Citation Nr: 21074406 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 17-37 392 DATE: December 15, 2021 ORDER Restoration of a 20 percent disability rating for degenerative spur, post-operative internal derangement of the left knee with scar and mild quadriceps atrophy (left knee disability) is granted. REMANDED Entitlement to an increased rating for left knee disability in excess of 20 percent, is remanded. Entitlement to service connection for major depressive disorder (MDD), to include as secondary to service-connected left knee disability is remanded. Entitlement to a compensable rating for bilateral hearing loss prior to May 10, 2016, and in excess of 20 percent thereafter is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT At the time of the reduction in rating of a left knee disability, the evidence did not show improvement in the ability to function under the ordinary conditions of life and work. CONCLUSION OF LAW The criteria for reduction of the rating of the Veteran's left knee disability from 20 percent to 10 percent from June 6, 2016 have not been met. 38 C.F.R. §§ 3.105, 3.344, 4.2, 4.13. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1975 to June 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing conducted by the undersigned Veterans Law Judge in July 2021. The Board notes, the Veteran was previously represented by a private attorney in this matter. In a July 2017 letter, prior to certification of the appeal to the Board, the attorney indicated that the office was no longer representing the Veteran. In a VA letter issued in July 2017, the Veteran was informed of the attorney's withdrawal of representation. The Veteran has not objected to the attorney's withdrawal of representation. Since the attorney withdrew, the Veteran has not appointed a new attorney, agent, or representative, and he is unrepresented before the Board in this appeal. 1. Whether the reduction in the rating assigned for left knee disability from 20 percent to 10 percent was proper Usually, VA must follow certain procedural regulations such as affording notice and an opportunity to present additional evidence before lowering a Veteran's evaluation. 38 C.F.R. § 3.105(e). Where there is no reduction in "compensation payments currently being made," those regulations do not apply. Tatum v. Shinseki, 24 Vet. App. 139, 143 (2010). That is the case here. Although the RO reduced the Veteran's left knee disability from 20 percent to 10 percent, his combined rating remained 40 percent disabling. As a result, the RO's decision did not "result in a reduction or discontinuance of compensation payments currently being made," and VA did not need to comply with 38 C.F.R. § 3.105(e). Even though affording notice and an opportunity to present additional evidence is not required, VA must still comply with certain substantive requirements before a rating reduction is proper. The regulations provide that when a rating has continued for a long period at the same level (i.e., five years or more), stringent criteria must be met before a rating may be reduced. However, where, as here, a rating has been in effect for less than five years, the regulatory requirements under 38 C.F.R. § 3.344(a) are inapplicable. See 38 C.F.R. § 3.344(c). In such cases, an adequate reexamination that discloses improvement in the condition will warrant a reduction in rating. Id. That said, "in any... reduction case[,] not only must it be determined that an improvement in a disability has occurred[,] but also that the improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work." Brown v. Brown, 5 Vet. App. 413, 421 (1993). Significantly, in a rating reduction case, the burden is on VA to show improvement, and it is not on the Veteran as is the case in a typical increased rating claim. See 38 U.S.C. § 5112; 38 C.F.R. § 3.105. A rating reduction case focuses on the propriety of the reduction. 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 may be considered in the context of evaluating whether the condition had demonstrated actual improvement. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1991). The question of whether a disability has improved involves consideration of the applicable rating criteria. The Veteran's left knee disability has been rated under Diagnostic Codes 5003-5260 and Diagnostic Code 5258. 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 rating assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. Diagnostic Code 5003 rates degenerative arthritis. 38 C.F.R. § 4.71a. Degenerative arthritis established by X-ray findings will be rated based on limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent evaluation is authorized if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. Id., Diagnostic Code 5003. Diagnostic Code 5258 provides a 20 percent rating may be assigned for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a. Under Diagnostic Code 5260, which contemplates limitation of leg flexion, a 0 percent rating is warranted for flexion limited to 60 degrees; a 10 percent rating is warranted for flexion limited to 45 degrees; a 20 percent rating is warranted for flexion 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 5260. In March 2014, the RO increased the Veteran's disability rating from 10 percent to 20 percent under DC 5258 (previously DC 5003-5260) based on a July 2013 VA examination which showed dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. At the examination, the Veteran exhibited left knee flexion to 85 degrees and left knee extension to 10 degrees with objective evidence of painful motion at 10 degrees. He was noted to have less movement than normal, pain on movement and atrophy of disuse of the left knee. Functionally, the Veteran describes his ankle disability as interfering with his ability to work as he had to quit work two years ago due to his left knee and other conditions. He reported he cannot walk far, squat down, bend down on the knee and cannot sit for long without getting the knee getting stiff. In June 2016, the RO reduced the Veteran's 20 percent disability rating to 10 percent and returned the assigned diagnostic code back to DC 5003-5260, relying on knee examination earlier that month. During examination, the Veteran reported limited range of motion, limited weight bearing, constant dull and sharp burning pain radiation down legs, mild numbness, limited walking, standing, and bending. He reported flare ups of his left knee which he described as limited range of motion, limited weight bearing, constant dull ache with sporadic sharp pain limiting his daily activities. He stated that the condition has worsened and complained of swelling. He exhibited left knee flexion to 60 degrees and extension to 0 degrees. The Board notes the examination appears to be internally inconsistent as the examiner stated that that the Veteran has never had a meniscus condition, but also noted that the Veteran underwent a meniscectomy and had residual pain and stiffness as a result. This is significant because the July 2013 VA examination showed dislocated semilunar cartilage with frequent episodes of locking, pain and effusion into the joint. Here, the Veteran complained of swelling in the knee, but the examiner did not comment on this symptom. The Veteran also complained of pain and stiffness. Because the examination report contains conflicting information on whether a meniscal condition is present, the Board finds that the examination is inadequate. Because the RO used an inadequate examination and failed to consider and apply all the provisions of 38 C.F.R. § § 3.344 in its reduction of the Veteran's disability rating the 20 percent rating for a left knee disability is restored. REASONS FOR REMAND 1. Entitlement to an increased rating for left knee disability in excess of 20 percent from May 20, 2013, is remanded. The Veteran was last afforded a VA examination to determine the severity of his knee in June 2016. During his July 2021 Board hearing, the Veteran testified that he has had a total knee replacement and continues to have problems with his knees including swelling and instability. The Veteran's testimony suggests the severity of his left knee disability may not be adequately demonstrated in the evidence currently of record. Accordingly, the Veteran should be afforded a new VA examination to assess the current nature, extent, and severity of his service-connected left knee disability, including instability, locking, effusion, and range of motion. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). In light of the Veteran's testimony that his service-connected left knee disability has increased in severity, remand is required to provide the Veteran a more current VA examination that evaluates the current severity of his left knee disability. 2. Entitlement to service connection for MDD, to include as secondary to service-connected left knee disability, is remanded. The Veteran asserts that his major depressive disorder is due to active duty military service. In the alternative, he contends that it is secondary to his left knee disability. Specifically, he asserts that pain, lack of sleep, and inability to work due to his left knee disability has caused severe depression. See September 2016 NOD. During his July 2021 Board hearing, the Veteran testified that he has not been diagnosed with a mental health disorder. He also testified that he has never been seen for a mental health disorder. He testified that he believes he has a mental health disorder due to his naval career being shortened and guilt about not being able to continue on active duty. He testified that he tried to rejoin but was denied due to his left knee disability. The Veteran was accompanied to the hearing by a friend, K.W. K.W. testified that the Veteran has a lot of highs and lows, depression, and periods of time where he will want to be by himself. She testified that he screams in his sleep sometimes. The Veteran also testified that he is depressed because he is unable to work due to his left knee disability. Considering he has not yet been examined in conjunction with this claim but testified to current symptoms which he relates to service, or as due to current service-connected disabilities, the Board finds a VA examination is warranted. 3. Entitlement to an increased evaluation in excess of 20 percent for bilateral hearing loss is remanded. During his July 2021 Board hearing the Veteran testified that his hearing has increased in severity since his last examination in June 2016. He testified he has trouble hearing when there is background noise and when people are soft spoken. He testified that if he not looking someone, he cannot hear them. K.W. testified that the Veteran has trouble hearing her. She testified that she thinks it is her tone or her pitch and that he always asks her to repeat herself. Accordingly, the Board finds a new examination is warranted to ensure that the record reflects the current severity of the Veteran's service-connected bilateral hearing loss. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 4. Entitlement to a total disability rating based on TDIU is remanded The Veteran's claim for TDIU is inextricably intertwined with the claims being remanded. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending adjudication. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain any outstanding VA or private treatment records. 2. Then, schedule the Veteran for a VA examination by an appropriate clinician to determine the current severity of his service-connected left knee disability. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluation of the Veteran's disability under the rating criteria. 3. Then, schedule the Veteran for a VA mental conditions examination. The claims file and a copy of this remand should be made available for review. All diagnostic testing deemed to be necessary by the examiner should be accomplished. After examination of the Veteran and a review of the claims file, the examiner should do the following: 4. Indicate whether the Veteran has a current psychiatric disability, to include MDD, or had a psychiatric disability, to include MDD, at any point during the appeal period. 5. If the examiner determines the Veteran has not had a psychiatric disability, to include MDD, during the period of the claim, he or she must provide a medical explanation for this finding. 6. For any psychiatric disability diagnosed on examination, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that such disorder had its clinical onset in service or is otherwise related to active duty. 7. If it is found that any psychiatric disability diagnosed on examination was not caused directly by service, the examiner is asked to determine if such disorder is at least as likely as not, (50 percent probability or greater) (A) caused or (B) aggravated beyond its normal progression by the service-connected left knee disability or any other service-connected disability that may be applicable. Aggravation means an increase in disability any additional impairment of earning capacity of the nonservice-connected disability. 8. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the diagnosed disability prior to aggravation by the service-connected disability. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 9. Then, schedule the Veteran for a VA examination by an appropriate clinician to determine the current severity of his service-connected hearing loss. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Aston, 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.