Citation Nr: A20008653 Decision Date: 05/15/20 Archive Date: 05/15/20 DOCKET NO. 191015-37589 DATE: May 15, 2020 ORDER The reduction of the rating for anterior cruciate ligament (ACL) reconstruction of the left knee, from 30 percent to 10 percent disabling was not proper and the 30 percent rating is restored. Entitlement to a rating greater than 30 percent for ACL reconstruction of the left knee is denied. Entitlement to a separate 10 percent rating for limitation of flexion of the left knee, ACL reconstruction of the left knee, from June 13, 2019 is granted. Entitlement to a compensable rating for residual scar, left knee is denied. FINDINGS OF FACT 1. In a September 2015 rating decision, the RO proposed to reduce the disability evaluation for the Veteran’s service-connected left knee disability from 30 percent to a noncompensable rating; the RO implemented that proposed reduction in a November 2015 rating decision, and the Veteran’s evaluation was decreased to a noncompensable rating effective February 1, 2016. 2. In September 2019, the RO found clear and unmistakable error (CUE) in reducing the left knee disability to a noncompensable rating and restored a 10 percent rating from February 1, 2016. 3. The Veteran was not properly notified that a VA examination would be scheduled or of the September 2015 proposed reduction as the notices were mailed to an old address. 4. The Veteran’s ACL reconstruction of the left knee is rated as 30 percent disabling, which is the maximum schedular rating permitted for other impairment of the knee. 5. Since June 13, 2019, the Veteran’s left knee disability has manifested as noncompensable limitation of flexion with painful motion. 6. The Veteran’s left knee scar is not of the head, face or neck; is asymptomatic; and measures less than 6 square inches. CONCLUSIONS OF LAW 1. The reduction of the rating for service-connected ACL reconstruction of the left knee from 30 percent to 10 percent, effective February 1, 2016, was improper and the 30 percent rating is restored. 38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.71a, Diagnostic Code 5257. 2. The criteria for a rating greater than 30 percent for service-connected ACL reconstruction of the left knee 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. 3. The criteria for a separate 10 percent rating for service-connected ACL reconstruction of the left knee, limitation of flexion, have been met since June 13, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260. 4. The criteria for an initial compensable rating for service-connected residual scar of the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Codes 7801-7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1982 to August 1984. 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 decision on their claim to seek review. The Board of Veterans’ Appeals (Board) observes that the Department of Veterans Affairs (VA) Regional Office (RO) issued a rating decision in November 2015 that reduced the Veteran’s rating for his left knee disability from 30 percent to noncompensable. In May 2016, he submitted a notice of disagreement with the reduction and assigned rating. In September 2019, the RO found that CUE had been made in the November 2015 rating decision and that a restoration of the Veteran’s disability rating to 10 percent was warranted. The RO also granted service connection and a noncompensable rating for the left knee scar. In September 2019, the RO issued a statement of the case addressing the propriety of the reduction as well as the restoration of the rating for the left knee to 10 percent. The Veteran submitted a timely VA Form 10182 (Notice of Disagreement) to opt into AMA in October 2019, appealing the reduction of the rating for the left knee disability as well as the assigned rating for the left knee scar. The Veteran requested direct review by the Board. Based on the Veteran’s choice to pursue a direct review of his appeal, the Board will decide the appeal based on the evidence of record at the time of the September 2019 rating decision. Accordingly, no additionally submitted evidence may be considered. Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is deciding the claims, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Reduction of Rating A Veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 C.F.R. § 3.344. The United States Court of Appeals for Veterans Claims (Court) has consistently held that when a disability rating is reduced without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999). Prior to reducing a Veteran's disability rating, VA is required to comply with several regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. See 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; see Brown v. Brown, 5 Vet. App. 413, 420 (1993). These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of a Veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the VA examination reports reflecting such change are based upon thorough examinations. Thus, 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, 350 (2000). The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in rating of a service-connected disability when warranted by the evidence, but only after following certain procedural guidelines. 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). In certain rating reduction cases, VA benefits recipients are to be afforded greater protections, set forth in 38 C.F.R. § 3.344(a) and (b). These provisions provide that rating agencies will handle cases affected by change of medical findings so as to produce the greatest degree of stability of disability ratings consistent with the laws and VA regulations governing disability compensation and pension. The provisions of 38 C.F.R. § 3.344(c) specify that these considerations are required for ratings that have continued for long periods at the same level (five years or more), and do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement in these disabilities will warrant a reduction in rating. Under 38 C.F.R. § 3.344(a) and (b), VA must find the following before reducing a rating: (1) based on a review of the entire record, the examination forming the basis for the reduction is full and complete, and at least as full and complete as the examination upon which the rating was originally based; (2) the record clearly reflects a finding of material improvement; and, (3) it is reasonably certain that the material improvement found will be maintained under the ordinary conditions of life. See Kitchens v. Brown, 7 Vet. App. 320 (1995); Brown v. Brown, 5 Vet. App. 413, 419 (1993). The provisions of 38 C.F.R. § 3.344(a) and (b) further provide certain procedural protections to a Veteran in regard to reductions of rating ratings. As noted above, the regulation is applicable if the rating was in effect more than five years; otherwise, 38 C.F.R. § 3.344(c) is applicable. Where a rating reduction was made without observance of law, the reduction must be vacated, and the prior rating restored. Schafrath, 1 Vet. App. at 595. 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, 281-82 (1992). The Veteran need not demonstrate that he is entitled to retain the higher rating; rather, it must be shown by a preponderance of the evidence that the RO's reduction was warranted. 1. The reduction of the rating for ACL reconstruction of the left knee, from 30 percent to 10 percent disabling was not proper and the 30 percent rating is restored. In this case, the Veteran was awarded service connection and a 10 percent rating for his left knee disability, effective April 1, 1992. He was awarded a 30 percent rating, effective from February 1, 2006. In March 2014, the RO found that the Veteran’s left knee disability had shown improvement since the examination in 2007, but that sustained improvement had not been shown. The RO indicated that the 30 percent rating would be continued and that the RO would schedule another examination to determine whether improvement in the left knee condition had been sustained. On July 22, 2015, the Veteran notified VA that his mailing address had changed. On July 23, 2015, the RO ordered a VA examination to determine the current severity of the Veteran’s left knee disability. The VA 21-2507a Request for Physical Examination shows two incorrect addresses for the Veteran. The same day, the RO sent a letter to the Veteran notifying him that a VA medical facility would be contacting him to schedule an examination. The RO notified the Veteran of the consequences of failing to report for an examination without good cause. The RO sent the letter to the Veteran’s old address. On September 2, 2015, the VA 21-2507a Request for Physical Examination follow-up notation indicates that the Veteran’s examination was cancelled due to his failure to report. The document still recorded the Veteran’s incorrect mailing address. On September 8, 2015, the RO proposed to reduce the evaluation for the Veteran’s service-connected left knee disability from 30 percent to a noncompensable rating based on his failure to report for the examination. The proposed rating notified the Veteran that he had 60 days to request a hearing and/or present additional evidence to show that compensation payments should be continued at the present level. This proposed rating was mailed to the Veteran’s old address. On December 1, 2015, the RO mailed the Veteran the rating decision effectuating the proposed decrease from 30 percent disabling to noncompensable, effective February 1, 2016. This rating decision was mailed to the Veteran’s correct address. In May 2016, the Veteran submitted a notice of disagreement with the reduction of his rating. In September 2019, the RO issued a rating decision finding that the reduction to a noncompensable rating was in error since the Veteran’s disability had a protected rating of 10 percent. The RO addressed the matter further in the September 2019 statement of the case. The Board has reviewed the evidence and finds that the Veteran was not properly notified of his VA examination in 2015. As noted above, in July 2015, the RO sent the Veteran a letter notifying him that he was being scheduled for a VA examination. The letter was sent to his old address. While the claims file does not show that the notice letter was returned to VA, the claims file also fails to show that the letter was forwarded to the Veteran in a timely manner or at all. Moreover, the July 2015 VA 21-2507 examination request shows two incorrect addresses for the Veteran. An incorrect address was still listed on the September 2015 VA 21-2507 update indicating that the Veteran failed to report for his examination. The claims file does not include correspondence from the medical center to the Veteran showing whether notice of the examination was sent to the Veteran’s correct address. As such, the Board cannot find that the Veteran was properly notified of the examination. Additionally, the Board finds that the Veteran was not properly notified of the proposal to reduce his rating. Again, the rating decision proposing the reduction of the Veteran’s left knee rating was mailed in September 2015 to his old address. While the claims file does not show that the document was returned to VA, the claims file also fails to show that it was forwarded to the Veteran in a timely manner or at all. There is no evidence that the RO ever mailed a copy of the proposed rating reduction to the Veteran’s updated address. As such, the Board cannot find that the Veteran was properly notified of the proposal to reduce his rating for the left knee. Since the Veteran was not properly notified of his examination or of the proposal to reduce the rating for his left knee disability, the Board finds that the reduction of the disability rating for ACL reconstruction of the left knee from 30 percent to 10 percent, effective February 1, 2016, was not proper. The 30 percent disability rating is restored. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. Part IV. If two evaluations are potentially applicable, 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the veteran’s disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). 2. Entitlement to a rating greater than 30 percent for ACL reconstruction of the left knee is denied. The Veteran contends that he is entitled to a higher rating for ACL reconstruction of the left knee. Prior to the reduction of his rating, the Veteran’s left knee was rated 30 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5257, other impairment of the knee, recurrent subluxation or lateral instability. This rating has been restored and notably, 30 percent is the maximum schedular rating provided under Diagnostic Code 5257. However, separate ratings can be assigned for knee disabilities when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology; this includes separate ratings based on limitation of flexion (Diagnostic Code 5260), limitation of extension (Diagnostic Code 5261), lateral instability or recurrent subluxation (Diagnostic Code 5257), and meniscal conditions (Diagnostic Codes 5258, 5259). See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); Lyles v. Shulkin, 29 Vet. App. 107 (2017). In this case, effective June 13, 2019, a separate 10 percent rating is warranted for noncompensable limitation of flexion of the knee with painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5260; 38 C.F.R. §§ 4.59. A higher rating is not warranted as the evidence does not more closely approximate a finding of limitation of flexion of the knee to 30 degrees or less, even with consideration of pain and functional impairment. No other higher, separate, or staged ratings are warranted under Diagnostic Code 5260 or any other diagnostic code. The normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Limitation of flexion warrants 10, 20, and 30 percent ratings when limitation is to 45 degrees, 30 degrees, and 15 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension warrants 10, 20, 30, 40, and 50 percent ratings when limitation is to 10 degrees, 15 degrees, 20 degrees, 30 degrees, and 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5261. A 10 percent rating can also be assigned for the knee joint if there is painful motion without compensable limitation of motion. 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the applicability of 38 C.F.R. § 4.59 is not limited to arthritis claims). Ratings can also be assigned when the knee disability affects the meniscus, with a 20 percent rating for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint and a 10 percent rating for removal of semilunar cartilage (e.g., meniscectomy) and current residual symptoms. 38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5259. In this case the evidence does not reflect, and the Veteran does not allege that his disability affects the meniscus. As such, those diagnostic codes are not for application. Ratings can also be assigned for impairment of the tibia or fibula, genu recurvatum, or ankylosis of the knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 93 (30th ed. 2003). In this case the evidence does not reflect, and the Veteran does not allege that he has tibia or fibula impairment, genu recurvatum, or ankylosis of either knee. As such, those diagnostic codes are not for application. The evidence includes VA treatment records dated from 2015 to September 2019, which show complaints of knee pain and flare-ups related to weather changes. Range of motion testing was not documented, and the Veteran did not describe any loss of range of motion. Range of motion testing was performed during a VA examination in June 2019, and was at worst 105 degrees of flexion, with pain, and 0 degrees of extension. At the examination, the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed by the examiner, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. The report does not suggest that the specific findings on examination, in terms of range of motion, would change to the degree required for a higher rating during a flare-up, after repetitive use, due to pain, or with weight bearing, nor does any other evidence of record to include the Veteran’s lay statements. The Board has considered the Veteran’s statements in his notice of disagreement and statements to the June 2019 VA examiner; however, he has not described a range of motion less than that found on examination. In this regard, during the June 2019 examination he did report flare-ups but described the flare-ups as consisting of increased pain, his knee giving way, and occasional swelling. He also indicated that his disability interfered with walking and standing, and the examiner noted that the left knee disability interfered with climbing, heavy lifting, squatting, and physical labor work. However, the Veteran’s statements do not show the requisite limitation of motion necessary for a rating higher than 10 percent for noncompensable limitation of flexion with pain or for a separate rating based on limitation of extension. Treatment records do not show greater limitation of motion than the examination findings. Absent indication by the Veteran or other evidence suggesting additional limitation of motion during flare-up or after repetitive use over time there is no reason to suspect range of motion is limited any more than reflected during examination and additional inquiry in this regard is unnecessary. Given the above, even when considering the knee pain’s impact on physical activities, a higher or separate rating is not warranted based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5260, 5261. The Board acknowledges that the June 2019 VA examiner observed muscle atrophy from disuse related to the left knee and reduction in muscle strength. A VA muscle injuries examination was scheduled for September 2019 to determine the impact of the atrophy on the Veteran’s functional abilities, but he failed to report for the examination. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 30 percent for ACL reconstruction of the left knee under 38 C.F.R. § 4.71a, Diagnostic Code 5257, as this is the maximum rating provided for recurrent subluxation or lateral instability of the knee. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The Board also finds that a separate rating is not warranted at any time during the pendency of the claim under 38 C.F.R. § 4.71a, Diagnostic Code 5261, limitation of extension, as the evidence does not show any limitation of extension of the left knee or pain on extension. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Finally, the Board finds that a separate 10 percent rating for limitation of flexion of the left knee is warranted under 38 C.F.R. § 4.71a, Diagnostic Code 5260, from June 13, 2019, the first date the evidence shows noncompensable limitation of flexion with pain on movement. To this extent, the appeal is granted. 3. Entitlement to a compensable rating for residual scar, left knee is denied. The Veteran seeks a compensable rating for his residual scar of the left knee, which has been rated under 38 C.F.R. § 4.118, Diagnostic Code 7802. Diagnostic Codes 7800 to 7805 pertain to scars. 38 C.F.R. § 4.118. The Schedule of ratings for the skin were amended effective August 13, 2018. See 83 Fed. Reg. 32,592 (July 13, 2018). Prior to August 13, 2018, the Board will consider the old version of the diagnostic codes only (old code); however, for the period beginning August 13, 2018 the Board will consider both the old and amended version (amended code) of the diagnostic codes and rate based on whichever is most favorable to the Veteran. Diagnostic Code 7801 provides for a 10 percent disability evaluation for a scar that is not of the head, face, or neck, that is deep and nonlinear (old code) or associated with underlying soft tissue damage (amended code), and that has an area of at least 6 square inches (39 sq. cm.). Higher ratings are available if larger areas are affected. Under the old code, a “deep scar” is defined as one associated with underlying soft tissue damage. The old and amended codes also differ regarding instructions for totalling the area affected when there is more than one qualifying scar. Diagnostic Code 7802 provides for a 10 percent disability evaluation for a scar not of the head, face, or neck, that is superficial and nonlinear (old code) or not associated with underlying soft tissue damage (amended code) and which covers an area of at least 144 square inches (929 sq. cm.) or more. No higher ratings are available under either version of this code. Under the old code, a “superficial scar” is defined as one not associated with underlying soft tissue damage. The old and amended codes also differ regarding instructions for totalling the area affected when there is more than one qualifying scar. Diagnostic Code 7804 provides for a 10 percent disability evaluation for one or two scars that are unstable or painful. A 20 percent disability evaluation is assigned where there are three or four scars that are unstable or painful. A 30 percent disability evaluation is assigned where there are five or more scars that are unstable or painful. An unstable scar is one where there is frequent loss of skin covering over the scar. If one or more scars are both unstable and painful 10 percent is added to the evaluation. Under the new and amended codes, pursuant to Diagnostic Code 7805, a scar may be rated on any disabling effect(s) not considered as part of Diagnostic Codes 7800 to 7804. In this case, a compensable rating for the left knee scar is not warranted under any diagnostic code as the scar is not of the head, face or neck; is linear; asymptomatic; and does not cover an area of at least 6 square inches. Per the findings in the June 2019 VA examination report, the examiner specifically found that the scar was 11 centimeters long and 0.3 centimeters wide. The scar was not painful or unstable, did not have a total area equal to or greater than 6 square inches, and was not on the head, face, or neck. The examiner stated that the scar was well healed with no adhesions, keloid or tenderness, or breakdown of skin. The Veteran has not alleged that his scar is symptomatic. Based on the foregoing, an initial compensable rating is not warranted for the left knee scar under any diagnostic code. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The appeal is denied. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda G. Alderman 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.