Citation Nr: 21077260 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 17-44 081 DATE: December 29, 2021 ORDER Clear and unmistakable error (CUE) was not present in a July 2012 rating decision; therefore, restoration of the 30 percent rating for the left knee disability for limitation of flexion is granted. REMANDED Entitlement to a rating in excess of 30 percent for the left knee disability based on limitation of flexion is remanded. Entitlement to an increased rating for a left knee disability based on limitation of extension is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The evidence of record at the time of the July 2012 rating decision did not show the assignment of a 30 percent rating was an undebatable error. CONCLUSION OF LAW The criteria for restoration based on a lack of CUE in the July 2012 rating decision assigning a 30 percent evaluation for limitation of flexion have been met. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105, 20.1403. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1977 to December 1981, October 1986 to September 1992, and January 2003 to October 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision issued by a Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). Propriety of reduction on the basis of CUE Initially, the Board observes 38 C.F.R. § 3.105 outlines a set of procedural safeguards governing rating reductions, which are required to be followed by VA before it issues any final rating reduction. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). In the instant case, the AOJ procedurally complied with 38 C.F.R. § 3.105 regarding the manner in which the Veteran was given notice of the proposed rating reduction and the implementation of that reduction. Notice of the proposed rating reduction, including the evidentiary basis for this proposal, was provided to the Veteran in a December 2013 notification letter which included a November 2013 rating decision. This notice also informed the Veteran that she could submit additional evidence to show that the compensation payments should not be reduced and advised her of her right to request a pre-decisional personal hearing. The AOJ subsequently effectuated the proposed rating reduction in a February 2016 rating decision. In a typical rating reduction case, VA has the burden of establishing that the disability has improved. It is well established that VA cannot reduce a veteran's disability evaluation without first finding that the service-connected disability has improved to the point that the Veteran is now better able to function under the ordinary conditions of life and work. See Murphy v. Shinseki, 26 Vet. App. 510, 517 (2014); see also Faust v. West, 13 Vet. App. 342, 349 (2000); Brown v. Brown, 5 Vet. App. 413, 421 (1993). However, in this case, the rating reduction was predicated on an AOJ finding that there was CUE in the July 2012 rating decision, specifically determining that the 30 percent rating assigned for the Veteran's limitation of flexion should never have been assigned. 38 C.F.R. § 3.104, 3.105(a). CUE is a very specific and rare kind of error. It is the kind of error, whether of fact or law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, either the correct facts, as they were known at the time, were not before the AOJ, or the statutory and regulatory provisions extant at the time were incorrectly applied. For CUE to exist, the evidence must show that (1) either the correct facts, as they were known at that time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated), or the statutory or regulatory provisions extant at the time were incorrectly applied, and (2) the error is "undebatable" and the sort that which, had it not been made, would have manifestly changed the outcome at the time it was made. In reviewing this evidence, determinations of CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992)). While the AOJ determined that CUE should have resulted in a rating reduction, the Board is not bound by the AOJ's determination. Therefore, as the AOJ has raised the issue of CUE, the Board is not required to simply evaluate the AOJ's determination that the Veteran should have been assigned a lower rating, and will instead evaluate the July 2012 rating decision for any CUE. Under the rating criteria in effect at the time of the July 2012 rating decision, leg flexion limited to 60, 45, 30, and 15 degrees warranted noncompensable, 10 percent, 20 percent, and 30 percent evaluations, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2012). The July 2012 rating decision assigned a 30 percent evaluation for limitation of flexion based on flexion being limited to 15 degrees or less. The May 2012 VA examination showed flexion to 90 degrees or greater. The examiner stated that objective evidence of painful motion began at zero degrees. The November 2013 rating decision proposing the reduction stated that the 30 percent rating was improper because the May 2012 VA examination showed flexion to 90 degrees and with evidence of painful motion, the knee was not limited to 15 degrees. However, as noted above, the examiner found that the Veteran had painful motion beginning at 0 degrees, which can be reasonably interpreted as the Veteran had pain throughout flexion range of motion. As such, the AOJ's finding that the Veteran's flexion was limited to 15 degrees was not clearly and unmistakably erroneous as this could be supported considering the examiner's statement regarding pain. Although the VA examination showed flexion to 90 degrees, based on the entirety of the examination, it is not undebatable that the Veteran's flexion was not limited to 15 degrees considering painful motion. The Board finds that there is no CUE in the July 2012 rating decision, and therefore, the 30 percent rating for flexion is restored. REASONS FOR REMAND 1. Entitlement to a rating in excess of 30 percent for left knee flexion is remanded. 2. Entitlement to an increase rating for left knee extension is remanded. The Veteran's most recent VA knee examination was in June 2017. At the hearing she testified that her knee has worsened since her VA examination in 2017. The Veteran testified that she is in pain all day long, has instability, reduced range of motion, and has difficulty walking and standing. Therefore, the Board finds remand is required for a new examination to assess the current severity of the Veteran's knee condition. Of note, the statement of the case on this appeal only list an increased rating for flexion as on appeal. However, the knee can be rated under multiple diagnostic codes, and the Board finds when the Veteran appealed the rating for flexion in the February 2016 notice of disagreement, she was appealing all the ratings assigned for the knee. As such, entitlement to an increased rating for extension is also before the Board. The Veteran's rating for extension has been staged throughout the period on appeal, and is rated as 30 percent disabling from December 9, 2011, 100 percent disabling from July 12, 2012 through August 31, 2012, 30 percent disabling as of September 1, 2012, and 40 percent disabling from June 29, 2017. The AOJ should consider if a rating in excess of those assigned during the period on appeal (except for the period from July 12, 2012 to August 31, 2012, when the Veteran was rated as 100 percent disabling) is warranted. 3. Entitlement to a TDIU is remanded The Veteran testified that she stopped working in August 2019 because of her service-connected knee condition. She stated that her past jobs were strenuous and she most recently worked as a security guard which required her to walk while doing rounds. She stated she was unable to do this job anymore. Therefore, entitlement to a TDIU has been raised as part and parcel to the increased rating claim for the knee. Rice v. Shinseki, 22 Vet. App. 447 (2009). This issue is intertwined with the increased rating claim for the knee, which is being remanded, and as such, entitlement to a TDIU will be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) The matters are REMANDED for the following actions: 1. Obtain updated VA treatment records. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected bilateral 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). In addition, the examiner must 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). 3. Entitlement to a TDIU has been raised by the record; the AOJ should take any development required for entitlement to an TDIU, to include providing the Veteran with a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. After development is complete, the AOJ should adjudicate entitlement to a TDIU. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Patrick, 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.