Citation Nr: 21030226 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 17-50 185A DATE: May 18, 2021 ORDER Restoration of the 20 percent rating for the Veteran's left knee chondromalacia patella with laxity, effective June 1, 2017, is granted. REMANDED Entitlement to a rating in excess of 10 percent for right knee chondromalacia patella with laxity is remanded. Entitlement to a rating in excess of 20 percent for left knee chondromalacia patella with laxity is remanded. Entitlement to a rating in excess of 10 percent for degenerative joint disease (DJD) of the left knee is remanded. Entitlement to a rating in excess of 10 percent for degenerative joint disease (DJD) of the right knee is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The preponderance of the evidence did not demonstrate overall improvement in the Veteran's service-connected left knee chondromalacia patella with laxity. CONCLUSION OF LAW The criteria for restoration of the 20 percent rating assigned for the Veteran's service-connected left knee chondromalacia patella with laxity, effective June 1, 2017 are met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.105, 3.344(c), 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1976 until June 1980. The Veteran died in March 2020, and the Veteran's surviving spouse submitted a valid application for substitution as the appellant in the adjudication of the Veteran's claims pending prior to his death pursuant to 38 U.S.C. § § 5121A. In June 2020, the RO granted substitution of the Appellant for the Veteran. As such, the Veteran's surviving spouse is the Appellant with respect to the matters on appeal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2012 and June 2013 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO), which will be explained in further detail below. The Veteran's spouse, as the substitute Appellant, testified before the undersigned at a hearing in January 2021. In March 2012, the Veteran filed an increased rating claim for left and right knee chondromalacia patella with laxity and DJD of the left and right knee. In an August 2012 rating decision, the AOJ denied the Veteran's claim for an increased rating for DJD of the left and right knee. In a June 2013 rating decision, the AOJ denied the Veteran's claim for an increased rating for left and right knee chondromalacia patella with laxity. In June 2013, the Veteran timely filed a Notice of Disagreement (NOD) for all increased rating claims, which the AOJ acknowledged in a July 2013 correspondence. In December 2014, the AOJ issued a Statement of the Case (SOC) for left and right knee chondromalacia patella with laxity. The Veteran timely filed a substantive appeal, VA Form 9; however, the Veteran's claims were not transferred to the Board. In October 2015, the Veteran filed another increased rating claim for his left and right knee chondromalacia patella with laxity and DJD of the left and right knee. In a March 2017 rating decision, the AOJ denied an increased rating for the Veteran's right knee chondromalacia patella with laxity and right and left knee DJD and proposed a reduction to the Veteran's left knee chondromalacia patella with laxity rating. In an August 2017 rating decision, the AOJ reduced the Veteran's service-connected left knee chondromalacia patella with laxity rating from 20 percent to 10 percent, effective June 1, 2017. The Veteran timely filed a NOD, the AOJ issued an SOC, and the Veteran timely filed VA Form 9. The Veteran's claims were certified to the Board. Despite the Veteran filing an additional increased rating claim in 2015 and the AOJ adjudicating that claim, the Board finds the Veteran's 2012 claim for increased ratings, denied in the August 2012 and June 2013 rating decisions, remains pending as the Veteran timely filed a Notice of Disagreement and perfected an appeal with a timely Substantive Appeal, but VA failed to certify the appeal to the Board prior to the Veteran filing a subsequent increased rating claim in 2015. See Norris v. West, 12 Vet. App. 413, 422 (1999) (a claim can remain pending in the adjudication process for years if VA fails to act on it). 1. Restoration of the 20 percent rating for the Veteran's left knee chondromalacia patella with laxity, effective June 1, 2017. The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in rating of a service-connected disability when warranted by the evidence, but only after VA has met certain procedural and substantive requirements. Procedurally, 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). A veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. See 38 U.S.C. § 1155. The law provides that, when a rating has continued for a long period at the same level (i.e., five years or more), a reduction may be accomplished when the rating agency determines that evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. See 38 C.F.R. § 3.344 (a). However, when a rating has been in effect for less than five years, the regulatory requirements under 38 C.F.R. § 3.344 (a) and (b) are inapplicable, as set forth in 38 C.F.R. § 3.344 (c). In such cases, an adequate reexamination that discloses improvement in the condition will warrant reduction in rating. See 38 C.F.R. § 3.344 (c). VA is also required to comply with several general 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. See 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.13; see also Brown v. Brown, 5 Vet. App. 413, 420 (1993). These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of a Veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Such review requires VA 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. 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 a Veteran's ability to function under the ordinary conditions of life and work. Faust v. West, 13 Vet. App. 342, 349 (2000). In cases involving disability ratings of the musculoskeletal system, VA must also consider the provisions of 38 C.F.R. §§ 4.40 through 4.71. Further, though a rating reduction must have been supported by the evidence on file at the time of the reduction, pertinent post-reduction evidence favorable to restoring the rating also must be considered. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). The law provides that where a rating reduction was made without observance of law the erroneous reduction must be vacated and the prior rating restored. Schafrath, 1 Vet. App. at 595. The Veteran's 20 percent rating for chondromalacia patella, left knee, with laxity, had been in effect since June 3, 2010. On March 16, 2017 the AOJ notified the Veteran of a proposed rating reduction from 20 to 10 percent, setting forth all material facts and reasons for the reduction. At that time, the RO instructed the Veteran to submit within 60 days any additional evidence to show that his rating should not be reduced, and to request a predetermination hearing if desired. The Veteran responded within the 60 days allotted, he submitted two Notice of Disagreements in June 2017. He asserted his evaluation should be raised, not lowered, but did not identify any additional medical evidence or request a hearing. The AOJ implemented the rating reduction of the Veteran's right knee instability from 20 percent to 10 percent, effective June 1, 2017 in an August 2017 rating decision. Based on these facts, the Board finds that the procedure for reducing the Veteran's 20 percent evaluation to 10 percent for his left knee chondromalacia patella with laxity disability was appropriately completed in this case in accordance with 38 C.F.R.§ 3.105(e). As due process was afforded, the next question for the Board is whether the reduction was proper based on the evidence of record. Here, the reduction was based on alleged improvement in the Veteran's left knee chondromalacia patella with laxity. The Veteran's left knee chondromalacia patella with laxity 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. Moderate recurrent subluxation or lateral instability warrants a 20 percent disability rating and 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 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. At the March 2017 VA examination, the examiner noted 1+ anterior left knee instability. The examiner did not provide an opinion with respect to whether the bilateral knee instability was slight, moderate, or severe. Based on the findings at this examination, the AOJ determined that some improvement had occurred in the Veteran's left knee chondromalacia patella with laxity. The reduction of the Veteran's disability rating was based on this one examination. In a June 2017 VA examination the examiner noted that the Veteran did not have a history of recurrent subluxation or lateral instability of his left knee. Anterior, posterior, medial, and lateral instability testing of the bilateral knees were normal. The examiner determined that there was no joint instability of the bilateral knees based on joint stability testing. However, the Veteran reported a 9 out of 10 pain and the examiner was unable to perform range of motion testing because the Veteran was in too much pain. The examiner reported left knee crepitus and localized tenderness or pain on palpation. In a June 2017 statement, the Veteran reported he needs help getting out of bed and taking showers because his knees give out constantly causing him to stumble and fall. In an October 2017 Notice of Disagreement, the Veteran reported he wears bilateral knee braces, takes double doses of pain medication, and cannot move his legs without pain. Moreover, he reported that his knees swell to such a degree he cannot move them. In an October 2017 Substantive Appeal, VA Form 9, the Veteran reported he is in constant pain, wears bilateral braces, increased his pain medication, and falls daily because his knees give out. Moreover, the Veteran's spouse testified at the January 2021 hearing that the Veteran could not stand for extended periods of time, had trouble getting up and down, and would regularly fall. She further testified that these problems had increased over the previous two years. Moreover, the Veteran's medical records reflect he was referred to an orthopedic clinic to discuss surgical options for his left knee. However, the Veteran's spouse testified he was not a candidate for surgery because he was high risk. In sum, the Veteran reported instability of his left knee and that it had become worse, not better. The Veteran and his spouse report his knees buckled and he often fell. VA treatment records document that the Veteran uses bilateral knee braces for support and pain management. The United States Court of Appeals for Veterans Claims (Court) held that Diagnostic Code 5257 does not require objective medical evidence of lateral instability for a rating to be assigned and when weighing evidence to determine whether there is lateral instability, VA cannot find objective medical evidence is automatically more probative than lay evidence. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). The RO did not address the Veteran's previous lay statements of instability, falling, and increased pain in the August 2017 rating decision and it appears that the RO automatically found the medical evidence more probative than the lay evidence of record. Accordingly, the requirements for reduction of the disability rating for the Veteran's left knee chondromalacia patella with laxity have not been met as VA has failed to meet its burden of showing that the Veteran's disability actually improved under the ordinary conditions of life. Accordingly, the Board finds that the reduction from 20 percent to 10 percent for the Veteran's service-connected left knee chondromalacia patella with laxity was not proper and the 20 percent disability rating is therefore restored, effective June 1, 2017. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for right knee chondromalacia patella with laxity is remanded. 2. Entitlement to a rating in excess of 20 percent for left knee chondromalacia patella with laxity is remanded. 3. Entitlement to a rating in excess of 10 percent for DJD of the left knee is remanded. 4. Entitlement to a rating in excess of 10 percent for DJD of the right knee is remanded. The record reflects the Veteran received medical care outside of VA facilities. The file contains references to a January 2018 orthopedic appointment at a non-VA treatment provider and to chiropractic treatment, both for bilateral knee treatment. Although the Appellant testified at the January 2021 hearing that the Veteran submitted his private records to VA, upon a thorough review of the record, the relevant medical records do not appear to be associated with the Veteran's claims file. VA's duty to assist requires reasonable efforts to ensure all relevant treatment records have been obtained and associated with the claims file. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). 5. Entitlement to TDIU is remanded. In a February 2015 correspondence, the Veteran asserted he had been rendered unemployable by his service-connected knee disabilities. As such, the Board finds that the issue of entitlement to a TDIU has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). This issue is inextricably intertwined with the ratings assigned for left knee chondromalacia patella with laxity, right knee chondromalacia patella with laxity, left knee DJD, and right knee DJD, particularly because the Veteran did not meet the schedular percentage requirements for TDIU outlined in 38 C.F.R. § 4.16(a) at any point during the appeal period. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The AOJ should also develop and adjudicate this issue in the first instance to ensure the Appellant is afforded the requisite due process. See 38 U.S.C. § 7104(a); See Disabled Am. Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339, 1347 (Fed. Cir. 2003) (discussing the requirement of all matters being subject to one review before appeal to the Board) The matters are REMANDED for the following action: (Continued on the next page) 1. Ask the Appellant to complete a VA Form 21-4142 for any private physicians, medical professionals, or medical treatment facilities which may have records relevant to the Veteran's left knee chondromalacia patella with laxity, left knee DJD, right knee DJD, and right knee chondromalacia patella with laxity. Make two requests for the authorized records from any identified medical professional or facility unless it is clear after the first request that a second request would be futile. 2. Develop and adjudicate the issue of entitlement to TDIU as an element of the Veteran's appeal of the rating assigned for right knee chondromalacia patella with laxity, left knee chondromalacia patella with laxity, degenerative joint disease of the right knee and degenerative joint disease of the left knee pursuant to the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), providing extra-schedular consideration under 38 C.F.R. § 4.16(b) if necessary. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zachery S.C. Luce, 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.