Citation Nr: 21029770 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 10-44 842 DATE: May 17, 2021 ORDER The reduction from 30 percent to 10 percent for chondromalacia patella of the right knee with osteoarthritis, effective April 1, 2010, was proper; the appeal is denied. The reduction from 30 percent to 10 percent for chondromalacia patella of the left knee with osteoarthritis, effective April 1, 2010, was proper; the appeal is denied. Entitlement to a rating in excess of 10 percent for chondromalacia patella of the right knee with osteoarthritis is denied. Entitlement to a rating in excess of 10 percent for chondromalacia patella of the left knee with osteoarthritis is denied. Entitlement to a total disability rating for compensation based upon individual unemployability due to service-connected disabilities (TDIU) prior to January 2, 2014, is denied. FINDINGS OF FACT 1. At the time of the reduction of the Veteran's benefits, the 30 percent rating for chondromalacia patella of the right and left knee had been in effect for less than five years. 2. The September 2009 and August 2010 VA examinations showed that the Veteran's right and left knee disabilities had improved. 3. The Veteran's chondromalacia patella of the right knee with osteoarthritis does not result in flexion limited to 30 degrees or extension limited to 10 degrees. 4. The Veteran's chondromalacia patella of the left knee with osteoarthritis does not result in flexion limited to 30 degrees or extension limited to 10 degrees. 5. Prior to January 2, 2014, the Veteran was employed on a full-time basis. CONCLUSIONS OF LAW 1. The reduction from 30 percent to 10 percent for chondromalacia patella of the right knee with osteoarthritis was proper. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.71a, Diagnostic Codes 5260-5257. 2. The reduction from 30 percent to 10 percent for chondromalacia patella of the left knee with osteoarthritis was proper. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.71a, Diagnostic Codes 5260-5257. 3. The criteria for a rating in excess of 10 percent for chondromalacia patella of the right knee with osteoarthritis have not been met. 38 U.S.C. § 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5260. 4. The criteria for a rating in excess of 10 percent for chondromalacia patella of the left knee with osteoarthritis have not been met. 38 U.S.C. § 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5260. 5. Prior to January 2, 2014, the criteria for a TDIU were not met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 2004 to August 2004. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A claim stemming from a rating reduction action is a claim for restoration of the prior rating and, typically, does not contemplate a claim for an increased rating. See Peyton v. Derwinski,1 Vet. App. 282, 286 (1991). However, in this case, the January 2010 rating decision was issued after the Veteran's March 2009 claim for entitlement to increased ratings for her bilateral knee disabilities. Therefore, the Veteran's appeal from the rating action has brought before the Board the issue of the propriety of the rating reductions, as well as the claims for increased ratings for the bilateral knee disabilities. The issue of entitlement to a TDIU prior to January 2, 2014, has been raised by the record as part and parcel of the Veteran's claim for an increased rating for her knee disabilities. Rice v. Shinseki, 22 Vet. App. 447 (2009). In January 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. The claims were remanded in February 2019 and in May 2020 for further development. The Board finds that the remand directives from the May 2020 remand have been substantially complied with (current VA examination has been conducted) and therefore will proceed with a decision. Rating Reduction Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. A veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. Where a disability rating has been in effect less than five years, a rating reduction is warranted where reexamination of the disability discloses improvement of that disability. 38 C.F.R. § 3.344(c). The provisions of 38 C.F.R. § 3.344(a) do not apply. Generally, when reduction in the evaluation 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 veteran must be notified at his latest address of record of the contemplated action and furnished detailed reasons therefore. The veteran must be allowed an opportunity to participate in a personal hearing, with the request received within 30 days of the notice provided, and 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), (i). After the allotted period, if no additional evidence has been submitted, final rating action will be taken, and the rating will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating expires. 38 C.F.R. § 3.105(e). At the time of the reduction, both of the Veteran's knee conditions were rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5260-5257. Diagnostic Code 5260 provides the criteria for limitation of knee flexion of the knee. Under this diagnostic code provision, a 30 percent disability rating is assigned where flexion is limited to 15 degrees; a 20 percent disability rating is assigned where flexion is limited to 30 degrees; a 10 percent disability rating is assigned where flexion is limited to 45 degrees; and a noncompensable disability rating is assigned where flexion is limited to 60 degrees. Diagnostic Code 5257 provides ratings of 10, 20, and 30 percent for recurrent subluxation or lateral instability of the knee that is slight, moderate, or severe, respectively. 1. The propriety of the reduction from 30 percent to 10 percent for chondromalacia patella of the right knee with osteoarthritis. 2. The propriety of the reduction from 30 percent to 10 percent for chondromalacia patella of the left knee with osteoarthritis. The Veteran contends that her ratings for her right and left knee disabilities should not have been reduced from 30 percent to 10 percent, as the evidence of record was not indicative of sustained improvement. Initially, the Board finds that the procedural requirements of 38 C.F.R. § 3.105 were met. In an October 2009 rating decision, the RO proposed to reduce the knee ratings from 30 percent to 10 percent. The Veteran was notified of the proposed reduction by an October 2009 letter and notified that she had 60 days to respond. The rating decision that decreased the ratings to 10 percent was issued in January 2010, and the Veteran was notified of this action in a letter dated that month. The effective date of the reduction was not until April 1, 2010, beyond the last day of the month in which the 60-day period from the date of notice to the beneficiary of the final rating action expired. Therefore, the procedural requirements for a reduction were met. The 30 percent ratings had been effective from November 2005, and the reduction was proposed in October 2009. Therefore, as the rating was in effect for less than five years, the provisions of 38 C.F.R. § 3.344(a) and (b) are not applicable. The question remaining as to the rating reduction issues is whether the reductions were proper, based upon the evidence of record. The Veteran was awarded 30 percent ratings for the knees as a result of a December 2006 VA examination and an April 2006 private treatment record. At the December 2006 VA examination, the Veteran complained that she was unable to run or walk or stand for prolonged periods of time due to pain in both of her knees. On examination, both knees revealed crepitus. There was guarding of movement and crepitus of both knees. Flexion of the right knee was to 130 degrees, with full extension. Flexion of the left knee was to 135 degrees, with full extension. In an April 2006 treatment record, a private physician noted that the Veteran wore braces on both knees and that she was permanently disabled in regard to lateral subluxation in both knees. The reductions were made on the basis of April 2009 and August 2010 VA examination reports. On VA examination in April 2009, the Veteran continued to report that she had difficulty standing for prolonged periods and was unable to run, squat or jump due to pain and weakness in her knees. The examiner noted that there was guarding of movement of both knees. On examination, there were no signs of edema, effusion, weakness, tenderness, redness or heat. There was no subluxation of either knee. There was crepitus of both knees. There was no genu recurvatum or locking pain of either knee. Flexion and extension of both knees were normal. Anterior and posterior cruciate ligaments stability tests and the medial and lateral collateral ligament stability tests of both knees were within normal limits. The medial and lateral meniscus test of both knees were within normal limits. On VA examination in August 2010, the Veteran reported daily knee pain. On examination, there was no evidence of erythema, edema or effusion. There was tenderness along the medial and lateral joint lines, bilaterally. There was guarding present during palpation of the joint lines and facial grimacing. Range of motion was from 0 to 138 degrees of flexion with pain, bilaterally. Extension was to zero degrees. Mild crepitus was noted during range of motion. There was lateral tracking of the patella noted bilaterally. In an August 2010 addendum, the examiner noted that with repetition of range of motion, there was no impairment of function of the right knee or the left knee. Moreover, the Veteran submitted statements along with her family and friends attesting to her bilateral knee pain, but there was no objective medical evidence in those statement. In consideration of this evidence, the Board concludes that the reduction was proper for both knees. This is based on the entire evidence of record at the time of the reduction and with consideration of all applicable rating provisions. Significantly, the Board finds that there was a reexamination of the service-connected right and left knee disabilities that disclosed physical improvement. Thus, the regulations mandate a reduction as such improvement will warrant a reduction in rating. See 38 C.F.R. § 3.344(c). Because the knee conditions were not stabilized and were likely to improve as the ratings were not in effect for 5 or more years, the stricter reduction provisions of 38 C.F.R. § 3.344(a) are not applicable. Furthermore, the reduction was made after two examinations that were at least as thorough and complete as those that formed the basis for the initial grants and ratings. These examinations reflect that there was an improvement in the Veteran's disabilities, and that this improvement was noticeable in her ability to function under the ordinary conditions of life and work. Findings from the April 2009 and August 2010 examination reports did not show that flexion was limited to 15 degrees or severe subluxation or lateral instability of either knee. Rather, the examination reports indicate painful motion, flare-ups, and other factors affecting functional loss. Thus, the RO properly considered these additional factors under 38 C.F.R. § 4.40, 4.45 and 4.59, when it reduced the rating to 10 percent. The preponderance of the evidence therefore shows that the reduction was proper. Accordingly, restoration of the 30 percent ratings for the right and left knee are not warranted. Increased Rating Disability ratings are determined by the applications of the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. See DeLuca v. Brown, 8 Vet. App. 202 (1995). This includes the analysis of additional functional impairment above and beyond the limitation of motion objectively demonstrated involving such factors as painful motion, weakness, incoordination, and fatigability, etc., particularly during times when these symptoms "flare up," such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. Id. See also 38 C.F.R. §§ 4.40, 4.45 and 4.59. 3. Chondromalacia patella of the right knee with osteoarthritis 4. Chondromalacia patella of the left knee with osteoarthritis The Veteran contends that she is entitled to ratings in excess of 10 percent for her bilateral knee disabilities. Limitation of motion of the knee is rated under diagnostic codes 5260 and 5261. Limitation of flexion warrants 10, 20, and 30 percent ratings when limitation is to 45 degrees, 30 degrees, and 15 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension warrants 10, 20, 30, 40, and 50 percent ratings when limitation is to 10 degrees, 15 degrees, 20 degrees, 30 degrees, and 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Separate ratings can be assigned for knee disabilities when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology; this includes separate ratings based on limitation of flexion (Diagnostic Code 5260), limitation of extension (Diagnostic Code 5261), lateral instability or recurrent subluxation (Diagnostic Code 5257), and meniscal conditions (Diagnostic Codes 5258, 5259). The Board notes that effective February 7, 2021, the criteria for schedule of ratings for the musculoskeletal system was revised. See 86 Fed. Reg. 8142 (Feb. 4, 2021) (codified at 38 C.F.R. pt. 4). In this case, Diagnostic Codes 5260 and 5261 are unchanged under the revised criteria. While Diagnostic Code 5257 for recurrent subluxation and lateral instability as well Diagnostic Code 5262 for impairment of the tibia and fibula were revised, the February 2021 musculoskeletal criteria do not apply to the Veteran's claims on appeal and the appropriate criteria are discussed below. The normal range of motion of the knee is from zero degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. On VA examination in July 2012, the Veteran reported that the knees give out with severe, shooting pain. Flexion of the right knee was from 0 to 115 degrees. Pain was noted on flexion. There was no limitation of extension of the right knee. Left knee flexion was from 0 to 110 degrees. Pain was noted on flexion. There was no limitation of extension of the left knee. There was no additional limitation in range of motion of either knee following repetitive use testing. Joint stability testing was normal. The Veteran did not have shin splints, stress fractures, chronic exertional compartment syndrome or any other tibial or fibular impairment. There was no meniscus condition. The Veteran did not use any assistive devices. On VA examination in July 2019, the Veteran reported that she has chronic knee pain that increases the more she is active and with weight bearing. Flexion of the right and left knee was from 0 to 140 degrees. Extension of the right and left knee was from 140 degrees to 0 degrees. Pain was noted in the right knee, but it did not result in or cause functional loss. There was no evidence with of pain with weight bearing. There was no evidence of ankylosis of either knee. Joint stability testing was normal. The Veteran did not have shin splints, stress fractures, chronic exertional compartment syndrome or any other tibial or fibular impairment. There was no meniscus condition. The Veteran did not use any assistive devices. On VA examination in October 2020, the Veteran reported she cannot stand more than 15 minutes at a time. She stated that she cannot run, jump or squat and she avoids the stairs when possible. Flexion of the right knee was from 0 to 85 degrees. Extension was from 85 to 0 degrees. Flexion of the left knee was from 0 to 75 degrees and extension was from 75 to 0 degrees. Pain was noted in both knees, but it did not result in or cause functional loss. There was no evidence of ankylosis of either knee. Joint stability testing was normal. The Veteran did not have shin splints, stress fractures, chronic exertional compartment syndrome or any other tibial or fibular impairment. There was no meniscus condition. The Veteran used a brace and occasionally a cane for ambulation. Based on the above, the Board finds that a rating in excess of 10 percent for each knee is not warranted for limited flexion. For the Veteran to be entitled to the next available rating of 20 percent for limited flexion under Diagnostic Code 5260, evidence must show flexion limited to 30 degrees or less. In this case, however, the evidence shows flexion in the right knee is limited to no less than 85 degrees and in the left knee, no less than 75 degrees. Additionally, with regard to both knees, extension has consistently been normal at 0 degrees. Therefore, a separate rating under Diagnostic Code 5261 is not warranted for either knee. Throughout the period on appeal, the VA examiners found that the Veteran experienced pain, weakness, fatigue, and lack of endurance bilaterally, but these factors were considered by the examiners when reporting the range of motion of each knee. Thus, a higher rating is not warranted for either knee under the factors set forth in DeLuca. With regards to instability or subluxation, the Board notes that the Veteran is currently in receipt of separate ratings for right and left knee subluxation under Diagnostic Code 5257. Therefore, higher or separate ratings for recurrent subluxation or lateral instability is not warranted. The Board also notes that the preponderance of the evidence does not reflect that the Veteran's right and left knee disabilities are manifest by ankylosis, dislocation of semilunar cartilage, symptomatic removal of the semilunar cartilage, malunion and nonunion of the tibia or fibula, or genu recurvatum. Therefore, Diagnostic Code 5256, 5258, 5259, 5262, and 5263 are not for application in this case. Accordingly, ratings higher than 10 percent for the right and left knee disabilities is not warranted. TDIU 5. TDIU prior to January 2, 2014 The Board notes that a January 2021 rating decision granted entitlement to a TDIU from January 2, 2014. However, since the issue is raised as part and parcel to the Veteran's claims for increased ratings, the period on appeal prior to January 2, 2014, remains for consideration. Total disability ratings for compensation may be assigned, where the schedular rating is less than 100 percent, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of one or more service-connected disabilities without regard to advancing age or nonservice-connected disability. See 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a). Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. 38 C.F.R. § 4.16 (a); Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall generally be deemed to exist when a Veteran's earned income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16 (a). Marginal employment may also be established, on a facts found basis, when earned annual income exceeds the poverty threshold, including but not limited to employment in a protected environment such as a family business or sheltered workshop. Id. In a January 2019 TDIU application, the Veteran reported that she last worked full-time on January 1, 2014 as a dental assistant. In subsequent statements, the Veteran also noted previous full and part-time work history as a teacher's assistant. She noted that she has had to switch from full-time to part-time as a teacher's assistant due to her service-connected disabilities. In this case, the preponderance of the evidence shows that the Veteran had substantially gainful employment during the appeal period until January 1, 2014. Although the Veteran reported that she experienced difficulties and struggled with her employment, the evidence shows that she maintained substantially gainful employment until January 1, 2014. Where the evidence establishes that a Veteran is substantially gainfully employed on a full-time basis, a TDIU cannot be granted as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). As the most probative evidence of record demonstrates that the Veteran was gainfully employed on a full-time basis prior to January 2, 2014, a TDIU prior to that time may not be granted. Accordingly, the benefit-of-the-doubt rule does not apply, and entitlement to a TDIU prior to January 2, 2014, is denied. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Henriquez, 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.