Citation Nr: 21040862 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 16-16 989 DATE: July 7, 2021 ORDER As the reduction of the disability rating for degenerative joint disease of the right knee from 30 percent to 20 percent, effective April 1, 2016, was not proper, restoration of the 30 percent rating as of that date is granted. Entitlement to an effective date earlier than August 23, 2012, for the grant of service connection for an acquired psychiatric disorder (diagnosed as specified trauma and stressor related disorder, persistent depressive disorder, and stimulant use disorder), is denied. Entitlement to an increased rating of 100 percent for an acquired psychiatric disorder, is granted, effective August 23, 2012, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to an increased rating higher than 30 percent for right knee injury, postoperative, with limitation of motion and muscle atrophy is remanded. Entitlement to an effective date earlier than August 23, 2012, for the grant of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), is remanded. Entitlement to an earlier effective date earlier than August 23, 2012, for the grant of Dependents' Educational Assistance under 38 U.S.C. Chapter 35 is remanded. FINDINGS OF FACT 1. The Veteran's right knee degenerative joint disease showed no appreciable improvement under the ordinary conditions of life and work from April 1, 2016. 2. The Veteran filed a service connection claim for an acquired psychiatric disorder that was received on August 23, 2012. 3. The severity, frequency, and duration of the Veteran's psychiatric symptoms more closely approximate total occupational and social impairment, effective August 23, 2012. CONCLUSIONS OF LAW 1. The reduction of the disability rating for the degenerative joint disease of the right knee from 30 percent to 20 percent, effective April 1, 2016, was not proper; and the criteria for restoration of the 30 percent rating as of that date are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.2, 4.71a, Diagnostic Code 5262. 2. The criteria for an effective date prior to August 23, 2012, for the award of service connection for an acquired psychiatric disorder are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 3. The criteria for a disability rating of 100 percent for an acquired psychiatric disorder are met, effective August 23, 2012. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from June 1966 to September 1969. This matter comes to the Board of Veterans' Appeals (Board) from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) decision in March 2016, which reduced the Veteran's disability rating for his right knee degenerative joint disease from 30 percent to 20 percent, effective April 1, 2016; and granted service connection for an acquired psychiatric disorder, assigning a 70 percent rating, effective August 23, 2012. The Veteran testified before the undersigned Veterans Law Judge at a virtual Board hearing in November 2020. Included in the testimony were the issues of entitlement to an effective date earlier than August 23, 2012, for the grant of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), and ancillary to that entitlement to an earlier effective date for DEA benefits. The Veterans Law Judge noted that while it was not entirely clear whether the Board had jurisdiction over these matters, the Board would take jurisdiction for purposes of testimony. In review of the record, a May 2017 rating decision granted entitlement to a TDIU and DEA benefits, effective August 29, 2016. The Veteran submitted a timely notice of disagreement in June 2017 noting that he disagreed with the effective date assigned. In an April 10, 2018 statement of the case (and corresponding April 10, 2018, rating decision), an earlier effective date of August 23, 2012, was assigned for entitlement to a TDIU and DEA benefits. On June 11, 2018, the Veteran submitted a VA-Form 9 appealing the effective date, asserting that entitlement to an effective date of December 1, 2011, was warranted. A substantive appeal must be filed within 60 days from the date the regional office (RO) mailed a claimant the SOC or within the remainder of the one-year period from the date of mailing of the rating decision being appealed. 38 C.F.R. §§ 20.200, 20.300, 20.302. Otherwise, the rating decision becomes final. See 38 C.F.R. § 20.1103. The absence of filing of a timely substantive appeal, as opposed to a notice of disagreement, is not a bar to the Board's jurisdiction; therefore, the Board can implicitly or explicitly waive the issue of timeliness with regard to a substantive appeal. Nonetheless, the Board may decline to exercise jurisdiction over an appeal if a substantive appeal was not timely filed. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). Since the Veteran's VA-Form 9 was received on June 11, 2018, after the April 10, 2018 statement of the case, it is technically one-day late and thus untimely. Nonetheless, pursuant to Percy and the fact that the Veteran gave testimony before the Board and the issue was not certified to the Board as one of timeliness of appeal, the Board waives the issue of timeliness with regard to the substantive appeal for the earlier effective date matters. Additionally, the Board notes that, in October 2020, the Veteran's representative challenged the competency of the VA examiner who administered one of the VA examinations of record; and requested the examiner's curriculum vitae (CV) and all known qualifications to determine the adequacy of the examiner's expertise, This matter is addressed in the remand section below pertaining to the increased rating claim for the right knee disability. The issues being addressed in the decision below are not affected by any challenge to the competency of a VA examiner, as the rating reduction and increased rating claim for acquired psychiatric disability are granted in full; and the issues of entitlement to earlier effective dates for the grant of service connection for an acquired psychiatric disability and/ or entitlement to a TDIU/ DEA are not relevant to any challenge to the competency of a VA examiner. 1. Entitlement to restoration of a 30 percent rating for degenerative joint disease of the right knee, effective April 1, 2016 The Veteran seeks restoration of a 30 percent rating for degenerative joint disease of the right knee. For the reasons that follow, the Board finds that the rating reduction was improper, and restoration of the 30 percent rating is warranted. The reduction of a rating has certain procedural requirements that must be followed by the AOJ if the lower evaluation results in a reduction or discontinuance of compensation payments being made. 38 C.F.R. § 3.105 (e). The procedural requirements of 38 C.F.R. § 3.105 (e) are not applicable to this rating reduction because the reduction of the rating for degenerative joint disease of the right knee did not result in a reduction or discontinuance of compensation payments. See March 2016 rating decision. Reducing a rating also brings concurrent substantive requirements that must be followed. When 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). In making this determination, 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. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; see Brown v. Brown, 5 Vet. App. 413, 420 (1993). The Board notes that for ratings in effect for five years or more, there are other specific requirements that must be met before VA can reduce a disability rating. 38 C.F.R. § 3.344 (a), (b); see 38 C.F.R. § 3.343. The regulations impose a clear requirement that rating reductions be based upon review of the entire history of the veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Such review requires VA to ascertain 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 it not only must be determined whether an improvement in disability occurred but whether it actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. Faust v. West, 13 Vet. App. 342, 350 (2000). Moreover, 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. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). The Veteran's 30 percent rating for his right knee degenerative joint disease was in effect from December 1, 2011 to April 1, 2016; i.e., less than five years. Thus, the provisions of 38 C.F.R. § 3.344 (c) apply. During the time that the 30 percent rating for the Veteran's right knee degenerative joint disease was in effect, his knee disability was rated under 38 C.F.R. § 4.71a, Diagnostic Code 5262. See, e.g., July 2012 rating decision. Under Diagnostic Code 5262, a 30 percent rating is assigned for impairment of the tibia and fibula, malunion, with marked knee or ankle disability. A 20 percent rating is warranted for malunion of the tibia and fibula with moderate knee or ankle disability. After the Veteran's disability rating for the right knee degenerative joint disease was reduced to 20 percent in the March 2016 rating decision, his right knee disability was rated under 38 C.F.R. § 4.71a, Diagnostic Code 5258. Under Diagnostic Code 5258, a 20 percent rating is warranted for dislocation of semilunar cartilage with frequent episodes of "locking, pain", and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. This is the highest schedular rating for dislocation of semilunar cartilage. A March 2016 VA examination report, which the AOJ used as the basis for the rating reduction from 30 percent to 20 percent, showed that the Veteran described continued knee pain. With flare-ups the pain was at an 8 out of 10. His knee pain would flare up with walking and also prevented him from sleeping. He could not sit for more than 10 minutes and had to change position. He did not do prolonged standing or go up or down steps. He indicated that he had a fall where he went to stand up and his right knee gave out. Range of motion studies showed flexion was to 50 degrees. The pain noted on examination caused functional loss. He had pain in flexion and extension, and on weight-bearing. There also was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was no additional loss of motion after repetitive use testing. The examiner was unable to state without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time. It was noted that the Veteran was not being examined with repetitive use over time. He really did not do a lot of repetitive activity except walking short distances. He had continued pain, which was worse with activity. Pain, weakness, fatigability, and incoordination significantly limited functional ability with flare-ups. It also was noted that the Veteran had atrophy of the quadriceps that it was thought was from wearing a brace on the leg for a year after he had surgery. His gait was not stable, and he had weakness on the right. He turned his foot out with the quad cane in the right hand. He had to steady himself when he stood by holding onto something. The examiner noted that the Veteran had to use his hands to lift his right leg up when getting his right foot onto the footrest of the wheelchair. It was noted that some of this also might be related to his back and radiculopathy. Muscle strength testing was reduced in the right knee. The right lower extremity circumference was 35 cm compared to 38 cm on the left. There was recurrent effusion. The Veteran stated that the right knee would swell if he overdid it. The lateral instability was not tested as the Veteran was very apprehensive about having his right knee manipulated. He had a Breq knee brace on his right knee for added support. The Veteran was noted as having a meniscus (semilunar cartilage) condition and had frequent episodes of joint "locking" and joint pain. A February 2017 VA examination report shows the Veteran had the same findings of reports of functional loss in the right knee. Limitation of motion showed flexion to 100 degrees, however. Joint stability testing showed a history of slight recurrent subluxation and slight lateral instability in the right knee. However, joint stability was normal on examination. The Veteran testified at the November 2020 Board hearing that after his last knee surgery in December 2011 he was still experiencing extreme right knee pain and was not able to walk for more than 5 to 10 minutes. See November 2020 Board hearing transcript, p. 8. He noted that he spent most of his time in his recliner and could not go up the stairs. Id. at 9-10. He also noted that he could not sit for longer than 30 minutes because of his right knee pain. Id. at 10. Based on consideration of all evidence of record, the Board finds that a reduction of the rating from 30 percent to 20 percent was not proper. The Veteran's functional impairment showed no appreciable improvement. He continued to have painful motion and flare-ups after prolonged sitting or standing. He also had a history of instability and muscle atrophy in the right knee. He continued to report daily pain, the occurrence of flare-ups, and that this disability impacted his daily life. The evidence does not show that his impairment of the tibia and fibula improved from involving a marked knee impairment to involving a moderate knee impairment under Diagnostic Code 5262. The nature and severity of such limitations was generally continuous throughout the period where the Veteran was rated 30 percent through the date of the rating reduction. This was shown not only in the examination reports, but his testimony at the Board hearing. In sum, the improvement in objective findings on examination, which served as the basis for the reduction, did not actually reflect an improvement in the Veteran's functional impairment under the ordinary conditions of life and work. Thus, the reduction in the disability rating for 30 percent to 20 percent was not proper, and the 30 percent rating must be restored effective April 1, 2016. 2. Entitlement to an effective date earlier than August 23, 2012, for the grant of service connection for an acquired psychiatric disorder The Veteran asserts that he is entitled to an effective date earlier than August 23, 2012, for service connection for an acquired psychiatric disorder. The Veteran has not indicated a date that would be an appropriate effective date. After careful consideration of the record, the Board finds that the date of August 23, 2012, as the effective date for service connection for an acquired psychiatric disorder, is correct. Generally, the effective date of an award of a claim is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400 (b)(2). The record reflects that the Veteran served on active duty from June 1966 to September 1969. He did not file a disability claim within one year of service discharge. On August 23, 2012, the Veteran filed a service connection claim for an acquired psychiatric disorder. Initially, the service connection claim was denied in September 2013. However, service connection for an acquired psychiatric disorder was granted in a March 2016 rating decision, with an effective date of August 23, 2012. A thorough review of the claims file does not show that any written communication by or on behalf of the Veteran was received prior to August 23, 2012, in which he requested a determination of entitlement to or evidenced a belief in entitlement to service connection for an acquired psychiatric disorder. Accordingly, August 23, 2012, is the correct effective date. As the preponderance of the evidence is against the Veteran's claim of entitlement to an earlier effective date, the claim is denied. 3. Entitlement to an increased rating for an acquired psychiatric disorder, rated as 70 percent, prior to February 7, 2017 The Veteran contends that he is entitled to an increased rating higher than 70 percent prior to February 7, 2017, for his acquired psychiatric disorder. He testified at the November 2020 Board hearing that he had anger for a long time, even back when he was in service. See November 2020 Board hearing transcript, p. 5. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. The AOJ granted a 100 percent disability rating for the Veteran's acquired psychiatric disorder, effective February 7, 2017, with a 70 percent rating in effect prior to this date. See May 2017 rating decision. The Board concludes that the Veteran's acquired psychiatric disorder more nearly approximated the level of impairment required for a disability rating of 100 percent, effective August 23, 2012. A March 2016 VA examination report shows that the Veteran's acquired psychiatric disorder was manifested by symptoms associated with a 100 percent rating (e.g., intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene). The Veteran also had symptoms that are consistent with a 70 percent rating, including suicidal ideation, near continuous panic or depression affecting the ability to function independently, appropriately, and effectively. These symptoms more nearly approximate total social and occupational impairment because the examiner found that the Veteran had intermittent inability to perform activities of daily living that was evident in VA records of not following through with treatment. While not all of the criteria for a 100 percent rating are met, the Board finds that overall, his symptoms more closely approximated the 100 percent rating. The March 2016 examination report noted that the Veteran had experienced severe symptoms over the last month. However, the Veteran testified that he had had consistent symptoms associated with his psychiatric disorder since his military service. The examination report also notes that the Veteran had tried medication, but that these had caused hallucinations. As the March 2016 VA examination report shows intermittent inability to perform activities of daily living, and the Veteran has provided competent testimony that his symptoms have been relatively consistent since service, resolving all doubt in the Veteran's favor, the maximum 100 percent rating is warranted, effective August 23, 2012, which encompasses the entire appeal. Thus, the appeal is granted. REASONS FOR REMAND 1. Entitlement to an increased rating higher than 30 percent for right knee injury, postoperative, with limitation of motion and muscle atrophy is remanded. In October 2020, the Veteran's representative challenged the competency of the VA examiner who administered one of the VA examinations of record. It is not clear which examination the Veteran's representative was referencing but she noted the scheduled Board hearing in November 2020 during which the Veteran testified about the severity of the right knee disability. The Veteran's representative requested the examiner's curriculum vitae (CV) and all known qualifications to determine the adequacy of the examiner's expertise, pursuant to Francway v. Wilkie, 930 F.3d 1377, 1380 (Fed. Cir. 2019). Consequently, the Board finds that once a claimant requests information about an examiner's qualifications, the duty to assist mandates that the claimant "has the right, absent unusual circumstances, to the curriculum vitae and other information about qualifications of a medical examiner." Id. Accordingly, on remand, to the extent possible, the Veteran's representative should be contacted to clarify which VA examiner she is referencing; and then provide the CV for the VA examiner and any additional information regarding the qualifications should be obtained, associated with the record, and provided to the Veteran and his representative for review. 2. Entitlement to an effective date earlier than August 23, 2012, for the grant of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Remand is required for referral of the claim for a TDIU to the Director, Compensation Service, for extraschedular consideration prior to August 23, 2012. The Veteran has the following disabilities that are service connected: (1) acquired psychiatric disorder (rated, by virtue of this Board decision, 100 percent from August 23, 2012); (2) degenerative joint disease, right knee, (rated 0 percent from March 23, 1993; 10 percent from February 29, 1996; 100 percent from March 17, 2011 under 38 C.F.R. § 4.30; 10 percent from July 1, 2011; 100 percent under 38 C.F.R. § 4.30 from August 17, 2011 to December 1, 2011; and (by virtue of this Board decision) 30 percent from December 1, 2011 with no reduction; (3) tinnitus (rated 10 percent from February 23, 2011); (4) surgical scars right knee (rated 10 percent from February 23, 2011); (5) right ear hearing loss (rated 0 percent from February 23, 2011 to December 30, 2013); (6) varicose veins (rated 0 percent from June 29, 2012); and (7) bilateral hearing loss (rated 0 percent from December 30, 2013). The Veteran is in receipt of a TDIU, effective August 23, 2012; but seeks entitlement to an effective date. Based on the forgoing, the Veteran does not meet the percentage standards set forth in § 4.16(a) prior to August 23, 2012. Therefore, the Board may not consider his claim for a TDIU in the first instance but will refer it to the Director, Compensation Service, there is a reasonable possibility that he is unemployable by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). The Veteran submitted a vocational assessment in April 2021 asserting that he had been unable to secure and follow substantially gainful employment as a result of his service-connected knee disability since at least March 17, 2011. The assessment referred to relevant treatment records during this time frame, which noted impairment related to the knees including limited ambulation, decreased motion, inability to stand for more than few minutes, and decreased strength. Accordingly, remand is required for referral of the claim for a TDIU to the Director, Compensation Service, for extraschedular consideration. The evidence also is unclear when the Veteran stopped being substantially gainfully employed. On his February 2018 informal conference report, his representative noted that he wanted an effective date of December 1, 2011, with consideration of an extraschedular evaluation for TDIU. As noted, on more recent correspondence received in April 2021, a vocational assessment notes that the Veteran has been unemployable since at least March 17, 2011. The Veteran noted on his VA Form 21-8940 in August 2016 that he became too disabled to work on January 1, 2013. He further noted that his last date of full-time employment as a carpenter was from November 2008 to January 2013, earning $6,000 per month (roughly $72,000 annually), which is well above the 2013 poverty guideline for one person of $11,490. United States Federal Poverty Guidelines Used to Determine Financial Eligibility for Certain Federal Programs, available at https://aspe.hhs.gov/poverty-guidelines (last accessed June 9, 2021). However, on a later December 2016 VA Form 21-8940, he noted that he became too disabled to work on October 22, 2011 due to his knee and PTSD and last worked full-time as a carpenter in September 2011. Also, he stated on a January 2012 VA psychotherapy note that he could not work at that time. Other documents in the Veteran's claims file, including records from the U.S. Social Security Administration (SSA) note that the Veteran stated that he became too disabled to work in November 2007 for multiple reasons including his right knee. He was noted to be in receipt in SSA benefits, however, on the basis of a diagnosis related to hypertension. Either way, this is well outside of the relevant time period which begins January 1, 2012 (after the temporary convalescence rating). On remand, efforts should be made to resolve the date the Veteran was prevented from obtaining substantially gainful employment on remand. 3. Entitlement to an effective date earlier than August 23, 2012, for the grant of Chapter 35 benefits is remanded. This issue of entitlement to an earlier effective date for Dependents' Educational Assistance (DEA) benefits pursuant to 38 U.S.C., Chapter 35, is inextricably intertwined with the issue of entitlement to an earlier effective date for a TDIU. Thus, a remand of the claim for an earlier effective date for DEA is required. The matters are REMANDED for the following action: 1. Request information from the Veteran's representative as to which examiner she has presented a challenge regarding the examiner's qualifications in the October 2020 statement; please document for the record all efforts to provide: 2. a copy of the curriculum vitae for the examiner who performed the VA examination that is identified by the representative; and 3. any other available information regarding the examiner's qualifications, and 4. associate any such information with the record and provide the Veteran and his representative a copy thereof. If the requested information is not obtainable, the Veteran and his representative should be notified, and the reasons for such should be documented in the record. 5. Make efforts to determine whether the Veteran was substantially gainfully employed prior to August 23, 2012 and the corresponding relevant date. 6. Refer the Veteran's claim for TDIU to VA's Director of Compensation Service for extraschedular consideration for the period prior to August 23, 2012. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sarah B. Richmond, 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.