Citation Nr: 22008055 Decision Date: 02/11/22 Archive Date: 02/11/22 DOCKET NO. 18-16 591 DATE: February 11, 2022 ORDER Entitlement to an initial separate rating 10 percent rating for right knee arthritis with instability, effective September 27, 2016, for substitution purposes, is granted. As the March 2018 reduction of the Veteran's 30 percent rating was improper, restoration of the 30 percent rating for service-connected right ankle arthritis, status post repair of compound tibia/fibula fracture, effective March 1, 2018, for substitution purposes, is granted. As new and material evidence has been received, the previously denied claims of entitlement to service connection for blood clots and deep vein thrombosis, for substitution purposes, are reopened. REMANDED Entitlement to an initial rating in excess of 10 percent for right knee arthritis with instability, for substitution purposes, is remanded. Entitlement to a rating in excess of 10 percent for right knee arthritis with limitation of extension, for substitution purposes, is remanded. Entitlement to a rating in excess of 30 percent for right ankle arthritis, status post repair of compound tibia/fibula fracture, for substitution purposes, is remanded. Entitlement to service connection for blood clots and deep vein thrombosis, claimed as secondary to service-connected right knee and right ankle disabilities, for substitution purposes, is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) based on service-connected disabilities, for substitution purposes, is remanded. FINDINGS OF FACT 1. From September 27, 2016, the date of claim for an increase, the Veteran's right knee disability was manifested by at least slight lateral instability. 2. A March 2018 rating decision decreased the disability rating for the Veteran's service-connected right ankle arthritis, status post repair of compound tibia/fibula fracture from 30 percent to 20, effective March 1, 2018; the 30 percent rating had been in effect from July 22, 2009 to March 1, 2018, over five years; and the rating decision did not consider required regulatory provisions and denied the Veteran due process. 3. A May 2014 rating decision denied entitlement to service connection for deep vein thrombosis and a February 2015 rating decision denied entitlement to service connection for blood clots; the Veteran failed to file a notice of disagreement to initiate an appeal from these decisions and new and material evidence was not received within one year of either decision. 4. Additional evidence received since the May 2014 and February 2015 rating decisions is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for blood clots and deep vein thrombosis, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. Effective September 27, 2016, but no earlier, the criteria for an initial separate 10 percent rating for right knee arthritis with instability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5257. 2. The March 2018 rating decision, which reduced the Veteran's rating for his service-connected right ankle arthritis, status post repair of compound tibia/fibula fracture, from 30 percent to 20 percent, is void ab initio, and the criteria for restoration of the 30 percent rating for this disability are met. 38 C.F.R. § 3.344. 3. The May 2014 rating decision that denied service connection for deep vein thrombosis and the February 2015 rating decision that denied service connection for blood clots are final. 38 U.S.C. § 7105 (c); 38. C.F.R. 3.104, 20.302, 20.1103. 4. The additional evidence received since the May 2014 rating decision and February 2015 rating decision is new and material, and the claims for service connection for blood clots and deep vein thrombosis are reopened. 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 May 1966 to December 1969. He died in September 2019. The appellant is his surviving spouse. In August 2020, the Agency of Original Jurisdiction (AOJ) entered a determination in which the appellant was found to be a proper substitute claimant. In September 2021, the appellant and the Veteran's daughter testified at a Board before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the file. By way of background, the Veteran filed a claim seeking increased ratings for his right knee and right ankle disabilities on September 27, 2016. In a December 2016 rating decision, the AOJ continued the current ratings for right knee arthritis and right ankle arthritis. However, within one year of this decision, the Veteran submitted additional medical evidence and an application for TDIU stating that he could no longer work due to these disabilities. As this evidence is new and material, the December 2016 rating decision did not become final with respect to these increased rating issues, and, thus, these claims have been ongoing since the September 27, 2016 date of claim. 38 C.F.R. § 3.156(b). At the Board hearing, the appellant and her daughter asserted that the Veteran's blood clots and deep vein thrombosis were secondary to his service-connected right knee and ankle disabilities. Generally, the Board does not have jurisdiction to review claims that have not been explicitly or implicitly decided by the AOJ. However, the U.S. Court of Appeals for Veterans Claims (Court), recently held that entitlement to secondary service connection may be reasonably raised by the record during the adjudication of a formally initiated claim for the proper evaluation level for the primary service-connected disability. Bailey v. Wilkie, 33 Vet. App. 188 (2021) (38 C.F.R. § 3.155 (d)(2) requires that, when entitlement to secondary service connection is raised, a formal claim for secondary service connection need not be filed, rather, VA must consider those "complications" in connection with the claim on appeal). As such, the Board finds that the claim for secondary service connection for blood clots and deep vein thrombosis has been reasonably raised by the record and is in appellate status. Entitlement to an initial separate rating 10 percent rating for right knee arthritis with instability As part of the current claim for an increased rating for the Veteran's right knee disability, in a March 2018 rating decision, the AOJ awarded an initial separate 10 percent rating for right knee arthritis with instability, effective March 1, 2018. In a June 2018 rating decision, the AOJ decreased the rating to noncompensable, but in a subsequent July 2018 rating decision, the AOJ indicated that this earlier decision was in error and continued the 10 percent rating. The AOJ assigned the separate rating under 38 C.F.R. § 4.71a, Diagnostic Code 5257 for slight lateral instability. Under this code, a 10 percent rating is assigned when there is slight recurrent subluxation or lateral instability, a 20 percent rating when there is moderate recurrent subluxation or lateral instability, and a 30 percent evaluation for severe recurrent subluxation or lateral instability. Here, the AOJ assigned the separate rating, effective March 1, 2018, the date of the VA examination documenting instability. However, based on the evidence of record, the Board finds that the Veteran had suffered from at least slight instability since the date of his claim seeking an increased rating for his right knee disability, September 27, 2016. In this regard, at the October 2016 VA examination, the Veteran reported a sensation of instability and had tried various braces to support the knee. Further, a January 2017 private treatment record showed that the Veteran required a right knee brace. As such, the Board finds that the Veteran's statement indicating instability coupled with his use of a knee brace on a regular basis support a finding that he experienced lateral instability in his right knee since the date of claim for an increased rating, September 27, 2016. See English v. Wilkie, 30 Vet. App. 347 (2018). The matter of whether a rating in excess of 10 percent is warranted for right knee arthritis with instability is addressed in the Remand section below. Whether the reduction of the 30 percent rating to 20, effective March 1, 2018, for service-connected right ankle arthritis, status post repair of compound tibia/fibula fracture, was proper During the course to the appeal, in the March 2018 rating decision, the AOJ decreased the Veteran's disability rating from 30 percent to 20 percent for his service-connected right ankle arthritis, status post repair of compound tibia/fibula fracture, effective March 1, 2018. Regulations provide that where the reduction in evaluation 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. The reduction will be made effective the last day of the month in which a 60-day period from the date of notice to the payee expires. The veteran will be notified of the proposed reduction, that he has 60 days to present evidence showing why the reduction should not be implemented, and that he may request a hearing. 38 C.F.R. § 3.105(e). In the instant case, as a separate 10 percent rating for right knee instability was awarded, effective March 1, 2018, the AOJ's rating reduction for the Veteran's right ankle disability from 30 percent to 20 percent did not result in any reduced compensation payable to the Veteran as he maintained a combined disability rating of 90 percent for his service-connected disabilities. Thus, the procedural protections of 38 C.F.R. § 3.105(e) do not apply. Stelzel v. Mansfield, 508 F.3d 1345, 1349 (Fed. Cir. 2007) (holding that VA was not obligated to provide a Veteran with sixty days' notice before making a disability ratings decision effective if the decision did not reduce the overall compensation paid to the Veteran). In turn, the AOJ did not err by not providing the Veteran notice of the reduction. Nevertheless, the provisions of paragraphs § 3.344 (a) and (b) apply to ratings which have continued for long periods at the same level (5 years or more). In this case, the effective date for the Veteran's 30 percent rating for right ankle arthritis was July 22, 2009. Thus, at the time of the March 2018 rating decision, the 30 percent rating had been in effect for more than five years. Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. It is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. This applies to treatment of intercurrent diseases and exacerbations, including hospital reports, bedside examinations, examinations by designated physicians, and examinations in the absence of, or without taking full advantage of, laboratory facilities and the cooperation of specialists in related lines. See 38 C.F.R. § 3.344(a). Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, arteriosclerotic heart disease, bronchial asthma, gastric or duodenal ulcer, many skin diseases, 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. Moreover, though material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. See Id. If doubt remains, after according due consideration to all the evidence developed by the several items discussed in paragraph (a), the rating agency will continue the rating in effect, citing the former diagnosis with the new diagnosis in parentheses, and following the appropriate code there will be added the reference "Rating continued pending reexamination -- months from this date, § 3.344." The rating agency will determine on the basis of the facts in each individual case whether 18, 24 or 30 months will be allowed to elapse before the reexamination will be made. See 38 C.F.R. § 3.344(b). In Brown v. Brown, 5 Vet. App. 413, 420 (1993), the United States Court of Appeals for Veterans Claims (Court) articulated three questions that must be addressed in determining whether a rating reduction was warranted by the evidence. First, a rating reduction case requires ascertaining "whether the evidence reflects an actual change in the disability." Second, it must be determined whether the examination reports reflecting such change were based upon thorough examinations." Third, it must be determined whether the improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. Importantly, in this case, the March 2018 rating decision as well as the March 2018 statement of the case (SOC) failed to include or discuss the provisions of 38 C.F.R. § 3.344. The Veteran's right ankle disability was rated 30 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5262 for impairment of the tibia and fibula. Under this code, a 20 percent disability rating is warranted for malunion of the tibia and fibula with moderate knee or ankle disability; a 30 percent disability rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability; and a maximum schedular 40 percent disability rating is warranted for nonunion of the tibia and fibula with loose motion, requiring a brace. Id. However, the March 2018 rating decision appeared to reduce the disability rating under a different Diagnostic Code. In this regard, the AOJ appeared to rate the Veteran's disability as 20 percent disabling under Diagnostic Code 5271 for marked limitation of motion of the ankle. However, the Diagnostic Code did not change on the Rating Code sheet. Moreover, the AOJ failed to adequately explain the change in the Diagnostic Code. See Pernorio v. Derwinski, 2 Vet. App. 625 (1992); see also Butts v. Brown, 5 Vet. App. 532 (1993). In sum, the AOJ failed to consider whether the reduction was proper under the appropriate diagnostic code. Further, importantly, in this case, the AOJ primarily relied on the March 2018 VA examination as the basis for the reduction. However, as the examiner failed to describe in degrees the Veteran's functional impairment of the right ankle following repeated use over time or during flare-ups, the examination is inadequate under Sharp v. Shulkin 29 Vet. App. 26 (2017). Moreover, the examiner found that the Veteran with his present right ankle condition would not be able to do normal physical work, to include deep knee bending, stooping, squatting, repetitive stair climbing, prolonged standing, prolonged walking, moderate to heavy lifting, and pushing or pulling. In sum, the examiner's description of the Veteran's functional impairment does not reflect an improvement in the Veteran's ability to function under the ordinary conditions of his life and work, which is required in order for the AOJ's reduction of the Veteran's rating to be proper. Brown at 420-421 (citing 38 C.F.R. §§ 4.1, 4.2, 4.10 and 4.13); 38 C.F.R. § 3.344 (c). The Court has stated that both decisions by the AOJ and by the Board that do not apply the provisions of 38 C.F.R. § 3.344, when applicable, are void ab initio (i.e., at their inception). Lehman v. Derwinski, 1 Vet. App. 339 (1991); Peyton v. Derwinski, 1 Vet. App. 282 (1991); Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992); and Brown v. Brown, 5 Vet. App. 413 (1993); see also Hayes v. Brown, 9 Vet. App. 67, 73 (1996) (where VA reduces the appellant's rating without observing applicable laws and regulations the rating is void ab initio and the Court will set aside the decision). Simply stated, as the March 2018 rating decision that accomplished the reduction of the 30 percent evaluation for the Veteran's service-connected right ankle arthritis did not apply the provisions of 38 C.F.R. § 3.344, the reduction is void. The Board notes that the Veteran was never provided notice of 38 C.F.R. § 3.344 in the March 2018 rating decision or SOC; the decision to reduce was not in accordance with the law because the AOJ did not, for instance, make a finding that it was reasonably certain that any material improvement found would be maintained under the ordinary conditions of life. Further, the AOJ appeared to change the Diagnostic Code under which the disability was rated without providing an adequate explanation or determining whether the reduction was proper under the current code. Moreover, the AOJ did not rely on a complete, thorough examination. In light of the above, the Board finds that the Veteran's 30 percent evaluation was improperly reduced, that the reduction of the evaluation is void ab initio, and that the 30 percent evaluation for the Veteran's service-connected right ankle arthritis, status post repair of compound tibia/fibula fracture should be restored. Accordingly, the Board finds that restoration of the 30 percent evaluation for service-connected right ankle arthritis, status post repair of compound tibia/fibula fracture, effective March 1, 2018, is warranted. See Hayes, 9 Vet. App. at 73 (improper reduction reinstated effective date of reduction). The matter of whether a rating in excess of 30 percent is warranted for right ankle arthritis, status post repair of compound tibia/fibula fracture, is addressed in the Remand section below. New and material evidence to reopen a claim for service connection for blood clots and deep vein thrombosis of the right leg As previously discussed above, the Board finds that this issue is also currently on appeal. The issue of entitlement to service connection for blood clots was initially denied in an August 2013 rating decision. Subsequently, the issue was again denied in a February 2015 rating decision as new and material evidence had not been submitted. The Veteran did not initiate an appeal from this determination and new and material evidence was not received within one year. Under these circumstances, the Board must find that the February 2015 rating decision became final. 38 U.S.C. § 7105 (c); 38 C.F.R. § 3.104, 20.302, 20.1103. Further, the issue of entitlement to service connection for deep vein thrombosis was denied in August 2010 rating decisions, and again most recently in a May 2014 rating decision. Again, the Veteran did not initiate an appeal from this determination and new and material evidence was not received within one year. Under these circumstances, the Board must find that the May 2014 rating decision became final. 38 U.S.C. § 7105 (c); 38 C.F.R. § 3.104, 20.302, 20.1103. Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104 (a). The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105 (b) and (c); 38 C.F.R. § 3.160 (d), 20.200, 20.201, 20.202, and 20.302(a). If new and material evidence is received during an applicable appellate period following a RO decision (1 year for a rating decision and 60 days for a statement of the case) or prior to an appellate (Board) decision (if an appeal was timely filed), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156 (b). Thus, under 38 C.F.R. § 3.156 (b), "VA must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim." Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). "[N]ew and material evidence" under 38 C.F.R. § 3.156 (b) has the same meaning as "new and material evidence" as defined in 38 C.F.R. § 3.156 (a). See Young v. Shinseki, 22 Vet. App. 461, 468 (2011). Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7104 (b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means evidence not previously submitted. Material evidence means existing evidence that by itself or when considered with previous evidence relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of last final decision and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156 (a) as creating a low threshold and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159 (c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." The Court further held it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element, as it would "force the Veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA." For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Additional evidence has been associated with the record, including VA clinical records and hearing testimony from the appellant and her daughter. VA clinical records continued to show treatment for blood clots and DVT. At the Board hearing, the appellant and her daughter continued to report that the Veteran experienced blood clots and deep vein thrombosis due to his service-connected right leg disabilities. Accordingly, the evidence received since the May 2014 and February 2015 rating decisions is new and material as it is not redundant of evidence already of record at the time of the prior rating decisions and relates to the unestablished fact of whether the Veteran had a disability that may be secondary to his service-connected right knee and ankle disabilities. See 38 C.F.R. § 3.156(a). As such, the issue of entitlement to service connection for blood clots and deep vein thrombosis is reopened. 38 U.S.C. § 5108. REASONS FOR REMAND Entitlement to an initial rating in excess of 10 percent for right knee arthritis with instability, for substitution purposes; entitlement to a rating in excess of 10 percent for right knee arthritis with limitation of extension, for substitution purposes, and entitlement to a rating in excess of 30 percent for right ankle arthritis, status post repair of compound tibia/fibula fracture, for substitution purposes, are remanded. VA treatment records show that the Veteran received treatment for his right knee and right ankle pain from private physicians. However, these records have not been associated with the claims file. As there appears to be relevant outstanding private treatment records, a remand is required to allow VA to obtain authorization and request these records. Entitlement to service connection for blood clots and deep vein thrombosis, claimed as secondary to service-connected right knee and right ankle disabilities, for substitution purposes, is remanded. In light of reopening this matter, the Board finds that a VA medical opinion is necessary to determine whether the Veteran's blood clots and deep vein thrombosis were secondary to his right knee and right ankle disabilities. Entitlement to a TDIU is remanded. This issue is inextricably intertwined with the remaining issues on appeal and must be deferred pending the adjudication of the inextricably intertwined claims. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Moreover, the Board observes that throughout the course of the appeal, the Veteran met the schedular criteria for a TDIU. The March 2018 VA examiner indicated that the Veteran may be able to do sedentary employment. However, the examiner offered no further explanation or discussion. The Court has held that when relying on examiners' findings that a veteran is able to perform "sedentary" work to deny a TDIU claim, the Board must define that term considering the specific facts of each case, including a particular veteran's work history, education, and training. See Withers v. Wilkie, 30 Vet. App. 139, 147-48 (2018). As such, the Board finds that a medical opinion concerning the functional impairment of the Veteran's service-connected disabilities on his ability to work is necessary. The matters are REMANDED for the following action: 1. Ask the appellant to complete a VA Form 21-4142 for any private treatment records for the disabilities on appeal. Make two requests for the authorized records from any identified facilities, unless it is clear after the first request that a second request would be futile. 2. Obtain an opinion from an appropriate clinician regarding the etiology of the Veteran's blood clots and deep vein thrombosis. After reviewing the record, the examiner must opine whether it is at least as likely as not that the disabilities are proximately due to the Veteran's service-connected right leg disabilities; or aggravated by service-connected right leg disabilities. The examiner must offer a detailed rationale for the opinions. In proffering this opinion, the examiner must determine whether the Veteran's service-connected disabilities cause any incremental increase, even transient, regardless of permanence. 3. Obtain an opinion from an appropriate clinician regarding any functional impairment caused by the Veteran's service-connected disabilities, on his ability to work, without consideration of his age or nonservice-connected disabilities. If the examiner determines that the Veteran could obtain and perform a sedentary occupation, the examiner should explain what is meant by a sedentary occupation and what accommodations would be needed for the Veteran to work in a sedentary environment. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.N. Moats 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.