Citation Nr: 21014864 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 16-58 160 DATE: March 16, 2021 ORDER Restoration of a 10 percent disability rating for left knee instability is granted. REMANDED Entitlement to an initial disability rating in excess of 10 percent for service-connected lumbar strain (spine disability) is remanded. Entitlement to an initial disability rating in excess of 10 percent for service-connected left knee degenerative arthritis is remanded. Entitlement to an initial disability rating in excess of 10 percent for service-connected left knee instability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT The reduction of the evaluation for left knee instability from 10 percent to noncompensable from October 28, 2014 was improper. CONCLUSION OF LAW The criteria for reduction of the rating of the Veteran’s left knee instability disability from 10 percent to noncompensable from October 28, 2014 have not been met. 38 C.F.R. §§ 3.105, 3.344, 4.2, 4.13. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1998 to November 2006. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing conducted by the undersigned Veterans Law Judge in January 2021. A transcript of the hearing has been associated with the claims file. During the appeal period, the Veteran has indicated that her service-connected spine and knee disabilities result in unemployability. When evidence of unemployability is submitted at the same time that a veteran is appealing the rating assigned for a disability, a claim for TDIU will be considered as part and parcel of the claim for benefits for the underlying disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, the Board has added the issue of TDIU as reflected above. Reduction of left knee instability rating In an August 2013 rating decision, service connection for left knee degenerative joint disease (rated as left knee condition) was granted at 10 percent disabling, effective July 19, 2011, and instability associated with degenerative joint disease (left knee condition) was granted at 10 percent disabling, also effective July 19, 2011. In July 2014, during the one-year appeal period following the August 2013 rating decision, the Veteran filed a claim seeking an increased rating for her left knee disabilities. The Veteran was afforded a VA knee examination in October 2014, after which the RO issued a rating decision which continued the assigned 10 percent disability rating for the Veteran’s left knee degenerative joint disease and reduced the left knee instability disability rating from 10 percent to noncompensable. 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). VA’s General Counsel has held that the provisions of 38 C.F.R. § 3.105(e) do not apply where there is no reduction in the amount of compensation payable. It was reasoned that this regulation is only applicable where there is both a reduction in evaluation and a reduction or discontinuance of compensation payable. As the Veteran’s reduction in her disability rating from 10 percent to a noncompensable rating for her service-connected left knee instability did not decrease her overall combined disability rating, the provisions of 38 C.F.R. § 3.105(e) do not apply in this case. The regulations provide that a rating at the same level for less than five years may be reduced if there is a reexamination showing improvement in the disability. 38 C.F.R. § 3.344(c). However, not only must it be determined that an improvement in a disability has actually occurred, but also that the 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, 349 (2000). The provisions of 38 C.F.R. §§ 4.1, 4.2, and 4.10 also require that a reduction in rating be based upon review of the entire history of a veteran’s disability. To warrant a rating reduction, the evidence must reflect actual improvement in the disability level, and such improvement must actually reflect an improvement in the ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420-21 (1993). The Board must focus on the evidence of record available at the time the reduction was effectuated, although post-reduction medical evidence favorable to the Veteran can be considered. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). The question of whether a disability has improved involves consideration of the applicable rating criteria. Under 38 C.F.R. § 4.71a, DC 5257 (2014), recurrent subluxation or lateral instability warrants a 10 percent rating if slight, a 20 percent rating if moderate, and a 30 percent rating if severe. Objective medical evidence is not required to establish lateral knee instability under Diagnostic Code 5257, so objective medical evidence cannot be categorically found more probative than lay evidence with respect to this Diagnostic Code. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). Review of the record reveals that the initial 10 percent rating assigned for left knee instability was based upon evidence showing slight lateral instability in the left knee joint. See August 2013 Rating Decision. Specifically, the October 2012 VA examination report noted the Veteran demonstrated between zero to five millimeters (1+) of medial-lateral instability in the left knee. See October 2012 VA examination. During the subsequent October 2014 VA examination, the Veteran's joint stability tests were normal, including the medial-lateral instability test. See October 2014 VA examination. However, instability of station was noted on the examination and the Veteran stated that she had to stand for a minute to stabilize her knee before walking. Additionally, the Veteran submitted a statement that her left knee “gives out.” See December 2014 Notice of Disagreement. Based on the foregoing, the Board finds the preponderance of the evidence of record does not support a finding that there was improvement of the Veteran’s left knee instability or the Veteran’s ability to function under the ordinary conditions of life and work at the time of the rating reduction. In the November 2014 rating decision that reduced the instability rating, the RO noted that there was no objective evidence of instability to support the 10 percent rating under DC 5257 during the October 2014 examination. See November 2014 Rating Decision. However, objective medical evidence is not required to establish lateral knee instability under DC 5257. While there was no objective medical evidence of instability during the May 2014 VA examination, instability of station was noted and the Veteran provided competent and credible reports of instability upon standing. The Veteran has also stated that she had episodes of her left knee “giving way.” Accordingly, the reduction in rating for service-connected left knee instability from 10 to zero percent was not proper and is void, and restoration of the 10 percent ratings, effective from October 28, 2014, is granted. REASONS FOR REMAND Entitlement to an increased rating for lumber strain is remanded. Entitlement to an increased rating for left knee degenerative joint disease is remanded. Entitlement to an increased rating for left knee instability is remanded More development is necessary before the Board can make a fully informed decision on the issue of entitlement to an increased rating for the Veteran’s lumbar strain disability and the issue of entitlement to an increased rating for the Veteran’s left knee disabilities. The Veteran was last examined by the VA for her spine disability and left knee disabilities in June 2017. At the January 2021 Board hearing, the Veteran testified that her conditions have worsened. As the evidence in this case suggests that the Veteran’s disability picture has changed since her last examination, a new VA examination is warranted to determine the current severity of the Veteran’s spine and knee disabilities. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). TDIU is remanded. As noted above, the issue of entitlement to a TDIU has been raised as part and parcel to the Veteran’s claim for higher disability ratings. Notably, the Veteran testified that her ability to work has been affected by her service-connected disabilities. See January 2021 Board hearing transcript. As the issue of entitlement to TDIU can be impacted by resolution of the Veteran’s lumbar strain and left knee claims, the Board finds that the issue of entitlement to TDIU must also be remanded. The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran’s claims file any outstanding VA treatment records related to the Veteran’s claims on appeal. 2. Schedule the Veteran for a VA examination to determine the current symptoms, level of severity, and functional impairment associated with her spine disability. The claims file should be reviewed by the examiner. 3. Schedule the Veteran for a VA examination to determine the current symptoms, level of severity, and functional impairment associated with her left knee disabilities. The claims file should be reviewed by the examiner. Conduct all tests and examinations deemed necessary, to include range of motion testing with active and passive motions as well as with weight-bearing and in nonweight-bearing. If any motion cannot be tested, explain why. If factors, such as pain, weakness, fatigability or incoordination limit range of motion or functional ability, discuss its impact in terms of the severity thereof. The examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flare-ups or repetitive use, and if so, estimate range of motion during flare-ups or repetitive use. If the examination does not take place during a flare-up or repetitive testing cannot be performed, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flare-ups or repetitive use and provide the extent of motion loss described in terms of degrees based upon the lay and medical evidence of record. If an opinion cannot be rendered without resorting to mere speculation, the examiner should state the same and explain why. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.V. Palatt, 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.