of flexion had been in effect for more than five years. 4. An improvement in the Veteran’s left knee limitation of flexion and right knee limitation of flexion was not adequately demonstrated by the evidence of record at the time of the November 2018 rating decision reducing the ratings for the disabilities from 10 percent to 0 percent (noncompensable). CONCLUSIONS OF LAW 1. The rating reduction for a service-connected left knee strain (limitation of extension) from 20 percent to 10 percent effective October 8, 2018 was improper; therefore, restoration of the 20 percent rating is warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.344, 4.71a, Diagnostic Code 5261. 2. The rating reduction for a service-connected left knee strain (limitation of flexion) from 10 percent to 0 percent effective October 8, 2018 was improper; therefore, restoration of the 10 percent rating is warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.344, 4.71a, Diagnostic Code 5260. 3. The rating reduction for a service-connected right knee strain (limitation of flexion) from 10 percent to 0 percent effective October 8, 2018 was improper; therefore, restoration of the 10 percent rating is warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.344, 4.71a, Diagnostic Code 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1993 to November 1999 and from January 2003 to November 2003. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decisions on their claims to seek review. This case comes before the Board on appeal of a November 2018 rating decision by the Agency of Original Jurisdiction (AOJ). In January 2019 the Veteran submitted a Notice of Disagreement(NOD) to the November 2018 rating decision. A Statement of the Case was issued in October 2019, to which the Veteran filed a VA Form 10182 Decision Review Request Board Appeal in December 2019. By filing the VA Form 10182, the Veteran opted-into the AMA review system and requested direct review of the evidence considered by the AOJ. In the February 2017 and October 2018 VA knee examinations, the examiners noted the Veteran was forced to retire from the U.S. Marines reserves and give up his career as a law enforcement officer due to his knee disabilities. However, a July 2018 outpatient treatment record indicates current employment (i.e., the Veteran was unable to attend physical therapy due to his work schedule, and not taking a particular medication because it will make him too drowsy for his work). Accordingly, the Board finds that a TDIU claim is not part of the Veteran’s claims for higher initial ratings. See Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009). Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran seeks entitlement to a 20 percent rating for left knee limitation of extension, 10 percent for left knee limitation of flexion, and 10 percent for right knee limitation of flexion, and not more. See January 2019 NOD. An appellant may limit the scope of an appeal by clearly expressing an intent to exclude certain issues from appellate consideration, see AB v. Brown, 6 Vet. App. 35, 39 (1993); see also Murphy v. Shinseki, 26 Vet. App. 510, 514 (2014) (acknowledging that “the appellant generally controls the scope of appellate review”). For reasons discussed in further detail below, the Board is granting the full benefit of the claim as limited in scope by the Veteran. 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 change are based upon a thorough examination. To warrant a reduction, it must be determined not only that an improvement in the disability level has actually occurred, but also that such improvement actually reflects an improvement in the ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420-21 (1993) (citing 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13). A rating reduction must also be based on adequate examinations. Tucker v. Derwinski, 2 Vet. App. 201 (1992). Where a rating reduction was made without observance of law, the reduction must be vacated, and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated (although post-reduction medical evidence may be considered in the context of considering whether actual improvement was demonstrated). Dofflemyer v. Derwinski, 2 Vet. App. 277, 277 (1992). The veteran need not demonstrate that he is entitled to retain the higher evaluation; rather, in order for a rating reduction to be sustained, it must be shown by a preponderance of the evidence that the reduction was warranted. Sorakubo v. Principi, 16 Vet. App. 120 (2002). When a rating has continued for a long period at the same level (five years or more), any rating reduction must be based on an examination that is as complete as the examinations that formed the basis for the original rating and that the condition not be likely to return to its previous level. 38 C.F.R. § 3.344(a), (b), (c); Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). However, where a rating has been in effect for less than five years, the regulatory requirements under 38 C.F.R. § 3.344(a) and (b) are inapplicable, as set forth in 38 C.F.R. § 3.344(c). In such cases, 38 C.F.R. § 3.344(c) states that reexamination disclosing improvement will warrant reduction in rating. 1. Reduction of left knee strain, limitation of extension In the instant case, the 20 percent rating for left knee limitation of extension was in place less than five years at the time of the reduction. Therefore, evidence of improvement from reexamination is sufficient for the reduction. See 38 C.F.R. § 3.344(c). However, there is still a requirement to show the improvement actually reflects an improvement in the ability to function under the ordinary conditions of life and work. Brown, supra. In the November 2018 rating decision, the AOJ reduced the Veteran’s disability rating for left knee strain, limitation of extension from 20 percent to 10 percent effective October 8, 2018. The 20 percent rating was based upon evidence found during the February 2017 VA examination, and the reduction was based upon the evidence found during the October 2018 VA examination. In February 2017, the Veteran’s left knee extension was measured at 15 degrees. The examiner noted flare-ups and functional loss related to the Veteran’s knee disability. Pain, fatigue, weakness, lack of endurance, and incoordination caused functional loss due to repeated use over time and flare-ups. The examiner noted the Veteran’s knee disability prohibited running, limited walking and standing to 15 minutes, negatively impacted the ability to use stairs, and forced the Veteran to give up the Marine Corps and his law enforcement career. The diagnostic testing was negative for arthritis. In October 2018, the Veteran’s left knee extension was measured at 10 degrees. The examiner noted flare-ups and functional loss related to the Veteran’s knee disability. Pain, fatigue, weakness, lack of endurance, and incoordination caused functional loss due to repeated use over time and flare-ups. The examiner noted that the Veteran’s knee disability prohibited running, limited walking and standing to 15 minutes, negatively impacted the ability to use stairs, caused excruciating pain when squatting, and forced the Veteran to give up the Marine Corps and his law enforcement career. The Board notes the October 2018 provided did not provide diagnostic testing. In this case, the evidence supports a finding that a restoration of the previous 20 percent rating is warranted. The Board acknowledges that an examination in October 2018 showed improvement in the range of motion findings for left knee extension. The Veteran’s 10 degrees of extension would warrant a 10 percent rating based upon Diagnostic Code 5261. However, it does not appear that consideration was given to whether the cited improvement would be maintained under the ordinary conditions of daily life. The functional impact on the Veteran’s ability to perform occupational task were exactly the same between the February 2017 and October 2018 examinations. The November 2018 rating decision and October 2019 Statement of the Case are negative for any explanation of how the Veteran’s improvement would be maintained under the ordinary conditions of life. Additionally, although the AOJ noted additional symptoms of “painful motion of the knee,” the Board finds that the evidence of additional functional loss in the left knee was not properly considered, as the AOJ found the provisions of 38 C.F.R. § 4.40 and § 4.45 were not warranted. In reducing the disability rating, the AOJ did not address whether the improvement will be maintained under the ordinary conditions of life. As such, the Board concludes that 38 C.F.R. § 3.344 was not fully considered and applied. Dofflemyer, 2 Vet. App. at 282. Accordingly, the rating reduction was improper, and restoration of the 20 percent rating for the left knee strain, limitation of extension is warranted. This claim is thus granted in full. 2. Reduction of right and left knee strain, limitation of flexion In the instant case, the 10 percent ratings for left and right knee limitation of extension had been in place for more than five years at the time of the reduction. Therefore, the Veteran is entitled to the protections of 38 C.F.R. § 3.344(a), (b). In the December 2012 rating decision, the AOJ granted 10 percent ratings for left and right knee strains, for limitation of flexion due to “painful motion of the knee” based upon the April 2006 VA examination. The Board notes there the range of motion in both knees was full (0 to 140 degrees), without pain, fatigue, weakness, lack of durance or incoordination. After repetitive use, the Veteran experienced additional limitation of 10 degrees with pain, fatigue, weakness, lack of endurance, and incoordination In the February 2017 rating decision, the AOJ continued the 10 percent ratings, but noted that the left and right knee strains demonstrated improvement although sustained improvement had not been definitely established. The February 2017 VA examination measured right knee flexion at 110 degrees and left knee flexion at 105 degrees. Pain, fatigue, weakness, lack of endurance, and incoordination caused functional loss due to repeated use over time and flare-ups in both knees. In the November 2018 rating decision, the AOJ decreased the 10 percent ratings to noncompensable ratings based upon the February 2017 and October 2018 VA examinations. The October 2018 VA examination measured right knee flexion at 80 degrees and left knee flexion at 90 degrees. The examiner noted flare-ups and functional loss related to the Veteran’s knee disability. Pain, fatigue, weakness, lack of endurance, and incoordination caused functional loss due to repeated use over time and flare-ups in both knees. Here, there is no evidence of actual improvement of the Veteran’s left and right knee strain for limitation of flexion. The reduction was based on the February 2017 and October 2018 VA examinations. When comparing the April 2006 VA examination to the February 2017 and October 2018 VA examinations, the Veteran’s limitation of flexion has consistently worsened overtime since the April 2006 VA examination. In April 2006, range of motion was full in both knees, and repeated use over time only decreased flexion by 10 degrees. The October 2018 VA examination showed the flexion had decreased by 60 degrees in the right knee and 50 degrees in the left knee since the April 2006 VA examination. There is no indication that the February 2017 and October 2018 VA examinations, the examinations upon which the AOJ based its reduction, were not thorough examinations. That said, the recent examinations do not show any reduction or change in severity of the Veteran’s left and right knee limitation of flexion. In the absence of an examination showing actual improvement, the standards for reducing the rating were not satisfied. 38 C.F.R. § 3.344; Brown, 5 Vet. App. at 421. Accordingly, because the rating reduction was improper, the 10 percent ratings must be restored, effective October 8, 2018. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. N. Quarles, Associate 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.