Citation Nr: 20022567 Decision Date: 04/01/20 Archive Date: 04/01/20 DOCKET NO. 14-40 354 DATE: April 1, 2020 ORDER The rating decision reducing the Veteran's rating for service connected TBI residuals from 40 percent to 10 percent was improper, and the original rating is restored. The rating decision reducing the Veteran’s rating for service-connected left knee instability from 10 percent to noncompensable was improper, and the original rating is restored. Entitlement to a rating in excess of 40 percent for residuals of TBI is denied. Entitlement to a rating in excess of 10 percent for left knee instability is denied. Entitlement to a rating in excess of 10 percent for left knee patellofemoral pain syndrome with limited range of motion (PFPS) is denied. Entitlement to SMC benefits from October 17, 2012 is restored. FINDINGS OF FACT 1. Service connection for the Veteran’s TBI and left knee instability was granted by rating action dated December 2011, at which time initial 40 percent and 10 percent disability ratings were assigned, effective October 14, 2011. 2. Following January 2012 and August 2012 examinations, in October 2012, the RO issued a Rating Decision reducing the Veteran’s rating levels for TBI from 40 percent to 10 percent, and for left knee instability from 10 percent to noncompensable, effective October 17, 2012; SMC was discontinued effective the same date. 3. During the period on appeal, the Veteran’s traumatic brain injury has been characterized by no more than: subjective evidence of headaches and mild impairment of memory, mildly impaired judgment, routinely appropriate social interaction, normal orientation, normal motor activity, normal visual spatial orientation, three or more subjective symptoms that moderately interfere with work, activities of daily living, family, and relationships, no neurobehavioral effects related to TBI, normal communication, and normal consciousness. 4. During the period on appeal, the Veteran did not have mild left knee instability symptoms. 5. During the appeal period, the Veteran’s left knee patellofemoral pain syndrome was not limited flexion to 30 degrees or less, or extension to 10 degrees or less. 6. From October 17, 2012, the Veteran had one service-connected disability rated as totally disabling; the rest of his service-connected disability ratings combined to 60 percent. CONCLUSIONS OF LAW 1. The rating decision reducing the Veteran's rating for service-connected TBI residuals from 40 percent to 10 percent was improper, and the original rating is restored. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344. 2. The rating decision reducing the Veteran’s rating for service-connected left knee instability from 10 percent to noncompensable was improper, and the original rating is restored. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344. 3. The criteria for entitlement to a rating in excess of 40 percent for residuals of TBI have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, DC 8045. 4. The criteria for entitlement to a rating in excess of 10 percent for left knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 5. The criteria for entitlement to a rating in excess of 10 percent for left knee patellofemoral pain syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260. 6. Entitlement to SMC benefits from October 17, 2012 is restored. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1979 to October 1982. This appeal was remanded by the Board in February 2019. The Board is now satisfied there was substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, additional medical records were obtained and associated with the claims file, and new VA opinions were obtained, which the Board finds adequate for adjudication purposes. After the required development was completed, this issue was readjudicated and the Veteran was sent a supplemental statement of the case in January 2020. Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case. 1. The rating decision reducing the Veteran's rating for service connected TBI residuals from 40 percent to 10 percent was improper, and the original rating is restored 2. The rating decision reducing the Veteran’s rating for service-connected left knee instability from 10 percent to noncompensable was improper, and the original rating is restored In a December 2011 Rating Decision, the RO awarded the Veteran service connection for TBI residuals at a rate of 40 percent, and left knee instability at 10 percent. In an October 2012 Rating Decision, the RO reduced his rating for TBI residuals from 40 to 10 percent, and his left knee instability residuals from 10 percent to noncompensable. The Veteran has disagreed with this action. Generally, when a reduction is contemplated, the RO must issue a rating action proposing the reduction and setting forth all material facts and reasons for the reduction. The Veteran must then be given 60 days to submit additional evidence and to request a predetermination hearing. Then a rating action will be taken to effectuate the reduction. 38 C.F.R. § 3.105(e). The effective date of the reduction will be the last day of the month in which a 60-day period from the date of notice to the Veteran of the final action expires. 38 C.F.R. § 3.105 (e), (i)(2)(i). When a RO reduces a veteran’s disability rating without following the applicable regulations, the reduction is void ab initio. Greyzck v. West, 12 Vet. App. 288 (1999). Further, while the law provides that where a rating reduction was made without observance of law, although a remand for compliance with that law would normally be an adequate remedy, in a rating reduction case the erroneous reduction must be vacated, and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Here, the RO reduced the Veteran’s TBI rating from 40 percent to 10 percent, and his left knee instability rating from 10 percent to noncompensable, without first issuing a rating decision proposing the reduction. As a result, the Veteran lost not only the above ratings, but also entitlement to his special monthly compensation rating. In the Board’s view, this reduction without sending notice to the Veteran was inappropriate, and the reduction was improper. Therefore, this decision is a reduction within the meaning of 38 C.F.R. § 3.105(e) and subject to the procedural requirements set forth therein. Since VA failed to issue a rating action proposing the reduction, the Veteran had no opportunity to submit additional evidence or request a predetermination hearing. Therefore, the reduction was improper and is void ab initio. Increased Ratings Because the claim arose from a claim for entitlement to an initial rating in excess of those awarded in the December 2011 Rating Decision, the increased rating claims are addressed on appeal. Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of staged ratings are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Further, “[w]here there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.” 38 C.F.R. § 4.7. 3. Entitlement to a rating in excess of 40 percent for residuals of TBI The Board concludes that a rating in excess of the currently assigned 40 percent disability rating is not warranted. The Veteran’s TBI residuals are rated under 38 C.F.R. § 4.124a, DC 8045. Under DC 8045, there are three main areas of dysfunction that may result from TBI and have profound effects on functioning: emotional/behavioral, cognitive (which is common in varying degrees after a traumatic brain injury), and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a. Cognitive impairment is defined as “decreased memory, concentration, attention, and executive functions of the brain.” The term “executive functions” includes factors such as goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. The extent of cognitive impairment is evaluated under the table contained in 38 C.F.R. § 4.124a, which addresses “Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified.” The table for evaluating cognitive impairment addresses 10 facets of a traumatic brain injury related to cognitive impairment and subjective symptoms. The table also provides criteria for levels of impairment for each facet, as appropriate, ranging from zero to three, as well as a fifth level, the highest level of impairment, labeled “total.” These facets include memory, attention, concentration and executive functions, judgment, social interaction, orientation, motor activity (with intact motor and sensory system), visual and spatial orientation, neurobehavioral effects, communication, consciousness, and other “subjective symptoms.” If no facet is evaluated as “total,” the overall percentage evaluation is assigned based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, if one facet is classified as a 3, then a 70 percent evaluation is assigned. When a veteran displays subjective symptoms, such symptoms should be applied to this table, unless the symptoms may be evaluated under another DC. For example, if there are any emotional or behavioral symptoms that have been clinically diagnosed, such symptoms should be evaluated under the schedule of ratings for mental disorders listed in 38 C.F.R. § 4.130. Similarly, if the residuals of the TBI include other diagnosable symptoms such as (but not limited to) motor and sensory dysfunction, visual impairment, hearing loss and tinnitus, loss of sense of smell and taste, or any other disorders, they should be evaluated under the appropriate DC, and then combined under 38 C.F.R. § 4.25. A. Cognitive Impairment As an initial matter, while the SOC assigned a 10 percent rating based on subsequent examination, the Board’s determination that the ensuing decrease was void ab initio requires maintenance of the Veteran’s disability rating at 40 percent based on the RO’s initial Rating Decision. Further, the Board notes that a separate rating for the Veteran’s headaches would not yield a compensable rating, as they do not produce “prostrating attacks” (which means they do not render him completely exhausted or powerless). See 38 C.F.R. § 4.71a, DC 8100; DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1554 (31st ed. 2007) The Veteran’s disability rating of 40 percent has been based upon a finding of cognitive impairment. Specifically, the RO assigned a “2” for the Veteran’s memory, attention, cognitive, and executive functions facet, based on the December 2011 examination report’s finding of headaches and subjective memory lapses. In order to warrant a rating in excess of 40 percent, the evidence must show a symptom equivalent to a “3” as the highest level of any one cognitive facet, or a “total” evaluation to be assigned for one or more facets relating to cognitive impairment. 38 C.F.R. § 4.124a. Based upon the evidence of record, a rating in excess of 40 percent is not warranted as the highest (and only) level of severity for any cognitive facet during the period on appeal is for subjective headache symptoms that “do not interfere with work.” The Veteran initially underwent a neurological C&P examination in December 2011. TBI-related cognitive symptoms noted on the report do not warrant a compensable rating. Specifically, the examiner related the Veteran’s headaches and subjective memory complaints to his TBI; all other symptoms were attributed to his psychiatric disability, rated at 100 percent. The report notes complaints of chronic headache, lightheadedness, nightmares, insomnia, and subjective memory problems lasting 5 to 10 years. However, a rating in excess of 2 was not demonstrated. The Veteran’s January 2012 mental conditions examiner noted normal orientation, appearance, behavior, mood, and thought. The Veteran’s judgment was considered grossly normal, despite having reportedly knocked out a drunk man who accosted him in July 2011. Objectively, however, the Veteran’s memory, attention, and concentration, and thought process were all found normal. Accordingly, these results do not warrant a rating in excess of “2” either. The Veteran’s August 2012 PTSD examiner was “unable to differentiate” the Veteran’s TBI and non-TBI symptoms. Nonetheless, affording the Veteran the benefit of the doubt, all observed facets of TBI symptoms were normal, and not of compensable severity, except for the headaches serving as the basis for the Veteran’s current rating. Notably, the author mentioned “three or more subjective symptoms that mildly interfere with work,” but did not elaborate as the form requested. The Veteran’s March 2014 PTSD DBQ report attributes his memory and cognitive limitations to his TBI. According to the author, the Veteran’s lightheadedness, slow thought, attention and concentration deficits were related to his TBI symptoms. Nonetheless, this subjective memory impairment does not warrant a rating in excess of that awarded for TBI, as the most a subjective symptom can receive under DC 8045 is a “2,” corresponding to a 40 percent rating. A comprehensive TBI examination was conducted in July 2019. At this examination, the Veteran complained of headaches, inducing photophobia, and occasional nausea. The headaches typically lasted a couple of hours. The examiner noted the Veteran’s subjective headache complaints, which he still rated at level “0.” As mentioned above, the Veteran’s headache symptoms, if they were separately service-connected, would not warrant a compensable rating. The July 2019 report denies objective evidence of mild impairment of memory, attention, concentration or executive functions resulting in mild impairment. Further, the examiner determined that the Veteran’s judgment was normal, his social interaction was appropriate, that he was always oriented to person, time, place, and situation, his motor activity was normal, his visual spatial orientation was normal, he was able to communicate by spoken and written language and to comprehend spoken and written language, and his consciousness was normal. Accordingly, the Veteran’s cognitive symptoms do not warrant a rating in excess of 40 percent. B. Emotional and Behavioral Impairment Next, the Board determines that any emotional or behavioral impairment of the Veteran does not warrant a rating in excess of 40 percent for his TBI residuals. Specifically, his March 2014 and July 2019 examiners attributed the Veteran’s emotional symptoms, including avoidance, re-experiencing, and hyper-arousal, to his psychiatric disability. Because these co-morbid symptoms are related to a separately service-connected diagnosis, they cannot serve as the basis for an increased TBI rating. Consequently, the Veteran’s neurobehavioral symptoms do not provide a basis for the assignment of a TBI residuals rating in separate than the ones he currently receives. C. Physical Impairment As an initial matter, separate ratings under the Diagnostic Code have been assigned to the Veteran’s service-connected headaches, tinnitus, and hearing loss, associated with TBI. Note 1 to DC 8045 explains that there may be an overlap of manifestations of conditions evaluated, with manifestations of a comorbid or neurologic or other physical disorder that can be separately evaluated under another DC, and that in such cases, more than one evaluation based on the same manifestations cannot be assigned. Thus, given that he is service connected for and has ratings assigned to his migraine headaches and tinnitus, and given that sensitivity to light has not manifested in a separate diagnosable disorder, a separate rating for the Veteran’s TBI based on physical impairments is not warranted. Because the Veteran’s headaches, if service-connected, would not warrant a compensable rating, and because his mood disturbances and hearing difficulties are compensated under other DCs, a separate rating for physical symptoms related to his TBI is not warranted. 4. Entitlement to a rating in excess of 10 percent for left knee instability 5. Entitlement to a rating in excess of 10 percent for left knee range of motion The Veteran seeks ratings in excess of 10 percent for left knee patellofemoral pain syndrome and instability. Unfortunately, the Board is unable to award ratings higher than 10 percent. Regarding knee claims, a claimant who has arthritis and instability of the knee may be awarded separate ratings for each. See VAOPGCPREC 23-97. For example, when a knee disorder is already rated under DC 5257 (addressing lateral instability), a separate rating may be warranted if the Veteran’s knee also shows limitation of motion which at least meets the criteria for a zero-percent rating under DC 5260 (flexion limited to 60 degrees or less) or 5261 (extension limited to 5 degrees or more). In this case, the Veteran is rated under DC 5260 and 38 C.F.R. § 4.59 for limitation of motion, as well as DC 5257 for instability. Patellofemoral Pain Syndrome Under DC 5260, dealing with limited range of motion, the next higher 20 percent disability evaluation is warranted when flexion is limited to 30 degrees. A 30 percent disability evaluation is warranted when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a. Under DC 5261, a 10 percent disability evaluation is contemplated for extension limited to 10 degrees. A 20 percent disability evaluation is warranted when extension is limited to 15 degrees. A 30 percent disability evaluation is warranted when extension is limited to 20 degrees. 38 C.F.R. § 4.71a. The Board determines that a rating in excess of the 10 percent rating already awarded is not warranted. At his December 2011 examination, the Veteran complained of pain in his knee, as if he was being stuck with an ice pick. He endorsed trouble kneeling and lifting. Nonetheless, while the Veteran exhibited pain on flexion at the examination, this pain did not limit flexion to less than 105 degrees before repetitive use testing, and 100 degrees after. These values are each well outside of the 30 degrees required for a higher rating. Accordingly, one is not warranted. The Board concedes that this report does not include measurements warranted by subsequent Court decisions. However, a more complete July 2019 C&P examination report is available. At this examination, the Veteran endorsed pain with extended walking or extended standing, especially on hard surface. The examiner noticed him favoring his right foot. The Veteran mentioned an ache in his knee on cold rainy days, and an intermittent popping sound on some mornings. The Veteran’s ability to walk on the beach was limited to a mile. Nonetheless, he exhibited a full range of both active and passive motion. Moreover, muscle strength was found to be grossly normal. Any pain on flexion did not limit this measurement to less than 110 degrees, and extension was not limited beyond 30 degrees. These values are each well outside of the 30 degrees and 10 degrees, respectively, for a higher or additional compensable rating. The Board thus determines that a rating in excess of that awarded under DC 5260 is not warranted. Left Knee Instability Next, the Board notes the Veteran’s separate noncompensable rating for instability. To warrant a compensable rating based on knee instability or cartilage symptoms, the evidence must show: • Dislocation of the semilunar cartilage with frequent episodes of locking, pain and effusion in the joint (20 percent under DC 5258); • Recurrent subluxation or lateral instability (under DC 5257; 10 percent for slight symptoms); • Symptomatic symptoms due to the removal of the semilunar cartilage (10 percent under 5258); or, • Genu recurvatum (acquired, traumatic, with weakness and insecurity in weight bearing objectively demonstrated) (10 percent under 5263). See 38 C.F.R. § 4.71a. Based on the evidence, the Board determines that a compensable rating is not warranted based on instability or symptoms related to the semilunar cartilage. Specifically, the Veteran’s December 2011 examiner noted 0-5mm of medial lateral instability in the left knee. However, all subsequent examinations, including one taken in August 2012, and the most recent July 2019 examination report, note no joint instability. The inconsistent nature of these results points to the December 2011 report’s diminished probative value. By contrast, the Veteran’s July 2019 examiner noted that the Veteran has never had a meniscus (semilunar cartilage) condition. This observation is consistent with the clinical evidence of record. Further, subluxation or lateral instability were not found on examination, nor was genu recurvatum. For these reasons, while the Veteran is service connected at a noncompensable rating, the Board finds that a compensable rating for knee instability is not warranted. In considering the appropriate disability rating for the Veteran’s TBI and knee disabilities, the Board has also considered the statements from the Veteran that his disabilities are worse than the rating he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Although the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of his TBI and knee disabilities according to their respective DCs. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). On the other hand, such competent evidence concerning the nature and extent of the Veteran’s TBI and knee disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with their evaluations. Specifically, although the Veteran has asserted that his symptoms TBI warrant a higher rating, the impact of his TBI and knee disabilities was discussed and addressed by the medical examinations of record, and the Board finds the examiners’ assessments of greater probative weight. The Board also finds that consideration for an extraschedular evaluation, a component of a claim for an increased rating, is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). In considering whether an extraschedular rating may be warranted, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran’s level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. See Thun v. Peake, 22 Vet. App. 111 (2008). Here, the evidence does not indicate that the schedular rating may be inadequate. Accordingly, referral for extraschedular evaluation is not warranted. Lastly, while the Veteran filed a July 31, 2012 application for TDIU, a TDIU rating is not for application; it is mooted by the Veteran’s 100 percent rating for an acquired psychiatric disability, effective July 31, 2012. See Bradley v. Peake, 22 Vet. App. 280 (2008). Accordingly, the Board concludes that a disability rating in excess of 40 percent for TBI is not warranted, nor is one warranted in excess of 10 percent for either knee disability. 6. Entitlement to SMC benefits from October 17, 2012 is restored. The Board finds that restoration of the Veteran’s SMC benefits from October 17, 2012 is warranted. A veteran may be entitled to special monthly compensation for housebound benefits if, in addition to having a single permanent disability rated 100 percent disabling under the VA Schedule for Rating Disabilities (not including ratings based upon unemployability under 38 C.F.R. § 4.17 of this chapter), the Veteran either: • Has an additional disability or disabilities independently ratable at 60 percent or more, separate and distinct from the permanent disability rated as 100 percent disabling and involving different anatomical segments or bodily systems; or • Is “permanently housebound” by reason of disability or disabilities. This requirement is met when the Veteran is substantially confined to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical area, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. See 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). Although the total disability requirement must be met by a single disability, the 60 percent requirement may be met by applying the combined rating of the Veteran’s remaining disabilities. See Bradley v. Peake, 22 Vet. App. 280 (2008) (noting that combined ratings to satisfy the second requirement but not the first). Moreover, in order to be considered “permanently housebound,” the requirement that the Veteran be “substantially confined” to the home or its immediate premises is broadly construed and met when the Veteran is simply unable to leave the home to earn a living, as opposed to requiring that the Veteran be unable to leave the house at all. 38 U.S.C. § 1114 (s). In this case, the Veteran had been in receipt of an SMC rating under § 1114(s), but the rating was severed because of his TBI and left knee instability ratings were reduced. Now that those ratings are restored, his SMC rating should be restored as well. In conclusion, the October 2012 reductions of the Veteran’s 40 percent rating for TBI and 10 percent rating for left knee instability are both void ab initio. Consequently, his SMC-S rating is also restored. However, the Veteran is not entitled to ratings in excess of these ratings, nor is he entitled to a rating in excess of 10 percent for left knee PFPS. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Z. Maskatia