Citation Nr: 22014592 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 17-48 082A DATE: March 14, 2022 ORDER The reduction of the rating for a left knee chronic strain to a noncompensable rating, effective February 24, 2015, was improper and is void ab initio. REMANDED Entitlement to a compensable rating for a right knee chronic strain is remanded. Entitlement to a rating in excess of 10 rating for a left knee chronic strain is remanded. Entitlement to a rating in excess of 10 percent for right foot plantar fasciitis is remanded. Entitlement to service connection for chronic vomiting syndrome with weight loss and strength, to include as due to service-connected posttraumatic stress disorder (PTSD), is remanded. FINDING OF FACT On May 13, 2015, the Agency of Original Jurisdiction (AOJ) reduced the rating for a left knee chronic strain without fully complying with applicable regulations; therefore, the rating reduction is void ab initio. CONCLUSION OF LAW The May 2015 rating reduction for a left knee chronic strain from 10 percent to noncompensable, effective February 24, 2015, was improper and is void ab initio. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.344, 4.1, 4.2, 4.3, 4.10, 4.13. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2008 to April 2011, to include service in Iraq and Afghanistan. The matters come to the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In a September 2017 substantive appeal, the Veteran requested a Board hearing. The Veteran was notified of the scheduled January 2022 hearing in an October 2021 letter. However, the Veteran failed to appear for this hearing, has not provided good cause for his failure to appear and has not requested that it be rescheduled. This hearing request is therefore deemed to be withdrawn. The Board notes that, in a June 2015 notice of disagreement, the Veteran indicated that he disagreed with both the reduction in rating and the evaluation of the disability for his right foot plantar fasciitis and left knee chronic strain. The rating reduction for the Veteran's right foot plantar fasciitis appears to have been restored in an August 2017 rating decision; therefore, the propriety of the rating reduction for right foot plantar fasciitis is no longer before the Board for adjudication. Reduction 1. The reduction of the rating for a left knee chronic strain to a noncompensable rating, effective February 24, 2015, was improper and is void ab initio. The Veteran asserts that his left knee chronic strain did not improve and therefore, the reduction in his rating was not appropriate. By way of background, the Veteran has been service connected for a left knee chronic strain since April 30, 2011. The disability was rated at 10 percent effective April 30, 2011 and then reduced to a noncompensable rating effective February 24, 2015. The Veteran was examined on February 24, 2015, and the rating reduction to zero percent disabling was effectuated in the April 2015 rating decision on appeal. The Veteran submitted a Notice of Disagreement in June 2015 and explicitly disagrees with the rating decision which found that the Veteran's left knee chronic strain had improved to warrant a reduction. The Board therefore limits the scope of the Veteran's appeal accordingly, and ultimately grants the appeal in full for the reasons to follow. In certain rating reduction cases, VA benefits recipients are to be afforded greater protections, as set forth in 38 C.F.R. § 3.344(a) and (b). However, these provisions do not apply in this case because the Veteran's 10 percent rating was in place for less than five years when the reduction took effect. Additionally, it is well established that VA cannot reduce a veteran's disability evaluation without first finding, inter alia, that an improvement has actually occurred in the veteran's service-connected disability and it has improved to the point that he or she is now better able to function under the ordinary conditions of life and work. See Murphy v. Shinseki, 26 Vet. App. 510, 517 (2014); Brown v. Brown, 5 Vet. App. 413, 421 (1993). Care must be taken to ensure that a change in an examiner's evaluation reflects an actual change in the Veteran's condition, and not merely a difference in the thoroughness of the examination or in descriptive terms, when viewed in relation to the prior disability history. See 38 C.F.R. §§ 4.1, 4.2, 4.13; see also Brown, 5 Vet. App. at 420-22. Finally, in a rating reduction case, VA has the burden of establishing that the disability has improved. A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating issue. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). Here, the Board finds that the reductions are void because the provisions of 38 C.F.R. § 3.344 were not met. In this regard, the May 2015 rating decision did not find that the record demonstrated sustained improvement and the AOJ did not address whether any improvement in the disability actually reflected an improvement in the Veteran's ability to function under the ordinary conditions of life and work. See 38 C.F.R. §§ 4.1, 4.2, 4.13; see also Brown, 5 Vet. App. at 420-22; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). There also was no finding that the examination used as a basis of reduction was as complete as those upon which payment was authorized or continued. To that end, the AOJ relied on the findings contained in the February 2015 VA examination report as evidence of improvement to the respective disabilities. However, the Board notes that the February 2015 VA examination does not comply with the criteria set forth in the holding of Correia v. McDonald, 28 Vet. App. 158 (2016) or Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board emphasizes that the failure to consider and apply the provisions of 38 C.F.R. § 3.344, if applicable, renders a rating decision void ab initio. Such an omission is error and not in accordance with the law. Greyzck v. West, 12 Vet. App. 288, 292 (1999). Accordingly, the 10 percent rating for the Veteran's left knee chronic strain must be restored. Given the outcome warranted in view of this procedural error, the Board need not address, from an evidentiary standpoint, the actual merits of the reduction. Given the above, the Board finds that the reduction from 10 percent to noncompensable rating for the Veteran's service-connected left knee chronic strain, effective February 24, 2015, was improper. Accordingly, the 10 percent rating for left knee strain is restored, effective February 24, 2015. REASONS FOR REMAND 1. Entitlement to a compensable rating for right knee chronic strain is remanded. 2. Entitlement to a rating in excess of 10 rating for a left knee chronic strain is remanded. The Veteran asserts that he experiences pain on movement of the knees including when standing for too long, and that such functional impairments warrant a higher rating. First, the Board notes that the most recent April 2017 VA examination is nearly five years old. The Board recognizes that, generally, the mere passage of time is not a sufficient basis for a new examination. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). However, when available evidence is too old for an adequate evaluation of the current condition, VA's duty to assist includes providing a more current examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). Here, the Board finds that not only is the most recent examination remote it is not complaint with the Court of Appeals of Veterans Claims' (Court) holding in Correia. See Correia v. McDonald, supra (holding that that "to be adequate, a VA examination of the joints must, wherever possible, include the results of range of motion testing" for active range of motion, passive range of motion, weight bearing range of motion, and nonweight bearing range of motion). Accordingly, the Board finds that an updated examination is warranted to access the current severity and manifestations of the service-connected right and left knee chronic strain. 2. Entitlement to a rating in excess of 10 percent for right foot plantar fasciitis is remanded. The Veteran was last afforded a VA foot examination in February 2015, and this examination more than seven years old. The Board recognizes that, generally, the mere passage of time is not a sufficient basis for a new examination. Palczewski v. Nicholson, supra. However, when available evidence is too old for an adequate evaluation of the current condition, VA's duty to assist includes providing a more current examination. Weggenmann v. Brown, supra. The Board notes that the Veteran's right foot plantar fasciitis is currently rated by analogy to pes planus under Diagnostic Code 5276. Effective February 7, 2021, VA revised parts of the rating schedule pertaining to musculoskeletal disorders; this revision includes the addition of Diagnostic Code 5269, which is specific to plantar fasciitis. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). Under the new Diagnostic Code 5269, which pertains to plantar fasciitis, a 10 percent rating is assigned for unilateral or bilateral plantar fasciitis; a 20 percent rating is assigned when there is no relief from both non-surgical and surgical treatment for plantar fasciitis of one foot (unilateral); a 30 percent rating is assigned when there is no relief from both non-surgical and surgical treatment for plantar fasciitis of both feet (bilateral). A 40 percent rating is assigned under Diagnostic Code 5269 for actual loss of use of the foot. Diagnostic Code 5269, Note (1). If a veteran has been recommended for surgical intervention, but is not a surgical candidate, plantar fasciitis is to be evaluated under the 20 percent or 30 percent criteria, whichever is applicable. Id., Note (2). It is also not clear from the record whether the Veteran has undergone surgical treatment for his plantar fasciitis, what treatment he receives for the condition and whether any treatment provides relief of his symptoms. Accordingly, the Board finds that an updated examination is warranted to access the current severity and manifestations of the service-connected right foot plantar fasciitis. 3. Entitlement to service connection for chronic vomiting syndrome with weight loss and strength, to include as due to service-connected PTSD is remanded. The Veteran asserts that he experiences from chronic vomiting due to an undiagnosed illness, due to service, or as secondary to service-connected PTSD. In April 2017, the Veteran was provided with a VA examination to determine the nature and etiology of the Veteran's claimed chronic vomiting syndrome. The examiner noted that the Veteran did not have a confirmed diagnosis at the time of the examination as he still had various studies to confirm the diagnosis, but that he did seem to exhibit symptoms cognizant of functional dyspepsia and idiopathic gastroparesis. The examiner did not then provide any opinion regarding etiology, based on the assertion that the Veteran did not have a current diagnosis. The Veteran's VA treatment record confirms a diagnosis of idiopathic gastroparesis status post J-tube in 2011. Therefore, the Board finds that a new VA examination is warranted to assess the current disability associated with the Veteran's claimed chronic vomiting syndrome, as well as etiology with regards to service and secondary service connection, if there is a confirmed diagnosis. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); see McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, schedule the Veteran for a VA examination to address the severity of the Veteran's right knee chronic strain. A complete copy of the claims file must be made available to the examiner, including a copy of this remand. The need for further in-person examination is left to the discretion of the examiner. The examiner should identify the current nature and severity of all manifestations of the Veteran's right knee chronic strain and comment upon the functional impairment resulting from the Veteran's right knee strain. The examiner should test for pain on motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If such testing cannot be completed, the examiner should indicate whey this is so. The examiner must fully indicate whether or not there is any evidence of pain in any of the above, as such was not provided in the previous examination. A rationale for any opinion offered should be provided. 3. Following the receipt of outstanding records, schedule the Veteran for a VA examination to address the severity of the Veteran's right foot plantar fasciitis. A complete copy of the claims file must be made available to the examiner, including a copy of this remand. The need for further in-person examination is left to the discretion of the examiner. The examiner should identify the current nature and severity of all manifestations of the Veteran's right foot plantar fasciitis and comment upon the functional impairment resulting from the Veteran's right foot plantar fasciitis. The examiner should detail what treatment the Veteran receives for his right foot plantar fasciitis, to include any surgical or non-surgical treatment, and whether the treatment resulted in relief. A rationale for any opinion offered should be provided. 4. Following the receipt of outstanding records, schedule the Veteran for a VA examination to address the nature and etiology of his claimed chronic vomiting syndrome. A complete copy of the claims file must be made available to the examiner, including a copy of this remand. The need for further in-person examination is left to the discretion of the examiner. After a thorough review of the medical and lay evidence of record is complete, the examiner should discuss the following: (A) The examiner should specifically state whether the Veteran's chronic vomiting syndrome is attributed to a known clinical diagnosis. (B) If any symptoms of chronic vomiting syndrome have not been determined to be associated with a known clinical diagnosis, the examiner should indicate whether the Veteran has objective indications of a chronic disability resulting from an undiagnosed illness, as established by history, physical examination, and laboratory tests, that has either (1) existed for 6 months or more, or (2) exhibited intermittent episodes of improvement and worsening over a 6-month period. The examiner should also indicate whether the condition is a medically unexplained chronic multisymptom illness (MUCMI), including whether the condition has an understood etiology or a partially understood etiology and whether the condition has an understood pathophysiology or partially understood pathophysiology in the context of the Veteran's unique circumstances. (C) If any symptoms of chronic vomiting syndrome have been determined to be associated with a known clinical diagnosis, is it at least as likely as not (i.e., there is a 50 percent or greater probability) that such disorder is related to the Veteran's service? (D) If any symptoms of chronic vomiting syndrome have been determined to be associated with a known clinical diagnosis, it is at least as likely as not (50 percent probability or greater) proximately caused by the Veteran's service-connected PTSD? (E) If any symptoms of chronic vomiting syndrome have been determined to be associated with a known clinical diagnosis, is it at least as likely as not (50 percent probability or greater) aggravated beyond natural progression by the Veteran's service-connected PTSD? A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include 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. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.J. Kim, 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.