Citation Nr: 22017797 Decision Date: 03/26/22 Archive Date: 03/26/22 DOCKET NO. 18-06 109 DATE: March 26, 2022 ORDER Restoration of a 10 percent rating for limitation of extension of the left knee with chondromalacia patella and degenerative arthritis, status post arthroscopic surgery, is granted effective November 8, 2017, subject to the law and regulations governing the award of monetary benefits. FINDING OF FACT The evidence does not establish that there was actual improvement of the Veteran's left knee disability under the normal circumstances of life and work at the time of the reduction at issue. CONCLUSION OF LAW The reduction in the evaluation for the Veteran's left knee disability based on limitation of extension, effective November 8, 2017, was improper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.2, 4.3, 4.7, 4.10, 4.13, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from August 1993 to August 2013, to include service in Iraq and Afghanistan. His decorations include the National Defense Service Medal, the Global War on Terrorism Service Medal, and the Combat Action Badge. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge, sitting in St. Louis, Missouri. A transcript of that hearing has been associated with the record. Entitlement to restoration of a 10 percent rating for limitation of extension of the left knee, effective November 8, 2017 The Veteran contends that the reduction in the rating for his service-connected left knee disability was improper. He maintains, in essence, that his condition had not improved at the time of the reduction. Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Degenerative and traumatic arthritis, established by X-ray findings, are rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. When, however, the limitation of motion of the involved joint(s) is noncompensable under the appropriate diagnostic code(s), a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. Knee disabilities manifested by limitation of flexion are evaluated under the criteria set forth at 38 C.F.R. § 4.71a, Diagnostic Code 5260. A 10 percent rating is warranted for limitation of flexion to 45 degrees. See 38 C.F.R. § 4.71, Plate II. A 20 percent rating is warranted for limitation of flexion to 30 degrees, and a 30 percent rating is warranted for limitation of flexion to 15 degrees. Id. Knee disabilities manifested by limitation of extension are evaluated under the criteria set forth at 38 C.F.R. § 4.71a, Diagnostic Code 5261. Ratings of 10, 20, 30, and 40 percent are warranted when extension is limited to 10, 15, 20, and 30 degrees, respectively. The highest evaluation, 50 percent, is warranted when extension is limited to 45 degrees. Id. VA's Office of General Counsel held in VAOPGCPREC 9-2004 that separate ratings under DCs 5260 and 5261 may be assigned for disability of the same joint. The precedent opinions of the VA General Counsel's Office are binding upon the Board. 38 U.S.C. § 7104. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). By way of background, in an October 2013 rating decision, service connection for the Veteran's left knee disability was granted and an initial 10 percent rating was assigned, effective September 1, 2013. The rating was based on limitation of flexion under Diagnostic Code 5003-5260. A February 2015 rating decision continued the previously assigned 10 percent rating, but granted a temporary 100 percent rating effective September 29, 2014, based on surgical or other treatment necessitating convalescence. The 10 percent rating was reassigned from November 1, 2014. The assigned diagnostic code was changed to 5003-5261, based on limitation of extension. The Veteran filed a claim for an increased rating in September 2017. In a November 2017 rating decision, the RO decreased the disability rating for his service-connected left knee disability, based on limitation of extension, from 10 percent to 0 (zero) percent, effective November 13, 2017, while separately granting a 10 percent evaluation for limitation of flexion. The effective date of the reduction was later amended to November 8, 2017. See January 2018 rating decision. The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in the evaluation of a service-connected disability when considered warranted by the evidence, but only after following certain procedures. See also 38 C.F.R. § 4.1 (a disability may require re-ratings over time in accordance with changes in law, medical knowledge, and the veteran's condition). Specifically, where a reduction in the evaluation of a service-connected disability or employability status is considered warranted, and the reduction would result in the 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 beneficiary must be notified at his or her last address of record of the action contemplated and furnished detailed reasons therefore; and he or she must be given 60 days for the presentation of new evidence to show that compensation should be continued at the present level. 38 C.F.R. § 3.105(e). However, 38 C.F.R. § 3.105(e) does not apply if the rating reduction will not reduce the veteran's net compensation. See VAOPGCPREC 71-91 (Nov. 7, 1991) (where the evaluation of a specific disability is reduced, but the amount of compensation is not reduced because of a simultaneous increase in the evaluation of one or more other disabilities, section 3.105(e) does not apply); Stelzel v. Mansfield, 508 F.3d 1345, 1349 (Fed. Cir. 2007) (holding that VA was not obligated to provide a Veteran with 60 days' notice before making a disability ratings decision effective if the decision did not reduce the overall compensation paid to the Veteran). In the present case, at the time of the rating reduction at issue, the reduced evaluation did not result in a reduction in the Veteran's overall compensation. As such, the procedural protections set out in 38 C.F.R. § 3.105(e) were inapplicable. Having decided that the RO did not need to follow the 38 C.F.R. § 3.105(e) process to reduce the Veteran's rating, the next question to be addressed is whether, given the available evidence, a reduction was warranted. In this regard, a rating reduction is warranted only where the evidence contains thorough medical examinations demonstrating an actual improvement in disability. See 38 C.F.R. § 4.13. In other words, the provisions of 38 C.F.R. §§ 4.2 and 4.10 require that "in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that the improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work." Brown v. Brown, 5 Vet. App. 413, 421 (1993); see also Murphy v. Shinseki, 26 Vet. App. 510, 517 (2014) ("Thus, it is well established in the Court's case law that VA cannot reduce a veteran's disability evaluation without first finding, inter alia, that the veteran's service-connected disability has improved to the point that he or she is now better able to function under the ordinary conditions of life and work."); Faust v. West, 13 Vet. App. 342, 349 (2000) (noting that VA must review the entire history of the veteran's disability, ascertain whether the evidence reflects an actual change in the disability, and ascertain whether the examination reports reflecting such change are based upon thorough examinations). Significantly, in a rating reduction case, VA has the burden of establishing that the disability at issue has improved. A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating case. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). In considering the propriety of a reduction, the Board must focus on the evidence available to the adjudicator at the time the reduction was effectuated, although post-reduction evidence may be considered in the context of evaluating whether the condition demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). If there is an approximate balance of positive and negative evidence regarding any material issue, 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 Veteran's left knee disability has been rated under Diagnostic Code 5003-5261. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. Turning to the evidence, in July 2013, the Veteran underwent a VA examination to assess the severity of his left knee disability. His left knee was noted to cause pain, but to not result in or cause functional loss. He denied flare-ups. Range of motion testing revealed knee flexion to 140 degrees and extension to 0 (zero) degrees. Joint stability testing did not reveal instability. The examiner found that there were no contributing factors of weakness, fatigability, incoordination or pain during flare-ups or repeated use over time that could additionally limit the functional ability of the knee joint. The Veteran underwent a meniscectomy and chondroplasty on the left knee in September 2014. He was then afforded another VA examination in December 2014. He reported limited range of motion, increased swelling with use and increased pain. Range of motion testing revealed left knee flexion to 120 degrees, with extension to -10 degrees. He denied flare-ups but reported that he could not squat and that his altered gait contributed to left calf pain and tightness. Pain was noted on examination and caused functional loss, with pain being exhibited on both flexion and extension. There was also evidence of pain with weight bearing. There was objective evidence of localized tenderness along all joint lines and popliteal space. The Veteran indicated that he no longer suffered from flare-ups post-surgery. The Veteran underwent another VA examination in November 2017. He reported worsening pain since his surgery and last examination. He reported flare-ups twice a month that lasted 1-3 days during which the left knee swelled and he avoided aggravating activities. Range of motion testing revealed left knee flexion to 85 degrees and extension to 5 degrees. Pain was noted on examination and caused functional loss, with pain being exhibited on both flexion and extension. The Veteran was not examined during a flare-up, and the examiner indicated that he was unable to opine as to whether pain, weakness, fatigability, or incoordination significantly limited functional ability with flare-ups without mere speculation. The Veteran reported difficulty with squatting, using stairs, and climbing ladders. The examiner opined that the Veteran's condition would impact his ability to work because it would limit his ability to work on his feet. After review of the record, the Board finds that the reduction in the rating for the Veteran's left knee disability, based on limitation of extension, was not proper. The RO appears to have essentially analyzed the issue of the 10 percent evaluation just as it would a claim for an increased rating. Specifically, the RO did not address whether there was "an actual improvement in the Veteran's ability to function under the ordinary conditions of life and work" as it pertained to limitation of extension. Brown, 5 Vet. App. at 421. Notably, the November 2017 VA examination report, which was the basis for the reduction, shows that the Veteran had pain in the left knee with both extension and flexion, and that the condition of the knee had worsened since his last examination, as the Veteran now reported flare-ups. The November 2017 VA examination report reflects that he reported continued difficulty with squatting, climbing stairs, and swelling of the left knee. Additionally, the examiner indicated, without adequate explanation, that he could not estimate the further functional loss the Veteran experienced with repeated use or flare-ups, and further indicated that the Veteran's left knee disability impacted ordinary conditions of daily life, including the ability to work on his feet. The Veteran has been consistent in his reports that his left knee disability has not improved. See November 2021 hearing testimony. The Board finds his lay statements credible to the extent that they demonstrate a lack of improvement in his ability to function under the ordinary conditions of life and work. See Layno v. Brown, 6 Vet. App. 465, 47 (1994). For all of these reasons, the Board finds that the reduction was improper. The 10 percent rating for the Veteran's service-connected left knee disability, based on limitation of extension, is restored, effective the date of reduction, November 8, 2017. The appeal is granted. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph T. Leonard, 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.