Citation Nr: 21005968 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 10-44 206 DATE: February 3, 2021 ORDER Restoration of the 40 percent rating assigned under Diagnostic Code 5261 for limitation of right knee extension, effective May 1, 2010, is granted. Entitlement to service connection for degenerative arthritis of the thoracolumbar spine is granted. Entitlement to service connection for degenerative arthritis of the left hip is granted. Entitlement to service connection for degenerative arthritis of the right hip is granted. Entitlement to service connection for degenerative arthritis of the left ankle is granted. Entitlement to service connection for degenerative arthritis of the right ankle is granted. REMANDED Entitlement to an increased rating for a right knee disability, rated as 40 disabling since April 30, 2007 under Diagnostic Code 5261 based on limitation of extension; 20 percent disabling since November 16, 2016 under Diagnostic Code 5260 based on limitation of flexion; and 10 percent disabling since May 21, 2009 under Diagnostic Code 5257 based on instability, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU), to include consideration of an award of special monthly compensation (SMC) under 38 U.S.C. § 1114(s), is remanded. FINDINGS OF FACT 1. June 2007 and December 2007 VA knee examination reports establish the Veteran’s right knee extension was limited to 30 degrees at that time, and subsequent VA knee examination reports in May 2009 and May 2016, which suggest some improvement in right knee extension, do not include all the range of motion testing required by VA regulation with a subsequent July 2019 VA knee examination report showing greater limitation of extension than initially shown during the June 2007 and December 2007 VA knee examinations, making it unclear whether the improvement suggested by the May 2009 and May 2016 knee examination reports was maintained under the ordinary conditions of life and work. 2. The Veteran’s degenerative arthritis of the thoracolumbar spine, left hip, right hip, left ankle, and right ankle is at least as likely as not proximately due to his service-connected right knee and leg length discrepancy disabilities. CONCLUSIONS OF LAW 1. The criteria for restoration of the 40 percent rating assigned under Diagnostic Code 5261 for limitation of right knee extension, effective May 1, 2010, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344. 2. The criteria for service connection for degenerative arthritis of the thoracolumbar spine have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 2. The criteria for service connection for degenerative arthritis of the left hip have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 3. The criteria for service connection for degenerative arthritis of the right hip have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 4. The criteria for service connection for degenerative arthritis of the left ankle have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 5. The criteria for service connection for degenerative arthritis of the right ankle have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION 1. Restoration of the 40 percent rating assigned under Diagnostic Code 5261 for limitation of right knee extension, effective May 1, 2010, is granted The Veteran filed an increased rating claim for his service-connected right knee disability in April 2007. An April 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, granted a 40 percent increased rating for the Veteran’s service-connected right knee disability under Diagnostic Code 5261 for limitation of extension, effective April 30, 2007. See 38 C.F.R. § 4.71a. The Veteran filed a timely notice of disagreement later that month appealing the rating assigned for his service-connected right knee disability. Yet, in February 2010, the Agency of Original Jurisdiction (AOJ) at that time, the RO in Huntington, West Virginia, issued a subsequent rating decision reducing the rating assigned for the Veteran’s service-connected right knee disability from 40 percent to 10 percent, effective May 1, 2010. The Veteran also appealed that decision, and the issues were consolidated in a December 2013 statement of the case. The Board notes the provisions of 38 C.F.R. § 3.105(e) allow for the reduction in rating of a service-connected disability when warranted by the evidence, but only after VA has met certain procedural and substantive requirements. Procedurally, where the reduction in the rating of a service-connected disability 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. 38 C.F.R. § 3.105(e). Substantively, the criteria governing rating reductions for service-connected disabilities is found in 38 C.F.R. § 3.344. The provisions of 38 C.F.R. § 3.344(a) and (b) apply to ratings that have been continued for five years or more. In such cases, the regulation prescribes more stringent criteria that must be met before a rating may be reduced. These provisions indicate rating agencies must handle cases affected by a change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. VA is also 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, 4.3, 4.6, 4.7, 4.10, 4.13; see also Brown v. Brown, 5 Vet. App. 413, 420 (1993). These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of a Veteran’s disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). 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 a Veteran’s ability to function under the ordinary conditions of life and work. Faust v. West, 13 Vet. App. 342, 349 (2000). In cases involving disability ratings of the musculoskeletal system, VA must also consider the provisions of 38 C.F.R. §§ 4.40 through 4.71. The Court of Appeals for Veterans Claims has recently held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion and in weight-bearing and nonweight-bearing, if possible. Correia v. McDonald, 28 Vet. App. 158 (2016). Further, though a rating reduction must have been supported by the evidence on file at the time of the reduction, pertinent post-reduction evidence favorable to restoring the rating also must be considered. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). The law provides that where a rating reduction was made without observance of law the erroneous reduction must be vacated and the prior rating restored. Schafrath, 1 Vet. App. at 595. June 2007 and December 2007 VA examinations establish the Veteran’s right knee extension was limited to 30 degrees at that time, warranting the assignment of a 40 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5261. As previously noted, the AOJ issued the Veteran a rating decision in February 2010 reducing the rating assigned under Diagnostic Code 5261 from 40 percent to 10 percent, effective May 1, 2010, based on a May 2009 VA examination report that shows the Veteran had 8 degrees extension in his right knee; however, the Board notes the May 2009 VA examination report and a subsequent May 2016 VA examination do not include all the range of motion testing results required by VA regulation, rendering them inadequate for rating purposes. See Correia, supra. A post-remand July 2019 VA examination report shows far greater limitation of extension than was initially shown by the June 2007 and December 2007 VA examination reports. Thus, it is unclear whether the improvement suggested by the May 2009 and May 2016 knee examination reports was maintained under the ordinary conditions of life and work, warranting restoration of the 40 percent rating assigned under Diagnostic Code 5261, effective May 1, 2010, and, to that extent, the Veteran’s appeal of the rating assigned for his service-connected right knee disability is granted. The issue of whether a further increase in rating is warranted will be discussed in the REMAND section below. 2. Entitlement to service connection for degenerative arthritis of the thoracolumbar spine, left hip, right hip, left ankle, and right ankle is granted. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In accordance with these principles, service connection may also be granted when a claimed disability is found to be proximately due to or the result of a service-connected disability, or when any increase in severity (aggravation) of a nonservice-connected disease or injury is found to be proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310. When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Here, July 2019 VA examination reports confirm the Veteran has degenerative arthritis of the thoracolumbar spine, left hip, right hip, left ankle, and right ankle; therefore, the current disability requirement has been met for his pending claims. The Veteran asserts his thoracolumbar spine, left hip, right hip, left ankle, and right ankle disabilities are secondary to his service-connected right knee and leg length discrepancy disabilities. In October 2018, the Veteran submitted a private opinion to support his claims from a physician assistant, B.S., PA-C, that indicates the Veteran’s degenerative arthritis of the thoracolumbar spine, left hip, right hip, left ankle, and right ankle is at least as likely as not proximately due to his service-connected right knee and leg length discrepancy disabilities. B.S., PA-C, explained the fact that the Veteran’s entire right knee medial meniscus was removed due to fragmentation from his service-connected disability resulted in him having no structure to dissipate loading forces, stabilize the knee, or lubricate the knee joint. B.S., PA-C, further explained the gait changes due to this impairment of the knee changed the Veteran’s biomechanics resulting in increased stress on his other joints and eventually causing degenerative arthritis of the thoracolumbar spine, left hip, right hip, left ankle, and right ankle over time, citing medical literature to support her conclusion in this regard. While finding the October 2018 private opinion probative regarding the Veteran’s claims, the Board previously found it necessary to remand the Veteran’s claims in May 2019 to obtain an opinion that addresses the individual joints; however, the Board finds the July 2019 opinions the AOJ obtained are actually of lower probative than the October 2018 private opinion, as the selected examiner merely provided a summary conclusion that medical literature does not support the theory that pain in one joint will cause pain in another without discussing the changes in the Veteran’s biomechanics or addressing the medical literature cited by B.S., PA-C, in this regard. Further, the Board finds the July 2019 VA opinion would be inadequate to deny the Veteran’s claims, even in the absence of the superior October 2018 private opinion, because, in the context of aggravation, the examiner opined “neither medical literature nor common medical knowledge support the theory that instability in the right knee would cause” the claimed spine, ankle, and hip disabilities. The Court of Appeals for Veterans Claims has held opinions couched in terms of causation are inadequate to make an informed decision on the question of aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). Thus, while the Board finds the October 2018 private opinion is not perfect, its probative value far outweighs the July 2019 VA opinions, and the Board does not wish to remand for potential negative development. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (cautioning against multiple remands for the sole purpose of developing negative evidence against a claim). Resolving reasonable doubt in the Veteran’s favor, the Board finds service connection for degenerative arthritis of the thoracolumbar spine, left hip, right hip, left ankle, and right ankle is warranted. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (“By requiring only an ‘approximate balance of positive and negative evidence’ the Nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding . . . benefits.”). REASONS FOR REMAND 1. Entitlement to an increased rating for a right knee disability, rated as 40 disabling since April 30, 2007 under Diagnostic Code 5261 based on limitation of extension; 20 percent disabling since November 16, 2016 under Diagnostic Code 5260 based on limitation of flexion; and 10 percent disabling since May 21, 2009 under Diagnostic Code 5257 based on instability, is remanded. The Board finds a retrospective opinion under the holding in Chotta v. Peake, 22 Vet. App. 80 (2008) is necessary to ensure the decision on the rating assigned for the Veteran’s service-connected right knee disability is fully informed due to the inconsistencies in range-of-motion testing during the appeal period, as well as the potential applicability of the amputation rule in the context of the Veteran’s appeal. See 38 C.F.R. § 4.68 (providing the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level were amputation to be performed). A June 2007 VA examiner reported the Veteran’s right knee flexion was 95 degrees with extension at 30 degrees; however, a subsequent VA examiner in December 2007 reported 30 degrees of flexion and 30 degrees of extension. The AOJ’s initial April 2008 rating decision indicates it assumed the notation of 30 degrees of flexion in the December 2007 report was a “typographical error” in light of the range of flexion shown just six months earlier in June 2007; however, in November 2016, the Veteran’s VA examiner reported the Veteran’s flexion was limited to 20 degrees with 20 degrees of extension, which is more consistent with the December 2007 VA examiner’s report. Yet, the Veteran’s post-remand July 2019 VA examiner reported the Veteran’s right knee flexion was limited to 65 degrees with his right knee extension also being limited to 65 degrees, creating significant inconsistency in the record and making efforts for clarification necessary. The Board notes the rating criteria for knee flexion and extension operate in the inverse. For flexion, the higher the degree shown the lower the rating warranted; however, for extension, the higher the degree shown the higher the rating warranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5260, 5261. The VA rating schedule, and its prohibition against pyramiding, does not prohibit the Veteran from receiving simultaneous ratings for limitation of flexion and extension if compensable range of motion loss has been shown for both. See Lyles v. Shulkin, 29 Vet. App. 107, 118 (2017) (citing VA Gen. Coun. Prec. Op. 9-2004 (Sept. 17, 2004)). As previously discussed, the Board finds restoration of the 40 percent rating warranted under Diagnostic Code 5261, effective May 1, 2010, is warranted; however, the post-remand July 2019 VA examination report suggests the highest 50 percent rating under Diagnostic Code 5261 may be warranted, based on 65 degrees of extension, but it is not clear when this level of disability onset. Further, the December 2007 and November 2016 VA examination reports suggest compensable ratings are also warranted for flexion under Diagnostic Code 5260, in addition to the rating under Diagnostic Code 5261. The Board acknowledges a February 2018 rating decision assigned a 20 percent rating under Diagnostic Code 5260, effective November 16, 2016, but again, the December 2007 examination report suggests an earlier effective date may be warranted for this rating, pending clarification via the retroactive opinion discussed above. 2. Entitlement to TDIU, to include consideration of an award of SMC under 38 U.S.C. § 1114(s), is remanded. The AOJ’s post-remand supplemental statement of the case indicates the issue of TDIU is now moot in the context of the Veteran’s appeal; however, the Board notes TDIU is an element of the Veteran’s April 2007 increased rating claim for his service-connected right knee disability with his 100 percent combined schedular rating currently dating back to only April 24, 2008. Further, an award of a combined 100 percent schedular rating does not necessarily resolve the issue of TDIU in the context of the Veteran’s appeal as he is presumed to be seeking the maximum benefit allowed by law. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 293 (2008); see also AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board notes SMC at the housebound rate is payable when a veteran has a single service-connected disability rated as 100 percent and (1) has additional service connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). For the purposes of SMC, TDIU satisfies the requirement of a “service-connected disability rated as total.” See Buie, 24 Vet. App. at 250; Bradley, 22 Vet. App. at 293. Thus, the Board must adjudicate whether SMC at the housebound rate is warranted in the context of the present appeal, to include a determination of whether TDIU is warranted for individual disabilities. This issue is inextricably intertwined with the other issues being remanded for further development. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a “significant impact” upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). The matters are REMANDED for the following action: 1. Obtain a retrospective opinion addressing the functional impairment of the Veteran’s service-connected right knee disability throughout the appeal period in accordance with the holding in Chotta v. Peake, 22 Vet. App. 80 (2008). The selected examiner is asked to reconcile range-of-motion test results throughout the appeal period, to the extent possible, to include results from June 2007, December 2007, May 2009, November 2016 (with its November 2017 addendum), and July 2019 VA examination reports. The selected examiner is specifically asked to address the likelihood, in accordance with the “at least as likely as not” standard, that the 30 degrees of flexion noted in the December 2007 VA examination report was the result of “typographical error”(as the AOJ found in the December 2008 rating decision that led to the present appeal) when compared with other range-of-motion test results during the appeal period, to include, but not limited to, the November 2016 VA examination report, which shows a similar level of flexion. The examiner is also asked to provide an estimate, in accordance with the “at least as likely as not” standard, of the approximate date of onset of the limitation to 65 degrees of extension noted in the July 2019 VA examination report in light of the other evidence of record. When providing the requested opinion, the examiner is asked to consider potential effects of pain, weakened movement, excess fatigability, instability of station, incoordination, and/or flare-ups on the Veteran’s right knee and how these factors may or may not support the more severe range-of-motion loss shown during some examinations during the appeal period. The examination report must include a complete rationale for the opinion provided. The Veteran should not be scheduled for a new examination unless deemed necessary by the selected examiner to provide the requested opinion. If an examination is deemed necessary, the selected examiner should conduct all indicated tests and studies, to include range of motion testing. The knees should be tested in both active and passive motion and in weight-bearing and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station, and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. (Continued on the next page)   Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 2. Readjudicate the issues on appeal, to include consideration of TDIU for individual disabilities in the context of whether SMC at the housebound rate is warranted as an element of the Veteran’s appeal of the rating assigned for his service-connected right knee disability. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. S. Kyle, 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.