Citation Nr: 21014363 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 18-23 319 DATE: March 12, 2021 ORDER Restoration of the 20 percent rating for right knee recurrent subluxation is granted. REMANDED Service connection for diabetes mellitus type II (DMII), to include as due to herbicide agent exposure, is remanded. A rating higher than 20 percent for right knee recurrent subluxation is remanded. FINDING OF FACT The reduction from 20 percent to noncompensable for the Veteran’s right knee recurrent subluxation was based on inadequate VA examinations. CONCLUSION OF LAW The criteria for restoration of the 20 percent rating for right knee recurrent subluxation from November 7, 2018 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.105(e), 3.344, 4.1-4.14, 4.71a, Diagnostic Code (DC) 5257. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1982 to October 1982 and from June 2006 to March 2009 in the U.S. Army, with additional National Guard service. This matter comes before the Board of Veterans’ Appeals (Board) from July 2016 and January 2019 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a Board hearing in February 2020. The Board notes that another Board hearing was scheduled, however in August 2020 the Veteran indicated that he did not want another hearing. See August 2020 Report of General Information. Propriety of Rating Reduction Service connection for right knee recurrent subluxation has been in effect since June 1, 2016, at which time a 30 percent disability rating was assigned. In a February 2018 rating decision, the RO decreased the rating for right knee recurrent subluxation from 30 percent to 20 percent, effective May 15, 2017. In a January 2019 rating decision, the RO decreased the rating for right knee recurrent subluxation from 20 percent to noncompensable. The Veteran timely appealed the January 2019 rating decision with respect to the issue of whether the propriety of the rating reduction from 20 percent to noncompensable was proper. The Veteran contends that the rating reduction from 20 percent to noncompensable was improper because his knees are not better and if anything, they are the same and does not warrant a decrease. See January 2019 NOD. In general, where a reduction in an evaluation of a service-connected disability occurs, VA must notify the Veteran of this proposed reduction, and provide him or her with at least 60 days’ time to present additional evidence showing that compensation should be continued at the present level. 38 C.F.R. § 3.105(e). However, these predetermination procedures do not apply in cases where the reduction in the disability rating does not result in a reduction or discontinuance of total payments being made to the Veteran. See Stelzel v. Mansfield, 508 F.3d 1345, 1349 (Fed. Cir. 2007); O’Connell v. Nicholson, 21 Vet. App. 89 (2007). In this case, the record shows that the Veteran was in receipt of compensation benefits for additional disabilities in November 2018 and had a combined 100 percent rating. Although the January 2019 rating decision reduced the rating for the right knee recurrent subluxation, there was no reduction in the overall combined evaluation for compensation. Therefore, there was no prejudice to the Veteran, and the procedures of 38 C.F.R. § 3.105(e) are not for application. The issue remaining is whether the reduction was proper based upon the evidence of record. The Veteran was afforded VA examinations for his service-connected right knee disability in November 2018 and December 2018. However, the Board finds that these examinations are inadequate for adjudication purposes. Specifically, the November 2018 VA examiner was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time because there was insufficient evidence or objective exam findings that would provide a reliable prediction of a decreased functional ability when the joint is used repeatedly for a period of time. The Board finds that this is inadequate because there is no indication that the examiner considered the Veteran’s lay statements. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Moreover, the November 2018 and December 2018 VA examiners stated that the Veteran has never had recurrent patellar dislocation, however the July 2016 VA examination shows that he had recurrent patellar dislocation. Accordingly, the Board finds that the VA examinations are inconsistent with the Veteran’s medical history and are therefore inadequate. The examination report on which the reduction is based must be adequate. See Tucker v. Derwinski, 2 Vet. App. 201 (1992) (holding that the failure of the examiner in that case to review the claims file rendered the reduction decision void ab initio). Accordingly, as the November 2018 and December 2018 VA examinations are inadequate, the reduction from 20 percent to noncompensable for the Veteran’s right knee recurrent subluxation was improper. Restoration of the Veteran’s 20 percent rating for right knee recurrent subluxation is warranted effective November 7, 2018. REASONS FOR REMAND Service Connection for DMII The Veteran contends that service connection for DMII is warranted on a presumptive basis because he was exposed to agent orange while he served in Gagetown, Canada. The Board notes that the Veteran’s service records appear incomplete. Accordingly, the Veteran’s complete service records should be obtained on remand. Additionally, the Veteran’s VA treatment records indicate that his diagnosed DMII may have had its onset during his active military service in 2007. The Veteran has not been afforded a VA examination to determine whether his currently diagnsoed DMII is direclty related to service. Accordingly, remand is warranted to afford the Veteran a VA examination and opinion. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). Increased Rating for Right Knee Recurrent Subluxation The Veteran was most recently afforded VA examinations in February 2020 and January 2021; however, the examiners did not adequately address the Veteran’s service-connected right knee disability. The examiners did not note any of his documented right knee diagnoses, including osteoarthritis, recurrent subluxation, recurrent patellar dislocation, superior patellar enthesophyte, and meniscal tear. Accordingly, remand is warranted to obtain an adequate medical examination. Additionally, the Board notes that VA amended the criteria for rating the knee under DC 5257 effective from February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). The new rating criteria may be applied only prospectively from the effective date of the change forward, unless the regulatory change specifically permits retroactive application. VAOPGCPREC 3-2000 (Apr. 10, 2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Under the new rating criteria, a 30 percent rating is assigned for recurrent subluxation or lateral instability, unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. A 20 percent rating is assigned for one of the following: (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 10 percent rating is warranted for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. For patellar instability, a 30 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. A 20 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. A 10 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. The Board finds that an additional VA examination is required to obtain sufficient information to rate the Veteran’s knee in accordance with the new rating criteria. Finally, the record indicates that the Veteran had right knee surgery in August 2016. However, the medical treatment records regarding the surgery are not of record. Accordingly, these records should be requested on remand.   The matters are REMANDED for the following action: 1. Obtain the Veteran’s complete service treatment records and military personnel records pertaining to his service in the National Guard. Verify, to the extent possible, all active duty for training and inactive duty training. If necessary, a request should be made to the Defense Finance and Accounting Service (DFAS). Document all requests for information as well as all responses in the claims file. 2. Thereafter, attempt to verify the Veteran’s asserted in-service exposure to herbicide agents. During his Board hearing, the Veteran testified that he was exposed to herbicide agents while at the joint base in Gagetown, Canada while training there in 1985, 1987 and 1990. He contends that herbicide agents were used at the Gagetown training facilities from 1956 to 1984 and the effects of the herbicide agents do not dissipate immediately and can linger on for decades. If there is insufficient information to verify exposure to herbicide agents, issue a Formal Finding outlining the steps taken to assist the Veteran and notify the Veteran of VA’s inability to verify the in-service herbicide agent exposure. 3. Ask the Veteran to identify any VA treatment records or private treatment records relating to his right knee disability, including his right knee surgery in August 2016. Request that he submit or authorize for release any outstanding private treatment records and associate any identified medical records with the file. 4. Schedule the Veteran for an examination by an appropriate physician to determine the nature and etiology of his diagnosed diabetes mellitus type II. The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s diabetes mellitus type II was incurred in service, is related to any in-service injury, event, or disease, or manifested within one year after separation from service. The Veteran’s lay statements regarding onset and continuity of symptomology should be recorded and considered. Additionally, the examiner should consider the Veteran’s medical records indicating that his diabetes mellitus type II had its onset in 2007. A complete rationale must be provided for all opinions offered. 5. Schedule the Veteran for an examination by an appropriate physician to determine the current severity of his service-connected right knee disability. The examiner should elicit a full history from the Veteran and provide a full description of the disability and report all signs and symptoms necessary for evaluating his 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. 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). In addition, the examiner should address the following: Whether the right knee is manifested by recurrent subluxation or lateral instability with: (i) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation; or (ii) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation, or unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. Whether the right knee is manifested by patellar instability with (i) a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker; or (ii) a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Kernen, 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.