Citation Nr: 21027446 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 17-65 945 DATE: May 5, 2021 ORDER The rating reduction for service-connected instability of the right knee from 20 percent to 10 percent was not proper and the 20 percent rating is restored, effective May 1, 2015. The rating reduction for service-connected degenerative arthritis of the right knee from 40 percent to 10 percent was not proper and the 40 percent rating is restored, effective May 1, 2015. The rating reduction for service-connected degenerative joint disease of the left knee (previously rated as strain) from 30 percent to 10 percent was not proper and the 30 percent rating is restored, effective May 1, 2015. REMANDED Entitlement to a disability rating in excess of 20 percent for service-connected instability of the right knee is remanded. Entitlement to a disability rating in excess of 40 percent for service-connected degenerative arthritis of the right knee is remanded. Entitlement to a disability rating in excess of 30 percent for service-connected degenerative joint disease of the left knee (previously rated as strain) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence did not demonstrate overall improvement in the service-connected right knee instability. 2. The preponderance of the evidence did not demonstrate overall improvement in the service-connected degenerative arthritis of the right knee. 3. The preponderance of the evidence did not demonstrate overall improvement in the service-connected degenerative joint disease of the left knee (previously rated as strain). CONCLUSIONS OF LAW 1. The criteria for the rating reduction for service-connected instability of the right knee from 20 percent to 10 percent was not proper and the 20 percent rating is restored, effective May 1, 2015. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.105, 3.344(c), 4.71a, Diagnostic Code 5257 2. The criteria for the rating reduction for the Veteran's service-connected degenerative arthritis of the right knee from 40 percent to 10 percent was not proper and the 40 percent disability rating is restored from May 1, 2015. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.105, 3.344(c), 4.71a, Diagnostic Code 5261. 3. The criteria for the rating reduction for the Veteran's service-connected degenerative joint disease of the left knee (previously rated as strain) from 30 percent to 10 percent was not proper and the 30 percent disability rating is restored from May 1, 2015. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.105, 3.344(c), 4.71a, Diagnostic Codes 5003, 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1990 to December 1993. This case is before the Board of Veterans' Appeals (Board) on appeal from a February 2015 Regional Office (RO) rating decision. In that rating decision, the RO reduced the Veteran's disability ratings for right knee instability from 20 percent to 10 percent, right knee degenerative arthritis from 40 percent to 10 percent, and left knee degenerative joint disease from 30 percent to 10 percent, effective May 1, 2015. The Veteran's notice of disagreement (NOD) was received in April 2015. The RO issued a statement of the case (SOC) in December 2017. The Veteran's VA Form 9, substantive appeal to the Board, was received in December 2017. In February 2021, the Veteran testified at a video Board hearing before the undersigned Veterans Law Judge. A transcript of the testimony is associated with the claims file. Service Connection 1. The propriety of the rating reduction for service-connected instability of the right knee from 20 percent to 10 percent. 2. The propriety of the rating reduction for service-connected degenerative arthritis of the right knee from 40 percent to 10 percent. 3. The propriety of the rating reduction for service-connected degenerative joint disease of the left knee (previously rated as strain) from 30 percent to 10 percent. The Veteran submitted an increased rating claim for his service-connected bilateral knee disabilities in June 2013. He underwent a VA examination in March 2014. As a result of the evidence obtained from the examination, RO reduced the Veteran's service-connected right knee instability from 20 percent to 10 percent, effective May 1, 2015, right knee degenerative arthritis from 40 percent to 10 percent, effective May 1, 2015, and left knee degenerative joint disease from 30 percent to 10 percent, effective May 1, 2015. The Veteran appealed this decision asserting that his bilateral knee symptoms have not improved and have increased in severity. In general, prior to reducing a veteran's disability rating, VA is required to comply with pertinent 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. When reduction in the rating of a service-connected disability is contemplated and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified at his or her latest address of record of the contemplated action and furnished detailed reasons thereof. The beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e). In the advance written notice, the beneficiary will be informed of his right for a pre-determination hearing, and if a timely request for such a hearing is received (i.e., within 30 days), benefit payments shall be continued at the previously established level pending a final determination. 38 C.F.R. § 3.105(i)(1). The RO complied with the procedures set forth in 38 C.F.R. § 3.105(e) and notified the Veteran of the proposed rating reduction, as well as his rights in challenging this proposed reduction, in a rating decision in May 2014 and a letter dated in May 2014. The reductions were then assigned in a February 2015 rating decision, effective May 1, 2015. The Veteran submitted additional evidence in response to the rating decision and an October 2014 letter informed the Veteran the medical records were reviewed and noted some improvement in his left knee strain, degenerative arthritis of the right knee, and instability of the right knee and continued the proposed reduction. Thus, the notice requirements for a reduction of a disability evaluation have been met. In certain rating reduction cases, VA benefits recipients are to be afforded greater protections, set forth in 38 C.F.R. § 3.344. Rating agencies will handle cases affected by change of medical findings or diagnosis, to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. These considerations apply to ratings that have continued for long periods at the same level (five years or more), and not to disabilities that have not become stabilized and are likely to improve. In this case, at the time the rating reductions took effect for the Veteran's service-connected right knee degenerative arthritis and left knee degenerative joint disease, the prior ratings were in effect for less than five years. See Brown v. Brown, 5 Vet. App. 413, 418 (1993) (finding that duration of rating is measured from effective date of actual reduction). Thus, the various provisions of 38 C.F.R. § 3.344, pertaining to stabilization of disability ratings, does not apply with respect those reductions. However, the 20 percent disability rating for right knee instability was in effect since March 31, 2010, over five years before the reduction to 10 percent took effect on May 1, 2015. Therefore, various provisions of 38 C.F.R. § 3.344, pertaining to stabilization of disability ratings, apply with respect to the Veteran's service-connected right knee instability. VA regulation 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history. Similarly, 38 C.F.R. § 4.2 establishes that "[i]t is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present." These provisions impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon review of the entire history of the veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Furthermore, VA regulation 38 C.F.R. § 4.13 provides that the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. Pursuant to these provisions, the RO and Board are required in any rating-reduction case 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. See Schafrath, 1 Vet. App. at 594 ("these requirements for evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based on a single, incomplete or inaccurate report and to enable VA to make a more precise evaluation of the level of disability and of any changes in the condition."). Finally, 38 C.F.R. § 4.10 establishes that "[t]he basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment" and 38 C.F.R. § 4.2 directs that "[e]ach disability must be considered from the point of view of the veteran working or seeking work." 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 the veteran's ability to function under the ordinary conditions of life and work. See Brown v. Brown, 5 Vet. App. 413, 421 (1993), see also Stern v. McDonough, No. 18-4425, 2021 U.S. App. Vet. Claims LEXIS 677* (Vet. App. April 20, 2021). A claim as to whether a rating reduction was proper must be resolved in the Veteran's favor unless the Board concludes that a fair preponderance of evidence weighs against the claim. Id. The requirements for a reduction in the evaluation for disabilities in effect for five years or more require that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction. See Brown v. Brown, 5 Vet. App. 413, 417-18 (1995). These provisions prohibit a reduction on the basis of a single examination. Id. The Veteran's right knee instability is evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5257 for recurrent subluxation or lateral instability. This diagnostic code provides that recurrent subluxation or lateral instability of the knee that is slight warrants a 10 percent disability rating. Moderate recurrent subluxation or lateral instability warrants a 20 percent disability rating. Severe subluxation or lateral instability warrants a 30 percent disability rating. The words "slight," "moderate" and "severe" are not defined in the VA Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "moderate" or "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. By way of history, the RO granted separate 20 percent disability rating for right knee instability in an August 2010 rating decision based on the results of the VA examination conducted in May 2010 VA examination. In this regard, the May 2010 VA examiner determined that the Veteran had moderate subluxation of the right knee. Prior to the reduction, the Veteran underwent a VA examination in March 2014. The examiner did not document that the claims file was reviewed. The Veteran reported that his right knee disability has become worse due to pain and swelling that inhibits his walking and movement. Anterior and posterior instability testes were normal. Medial-lateral instability was 1+ (0-5 millimeters). The examiner documented that there was no evidence of history of recurrent patellar subluxation or dislocation. In the February 2015 rating decision that reduced the Veteran's service-connected right knee instability, the RO specifically noted that the decision was based on evidence from the Veteran's recent VA examination in March 2014 that showed his disability had improved. The RO explained that it reviewed the June 2014 private Knee and Lower Leg Conditions Disability Benefit Questionnaire (DBQ) submitted by the Veteran, it found that the March 2014 VA examination was more persuasive, because it was better supported by objective medical conclusions for the severity of the condition. Thus, the reduction in the Veteran's disability rating was based on one examination. As the 20 percent disability rating was in effect for more than five years, the evidence must show sustained material improvement under the ordinary conditions of life and a reduction is prohibited on the basis of a single examination. Furthermore, the March 2014 VA examination was not full and complete as required by 38 C.F.R. § 3.344. In this regard, the examiner did not review the claims file and was unaware that the Veteran had a history subluxation that was observed and documented by the October 2010 VA examiner. Thus, the March 2014 VA examination that the RO relied upon to reduce the rating was inadequate. Furthermore, based on the evidence of record at the time of the reduction, the Board is unable to conclude that the preponderance of the evidence supports a finding of improvement in the severity of the Veteran's right knee instability. The Veteran's right knee degenerative arthritis and left knee degenerative joint disease was evaluated based on limitation of extension under Diagnostic Code 5261. Under Diagnostic Code 5261, leg extension limited to 10 degrees warrants a 10 percent disability rating. A 20 percent rating under Diagnostic Code 5261 is warranted if the evidence shows leg extension limited to 15 degrees. A 30 percent disability rating is assigned for leg extension limited to 20 degrees. Turning to the evidence of record, an October 2011 rating decision granted a 40 percent disability rating for degenerative arthritis of the right knee, effective February 1, 2011 and a 30 percent for left knee strain, effective February 1, 2011 based on an October 2011 VA examination. The October 2011 VA examination shows that the Veteran reported experiencing flare-ups as often as one time per date that last for one hour. The flare-ups are precipitated by physical activity. When his pain becomes severe, he cannot walk. Flexion was limited to 115 degrees and extension was limited to 40 degrees of the right knee. Left knee flexion was to 130 degrees and extension was to 20 degrees. Thereafter, the Veteran filed increased rating claims for his bilateral knee disabilities in June 2013. Prior to the reduction in the February 2015 rating decision, a VA examination was performed in March 2014. The Veteran also submitted a June 2014 private DBQ. The RO noted that it found the March 2014 VA examination more persuasive because it better supported by objective medical conclusions for the level of severity of the condition. Based on the March 2014 VA examination, the RO determined that the Veteran's degenerative arthritis of the right knee and left knee strain had improved. The reductions of the Veteran's disability ratings were based on this one examination. The March 2014 VA examination reveals that the Veteran reported that is right knee condition has gotten worse due to pain and swelling. With respect to his left knee that the Veteran reported that pain in swelling of the left knee inhibits his walking and movement. The Veteran stated that during flareups, he cannot walk or stand due the pain. The examination shows that right knee flexion was to 75 degrees with painful motion beginning at 75 degrees. Extension of the right was to zero degrees with no objective evidence of painful motion. Left knee flexion was limited to 120 degrees with painful motion beginning at 120 degrees. Extension was limited to zero degrees with no objective evidence of painful motion. The June 2014 private DBQ shows that the physician assistant documented that the Veteran was experiencing progressive knee pain. Flexion of the right knee was to 120 degrees and extension was to zero degrees. Flexion of the left knee was to 120 degrees and extension was to zero degrees. Right and left knee were painful on active, passive, and/or repetitive use testing and the pain contributed to functional loss or additional limitation of motion. The physician assistant noted that the Veteran experienced increased pain with increased range of motion. The physician assistant stated that it hurts for the Veteran to extend the knees. The physician assistant noted that the Veteran had muscle atrophy due to his service-connected bilateral knee disabilities. The Veteran asserts that his bilateral knee disabilities have become worse. In the April 2015 notice of disagreement, the Veteran stated that he is required to go to the hospital every three months for treatment and he is limited on what physical activities he can do due to his knee disabilities. The Veteran contends that the disability rating for bilateral knee instability should remain or be increased. See February 2015 notice of disagreement. He stated that the RO made the decision off of one medical report and that the VA treatment records show the progressive treatment and the true severity of his knees. The Veteran testified at the February 2021 Board hearing that at the time of reductions, his bilateral knee disabilities had increased in disability warranting an increased disability rating and not a reduction. The findings from the March 2014 VA examination do not demonstrate, by a preponderance of the evidence, material improvement in the Veteran's service-connected right knee degenerative arthritis and left knee degenerative joint disease. In this regard, there is no indication that the March 2014 VA examiner reviewed the claims file. Furthermore, the examiner did not address or reconcile any discrepancy in the range of motion tests from the October 2011 VA examination and the March 2014 VA examination. Therefore, the reduction was based on a single, inaccurate VA examination report. See Schafrath, 1 Vet. App. at 594. Furthermore, the RO did not review the Veteran's VA treatment records and therefore, did not review of the entire recorded history of the condition in determining whether there was actual change in the disability. The RO also did not consider the lay statements from the Veteran at the time of its decision in determining whether the evidence showed improvement in the severity of the Veteran's bilateral knee disability. Finally, the RO did not address whether the results from the March 2014 VA examination, as well as, the other medical and lay evidence of record at that time shows by the preponderance of the evidence that any decrease in severity of the Veteran's bilateral knee disabilities resulted in an improvement in the Veteran's ability to function under the ordinary conditions of life and work. See Brown v. Brown, 5 Vet. App. 413, 421 (1993), Stern v. McDonough, No. 18-4425 2021 U.S. App. Vet. Claims LEXIS 677* (Vet. App. April 20, 2021). Based on the foregoing, the requirements for reduction of the disability ratings for right knee instability, right knee degenerative arthritis, and left knee degenerative joint disease are not met, and as a result, a preponderance of the evidence does not support the reductions. Accordingly, the reductions from 20 percent to 10 percent for the Veteran's service-connected right knee instability, from 40 percent to 10 percent for right knee degenerative arthritis, and from 30 percent to 10 percent for his service-connected left knee degenerative joint disease were not proper. The 20 percent disability rating for right knee instability, the 40 percent disability rating for right knee degenerative arthritis, and the 30 percent disability rating for left knee degenerative joint disease are therefore restored, effective May 1, 2015. (continued on next page) REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 20 percent for service-connected instability of the right knee. 2. Entitlement to a disability rating in excess of 40 percent for service-connected degenerative arthritis of the right knee. 3. Entitlement to a disability rating in excess of 30 percent for service-connected degenerative joint disease of the left knee (previously rated as strain). The Veteran's claims for increased ratings of his service-connected bilateral knee disabilities are remanded to obtain a new VA examination to determine the current severity of the bilateral knee disabilities. The claims file contains a VA examination that was conducted in March 2014; however, this VA examination is not adequate for rating purposes. In this regard, the Court has held that the 38 C.F.R. § 4.59 requires VA examination to include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The Court has held that that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must "elicit relevant information as to the Veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the Veteran's functional loss due to flares based on all the evidence of record, including the Veteran's lay information, or explain why she could not do so." Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The March 2014 VA examination report does not include the information necessary as required by Correia and Sharp. Furthermore, the Veteran testified at the February 2021 Board hearing that his bilateral knee disabilities have become worse since the most recent VA examination in March 2014 and he is now a candidate for knee replacement. In light of the foregoing, the Veteran must be provided with a new VA examination to determine the current nature and severity of his service-connected bilateral knee disabilities that includes the information required in Correia and Sharp. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination to determine the current nature and severity of his bilateral knee disabilities. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should identify all bilateral knee pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The knees should be tested in both active and passive motion, in weight-bearing and non-weight-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. 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). All findings should be reported in detail and all opinions must be accompanied by a clear rationale. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Berry, 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.