Citation Nr: 21012982 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 15-42 984 DATE: March 8, 2021 ORDER The reduction to a 10 percent rating being improper, restoration of a 20 percent rating for right knee degenerative joint disease (DJD) limitation of flexion, effective July 30, 2011, is granted. REMANDED Entitlement to an increased rating in excess of 30 percent for right knee instability, prior to February 18, 2014, to include on an extraschedular basis, is remanded. Entitlement to an increased rating in excess of 20 percent for right knee DJD limitation of flexion, prior to February 18, 2014, to include on an extraschedular basis, is remanded. Entitlement to an increased rating in excess of 30 percent for residuals of right knee replacement, from April 1, 2015, to include on an extraschedular basis, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran’s right knee DJD limitation of flexion had not improved under the conditions of daily life. CONCLUSION OF LAW The reduction in the Veteran’s disability evaluation for right knee DJD limitation of flexion was improper and the 20 percent rating is restored, effective July 30, 2011. 38 U.S.C. §§ 1155, 5112; 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.71a, Diagnostic Code 5260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1966 to August 1992. The Veteran appealed a November 2011 rating decision by the Agency of Original Jurisdiction (AOJ). The Board of Veterans’ Appeals (Board) notes that the November 2011 rating decision continued the Veteran’s 20 percent rating for right knee instability and decreased the Veteran’s rating for right knee DJD limitation of flexion from 20 percent to 10 percent, effective July 30, 2011. The Veteran’s notice of disagreement (NOD) disagreed with “status post right knee surgery with residuals instability of the knee,” which appears to contemplate all right knee ratings assigned. See December 2011 Veteran statement. Although the issues listed on the December 2013 statement of the case (SOC) and various supplemental SOCs (SSOCs) focus on knee instability and the severity of the knee condition following knee replacement surgery, the SOC and SSOCs of record go into great length about the Veteran’s range of motion (ROM) measurements and how such do not warrant a higher rating. The March 2019 Board decision also remanded the issue for a new VA examination that adequately addresses flare-ups and the remand instructions included directions for ROM testing. As such, the Board will liberally construe the Veteran’s appeal to include all of his knee ratings. Therefore, the issue regarding the reduction of the Veteran’s right knee DJD limitation of flexion rating is also before the Board and will be addressed herein. The Board finds that further evidentiary development is necessary and remands the case to ensure compliance with the Board’s prior remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As noted below, the Board finds that the Veteran’s right knee rating was improperly reduced. Although the issues regarding the Veteran’s right knee are being remanded, restoration of the Veteran’s right knee rating in the instant decision does not prejudice the Veteran. Though material improvement in the 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 Court in Brown v. Brown concluded that “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.” 5 Vet. App. 413, 421 (1993). Significantly, in a rating reduction case, the Department of Veterans Affairs (VA) has the burden of establishing that the disability has improved. This is in stark contrast to a case involving a claim for an increased (i.e., higher) rating, in which it is the Veteran’s responsibility to show the disability has worsened. A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating issue. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). Medical and non-medical indicators of improvement may be considered. See Faust v. West, 13 Vet. App. 342, 349 (2000). A rating reduction is proper when the AOJ follows the procedural requirements outlined in 38 C.F.R. § 3.105. Under the provisions of 38 C.F.R. § 3.105, when a reduction in the evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction of compensation payments, a rating proposing the reduction will be prepared setting forth all material facts and reasons. The Veteran must be notified at his latest address of record of the contemplated action and furnished detailed reasons therefor. 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). The Veteran’s overall rating was not reduced in the November 2011 rating decision, the procedural requirements for rating reductions are not applicable. See Stelzel v. Mansfield, 508 F.3d 1345 (Fed. Cir. 2007). The question turns to the substantive requirements for rating reductions. Having reviewed the evidence of record, the Board finds that restoration of the 20 percent rating for the Veteran’s right knee DJD limitation of flexion, effective July 30, 2011, is warranted. Diagnostic Code 5260 provides ratings for limitation of flexion with the following ratings assigned: 0 percent for flexion limited to 60 degrees, 10 percent for flexion limited to 45 degrees, 20 percent for flexion limited to 30 degrees, and 30 percent for flexion limited to 15 degrees. The Veteran stated that stabilization in his right knee deteriorated, that he uses a cane to assist with daily activities, that he cannot walk up the stairs properly, and that he requires injections to relieve pain. See July 2011 Veteran statement. April 2011 VA treatment records noted repeat right knee injections. The August 2011 VA examination report noted use of a knee brace, limited walking, flare-ups, physical therapy, and injections. The October 2011 VA examination report noted the Veteran uses a cane for ambulation and wears a knee brace, that he has daily flare-ups with walking or bending of the right knee, and that his condition impacts his daily activities and ability to work. Overall, the Veteran noted difficulties with walking, going up stairs, and doing daily activities, that he requires use of a cane and brace in order to ambulate, and that he requires routine knee injections. Although the VA examinations of record noted improved ROM measurements, the VA examination reports do not adequately account for flare-ups. Thus, the Board finds the Veteran had symptoms warranting a 20 percent rating throughout the period at issue. Accordingly, the Board finds that the Veteran’s ability to function under the ordinary conditions of life and work has not improved. The Veteran’s symptoms remained present at 20 percent levels during the entire period at issue. This is supported by competent and credible medical evidence of record. As noted above, in reduction cases, the burden of proof lies with VA to show that the Veteran’s disability has undergone an observable improvement. To be precise, the burden is on VA to establish by a preponderance of evidence that the rating reduction was warranted. See Brown v. Brown, 5 Vet. App. 413, 421 (1993). The Board finds that VA has not met its burden and that the reduction in the Veteran’s disability evaluation for his right knee DJD limitation of flexion was therefore improper. The 20 percent rating is therefore restored. REASONS FOR REMAND The March 2019 Board decision specifically remanded the case because prior VA examinations did not adequately account for flare-ups. On remand, the VA examiner was to provide an opinion as to additional functional loss during flare-ups for the entire period on appeal. The October 2019 VA examiner noted flare-ups that limit walking and causes difficulty with stairs. However, the October 2019 VA examiner stated that there is no conceptual or empirical basis for making a determination regarding range of motion during flare-ups. Therefore, the October 2019 VA examiner did not elicit sufficient information from the Veteran to allow the Board to determine his functional limitations during flare-ups. As such, remand is required for a new VA examination that adequately addresses flare-ups. The Veteran’s representative additionally raised extraschedular considerations. See October 2017 and November 2020 informal hearing presentations (IHP). This is to be addressed on remand as well. In the Veteran’s statement claiming an increased rating for his right knee condition, he indicated that he worked as an Army JROTC instructor and that he was being forced to resign from his position early because he was not physically able to perform his duties. See July 2011 Veteran statement. As such, the issue of entitlement to TDIU has been raised. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009). As the TDIU claim is premised in part on the severity of his service-connected right knee condition, the issue of TDIU is inextricably intertwined with that issue. Accordingly, the Board will defer adjudication on the matter. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his right knee condition that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. Obtain a complete post service employment and education history of the Veteran. The employment history should indicate the type of position, whether any position held was full time or part time (including hours per week worked if part time) and the wages earned. Any employment accommodations should be described in detail. 3. After the development in #1 above is completed, schedule the Veteran for an examination of the current severity of his right knee condition. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing (if applicable). The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The examiner should identify any symptoms and functional impairments due to the Veteran’s condition and discuss the effect of the Veteran’s condition on any occupational functioning and activities of daily living. The examiner must provide an opinion as to additional functional loss during flare-ups of the right knee disability for the entire time period on appeal. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment 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). 4. After the above development has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a SSOC, and return the case to the Board, if otherwise in order. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Zheng, 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.