Citation Nr: 20042879 Decision Date: 06/24/20 Archive Date: 06/24/20 DOCKET NO. 12-30 603A DATE: June 24, 2020 ORDER An effective date prior to June 25, 2007, for the award of special monthly compensation (SMC) at the housebound rate is denied. The reduction of disability rating for the Veteran's right knee effective March 1, 2015, was improper, and restoration of the 50 percent rating for limitation of extension is granted. Continued award of SMC at the housebound rate after March 1, 2015 is granted. FINDINGS OF FACT 1. While the Veteran had a single disability rated 100 percent, his other disabilities were not rated 60 percent or higher prior to June 25, 2007, and he was not substantially confined to his dwelling and immediate premises as a result of service-connected disabilities. 2. The evidence does not show actual improvement in the right knee disability. 3. The Veteran’s symptoms are most consistent with dislocated semilunar cartilage (meniscus) with frequent episodes of locking, pain, and effusion, and the weight of the evidence is against finding flexion limited to 45 degrees, instability, subluxation, or ankylosis of the right knee. 4. With the reinstatement of the right knee rating, the Veteran meets the criteria for continued award of SMC at the housebound rate after March 1, 2015. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to June 25, 2007, for the award of SMC at the housebound rate have not been met. 38 U.S.C. § 1114(s); 38 C.F.R. §§ 3.104, 3.350(i), 20.202. 2. The reduction of disability rating for the Veteran's right knee effective March 1, 2015, was improper, and the 50 percent rating for limited extension is reinstated. 38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 3.105(e), 3.343, 3.344, 4.71a, Diagnostic Code (DC) 5261. 3. The criteria for ratings in excess of 50 percent for right knee limited extension and 20 percent for osteoarthritis with episodes of locking, pain, and effusion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.10, 4.71a, DC 5003-3258, 5261. 4. The criteria for the award of SMC at the housebound rate after March 1, 2015, have been met. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from September 1967 to October 1970. Effective Date 1. An effective date prior to June 25, 2007, for the award of SMC at the housebound rate The Veteran contends he should have received SMC prior to June 25, 2007. Under 38 U.S.C. § 1114(s), special monthly compensation is payable at the housebound rate if the veteran has a single service-connected disability rated as 100 percent and either of the following are met: (1) there is additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or (2) he is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). The regulation defines permanently housebound as substantial confinement as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 C.F.R. § 3.350(i). The Veteran was awarded SMC at the housebound rate based on a 100 percent unemployability rating (TDIU) from service-connected posttraumatic stress disorder (PTSD) and right knee and thumb disabilities independently rated 60 percent. See April 2012 rating decision. The effective date assigned was June 25, 2007. Subsequently, a January 2017 Board decision granted an effective date of August 23, 1991, for the award of service connection for PTSD. Rating decisions in January and May 2017 effectuated that grant as it applied to the PTSD rating and resulting TDIU, which had the effect of setting the 100 percent rating back to August 23, 1991. However, as noted above, to qualify for SMC at the housebound rate, there must be a 100 percent rating and separate disabilities rated at least 60 percent. Therefore, the issue is whether the effective date for the combined 60 percent rating for the Veteran’s right knee and thumb disabilities could be prior to June 25, 2007. Service connection for the right knee and thumb disabilities was originally granted in a February 2011 rating decision, which assigned a 50 percent rating for right knee limitation of extension, 10 percent for right knee degenerative joint disease, and 10 percent for right thumb (combined 60 percent rating) with effective dates of June 25, 2007. A December 2015 rating decision granted effective dates of August 18, 1972, for the awards of service connection for right knee and thumb disabilities based on the provisions of 38 C.F.R. § 3.156(c) for reconsideration of a prior denial when new service records are obtained. The December 2015 rating decision then assigned a zero rating for the right thumb and a 10 percent rating for the right knee from August 18, 1972 to June 25, 2007. The Veteran did not file a valid and timely appeal of the disability ratings assigned by the December 2015 decision. See 38 C.F.R. § 20.202 (a notice of disagreement must be on the form prescribed by the Secretary and received within one year of a determination). The record includes a February 2016 notice of disagreement seeking earlier effective dates of October 12, 1970, but this form does not assert disagreement with the ratings assigned by the December 2015 decision. As such, the portion of the December 2015 decision that assigned right thumb and knee ratings prior to June 25, 2007, became final. Accordingly, the Board does not have jurisdiction to consider or award ratings for the right knee and thumb prior to June 25, 2007, those ratings remain at a combined 10 percent, and the Veteran did not meet the requirements for a statutory award of SMC at the housebound rate prior to June 25, 2007. See 38 C.F.R. §§ 3.104, 3.350(i), 20.202. There is no evidence or assertion that the Veteran was substantially confined to his dwelling and immediate premises as a direct result of service-connected disabilities, or institutionalized, prior to June 25, 2007, to meet the alternative qualifications for SMC at the housebound rate. See 38 C.F.R. § 3.350(i). Reductions 2. Whether the reduction of disability rating for the Veteran's right knee effective March 1, 2015, was proper, to include consideration of higher ratings For reductions, 38 C.F.R. § 3.105(e) requires the Regional Office (RO) to issue a rating decision proposing the reduction and setting forth all material facts and reasons, notify the beneficiary of the contemplated action and furnish detailed reasons therefore, and allow 60 days for the presentation of additional evidence to show that payments should continue at the present level. If a reduction is found to be warranted upon consideration of any additional evidence submitted, a final rating decision will be issued, and compensation will be reduced effective the last day of the month in which a 60-day period from the date of notice of the final action expires. See Stelzel v. Mansfield, 508 F.3d 1345, 1347-49 (Fed. Cir. 2007); VAOPGCPREC 71-91 (Nov. 7, 1991). In September 2014, the RO issued a proposed reduction explaining the basis for the rating reduction in knee rating. In December 2014, more than 60 days after the proposed reduction, the RO issued a final rating decision and reduced the Veteran’s compensation. The reduction took effect on March 1, 2015. The Board finds VA complied with the procedural requirements for notice, but as explained below, the evidence does not establish actual, maintained improvement in the right knee. To warrant a rating reduction, the evidence must reflect actual improvement in the disability level, and such improvement must actually reflect 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). In addressing whether improvement is shown, the comparison point generally is the last examination on which the rating at issue was assigned or continued. Hohol v. Derwinski, 2 Vet. App. 169, 172 (1992) (“The regulation provides that VA must compare the examination which purports to show that the veteran’s condition has materially improved, with the last examination continuing his 100% rating. The basis for comparison is not the examination on which the veteran was first awarded total disability.”). The reduction of a rating generally must have been supported by the evidence on file at the time of the reduction. Dofflemeyer v. Derwinski, 2 Vet. App. 277, 280-81 (1992). Here, additional provisions from 38 C.F.R. § 3.344 apply, because the Veteran’s rating was in place for more than five years, but less than 20. Accordingly, VA must review the entire record of examinations and medical-industrial history to determine whether the examination used to determine the reduction was at least as full and complete as the examination upon which the prior rating was assigned. 38 C.F.R. § 3.344(a). VA must also consider all evidence of record, determine whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life, and ensure that improvement was brought about under the ordinary condition of life and not by prolonged rest or an unemployment regimen. See 38 C.F.R. § 3.344. The Board finds the evidence does not show actual improvement in the function of the right knee. The February 2011 rating decision that granted the 50 percent rating for limited extension considered a VA examination showing normal extension but relied on a private medical report noting extension limited to -60 degrees. As noted above, the reduction in rating was proposed in September 2014. A private evaluation also from September 2014 notes a lot of right knee pain with movement, incomplete extension, complete extension, and recommendation for total knee replacement. In a September 2014 letter, Dr. S.B. wrote that he did not see any medical records to indicate improvement in the knee, and instead, the Veteran’s knee continued to deteriorate. During a November 2014 VA examination, the Veteran reported his right knee condition had worsened since the last examination. The examiner recorded flexion to 115 degrees and extension to zero with moderate to severe pain. A June 2016 report from Dr. JGH noted high levels of pain, incomplete extension, complete flexion, increased severity of symptoms, and suggestion of full knee replacement. The evidence shows worsening pain and further deterioration of the knee such that knee replacement was recommended. The November 2014 VA examination revealed normal extension, but such was the case at the time of the March 2011 decision, which relied on private records for the award. The Board finds the lay reports of worsening symptoms along with the characterizations by the Veteran’s private treating providers evidence that his right knee disability did not sustain actual improvement. The 50 percent rating for limited extension is reinstated. The Board notes that the December 2014 rating decision also discontinued a 10 percent rating based on limitation of flexion under Diagnostic Code 5260 and replaced it with a rating of 20 percent for symptoms associated with the meniscus under Diagnostic Code 5258. The Board finds the assignment of a rating under Diagnostic Code 5258, rather than 5260, was more appropriate to compensate for the Veteran’s symptom presentation. Specifically, the evidence shows his original in-service injury was a meniscal tear and he experienced effusion and pain in the joint, whereas his flexion was always measured above the compensable level. See 38 C.F.R. § 4.71a. Moreover, substituting a 20 percent rating under Diagnostic Code 5258 for a 10 percent rating under 5260 does not constitute a decrease in compensation and therefore is not subject to the safeguards for reduction in rating. Next, the Board has considered whether ratings in excess of 50 and 20 percent are warranted for the right knee disability. For disabilities based on limitation of motion, VA is to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional loss-of-motion due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997); Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016) (stating that “the plain language of § 4.59 indicates that it is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is being evaluated is predicated on range of motion measurements”); 38 C.F.R. § 4.59. Standard motion of a knee joint is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Limitation of leg motion is governed by Diagnostic Codes 5260 and 5261. Diagnostic Code 5260 concerns limitation of leg flexion. A zero, non-compensable rating is warranted where flexion is limited to 60 degrees and a 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted where flexion is limited to 30 degrees, and a 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5260. Diagnostic Code 5261 pertains to limitation of leg extension. Fifty percent is the highest available rating for limitation of extension. 38 C.F.R. § 4.71a, DC 5261. Under Diagnostic Code 5257, a 10 percent rating is warranted for mild impairment, 20 percent rating is warranted for moderate impairment, and a maximum, 30 percent rating is warranted for severe impairment from recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. Under Diagnostic Code 5258, a maximum, 20 percent rating is warranted where there is evidence of dislocated semilunar cartilage, with frequent episodes of locking, pain, and effusion into the knee joint. 38 C.F.R. § 4.71a, DC 5258. Ankylosis of the knee is rated under Diagnostic Code 5256. A 30 percent rating is provided for ankylosis in a favorable ankle of full extension or slight flexion between zero and 10 degrees. A 40 percent rating is provided for ankylosis with flexion between 10 and 20 degrees. A 50 percent rating is provided for ankylosis with flexion between 20 and 45 degrees. Finally, a 60 percent rating is for extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more. 38 C.F.R. § 4.71a, DC 5256. A claimant who has both limitation of flexion and limitation of extension of the same leg may be rated separately under Diagnostic Codes 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg. However, separate ratings require separate compensable symptomatology. VAOPGCPREC 9-2004 (2004), 69 Fed. Reg. 59,990 (2004). A claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257. However, separate ratings require separate compensable symptomatology. VAOPGCPREC 9-98 (1998), 63 Fed. Reg. 56,704 (1998); VAOPGCPREC 23-97 (1997), 62 Fed. Reg. 63604 (1997). After review of the record, the Board finds the criteria for ratings in excess of or addition to 50 percent for right knee limitation of extension and 20 percent for symptoms of the meniscus are not met. See 38 C.F.R. 4.71a, DC 5258, 5260, 5261. As a preliminary matter, the Board notes that 50 percent is the highest available rating under Diagnostic Code 5261 and 20 percent is the only rating available under Diagnostic Code 5258. Therefore, the Veteran could only receive a higher rating for his right knee under another Diagnostic Code. As noted above, the evidence does not show a compensable level of limitation of flexion, and separate ratings for limitation of flexion and extension are only available if the Veteran has compensable limitation for both. The November 2014 and March 2017 VA examinations of record show flexion to 115 and 125 degrees, significantly greater than the 45 degrees required for the minimum rating under Diagnostic Code 5260. Similarly, the several notations in private evaluations were of complete flexion with pain, and a March 2017 report by Dr. JGH listed flexion as 90 with pain. Additionally, the Board has considered the effects of pain, fatigability, weakness, and incoordination, including during flare-ups and after repeated use. When VA tried to obtain a new examination to record the Veteran’s range with passive, active, weight-bearing, and nonweight-bearing motion, the Veteran wrote that he was unable to attend any VA examinations due to his severe Parkinson’s disease and limited ability to walk. See September 2019 statement. The Board finds remand for additional development would hold extremely limited probative value in light of the fact that the Veteran is unable to attend an examination from which additional information could be obtained. Moreover, there is no indication in the record that pain, weakness, fatigability, incoordination, or flare-ups in symptoms would limit the Veteran’s flexion by half or more, to satisfy the criteria for a compensable rating. The lay reports describe the Veteran’s functional limitation as limiting his ability to stand or walk; neither the Veteran nor his wife described limitations in bending his knee. Symptoms of pain, locking, and swelling (effusion), which could reasonably affect the Veteran’s ability to walk and stand, are compensated by the 20 percent rating under Diagnostic Code 5258. Based on the available and obtainable evidence, the Veteran’s right knee does not meet the criteria for a separate rating for limitation of flexion. Next, the weight of the evidence is against finding recurrent subluxation, lateral instability, or ankylosis of the right knee. The Board notes that the March 2017 disability benefits questionnaire (DBQ) lists ankylosis, recurrent subluxation, and instability. However, the Board draws limited probative value from this document as it is internally inconsistent and inconsistent with the over evidence of record. For example, the form lists the Veteran’s flexion and extension as 90 degrees in both his right and left leg. The motions of flexion and extension are in opposing directions and presumably would not have the same measurements. See 38 C.F.R. § 4.71, Plate II. Similarly, the form selections show that the Veteran was not able to perform repetitive-use testing. The form then indicates that he had additional limitation after repetitive-use testing but lists the same measurements, “90,” as the post-test range of motion. Selections were made for both “none” and “severe” recurrent subluxation. The form indicates that the Veteran has extremely unfavorable ankylosis in flexion at 90 degrees. The VA examinations of record did not identify ankylosis of the right knee. The private evaluations, VA treatment records, and the lay statements are similarly silent for diagnosis of ankylosis or fixation of the knee. Indeed, the March 2017 VA examination conducted just a few days after the DBQ shows the Veteran’s motion from zero to 125 degrees, and the medical evaluation by Dr. JGH attached at the end of the DBQ notes flexion to at least 90 degrees. The DBQ indicates that the Veteran has instability with the maximum, 10-15 millimeters shown on all four tests for instability. A few days later, the VA examiner found no evidence of instability on the four tests and no history of subluxation. VA and private medical records also do not discuss instability or subluxation. The Board finds the other evidence of record more probative and outweighing of the evidence in the DBQ. Accordingly, the Board finds the evidence does not support that the Veteran has right knee ankylosis, instability, or subluxation to warrant additional disability ratings. 3. Continued award of SMC at the housebound rate after March 1, 2015 As explained in section (1) above, SMC at the housebound rate is warranted when there is one disability rated 100 percent and separate service-connected disabilities independently ratable at 60 percent, and the Veteran receives 100 percent disability based on unemployability caused by PTSD. 38 C.F.R. § 3.350(i). The reinstatement of ratings for the right knee brings the combined rating for separate disabilities once again to 60 percent, which qualifies the Veteran for continued SMC at the housebound rate beginning March 1, 2015. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.P. Armstrong, 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.