Citation Nr: 21030588 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-09 906 DATE: May 19, 2021 REMANDED 1. The issue of entitlement to an initial rating in excess of 10 percent for right knee osteoarthritis with pain is remanded. 2. The issue of entitlement to restoration of a 100 percent rating for prostate cancer with erectile dysfunction, based upon a challenge to the propriety of the reduction of the rating to 40 percent effective September 1, 2014, is remanded. 3. The issue of entitlement to an increased rating for prostate cancer, currently rated 40 percent disabling for the period from September 1, 2014, is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from June 1969 to January 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA), or the Agency of Original Jurisdiction (AOJ). The issue of entitlement to a rating in excess of 10 percent for right knee osteoarthritis is before the Board on appeal from a September 2015 RO rating decision (granting service connection for the right knee disability, with notice sent in October 2015). The issue of the propriety of the reduction of the rating for prostate cancer is before the Board on appeal from a June 2014 RO rating decision (with notice sent in July 2014). The issue of entitlement to an increased rating for prostate cancer is also before the Board on appeal of the same June 2014 RO rating decision. The issue of entitlement to restoration of a reduced rating is distinct from the issue of entitlement to an increased rating for the same disability. The United States Court of Appeals for Veterans Claims (Court) has emphasized that rating reduction cases are separate from rating increase cases. Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991); Dofflemeyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992). 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. Peyton v. Derwinski, 1 Vet. App. 292 (1991); Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992). The prostate cancer rating issue on appeal arises from a rating reduction action (in the June 2014 RO rating decision) and thus features a claim for restoration of the prior rating. However, in this case, the Veteran's submissions giving rise to this appeal have challenged the AOJ's assignment of a new disability rating by specifically asserting entitlement to a higher rating other than the pre-reduction rating. The AOJ's adjudication of the appeal has characterized the appeal as -both- a challenge to the propriety of the reduction -and- also as an appeal seeking an increased rating. The Board has carefully considered the nature and scope of the Veteran's appeal in this case. A July 2013 rating decision and letter notified the Veteran of the AOJ's proposed reduction of the prostate cancer disability rating. In August 2013, the Veteran expressed objection to the proposed new rating of 40 percent and asserted that he was entitled to a rating of at least 60 percent. The June 2014 RO rating decision implemented a reduction of the prostate cancer rating from 100 percent to 40 percent, effective September 1, 2014. The Veteran's August 2014 notice of disagreement initiates an appeal of the rating reduction decision, and specifically challenges the assignment of the 40 percent rating with an assertion that his disability met the criteria for at least a 60 percent rating. The AOJ's February 2016 statement of the case (SOC) addressed the Veteran's appeal by characterizing it in two manners: as a claim for restoration of a rating and as a claim for an increased rating. In one instance, the SOC characterizes the appeal as concerning the propriety of the rating reduction: "[w]hether the reduction in the evaluation of residuals of prostate cancer with erectile dysfunction, to 40 percent was proper." In another instance, the SOC characterizes the appeal as concerning the Veteran's entitlement to any rating in excess of 40 percent: "[e]valuation of residuals of prostate cancer with erectile dysfunction currently evaluated as 40 percent disabling." On his March 2016 VA Form 9, perfecting the appeal for Board review, the Veteran states: "I want to appeal all of the issues listed on the statement of the case ....," and furthermore described the appeal in terms consistent with his prior arguments regarding entitlement to an increased rating (not limited to consideration of restoration of the prior rating): "[e]valuation of residuals of prostate cancer with erectile dysfunction currently evaluated as 40 percent disabling." The Board observes that the AOJ certified this matter to the Board on a May 2016 VA Form 8 that characterized the appeal as a claim seeking an "increased rating." The Veteran has also continued to present arguments and testimony clearly pursuing an increased rating, including in a June 2017 written statement. On one hand, the Board recognizes that this case features the Veteran's appeal of a rating reduction action and has been appropriately recognized by the AOJ (in part of the February 2016 SOC) as a claim for restoration of the prior rating. The Veteran's March 2016 VA Form 9 perfected this issue to the Board, and he has not withdrawn it. Therefore, the Board must consider the issue of whether the reduction of the 100 percent rating for prostate cancer was improper such that restoration of the 100 percent rating may be warranted. On the other hand, the Board also recognizes that this case features the Veteran's August 2014 notice of disagreement and March 2016 VA Form 9 asserting entitlement to an increased rating for prostate cancer other than restoration of the pre-reduction rating, and the AOJ has likewise characterized the appeal as concerning an increased rating claim in part of the February 2016 SOC and in other documents. Therefore, the Board must consider the issue of whether the Veteran is entitled to any rating in excess of 40 percent for prostate cancer as an appeal for an increased rating. Accordingly, the Board recognizes that both issues concerning the prostate rating are for consideration as part of the appeal before the Board at this time. Finally, the Board notes that the March 2016 VA Form 9 also shows that the Veteran originally requested an opportunity to testify at a Board hearing. However, the Veteran subsequently withdrew his request for a Board hearing. In a July 2017 letter, the Veteran's representative notified VA that the "Veteran wishes to withdraw his request for videoconference hearing...." This withdrawal was recently confirmed by the Veteran's representative in a May 2020 letter stating: "Veteran previously requested to withdraw his request for videoconference hearing.... Veteran again asks that his claims be certified to the Board to be considered on the evidence of record without a hearing." Again, in December 2020, the Veteran's representative reiterated that the Veteran "asks that his claims be certified to the Board to be considered on the evidence of record without a hearing [emphasis in original]." The Board has accordingly included the prostate cancer rating issues for consideration in this decision at this time. 1. The issue of entitlement to an initial rating in excess of 10 percent for right knee osteoarthritis with pain is remanded. The Veteran was last afforded a VA compensation examination to evaluate his right knee disability for rating purposes in September 2015. No examination report adequate to inform appellate review of the Veteran's service-connected right knee disability rating has been developed since that time, now more than five years ago. The Board finds that a remand is warranted to obtain current findings to inform appellate review with regard to the nature and severity of the Veteran's pertinent current right knee symptoms. The Board notes that the Veteran has asserted the presence of symptoms and functional impairment more severe than shown in the September 2015 VA examination report and potentially meeting the criteria for a higher rating. The Board notes such assertions in his representative's September 2017 written statement and an attached written statement from the Veteran dated in May 2017, including an assertion of instability of the right knee that was not shown at the time of the Veteran's prior VA examination. VA's General Counsel has indicated that a new examination is appropriate when there is an assertion of an increase in severity since the last examination. VAOPGCPREC 11-95 (1995). The Board finds that a new VA examination is warranted to assess the current severity of the Veteran's right knee disability. The Board notes that the author of the forthcoming right knee rating examination report shall have the opportunity to comply with the Court holdings in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), and Correia v. McDonald, 28 Vet. App. 158 (2016). 2. The issue of entitlement to restoration of a 100 percent rating for prostate cancer with erectile dysfunction, based upon a challenge to the propriety of the reduction of the rating to 40 percent effective September 1, 2014, is remanded. 3. The issue of entitlement to an increased rating for prostate cancer, currently rated 40 percent disabling for the period from September 1, 2014, is remanded. The Veteran was last afforded a VA compensation examination to evaluate his prostate cancer disability for rating purposes in July 2013. No examination report adequate to inform appellate review of the Veteran's service-connected prostate cancer disability rating has been developed since that time, now more than seven years ago. The Board finds that a remand is warranted to obtain current findings to inform appellate review with regard to the nature and severity of the Veteran's pertinent current symptoms of prostate cancer (and residuals). The Board notes that the Veteran has continued to present testimony, including in June 2017, asserting the presence of symptoms potentially meeting the criteria for a higher rating and more severe than shown in the July 2013 VA examination report. VA's General Counsel has indicated that a new examination is appropriate when there is an assertion of an increase in severity since the last examination. VAOPGCPREC 11-95 (1995). The Board finds that a new VA examination is warranted to assess the current severity of the Veteran's residual prostate cancer disability. The development and outcome of the increased rating adjudication could affect the outcome of the Veteran's claim of entitlement to restoration of the 100 percent rating for prostate cancer disability. Therefore, the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the Board cannot complete a final appellate review of the rating reduction / restoration question until the rating issue is fully developed and prepared for final appellate review. Finally, the February 2016 SOC cites a "VA Prostate examination dated July 8, 2013, VAMC East Orange." The June 2014 RO rating decision, in reducing the prostate cancer rating, cited that the determination was "based on the results of your VA examination of July 8, 2013." Although the Veteran's claims-file does not currently contain any upload of a dedicated copy of this significant VA examination report, the claims-file does contain documentation of its contents within a 219-page set of VA medical treatment records added to the claims-file on February 25, 2016. The Board has reviewed the contents of the July 2013 report in this manner. Nevertheless, the AOJ shall now have the opportunity to upload a specific dedicated copy of the significant July 2013 VA prostate rating examination report during the processing of this remand. The matters are REMANDED for the following action: 1. Associate with the claims-file any outstanding pertinent treatment records, including additional VA treatment records (such as those that may have been created since the last such update of the claims-file). Additionally, ask the Veteran to complete a VA Form 21-4142 for any new outstanding records from private providers of pertinent medical treatment of his disabilities on appeal that the Veteran may wish VA to assist him in obtaining for the record. 2. Upload to the Veteran's claims-file a dedicated specific copy of the July 8, 2013, VA prostate rating examination report. 3. After the record is determined to be complete, schedule a VA examination to ascertain the severity of the Veteran's service-connected disability of the right knee. The claims-file must be made available to, and be reviewed by, the examiner. All indicated testing should be accomplished and all symptomatology associated with the right knee disability should be identified. In addition to all findings identified on the appropriate examination forms, the examiner should determine the effective ranges of motion of the right knee, and present the results of range of motion tests in a written report by recording separate sets of the range of motion test results for both active and passive motion, in weight-bearing and nonweight-bearing (to the extent applicable), and, if possible, in comparison to the opposite, undamaged, joint (to the extent applicable). The VA examiner must address each of the following items: (a) The examiner's report should describe objective evidence of painful motion, if any, during each test. It is not sufficient merely to indicate whether or not pain was present during one of the required range of motion tests. If any of these findings are not possible, please provide an explanation. (b) The examiner is also asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare or repetitive testing cannot be performed, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. The Board is not permitted to accept a rationale that the examiner is unable to offer an opinion without resort to speculation based on an aversion to offering an opinion on issues not directly observed. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use. The examiner is asked to discuss, as necessary, the Veteran's description of symptoms and functional impairment presented in his written testimony on a statement dated in May 2017 (attached to a September 2017 submission by his representative): "severe pain" after 50 feet of walking, "stairs are a challenge", knee "gives out" if the Veteran does a "deep knee bend", "cannot pivot", use of a ladder is "painful". Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 4. After the record is determined to be complete, schedule a VA examination to ascertain the nature, extent, and severity of his service-connected prostate cancer / residuals. The claims folder and copies of all pertinent records should be made available to the examiner. All indicated tests and studies should be performed. The examiner is requested to delineate all symptomatology associated with, and the current severity of, the service- connected prostate cancer / residuals disability. The Veteran reports he requires at least 6 changes of absorbent materials daily in 2014. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Barone, 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.