Citation Nr: 21003719 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 17-38 159 DATE: January 22, 2021 ORDER Restoration of the 20 percent rating for right knee strain with degenerative arthritis from September 1, 2017 is granted, subject to the criteria governing the payment of monetary benefits. Restoration of the 20 percent rating for left knee strain with degenerative arthritis from September 1, 2017 is granted, subject to the criteria governing the payment of monetary benefits. A rating in excess of 20 percent for right knee strain with degenerative arthritis is denied. A rating in excess of 20 percent for left knee strain with degenerative arthritis is denied. FINDINGS OF FACT 1. The Veteran served on active duty from August 1982 to August 1985. 2. The reduction of the disability rating for right knee strain with degenerative arthritis from 20 percent to 10 percent was not based on evidence of sustained material improvement under the ordinary conditions of life. 3. The reduction of the disability rating for left knee strain with degenerative arthritis from 20 percent to 10 percent was not based on evidence of sustained material improvement under the ordinary conditions of life. 4. Right knee strain with degenerative arthritis is manifested by subjective complaints of pain, weakness, stiffness, locking, popping, tightness, and edema; objective findings include pain on motion, antalgic gait, flexion to 60 degrees at worst, and extension to 5 degrees at worst. 5. Left knee strain with degenerative arthritis is manifested by subjective complaints of pain, weakness, stiffness, locking, popping, tightness, and edema; objective findings include pain on motion, antalgic gait, flexion to 60 degrees at worst and extension to 5 degrees at worst. CONCLUSIONS OF LAW 1. The reduction in the disability rating for right knee strain with degenerative arthritis from 20 percent to 10 percent, effective September 1, 2017, was not proper. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.105(e), 3.344 (2020). 2. The reduction in the disability rating for left knee strain with degenerative arthritis from 20 percent to 10 percent, effective September 1, 2017, was not proper. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.105(e), 3.344 (2020). 3. The criteria for a rating in excess of 20 percent for right knee strain with degenerative arthritis have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.21, 4.124, Diagnostic Codes (DCs) 5003, 5260, 5261 (2020). 4. The criteria for a rating in excess of 20 percent for left knee strain with degenerative arthritis have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.21, 4.124, DCs 5003, 5260, 5261 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This matter stems from the Veteran’s August 2014 claim for increased ratings for his right and left knee disabilities. In a March 2015 rating decision, the Regional Office (RO) denied ratings in excess of 20 percent for right and left knee disabilities. The Veteran then appealed with regard to the ratings assigned. Thereafter, in a December 2016 rating decision, the RO proposed to reduce the ratings for the Veteran’s knee disabilities, and in a June 2017 rating decision the reduction was implemented. Reductions are distinct from increased rating claims. See Dofflemeyer v. Derwinski, 2 Vet. App. 277, 279-280 (1992); Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). As the appropriate rating for the right and left knee disabilities were already on appeal, the change in ratings was more accurately a staged rating rather than a reduction. Moreover, the Veteran did not file an appeal of the rating decision that implemented the reductions. Nevertheless, the reductions were addressed in the December 2016 statement of the case (SOC), and the he indicated in his VA Form 9 that he was appealing the reductions. Further, the appeal was then certified to the Board, and the undersigned took testimony as to the reductions in a February 2020 hearing. Accordingly, VA has indicated repeatedly that the propriety of the reductions is on appeal, and the Board waives any concerns over its jurisdiction to review the reductions. See Percy v. Shinseki, 23 Vet. App. 37, 47 (2009). As such, both entitlement to increased ratings and restoration of the 20 percent ratings are on appeal. The Veteran also appealed the denials of service connection for degenerative arthritis of the left shoulder and hepatitis C in the March 2015 rating decision, and those issues were addressed in the June 2017 SOC. However, in his July 2017 VA Form 9, he specifically limited his appeal to the issues surrounding the bilateral knee disabilities. As such, the issues of entitlement to service connection for left shoulder degenerative arthritis and hepatitis C are not currently before the Board. Rating Reductions Where a reduction in evaluation of a service-connected disability is deemed 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. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor. Additionally, the beneficiary must be given notice that he has 60 days to present additional evidence to show that compensation payments should be continued at the present level, and (2) 30 days to request a predetermination hearing. 38 C.F.R. § 3.105(e), (i). If a timely request for such a hearing is received, benefit payments shall be continued at the previously established level pending a final determination. 38 C.F.R. § 3.105(i)(1). Where a rating has been in effect for five years or more the rating may be reduced only if the examination on which the reduction is based is at least as full and complete as that used to establish the higher disability rating. Ratings for diseases subject to temporary or episodic improvement will not be reduced on the basis of any one examination, except in those instances where the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, though material improvement in the mental or physical 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. 38 C.F.R. § 3.344(a). The provisions of 38 C.F.R. § 3.344 require that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction. See Brown v. Brown, 5 Vet. App. 413, 417 (1993). In determining whether a reduction was proper, the Board must focus upon evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had actually improved. Cf. Dofflemeyer, 2 Vet. App. at 281-82. However, post-reduction evidence may not be used to justify an improper reduction. The burden is on VA to justify a reduction in a rating. The Board finds, for the following reasons, that the reduction in the disability ratings for right and left knee strain with degenerative arthritis from 20 percent to 10 percent was not proper. Therefore, the 20 percent ratings must be restored. Initially, the Veteran was sent the required notice of the proposed reduction in December 2016, more than 60 days before the reduction was implemented in the June 2017 rating decision. In response, he submitted a December 2016 argument stating that the March 2015 VA examination was inaccurate and did not consider a November 2016 Social Security Administration (SSA) disability determination which had found that he was unemployable. The Veteran also submitted the medical evidence and evaluations associated with his application for, and award of, SSA disability benefits and requested a personal hearing. In June 2017, an informal conference was held in lieu of a formal hearing, and he provided additional written argument and a May 2017 VA treatment note at that time. When the reduction took effect in September 2017, the 20 percent ratings for the Veteran’s right and left knee disabilities had been in effect since September 2011. Thus, as the ratings had been in effect for more than five years, the provisions of 38 C.F.R. § 3.344(a) are applicable in this case. Historically, in a March 2009 rating decision, the Board granted service connection for right and left knee strain. A 10 percent rating was assigned for each knee, effective September 18, 2008. Thereafter, in September 2011 the Veteran filed claims for increased ratings for his knee disabilities. In an April 2012 rating decision, an increased rating of 20 percent was granted for each knee, effective September 13, 2011, the date the claims for increase were received. The 20 percent ratings were granted based upon the report of a February 2012 VA examination. At the February 2012 VA examination, the Veteran reported flare-ups that occurred every three weeks and lasted for one week. He reported stiffness and feeling like the knees were dead during flare-ups. Range of motion testing revealed flexion of both knees to 140 degrees without pain. Extension of the right knee was to zero degrees and the left knee was to 15 degrees, both without pain. After three repetitions, extension of the right knee was limited to 15 degrees. All other ranges of motion remained the same after three repetitions. The examiner stated that the Veteran had functional loss/impairment in the form of less movement than normal following repetitive use, but not weakened movement, excess fatigability, incoordination, pain on movement, swelling, or any other factor. There was no instability or subluxation. It was noted that the Veteran occasionally used knee braces. On examination, there was no tenderness or pain to palpation of the joint line or soft tissue of either knee. In August 2014 the Veteran filed claims for increased ratings for his knee disabilities. In a March 2015 rating decision, the RO denied ratings in excess of the then currently assigned 20 percent ratings for the knees. The Veteran filed a timely notice of disagreement appealing the decision and in a December 2016 rating decision, the RO proposed to reduce the 20 percent evaluation for each knee to two separate evaluations for each knee, one at zero percent for noncompensable limitation of knee motion, and another at 10 percent based on X-ray evidence of arthritis with painful motion. The December 2016 rating decision explained that the proposed reductions were based on the findings made during March 2015 and December 2016 VA knee examinations. During the March 2015 examination, the Veteran reported that his bilateral knee pain had gotten worse over time. He indicated that pain at rest was 3/10, pain standing was 5/10, pain with prolonged standing and walking was 7/10, and pain going up and down stairs was 8/10. It was noted that both knees would give way at times with weight bearing. He denied flare-ups, but he endorsed functional loss/impairment in that he is unable to stand for more than 20 minutes or walk for more than two or three blocks due to knee pain. Range of motion testing revealed right knee flexion to 140 degrees and extension to 5 degrees. Flexion of the left knee was to 130 degrees and extension was to 5 degrees. There was bilateral knee pain with extension, objective evidence of crepitus, and localized pain/tenderness on palpation of the joint/associated soft tissue. After repetitive use testing, range of motion did not change but the examiner opined that pain, fatigue and weakness significantly limit functional ability with repeated use of the right knee over time. The examiner also opined that pain and fatigue significantly limited functional ability with repeated use of the left knee over time. However, the examiner was unable to describe this limitation in terms of range of motion. There was no instability or subluxation of either knee. There was pain with weight bearing bilaterally. Finally, it was noted that the Veteran occasionally wore knee braces. During the December 2016 VA examination, the Veteran reported constant knee pain at 7/10. The pain was described as being worse in the mornings and aggravated by walking. The Veteran wore knee braces. He denied flare-ups. He reported functional loss/impairment bilaterally and described needing to avoid prolonged walking. Range of motion testing revealed flexion of both knees to 110 degrees and extension of both knees to 5 degrees. There was bilateral pain on both flexion and extension. No additional loss of motion was noted after three repetitions, but the examiner stated that the examination results were neither consistent nor inconsistent with the Veteran’s statements describing functional loss with repeated use over time. The examiner was unable to say without resorting to speculation if pain, weakness, fatigue, or incoordination significantly limited functional ability with repeated use over time. Other findings included localized tenderness/pain on palpation of the joint/associated soft tissue, and pain on passive range of motion, weight bearing, and non-weight bearing. There was objective evidence of crepitus. The examiner observed an antalgic gait. Ankylosis, subluxation, and instability were not found. In light of the range of motion findings at the March 2015 and December 2016 VA examinations, as well as objective evidence of painful motion in both knees, and X-ray evidence of arthritis in both knees, the RO proposed to assign the minimum compensable rating (10 percent) for painful motion (flexion) of each knee as well as a noncompensable rating for limitation of extension of each knee in the December 2016 rating decision. The SSA records then received reflected that the Veteran had constant bilateral knee pain, as well as weakness that had resulted in multiple falls. In addition, he was unable to sit for long due to the pain and swelling and could only walk about one block before needing to rest. Examination revealed limited extension of both knees, swelling, popping, locking, edema, stiffness, tightness, effusion, tenderness, and a slow, antalgic gait. In his June 2017 written argument, the Veteran stated that his knee symptoms had worsened over the years, without any signs of improvement. The May 2017 treatment note indicated that due to knee pain from osteoarthritis the Veteran would benefit from having a first-floor apartment. In the June 2017 informal hearing conference, the Veteran reported that he wore knee braces because he was always afraid of falling. He indicated that he wanted to get stronger knee braces. He reported shooting pain, locking, and severe pain. In the June 2017 rating decision, the RO reduced the overall disability ratings for the Veteran’s right and left knee strain with degenerative arthritis from 20 percent to 10 percent, both effective September 1, 2017. The RO cited the evidence noted in the December 2016 rating decision and the pertinent evidence received since that decision, and explained that the 10 percent ratings for each knee as well as the separate 0 percent ratings for each knee were assigned based upon noncompensable limitation of knee motion, the X-ray evidence of arthritis in both knees, and the evidence of painful knee motion. It was specifically noted that the 10 percent rating for each knee was based on limitation of flexion and the 0 percent rating for each knee was based on limitation of extension. As noted above, 38 C.F.R. § 3.344(a) provides that although material improvement in a physical condition may be 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. 38 C.F.R. § 3.344(a). In this case, while the Veteran reported flare-ups at the February 2012 VA examination and did not report any flare-ups of knee symptoms at either the March 2015 or December 2016 VA examination, he did report functional loss/impairment at both the March 2015 and December 2016 VA examinations, which were described as an inability to stand more than 20 minutes or walk more than 20 blocks/avoiding prolonged walking. He also reported constant pain at the December 2016 VA examination and denied any improvement, specifically stating in March 2015 that the pain had worsened. Importantly, while there was no evidence of tenderness or pain to palpation for the joint line/soft tissue in February 2012, there was such pain/tenderness in March 2015 and December 2016. Further, the Veteran consistently reported using knee braces at all three examinations, he consistently reported pain around 7/10 or worse in March 2015 and December 2016, and all three examination reports noted similar impact on his ability to work. Although range of motion testing revealed that extension had improved from 15 degrees bilaterally in February 2012 to five degrees bilaterally at the subsequent VA examinations, the February 2012 VA examination report noted that there was no evidence of painful motion but the March 2015 examination reflected painful extension and the December 2016 examination reflected painful extension and flexion, showing a progression or worsening of pain symptoms. Similarly, flexion was full (to 140 degrees) in February 2012, but it was only to 130 degrees on the left in March 2015 and had decreased to 110 degrees bilaterally in December 2016. Additionally, the February 2012 VA examiner indicated that the only disability factor contributing to functional loss/impairment of the knees following repetitive use was less movement than normal. It was specifically noted that there was no weakened movement, excess fatigability, incoordination, pain on movement, swelling, or any other factor. However, the March 2015 examination report documented that pain, fatigue, weakness significantly limited functional ability with repeated use over time. Finally, the VA treatment records and SSA disability records from 2016 and 2017 did not show any improvement in either knee disability and a January 2020 VA treatment record actually showed more severe limitation of motion. For example, a September 2016 VA treatment record noted that the Veteran was seen for knee pain. He reported that his knees locked up and that he wore a knee brace. The knee pain was described as 10/10 in terms of severity. A May 2017 VA treatment record reflected that the Veteran was seen for follow-up for knee pain. The knee pain was described as constant and worse with prolonged sitting. It was 7/10 in terms of severity and he wore a brace. A January 2020 VA treatment record demonstrated that flexion of the bilateral knees was to 60 degrees with pain and extension was to 5 degrees with pain. There was evidence of swelling and buckling, and the Veteran wore a knee brace. Overall, at the time of the September 2017 reduction, there was not clear evidence of sustained material improvement under the ordinary conditions of life. While the June 2017 rating decision indicated that the VA examination reports showed sustained improvement, the RO appears to have based this determination on range of motion testing alone and did not address whether this represented improvement that will be maintained under the ordinary conditions of life. The circumstances under which a disability rating may be reduced are specifically limited and carefully circumscribed by regulations promulgated by VA. See Dofflemeyer, 2 Vet. App. at 280. The burden of proof is on VA to establish that a reduction is warranted by a preponderance of the evidence. Decisions by the agency of original jurisdiction (AOJ) and by the Board that do not apply the provisions of 38 C.F.R. § 3.344, when applicable, are void ab initio and will be set aside as not in accordance with the law. Kitchens v. Brown, 7 Vet. App. 320 (1995); see also Hayes v. Brown, 9 Vet. App. 67, 73 (1996). Where a rating reduction was made without observance of law, the reduction is void and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The law is clear that certain procedures must be followed when a disability rating is reduced. The failure to properly apply the provisions of 38 C.F.R. § 3.344 renders the rating reductions from 20 percent to 10 percent for the Veteran’s right and left knee disabilities void ab initio. Accordingly, the previously assigned 20 percent ratings for the right and left knee strain with degenerative arthritis are restored, effective September 1, 2017. The appeals are granted. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Veteran is rated at 20 percent for right and left knee strain with degenerative arthritis pursuant to 38 C.F.R. § 4.71a, DCs 5003-5261, for arthritis resulting in limitation of extension. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after a hyphen. A rating in excess of 20 percent is not available under DC 5003. The Board will consider all potentially relevant diagnostic codes. In addition, the Board must contemplate whether separate ratings are warranted for distinct manifestations of the right and left knee disabilities, to the extent allowable by law. Higher and/or separate ratings are applicable when the disability has manifestations as follows: • ankylosis of the knee with a favorable angle in full extension or in slight flexion between 0 and 10 degrees (30% under DC 5256); • recurrent subluxation or lateral instability that is mild (10% under DC 5257), moderate (20% under DC 5257), or severe (30% under DC 5257); • flexion of the knee limited to 45 degrees (10% under DC 5260), to 30 degrees (20% under DC 5260), or 15 degrees (30% under DC 5260); • extension of the knee limited to 20 degrees (30% under DC 5261); • impairment of the tibia or fibula with a marked knee disability (30% under DC 5262). Turning to the medical evidence, the March 2015 and December 2016 VA examinations discussed above indicated no finding of ankylosis, recurrent subluxation, lateral instability, or impairment of the tibia and fibula. As such, the medical evidence does not support a higher rating based on these criteria. Further, right knee and left knee flexion was to no worse than 110 degrees and extension was to no worse than 5 degrees during the March 2015 and December 2016 VA examinations. A January 2020 VA treatment record noted that flexion was to 60 degrees with pain and extension was to 5 degrees with pain. Therefore, while limitation of motion is definitely present, it does not rise to the level required for a higher rating for limitation of extension or a separate compensable rating for limitation of flexion. Even considering additional limitation of motion or functional impairment during flare-ups or after repetitive use, a rating in excess of 20 percent is not warranted based on limitation of motion. The available clinical records were reviewed, but they did not contain evidence of knee disabilities more severe than documented at VA examination. As such, the medical evidence does not support a higher rating. The Board has also considered the Veteran's lay statements that his knee disabilities are worse. While he 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 disability of these disorders according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's 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 the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which these disabilities are evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the degree of impairment caused by the disabilities and had sufficient facts and data on which to base the conclusions, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran's subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable, and the appeals are denied. (Continued on the next page)   Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). K. M. SCHAEFER Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Redman, 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.