Citation Nr: 21030948
Decision Date: 05/20/21	Archive Date: 05/20/21

DOCKET NO. 17-61 476
DATE: May 20, 2021

ORDER

Effective April 1, 2017, restoration of a 50 percent rating for service-connected gouty arthritis of the right knee, status post-surgery, resulting in limitation of extension (right knee limited extension), is granted.

Effective April 1, 2017, restoration of a 10 percent rating for service-connected lateral instability of the right knee associated with gouty arthritis (right knee instability) is granted.

REMANDED

Entitlement to a rating in excess of 20 percent for service-connected gouty arthritis of the right knee, status post-surgery, resulting in limitation of flexion (right knee limited flexion) is remanded.

Entitlement to a rating in excess of 50 percent for right knee limited extension is remanded.

Entitlement to a rating in excess of 10 percent for right knee instability is remanded.

FINDINGS OF FACT

1. The Veteran's 50 percent rating for right knee limited extension had been in effect for less than five years at the time it was reduced. 

2. The Veteran's 10 percent rating for right knee instability had been in effect for more than five years at the time it was reduced. 

3. The evidence of record at the time the Veteran's rating for right knee limited extension was reduced from 50 percent to 10 percent did not demonstrate improvement in his ability to function under the ordinary conditions of life and work. 

4. The evidence of record at the time the Veteran's rating for right knee instability was reduced from 10 percent to a noncompensable rating did not demonstrate improvement in his ability to function under the ordinary conditions of life and work. 

CONCLUSIONS OF LAW

1. Restoration of a 50 percent rating for right knee limited extension is warranted from April 1, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.2, 4.3, 4.6, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5261.

2. Restoration of a 10 percent rating for right knee instability is warranted from April 1, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.2, 4.3, 4.6, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5257.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from February 1981 to October 1985 and April 2004 to June 2005. This matter comes before the Board of Veterans' Appeals (Board) from a January 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). 

The matter on appeal began when a February 2015 rating decision proposed to reduce the Veteran's disability rating for right knee limited extension from 50 percent to 10 percent, for right knee instability from 10 percent to a noncompensable rating, and for right knee limited flexion from 10 percent to a noncompensable rating. In March 2015, the RO sent the Veteran a letter notifying him of the proposed reductions, his right to submit additional evidence and argument in response to the proposed reductions, and his right to a predetermination hearing regarding the proposed reductions. In April 2015, the Veteran submitted argument objecting to the proposed reductions, but did not request a hearing. Subsequently, an April 2015 Report of General Information indicates the Veteran requested a hearing regarding the proposed reductions. In November 2016, an informal conference was held with the Veteran regarding the proposed reductions. The November 2016 informal conference report indicates that the Veteran opted for "an informal conference instead of a formal hearing." The informal conference resulted in agreement to obtain a new VA knee examination, which was obtained later in November 2016.

In January 2017, the RO implemented the proposed reductions, except with respect to right knee limited flexion. The January 2017 rating decision reduced the Veteran's rating for right knee limited extension from 50 percent to 10 percent effective April 1, 2017, and for right knee instability from 10 percent to a noncompensable rating effective April 1, 2017. The January 2017 rating decision increased the Veteran's rating for right knee limited flexion from 10 percent to 20 percent effective November 16, 2016. 

In February 2017, the Veteran filed a Notice of Disagreement (NOD) in response to the reductions and seeking increased ratings for right knee extension, flexion, and instability. In an August 2017 Statement of the Case (SOC), the RO continued the 20 percent rating for right knee limited flexion, 10 percent rating for right knee limited extension, and a noncompensable rating for right knee instability. In March 2017 and November 2017 VA Forms 9, the Veteran perfected an appeal and requested a hearing before the Board. In July 2020, the Veteran testified before the undersigned Veterans Law Judge at a virtual Board hearing. 

At the July 2020 Board hearing, the Veteran asked for the reason why a September 2017 VA examination was cancelled. See Hearing Transcript (Tr.) at 16-17. Unfortunately, a review of the record failed to reveal any information concerning an examination cancelled in September 2017. In any event, a new examination will be scheduled to determine the current severity of the Veteran's right knee disabilities.

The Board also observes that the record contains the Veteran's requests in April 2017 and July 2019 to expedite his claim due to homelessness and extreme financial hardship. See July 2019 Statement in Support of Claim; May 2017 VA Memo; April 2017 Report of General Information; April 2017 Third-Party Correspondence. Unfortunately, the 2017 requests regarding financial hardship did not include sufficient evidence supporting his assertion, including any notice of impending eviction (of note, a record from the Veteran's property manager at the time merely noted if the Veteran did not submit rent on the fourth day of the month that evidence proceedings would commence, but did not indicate whether such action was taken against the Veteran).  While the Veteran reported homelessness in 2019, in June 2020 he notified the VA of his new permanent address and at the July 2020 hearing neither he nor his representative renewed the request to advance his case on the docket due to financial hardship.  Accordingly, the prior motions to advance this case on the Board's docket are hereby denied.  38 C.F.R. § 20.800(c).  If the Veteran believes his circumstances at the present time warrant expedited processing of his claim, he can work with his representative to submit a new motion to advance his case on the docket.   

At the July 2020 hearing the Veteran asserted that a VA examiner was negligent in performing an examination of his right knee, and indicated he was seeking compensation for the same. See Tr. 14-15. The Veteran is advised that he is service-connected for the disability in question, which is a greater benefit than can be awarded under 38 U.S.C. § 1151 based on negligence, so any claim under that statute is moot.  Cf. Hornick v. Shinseki, 24 Vet. App. 50, 53-55 (2010) (examining the different ancillary benefits available to service-connected veterans compared to those receiving compensation under 38 U.S.C. § 1151).  However, if the Veteran wishes to pursue a claim under the Federal Tort Claims Act, he is encouraged to discuss this matter with his representative. 

Reductions

Congress has provided that 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 United States Court of Appeals for Veterans Claims (Court) has consistently held that when a RO reduces a veteran's disability rating without following the applicable regulations, the reduction is void ab initio (invalid from the beginning). See, e.g., Greyzck v. West, 12 Vet. App. 288 (1999). 

When reducing a disability rating, VA is required to comply with several 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, 4.10, 4.13; Brown v. Brown, 5 Vet. App. 413 (1993). Specifically, 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 beneficiary must be notified at his or her latest address of record of the contemplated action and furnished detailed reasons for the proposed reduction. 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" as well as 30 days to request a predetermination hearing. See 38 C.F.R. §§ 3.105(e), (i). 

Where a rating has been in effect more than five years, as is the case for the Veteran's right knee instability, benefits will not be reduced based upon an examination that is less full and complete than the examination on which payments were authorized or continued. Ratings on account of diseases subject to temporary or episodic improvement, such as manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, etc., will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. See 38 C.F.R. § 3.344. 

Where a rating has been in effect less than five years, as is the case for the Veteran's right knee limited extension, the provisions of 38 C.F.R. §§ 3.344(a) and (b), which provide additional regulatory hurdles to rating reductions in effect longer than five years, do not apply. Instead, the provisions of 38 C.F.R. § 3.344(c) provide that ratings in effect for less than five years may be reduced upon a showing that the disability has improved. 

However, in Brown v. Brown, the United States Court of Appeals for Veterans Claims (Court) identified general requirements that are applicable to all rating reductions, including those that have been in effect for less than five years. These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of a veteran's disability. See Brown, 5 Vet. App. at 420; Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. 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 not merely a difference in the thoroughness of the examination or in use of descriptive terms, and whether the examination reports reflecting such change are based upon thorough examinations. See 38 C.F.R. § 4.13. Thus, in any rating reduction case not only must it be determined that an improvement in a disability has actually occurred, but also that the observed improvement actually reflects an improvement in a veteran's ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342 (2000); Brown, 5 Vet. App. at 420-21; 38 C.F.R. §§ 4.2, 4.10. 

The Board is required to establish, by a preponderance of the evidence and in compliance with 38 C.F.R. § 3.344, that a rating reduction is warranted. See Brown, 5 Vet. App. at 413. 

In considering the propriety of a reduction, the Board must focus on the evidence of record available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition had demonstrated actual improvement. See Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992).

1. Effective April 1, 2017, restoration of a 50 percent rating for right knee limited extension is granted. 

2. Effective April 1, 2017, restoration of a 10 percent rating for right knee instability is granted. 

The Veteran asserts that his ratings for right knee limited extension and instability should not have been reduced because these disabilities have not improved. See October 2018 Statement of Accredited Representative in Appealed Case; February 2017 and April 2015 Veteran Statements. The Board agrees. 

Initially, the Board notes that the procedural requirements of 38 C.F.R. § 3.105 were followed and satisfied. In this regard, the record contains a March 2015 letter notifying the Veteran of the proposed reductions, his right to submit additional evidence and argument in response to the proposed reductions, and his right to a predetermination hearing regarding the proposed reductions. The record also contains the Veteran's April 2015 response presenting argument in response to the proposed reductions. In addition, the record contains a November 2016 informal conference report regarding the proposed reductions. Thus, this matter turns on whether the substantive requirements were satisfied before effectuating the rating reductions. 

The January 2017 reductions in the Veteran's ratings for right knee limited extension and instability were based on the results of C&P examinations conducted in January 2015 and November 2016. Notably, neither of these examinations comply with 38 C.F.R. § 4.59, Correia v. McDonald, 28 Vet. App. 158 (2016), or Sharp v. Shulkin, 29 Vet. App. 26 (2017). 

Specifically, the November 2016 knee examination does not indicate whether passive range of motion testing was performed in compliance with 38 C.F.R. § 4.59 and Correia. Furthermore, with respect to Sharp, the examiner stated that it was impossible to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited his functional ability with repeated use over time and the examiner's reasoning for this opinion was that the examination did not occur "after repeated use over a period of time," which is an inadequate basis on which to support this opinion.

The January 2015 knee examination fails to indicate whether passive, active, weight-bearing, and non-weight-bearing testing was performed in compliance with 38 C.F.R. § 4.59 and Correia. Furthermore, the examiner did not address additional functional loss or impairment due to pain, weakness, fatigability, and incoordination in compliance with Sharp.

Given these inadequacies, the January 2015 and November 2016 knee examinations cannot support a reduction in the Veteran's rating for right knee instability and limited extension. Because the Veteran's right knee instability had been in effect for more than five years at the time it was reduced, benefits could not be reduced based upon an examination that is less full and complete than the examination on which payments were authorized or continued. See 38 C.F.R. § 3.344. Here, the January 2015 and November 2016 examinations failed to provide passive range of motion testing unlike the January 2008 examination, which supported the initial rating for right knee instability. 

Furthermore, to properly reduce a veteran's rating, the evidence must establish actual improvement in a veteran's ability to function under the ordinary conditions of life and work. Faust, 13 Vet. App. 342. Along the same lines, before reducing a veteran's rating, the VA must "assure itself that there has been an actual change in the conditions, for better or worse, and not merely a difference in thoroughness of the examination or in use of descriptive terms." See 38 C.F.R. § 4.13. Both the January 2015 and November 2016 examinations fail to meet these requirements. In this regard, the January 2015 examination notes that the Veteran has painful, stiff flare-ups about once per week that last between 12-24 hours; his knee disability impacts his ability to work; he can walk only one mile at a time and 2-3 miles in a work day; and he can sit or stand for only 3-4 hours in a workday (with a maximum of 15-20 minutes sitting and 30-45 minutes standing before needing to change position). These functional limitations are worse than those documented in the January 2008 and May 2013 examinations and do not demonstrate actual improvement in the Veteran's ability to function under the ordinary conditions of life and work. For these reasons, effective April 1, 2017, restoration of a 50 percent rating for right knee limited extension and a 10 percent rating for right knee instability is granted.

REASONS FOR REMAND

3. Entitlement to a rating in excess of 20 percent for service-connected gouty arthritis of the right knee, status post-surgery, resulting in limitation of flexion (right knee limited flexion) is remanded.

4. Entitlement to a rating in excess of 50 percent for right knee limited extension is remanded.

5. Entitlement to a rating in excess of 10 percent for right knee instability is remanded.

The Veteran asserts that his right knee disabilities merit an increased evaluation. See Tr. 5; October 2018 Statement of Accredited Representative in Appealed Case; February 2017 NOD; February 2017 and March 2015 Veteran Statements; November 2012 VA Form 21-526b, Veteran's Supplemental Claim for Compensation. As discussed above, the most recent C&P knee examinations obtained in 2015 and 2016 are inadequate and warrant a remand to obtain a new examination, and in any event the Veteran has asserted worsening of his knee disability during his hearing. Updated VA and private treatment records should also be secured.  

The matters are REMANDED for the following action:

1. Obtain any outstanding VA treatment records.

2. With any necessary assistance from the Veteran, secure outstanding relevant private treatment records, to include records from an August 2020 orthopedic appointment at a private hospital in Twin Falls. See Tr. 4. 

3. Then schedule the Veteran for an examination by an examiner other than the ones who performed the November 2016, January 2015, May 2013, January 2008, August 2007, May 2007, and December 2006 examinations, and preferably an orthopedic physician, to determine the severity of the Veteran's service-connected right knee extension, flexion, and instability. 

The entire claims file should be made available to and reviewed by the examiner. The examiner should conduct all indicated tests and studies, to include range of motion studies. For the range of motion study, each of the joints involved should be tested for pain (1) on active motion, (2) on passive motion, (3) in weight-bearing, (4) in nonweight-bearing, and (5) if possible, with range of motion of the opposite undamaged joint. 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.

Please also provide an opinion describing functional impairment of the Veteran's right knee, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined and the reason why those facts cannot be determined if unable to opine without resort to mere speculation (e.g., lack of insufficient information or evidence, the limits of medical knowledge, etc.).

The examiner's attention is invited to the following evidence, which he or she must consider and discuss in the examination report:

(a.) The July 2020 Hearing transcript, specifically the Veteran's credible testimony that he is limited to 30 minutes of walking (Tr. 3); he cannot fully extend his leg due to pain (Tr. 3); sometimes it feels like his knee will give out (Tr. 3); his knee condition has worsened since the last examination in 2016 (Tr. 5); his knee pain is 6.5 out of 7 at rest (Tr. 7); his knee swells after walking (Tr. 7); he experiences flare-ups about 3 times per week (Tr. 7); and he cannot run, he has trouble with stairs, he cannot do squats, and has difficulty walking (Tr. 10).

(b.) The Veteran's November 2017 written statement. 

(c.) The Veteran's February 2017 written statement. 

(d.) The Veteran's April 2015 written statement. 

The examiner is asked to ensure the examination report reflects the recent regulatory amendments affecting the rating of knee disabilities, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). 

A complete rationale should be given for all opinions and conclusions expressed. If unable to opine without resorting to speculation, please provide a basis for reaching this conclusion.

 

 

S. BUSH

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	D. deBruyn, 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.