Citation Nr: 21002913 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 19-06 052A DATE: January 19, 2021 ORDER Restoration of the prior 30 percent rating for osteoarthritis and patellofemoral syndrome with degenerative joint disease, left knee, effective January 1, 2017 is granted. REMANDED Entitlement to a rating in excess of 10 percent for osteoarthritis and patellofemoral syndrome with degenerative joint disease, right knee, is remanded. Entitlement to a rating in excess of 30 percent for osteoarthritis and patellofemoral syndrome with degenerative joint disease, left knee, is remanded. FINDINGS OF FACT 1. In an October 2016 rating decision, the regional office (RO) reduced the Veteran’s left knee osteoarthritis and patellofemoral syndrome from 30 percent to 10 percent, effective January 1, 2017. The RO complied with all due process requirements in executing reductions. 2. The Veteran’s left knee osteoarthritis and patellofemoral syndrome does not show sustained improvement under the normal circumstances of life and work. CONCLUSION OF LAW The reduction in rating for left knee osteoarthritis and patellofemoral syndrome, effective January 1, 2017, was improper and restoration to the prior rating is warranted. 38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 3.105, 3.344, 3.655, 4.71a Diagnostic Code 5257 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Army from July 1960 to May 1986 with service in the Republic of Vietnam. Reductions In rating reductions, when VA contemplates reducing an evaluation for a veteran’s service-connected disability or disabilities, it must follow specific procedural steps prior to such discontinuance. 38 C.F.R. § 3.105(e). As enumerated in 38 C.F.R. § 3.105(e), “[w]here the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons.” Id. In addition, “[t]he beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level.” Id. The beneficiary also will receive notification that “he or she will have an opportunity for a pre-determination hearing,” 38 C.F.R. § 3.105(i), and thereafter, a “final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires.” See 38 C.F.R. §§ 3.105(e); 3.500(r). In addition to satisfying the procedures outlined above, the RO must gather evidence to establish that a rating reduction is proper. Pertinent to this case, according to 38 C.F.R. § 3.344(a), titled “[e]xamination reports indicating improvement,” applies to disability ratings which have continued at the same level for 5 years or more, which is applicable in this case. See 38 C.F.R. § 3.344(c). 38 C.F.R. § 3.44(a) states that “[e]xaminations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction” and “though material improvement in the physical or mental 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.” The Veteran was assigned a 30 percent rating for left knee osteoarthritis and patellofemoral syndrome with degenerative joint disease (herein: left knee disability), between July 25, 2011 and January 1, 2017. Thus, in a rating reduction case where the rating has been in effect for more than five years, three questions must be addressed. 38 C.F.R. § 3.344(a); Brown v. Brown, 5 Vet. App. 413, 420-22 (1993); see also Brown, 5 Vet. App. at 417 (holding that the five-year period in § 3.344(c) is to be measured from the effective date of rating not from date of RO decision assigning that rating). First, a rating reduction must be based upon a review of the entire recorded history of the condition, to ascertain whether the evidence reflects an actual change in the disability. Brown, 5 Vet. App. at 420-22 (quoting § 3.344(a)). Second, whether the examination report reflecting such change are based upon thorough examinations. Id. Third, it must be determined whether the improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work. Id. Additionally, in cases in effect for longer than five years, “[r]atings on account of diseases subject to temporary and episodic improvement... will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated.” Id. In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time that it effectuated the reduction, although the Board may consider post-reduction medical evidence in the context of evaluating whether the condition had demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). Where the reduction in evaluation of a service-connected disability is considered warranted, and the lower evaluation would result in a net reduction of compensation payments currently being made, a rating proposing the reduction will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his proper address of record of the contemplated action, furnished detailed reasons therefore, and given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. 38 U.S.C. § 5112(b)(6); 38 C.F.R. § 3.105(e). A rating reduction is not proper unless the Veteran’s disability shows actual improvement in his ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000). VA has the burden of establishing that the disability has improved. 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). 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). 1. Restoration of the prior 30 percent rating for osteoarthritis and patellofemoral syndrome with degenerative joint disease, left knee, effective January 1, 2017 The Veteran contends that the rating reduction for his left knee disability was not proper and his condition did not improve. The Veteran’s left knee 30 percent rating was in effect from July 25, 2011. An October 2016 rating decision reduced the Veteran’s rating to 10 percent, effective January 1, 2017. As an initial matter, the RO complied with the procedural safeguards regarding the manner in which the Veteran was given notice of and the implementation of the reduction in May 2016 written correspondence. See 38 C.F.R. § 3.105. The Veteran’s left knee disability has been rated under Diagnostic Codes 5260 and 5261. Under 38 C.F.R. § 4.71a, Diagnostic Code 5260, flexion limited to 60 degrees is rated as noncompensable, flexion limited to 45 degrees is rated at 10 percent disabling, flexion limited to 30 degrees is rated at 20 percent disabling, and, flexion limited to 15 degrees is rated at 30 percent disabling. 38 C.F.R. § 4.71a. Under 38 C.F.R. § 4.71a, Diagnostic Code 5261, a 10 percent rating is assigned when extension of the leg is limited to 10 degrees; a 20 percent rating is assigned when extension is limited to 15 degrees. The Veteran attended a VA examination in November 2011. He reported that his left knee disability caused weakness, stiffness, swelling, heat, giving way, lack of endurance, locking, tenderness, and pain. He reported no overall functional impairment. Range of motion testing revealed flexion to 140 degrees and extension to zero degrees. Following repetitive use testing, the Veteran’s left knee extension was limited to 20 degrees. An April 2012 rating decision assigned a 30 percent disability rating for the Veteran’s left knee disability pursuant to Diagnostic Code 5261, citing the November 2011 VA examination report which reflected that the Veteran’s left knee extension was limited to 20-29 degrees. In January 2015, the Veteran submitted a claim for increased compensation for his bilateral knee disability. Upon VA examination in June 2015, the Veteran reported increased pain and dependence on assistive devices. He told the examiner that there were times his knee disability prevented him from being mobile because of discomfort. Range of motion testing revealed flexion to 100 degrees and extension to zero degrees bilaterally with pain. The Veteran reported “very painful” flare-ups bilaterally, but the examiner did not provide estimated range of motion for those occurrences, explaining that the Veteran was not examined during a flare-up. March 2016 VA treatment records reflect that the Veteran reported chronic pain at a baseline 7/10 on the pain scale. Corresponding VA diagnostic testing results reflect findings that had “worsened compared to previous films dating [June 2011].” Pursuant to the range of motion testing results at the June 2015 VA examination, an April 2016 rating decision proposed reducing the Veteran’s left knee disability rating to 10 percent, which was then carried out in an October 2016 rating decision. In his December 2016 notice of disagreement, the Veteran argued that the reduction was not justified because his condition was worse, not better. He attached a December 2016 letter from his doctor stating that the Veteran had osteoarthritis in both knees. He also had a partial ACL tear and medial meniscus tear in the left knee and tears in both the medial and lateral menisci of the right knee resulting in pain and limitation of physical activity. December 2017 VA treatment records reflect continued knee treatment and injections to treat knee pain. June 2018 VA treatment records reveal that he had “poor” range of motion in his knees and his gait was unsteady. The Veteran attended another VA examination in December 2018. He reported left knee pain when walking or sitting. He denied being able to stand for significant periods of time or walk “at times.” Range of motion testing revealed flexion to 110 degrees and extension to zero degrees bilaterally with pain. As with the June 2015 examination, the Veteran reported painful flare-ups bilaterally, but the examiner did not provide estimated range of motion for those occurrences, explaining that the Veteran was not examined during a flare-up. The Board has carefully reviewed the lay and medical evidence of record. Considering the entire history and overall disability picture, the Board finds that there is insufficient lay and medical evidence to demonstrate sustained improvement in the ordinary conditions of life. Although range of motion has been variable over the period on appeal, all other indicators of function have been consistent with constant pain, unsteady gait, and progressed limitation of function. The Veteran consistently reported, and examiners have accepted, significant limitations in walking endurance and standing. There is evidence of additional abnormalities, specifically ligament and meniscal tears. Further, there was not any treatment intervention such as surgery or therapy during the period in question to provide a reason for improvement nor has evidence that supported the initial award of 30 percent been discounted as unrepresentative of the severity of the disability. Moreover, the Veteran reported flare-up limitations to all examiners, and none have provided any reasoned estimations of additional limitations. The Board notes that the Veteran, as a lay person, is competent to describe his discernable symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994) (a lay person is competent to report symptoms based on personal observation when no special knowledge or training is required). Further, the Board finds the Veteran’s competent accounts of discernable and on-going pain and flare-ups to be internally consistent, facial plausible, and consistent with other evidence. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995); VA has the duty to show that the disability has improved, and the Board finds that evidence of record at the time of the reduction in benefits did not make it reasonably certain that overall improvement would be maintained under the ordinary conditions of life and work. Accordingly, restoration of a 30 percent rating for the Veteran’s left knee disability is granted. REASONS FOR REMAND 2. Entitlement to a rating in excess of 10 percent for osteoarthritis and patellofemoral syndrome with degenerative joint disease, right knee 3. Entitlement to a rating in excess of 30 percent for osteoarthritis and patellofemoral syndrome with degenerative joint disease, left knee During the Veteran’s December 2020 Board hearing, the Veteran testified that his knee disabilities had gotten significantly worse since his last examination in April 2019. The duty to get a new examination is triggered only when the available evidence indicates that the previous examination no longer reflects the current state of the Veteran’s disability. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-83 (2007); VAOPGCPREC 11-95 (1995). Because the Veteran contends that his knee disabilities have progressed in severity, a new examination is necessary. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected knee disabilities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Fitzgerald, 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.