Citation Nr: 21075915 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 18-07 679 DATE: December 21, 2021 ORDER Restoration of the 10 percent rating for service-connected left knee subluxation under Diagnostic Code 5024 to 5257, effective February 1, 2018, is granted. REMANDED Entitlement to a rating in excess of 10 percent from October 24, 2016, for service-connected left knee subluxation is remanded. Entitlement to a rating in excess of 10 percent from October 24, 2016, for service-connected left knee strain with tendonitis associated with hyperesthesia of the femoral nerve, left posterior thigh is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT The November 2017 rating decision, which reduced the evaluation for left knee subluxation from 10 percent to noncompensable effective February 1, 2018, did not reflect consideration for the provisions of 38 C.F.R. § 3.344. CONCLUSION OF LAW For the appeal period from February 1, 2018, the reduction of the rating for service-connected left knee subluxation from 10 percent to 0 percent was improper, and restoration of the 10 percent disability rating effective February 1, 2018, is warranted. 38 U.S.C. §§ 1155, 5103; 38 C.F.R. §§ 3.102, 3.105, 3.344. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served on active duty in the United States Army from September 1974 to September 1977. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In an August 2021, the Veteran testified at a Travel Board hearing held before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. During the hearing, the Veteran waived regional office initial review of evidence received after the November 2017 statement of the case (SOC). Additionally, the undersigned VLJ granted the Veteran's request to hold the record open for an additional 60 days for the submission of additional evidence. Additionally, during the Veteran's August 2021 hearing, he testified that he was not working due to problems with his knees. Thus, the Board finds that the issue of entitlement to a TDIU has been raised on the record, and the Board has jurisdiction over the issue. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a claim for TIDU is inferred with a claim for increased ratings and the assertion of unemployment). 1. Whether the rating reduction from 10 percent to 0 percent for service-connected left knee subluxation, under Diagnostic Codes 5024 to 5257 effective February 1, 2018, was proper. With regard to the initial question, when a reduction in the evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The veteran must be notified at his or her latest address of record of the contemplated action and furnished detailed reasons, therefore. Additionally, a veteran must be given notice that he has (1) 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 additional evidence is not received within that period, 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 a veteran of the final rating action expires. Also, if a predetermination hearing is not requested or if a veteran failed without good cause to report for a scheduled predetermination hearing, the final action will be based solely upon the evidence of record. If a predetermination hearing was conducted, the final action will be based on evidence and testimony adduced at the hearing as well as the other evidence of record, including any additional evidence obtained following the hearing pursuant to necessary development. If a reduction is then found warranted, the effective date of such reduction shall be the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires. 38 C.F.R. § 3.105. In March 2017, the RO granted service connection for left knee subluxation with an evaluation of 10 percent effective October 24, 2016. In April 2017, the Veteran filed a notice of disagreement with the evaluation for left knee subluxation. In July 2017, the RO issued a rating decision proposing to decrease the rating of the Veteran's service-connected left knee subluxation to 0 percent. The RO reasoned that it should not have granted the Veteran a 10 percent rating for service-connected left knee subluxation because the December 2016 VA examiner reported on the examination that the Veteran only had a history of slight subluxation and no current instability was shown on the examination for the left knee. Subsequently, in a July 2017 letter, VA notified the Veteran of the proposed decrease. VA informed the Veteran that he had 60 days to submit additional evidence that this change should not be made. The Veteran was also given the option for a personal hearing to present evidence or argument on any point of his claim. The Veteran did not submit any additional evidence within 60 days or request a personal hearing on the claim. In November 2017, the RO decreased the evaluation for left knee laxity to 0 percent effective February 1, 2018. At that same time, the RO issued a statement of the case (SOC) for the issue of entitlement to an increased rating for left knee laxity (previously subluxation, left knee) currently evaluated as 0 percent disabling. In February 2018, the Veteran perfected his appeal by filing a VA Form 9, substantive appeal. In the present case, as a preliminary matter, the Board finds that the procedural requirements of § 3.105 were satisfied in this rating reduction. Notice was sent in a July 2017 rating decision and letter, both of which informed the Veteran of the proposed rating reduction. The July 2017 letter further explained the effect the proposed reductions would have on the Veteran's combined disability evaluation and informed the Veteran of his options to submit additional evidence and request a personal hearing. By way of a November 2017 rating decision, the RO reduced the Veteran's disability ratings, effective February 1, 2018. The RO satisfied the requirements by allowing a 60-day period to expire before assigning the reduction effective date and allowing the Veteran time to request a personal hearing. See 38 C.F.R. § 3.105. Accordingly, the remaining question is whether the reduction in the disability ratings is warranted based on the medical and lay evidence of record. A veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. See 38 U.S.C. § 1155. Prior to reducing a veteran's disability rating, VA is required to comply with several general VA 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 also Brown v. Brown, 5 Vet. App. 413, 420 (1993). 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 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). It is essential, both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history. 38 C.F.R. § 4.1. If an examination report does not contain sufficient detail, or the diagnosis is not supported by the findings on the examination report, it must be returned as inadequate for rating purposes. 38 C.F.R. § 4.2. When any change in evaluation is to be made, the rating agency should assure itself that there has been an actual change in the conditions, for better or worse, and not merely a difference in thoroughness of the examinations or in use of descriptive terms. 38 C.F.R. § 4.13. Finally, it must be considered that the basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. As to the propriety of the reduction, for reductions in a rating to be properly accomplished, specific requirements must be met. See 38 C.F.R. § 3.344; see also Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). The requirements for reduction of ratings in effect for five years or more are set forth at 38 C.F.R. § 3.344 (a) and (b). The duration of the rating is measured from the effective date of the rating to the effective date of the reduction. Brown, 5 Vet. App. at 418. In the present case, the Veteran's 10 percent disability rating for left knee subluxation was awarded effective October 24, 2016, and was reduced effective February 1, 2018, less than 5 years later. Thus, reexamination indicating improvement of the left knee disability is sufficient to support the rating reduction. Therefore, with regard to this particular reduction, 38 C.F.R. § 3.344 (c) is applicable. In such cases, a single reexamination disclosing improvement in that disability will warrant a reduction in its rating, because the disability has not stabilized and was likely to improve. See 38 C.F.R. § 3.344 (c). Here, there was no reexamination by VA to disclose or show improvement. In December 2016, the Veteran was afforded a VA examination for his left knee disability. The Veteran was diagnosed with left knee strain with tendinitis. He had a number of falls due to his left knee disability. He had left knee pain, clicking, popping, and intermittent swelling. He took medication, including hydrocodone. The VA examiner reported that the Veteran had slight recurrent subluxation in the left knee without any history of lateral instability or recurrent effusion. The Veteran was not given another VA examination until October 2021, which was after the rating reduction. In fact, the October 2021 VA examination shows that the Veteran had left knee instability/recurrent subluxation in that he frequently fell from his left knee giving out on him. Moreover, the Veteran's lay statements and private medical records show that he still had problems with instability/subluxation of the left knee joint. For example, in a December 2016 private treatment record, it was noted that the Veteran had left knee pain and a sense of instability. The private physician stated that an examination of the left knee showed some laxity of both knees, both medially and laterally. The private physician opined that there was slight laxity, but not enough that he would have a complete tear, but the Veteran was guarding with the knees. The Veteran reported that he had some collapsing and falling with the knees. Based on the foregoing, the Veteran's left knee did not improve, and the RO's decision to decrease the evaluation for left knee subluxation to 0 percent was improper. Accordingly, the action to reduce the rating is void, and the 10 percent evaluation for left knee subluxation under Diagnostic Codes 5024 to 5257 is restored effective February 1, 2018, as though the reduction had not occurred. In so reaching that conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent from October 2016, for service-connected left knee subluxation is remanded. 2. Entitlement to a rating in excess of 10 percent from October 24, 2016, for service-connected left knee strain with tendonitis associated with hyperesthesia of the femoral nerve, left posterior thigh is remanded. Private treatment records show that in February 2018, the Veteran had left knee diagnostic arthroscopy with partial meniscectomy, posterior horn and partial lateral meniscectomy, posterior horn. Temporary total ratings will be assigned from the date of hospital admission and continue for one, two, or three months from the first day of the month following hospital discharge when treatment of a service-connected disability results in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30. The term "convalescence" does not necessarily entail in-home recovery. Felden v. West, 11 Vet. App. 427, 430 (1998). Convalescence is defined as "the stage of recovery following an attack of disease, a surgical operation, or an injury." Id. at 430 (citing Dorland's Illustrated Medical Dictionary, 374 (28th ed. 1994)). The recovery has been defined as "the act of regaining or returning toward a normal or healthy state." Id. (citing Webster's Medical Desk Dictionary 606 (1986)). The purpose of a temporary total rating is to aid the appellant during the immediate post-surgical period when he or she may have incompletely healed wounds or may be wheelchair-bound, or when there may be similar circumstances indicative of transient incapacitation associated with recuperation from the immediate effects of an operation. 38 C.F.R. § 4.30. Notations in the medical record as to the claimant's incapacity to work after surgery must be taken into account in the rating. 38 C.F.R. § 4.30; see Seals v. Brown, 8 Vet. App. 291, 296-97 (1995); Felden, 11 Vet. App. at 430. The medical evidence of record is not clear whether the Veteran's left knee surgery required convalescence thereafter. Thus, a remand is warranted for a VA medical opinion to determine whether the Veteran's left knee surgery required convalescence. 3. Entitlement to a TDIU is remanded. Regarding the claim for a TDIU, consideration of entitlement to a TDIU is dependent upon the impact of service-connected disabilities on a veteran's ability to obtain or retain substantially gainful employment. The matter of TDIU is therefore inextricably intertwined with the issue of entitlement to an increased evaluation for left knee disabilities. Harris v. Derwinski, 1 Vet. App. 180(1991). Remand of the inextricably intertwined TDIU claim is therefore required as well. The matters are REMANDED for the following action: 1. Obtain any outstanding VA or private treatment records. 2. Obtain an opinion regarding the nature and severity of the Veteran's left knee disability. Specifically, the RO should obtain a VA addendum medical opinion that addresses whether the Veteran's February 2018 left knee surgery required a period of convalescence under 38 C.F.R. § 4.30. The VA examiner must review a copy of this remand and claims file. The VA examiner should consider for how long the Veteran was required to convalesce, if such is required. 3. After the above development has been completed, readjudicate the issues on appeal, including entitlement to a TDIU. If any of the benefits sought on appeal are denied, the Veteran and his representative should be provided a supplemental statement of the case. An appropriate period of time should be allowed for a response before the case is returned to the Board. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Crawford, 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.