Citation Nr: 21041258 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 18-40 334 DATE: July 8, 2021 ORDER The 20 percent rating for right knee patellofemoral syndrome with meniscal tear and meniscectomy ("right knee disability") is restored effective August 25, 2016. Reopening of the claim for service connection for depression is granted; the appeal is granted to this extent only. REMANDED Entitlement to an initial rating in excess of 30 percent for an unspecified sleep disorder is remanded. Entitlement to an increased rating in excess of 20 percent for lumbar spondylosis is remanded. Entitlement to an increased rating in excess of 20 percent for a right knee disability is remanded. Entitlement to service connection for an anxiety disorder is remanded. Entitlement to service connection for depression is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. In a rating decision issued in March 2017, the Veteran was notified that the rating assigned for his right knee disability was being reduced from 20 percent to a noncompensable rating, effective August 25, 2016. 2. The lay and medical evidence of record fails to establish that the Veteran's right knee disability is asymptomatic. 3. A November 2013 rating decision denied service connection for depression. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable one-year appellate period. 4. The evidence associated with the claims file subsequent to the November 2013 rating decision was not previously of record and relates to a previously unestablished fact necessary to substantiate the claim of service connection for depression. CONCLUSIONS OF LAW 1. The reduction in the rating for the right knee disability from 20 percent to noncompensable effective August 25, 2016, was improper, and restoration of the prior 20 percent rating is warranted. 38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 3.105(e), 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5258. 2. The November 2013 rating decision is final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 3. New and material evidence sufficient to reopen the claim of service connection for depression has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2009 to June 2012. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in March 2017 by a Department of Veterans Affairs (VA) Regional Office (RO). As to the reduction of the right knee disability, the Veteran filed a claim for an increased rating for the right knee in July 2016. The RO reduced the Veteran's rating for the right knee disability from 20 percent to noncompensable in the March 2017 rating decision on appeal, effective from August 25, 2016. Accordingly, the first issue on appeal is whether the rating reduction for the right knee was proper. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 27980 (1992); Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). However, as the reduction stemmed from an increased rating claim, the Board finds that a claim for an increased rating for the right knee is also on appeal before the Board. The Veteran and his spouse testified at a hearing before the undersigned Veterans Law Judge (VLJ) in December 2020. A transcript of the hearing is of record. Rating Reductions In any case involving a rating reduction, the fact-finder must ascertain, based upon a review of the entire record, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon a thorough examination. To warrant a reduction, it must be determined not only that an improvement in the disability level has actually occurred, but also that such improvement actually reflects an improvement in the ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 42021 (1993) (citing 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13). In addressing whether improvement is shown, the comparison point generally is the last examination on which the rating at issue was assigned or continued. Hohol v. Derwinski, 2 Vet. App. 169 (1992). However, if the rating was continued in order to see if improvement was in fact shown, the comparison point could include prior examinations as well. Collier v. Derwinski, 2 Vet. App. 247 (1992). The reduction of a rating generally must have been supported by the evidence on file at the time of the reduction, but pertinent post-reduction evidence favorable to restoring the rating must also be considered. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). If there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt shall be resolved in favor of the Veteran. In other words, a rating reduction must be supported by a preponderance of the evidence. 38 U.S.C. § 5107(a); see also Brown, 5 Vet. App. at 421. The Board notes that VA benefits recipients are to be afforded greater protections in instances where a rating has been in effect at the same level for more than five years. 38 C.F.R. § 3.344(c). The five-year period is calculated based on the effective date assigned for the award of the particular rating and the effective date of the actual reduction. Brown, 5 Vet. App. at 41819. In this case, the Veteran was granted a 20 percent rating for his right knee disability effective November 13, 2013, and the reduction was made effective August 25, 2016. Thus, the Veteran's 20 percent rating was in effect for significantly less than five years at the time of the reduction. See Smith v. Brown, 5 Vet. App. 335, 339 (1993). Therefore, the greater protections for benefits in effect for longer than five years are inapplicable in this case. 38 C.F.R. § 3.344(c). As such, the Board will evaluate the propriety of the reduction in accordance with the general considerations applicable to all rating reductions. Brown, 5 Vet. App. at 42021. 1. Restoration of a 20 percent rating for right knee disability. As an initial matter, the reduction of the Veteran's rating for his right knee disability from 20 percent to a noncompensable rating did not result in an overall change in the Veteran's monthly compensation. As such, VA did not need to comply with the additional notice and due process requirements generally applicable to rating reductions. 38 C.F.R. § 3.105(e). Therefore, the Board will proceed to address the propriety of the reduction on the merits. The Veteran filed a claim for service connection for a right knee disability in January 2013. A VA examination was provided in November 2013, which diagnosed the Veteran with a right knee meniscectomy and noted that the Veteran reported frequent episodes of locking, pain, and giving way. The examiner then noted the Veteran had frequent episodes of locking and pain in the joint associated with his meniscectomy. In a November 2013 rating decision, the RO granted an increased rating of 20 percent for the right knee disability under Diagnostic Code 5258, governing dislocated semilunar cartilage. In July 2016 the Veteran filed a claim for an increased rating for his right knee disability, and VA obtained an examination in August 2016. The examiner again diagnosed the Veteran with a meniscal tear and meniscectomy, and noted that the Veteran reported symptoms of locking, popping, and pain in the joint. On examination, the examiner noted that the Veteran had a meniscal tear but did not indicate whether or not it was symptomatic, stating only that the tear "has been removed." The examiner then noted that the Veteran had undergone an arthroscopic meniscectomy in January 2010. Based on that examination, in March 2017 the RO reduced the Veteran's right knee disability rating from 20 percent to a noncompensable level, stating that the examination report reflected that his disability had resolved. Following the reduction, the Veteran submitted February 2018 and August 2018 statements in which he reported that he still experienced pain, popping, and locking in the right knee joint. Further, during the December 2020 hearing both the Veteran and his spouse testified that the Veteran experiences frequent popping, pain, and locking in his knee, as well as instability and giving way in the joint. The Veteran's statements, as well as the testimony from his wife, are competent, and there is no evidence they are not credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Based on the foregoing, the evidence does not reflect an improvement in the Veteran's symptoms associated with the right knee disability so as to warrant a reduction from 20 percent to a noncompensable level. Dofflemyer, 2 Vet. App. 277. In order for the reduction of the Veteran's rating from 20 percent to a noncompensable level to be warranted, the evidence would need to establish that the Veteran's right knee disability was asymptomatic. Id.; see 38 C.F.R. § 4.31. While it is uncontroverted that the August 2016 VA examination report stated that the Veteran's symptoms had resolved as he underwent a meniscectomy in 2010, the Veteran also reported during that examination the same symptoms as were reported to the November 2013 examiner. Further, since the reduction the Veteran has continued to report that he experiences frequent popping, pain and locking in the right knee joint. Thus, the Veteran alleged both prior to the reduction, and has continued to allege thereafter, that he experiences locking, popping and pain in the right knee. While the majority of the Veteran's statements were provided following the reduction, pertinent post-reduction evidence favorable to restoring the rating must also be considered. Dofflemyer, 2 Vet. App. 277. The Board notes that based on the fact that both examiner's indicated that the Veteran had removed, not dislocated, semilunar cartilage, a reduction from 20 percent to 10 percent based on the presence of symptomatic removal of semilunar cartilage, as opposed to dislocated cartilage, may have been appropriate. See 38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5259. However, that is not the issue before the Board. Instead, the RO reduced the Veteran from 20 percent to a noncompensable level based on the premise that the Veteran's dislocated semilunar cartilage was asymptomatic, which is refuted by the lay evidence both prior and subsequent to the reduction. In light of the Veteran's competent lay statements concerning the presence of pain and locking in the right knee both prior to and after the reduction, the Board finds that the evidence does not support a conclusion that the Veteran's right knee disability had completely resolved at the time the reduction was made. Id. In light of the foregoing, the Board finds that the reduction in rating for a right knee disability from 20 percent to noncompensable was improper, and a restoration of the prior 20 percent rating, effective August 25, 2016, is warranted. Id.; 38 C.F.R. §§ 4.2, 4.10. New and Material Evidence Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. New and material evidence received prior to the expiration of the appeal period following a decision, will be considered as having been filled in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). The definitions of the terms "new" and "material" for the purposes of this provision are the same as those discussed above. Voracek v. Nicholson, 421 F.3d 1299, 1304 (Fed. Cir. 2005). If evidence received during the appellate period following a decision is new and material, the claim will remain pending until VA issues another decision re-adjudicating the claim and addressing the new and material evidence. Bond v. Shinseki, 659 F.3d 1362, 136768 (Fed. Cir. 2011). New and material evidence is not required to reopen a claim when, at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim. 38 C.F.R. § 3.156(c). "Relevant" means service records that speak to a matter in issue or in dispute. Kisor v. Wilkie, 969 F.3d 1333, 134143 (Fed. Cir. 2020). In other words, to be relevant the new service department records must pertain to the basis of the prior final denial. Id. For the purposes of reopening a claim, newly submitted evidence is generally presumed to be credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim in order to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Id. at 11718. 2. Reopening service connection for depression. The RO last denied service connection for depression specifically in November 2013. The Veteran was notified of the decision, but did not appeal. 38 C.F.R. § 20.302. No evidence was associated with the file during the appellate period. 38 C.F.R. § 3.156(b); see Lang v. Wilkie, 971 F.3d 1348, 135355 (Fed. Cir. 2020). Therefore, the November 2013 decision became final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The evidence of record in November 2013 consisted of the Veteran's service treatment records, VA treatment records, VA examination reports, and statements from the Veteran. The evidence of record did not establish that the Veteran had a current diagnosis of depression. Evidence received since the rating decision includes additional VA treatment records and examination reports. Of particular note, VA treatment records associated with the file since the decision reflect sporadic diagnoses of a depressive disorder. There is no evidence these diagnoses are not competent, and they are presumed credible for the purposes of reopening. Justus, 3 Vet. App. at 513. The evidence provided by the Veteran is new as it was not previously submitted to agency decision makers and is material as it addresses the previously unestablished fact of a current diagnosis of depression. It is not redundant and raises a reasonable possibility of substantiating the claim. Therefore, reopening of the claim for service connection for depression is warranted. REASONS FOR REMAND 1. Entitlement to an increased rating for an unspecified sleep disorder. The Veteran was most recently provided with a psychiatric examination in March 2017, which noted only a symptom of chronic sleep impairment. During the Veteran's December 2020 hearing testimony, he reported that his psychiatric disability also results in impaired judgment, memory issues, and concentration problems. The Veteran also endorsed additional symptoms in February 2018 and August 2018 statements, including flattened affect, impaired speech, and disturbances of motivation and mood. As there is evidence of worsening of the sleep disorder since the most recent examination, a remand is necessary so that a new examination can be obtained to determine the current severity of the sleep disorder. 38 C.F.R. § 3.159; see also Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 2. Entitlement to increased ratings for low back and right knee disabilities. The Veteran was most recently provided with low back and right knee examinations in August 2016. However, a review of the examination reports shows that the required testing for pain on active motion, passive motion, and in weightbearing and non-weightbearing was not conducted, nor did the examiner explain why such testing could not be performed. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). As such, the examinations are inadequate for rating purposes, and a remand is necessary so that new examinations may be provided. Further, since the most recent back and knee examinations the Veteran submitted February 2018 and August 2018 statements asserted that he is experiencing additional limitation of motion of his low back, as well as flare-ups and additional limitation of motion of the right knee. As such, new examinations are also required in order to determine the current severity of both disabilities. Palczewski, 21 Vet. App. at 181; Snuffer, 10 Vet. App. at 403. 3. Entitlement to service connection for an anxiety disorder and depression. VA obtained an opinion concerning the claimed anxiety disorder and depressive disorder in March 2017. As to anxiety, the examiner stated that it was less likely than not that the Veteran had a current anxiety disorder, and further that even if present it was unlikely related to the Veteran's "injury." However, the examiner did not reconcile this opinion with the VA treatment records associated with the file showing a diagnosis of a generalized anxiety disorder. Further, the examiner did not provide a rationale supporting the opinion that the anxiety disorder was unlikely due to service. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As to depression, the examiner did not in any way address the claimed depressive disorder, despite the fact that VA treatment records contain notations of a diagnosis of depressive disorder. As such, the Board finds that a remand is necessary for a new opinion clarifying whether the Veteran has a diagnosis of anxiety disorder or depressive disorder, and if so whether those disabilities are due to service or caused or aggravated by a service-connected disability. 4. Entitlement to a TDIU. Concerning entitlement to a TDIU, the Board finds that any determinations with respect to the remanded claims would materially affect a determination concerning a TDIU. As such, it is inextricably intertwined with the claims being remanded and must be remanded as well. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate medical professional to determine the current severity of his sleep disorder. If multiple psychiatric diagnoses are provided, the examiner is requested to differentiate which symptoms are attributable to which diagnoses, if possible. 2. Schedule the Veteran for a VA examination with an appropriate medical professional to determine the current severity of his low back disability. The examiner is asked to provide the following: (a) Report the extent of the symptoms of the low back disability in accordance with VA rating criteria. (b) Conduct testing for pain on active motion, passive motion, weightbearing, and non-weightbearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, an explanation must be provided. (c) Render specific findings as to whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. (d) State whether the examination is taking place during a flare-up. If not, the examiner should ask the Veteran to describe the flare-ups, including: frequency, duration, characteristics, severity, and/or extent of functional impairment he experiences. (e) Identify all neurologic abnormalities and bowel or bladder impairments associated with the low back disability. 3. Schedule the Veteran for a VA examination with an appropriate medical professional to determine the current severity of his right knee disability. The examiner is asked to provide the following: (a) Report the extent of the symptoms of the right knee disability in accordance with VA rating criteria. (b) Conduct testing for pain on active motion, passive motion, weightbearing, and non-weightbearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, an explanation must be provided. (c) Render specific findings as to whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. (d) State whether the examination is taking place during a flare-up. If not, the examiner should ask the Veteran to describe the flare-ups, including: frequency, duration, characteristics, severity, and/or extent of functional impairment he experiences. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's claimed anxiety disorder and depressive disorder. The examiner should answer the following: a) Does the Veteran have a current diagnosis of either (1) an anxiety disorder or (2) a depressive disorder, in accordance with the criteria in the DSM-5? If a diagnosis of either disability is not warranted, the examiner should explain why this is the case. Attention is invited to March 2019 and November 2019 VA treatment records diagnosing generalized anxiety disorder and depressive disorder (labelled "CAPRI" pgs. 134, 182 uploaded 4/22/21). b) If so, is it at least as likely as not (a fifty percent probability or greater) that the anxiety disorder or depressive disorder was caused by the service-connected (1) sleep disorder or (2) low back disability? c) If not, is it at least as likely as not (a fifty percent probability or greater) that the anxiety disorder or depressive disorder was aggravated (worsened) by the (1) sleep disorder or (2) low back disability? d) If not, is it at least as likely as not (a fifty percent probability or greater) that the anxiety disorder or depressive disorder is otherwise causally related to the Veteran's active service? A detailed rationale for the opinion must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. Jones v. Shinseki, 23 Vet. App. 382 (2010). LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Wendell, 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.