Citation Nr: 22044762 Decision Date: 08/08/22 Archive Date: 08/08/22 DOCKET NO. 19-05 031 DATE: August 8, 2022 ORDER The severance of service connection for chondromalacia patella, left knee with frequent locking, was improper; restoration of the separate 20 percent evaluation is granted. REMANDED Entitlement to service connection for a left shoulder disability, to include as secondary to service-connected left knee disability is remanded. Entitlement to a rating in excess of 20 percent for chondromalacia patella, left knee with frequent locking, is remanded. Entitlement to a rating in excess of 10 percent for chondromalacia patella with degenerative changes. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), to include on an extraschedular basis, is remanded. FINDING OF FACT It is not clear and unmistakable as a matter of law or fact that the Veteran's 20 percent rating for left knee chondromalacia patella with degenerative changes and bursitis contemplated his left knee chondromalacia patella with frequent locking. CONCLUSION OF LAW The severance of service connection for left knee chondromalacia patella with frequent locking was improper; the criteria for restoration of a separate 20 percent evaluation have been met. 38 U.S.C. § 5112; 38 C.F.R. § 3.105. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1974 to May 1975. This matter comes to the Board of Veterans' Appeals (Board) from a July 2017 and March 2018 rating decision by a VA Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). In April 2022, the Veteran testified at a Board hearing conducted by the undersigned Veterans Law Judge (VLJ). A transcript of this hearing is of record. Clarification and characterization of issues on appeal The Board notes that the issues involving the Veteran's left knee disabilities, to include severance of service connection and the subsequent remand, stem from a claim for an increased rating made by the Veteran in May 2015. Pursuant to the Veteran's claim, he was denied an increased rating and service connection for chondromalacia patella, left knee with frequent locking was severed. As such, the issues on appeal involve determining the appropriate evaluations assigned to the left knee, to include the propriety of the severance of service connection and the separate rating. The Board has bifurcated this matter to deal with the two facets of the issue exclusive of one another. 1. Whether the severance of the separate rating of 20 percent for chondromalacia patella, left knee with frequent locking was proper. The Veteran was afforded a VA knee examination in November 2011 and in a May 2012 rating decision, the RO granted service connection for chondromalacia patella, left knee with frequent locking and for chondromalacia patella, left knee flexion. A 10 percent rating under Diagnostic Code (DC) 5261 and 20 percent rating under DC 5258 were assigned, respectively. In October 2015, the RO issued a rating decision proposing to sever the separate rating. The RO stated that the May 2012 rating decision was "clearly and unmistakably erroneous" for granting a separate evaluation for chondromalacia patella, left knee with frequent locking. Specifically, the RO noted the separate evaluation was based on the same manifestations and are not allowed by law. Furthermore, the RO noted there is no medical evidence confirming a meniscal injury or condition. The RO also recharacterized the diagnosis of the Veteran's left knee from chondromalacia patella, left knee flexion and claimed as left knee injury to chondromalacia patella, left knee with degenerative changes and bursitis. The July 2017 rating decision severed service connection and reiterated the findings of the October 2015 rating decision. Service connection will be severed only where evidence establishes that the award of service connection was clearly and unmistakably erroneous (CUE) (the burden of proof being on the Government). 38 C.F.R. § 3.105(d). When severance of service connection is considered warranted, a rating proposing severance will be prepared setting forth all material facts and reasons. The claimant will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken, and the award will be reduced or discontinued, if in order, effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(d). A change in diagnosis may be accepted as a basis for severance action if the examining physician or physicians or other proper medical authority certifies that, in the light of all accumulated evidence, the diagnosis on which service connection was predicated is clearly erroneous. This certification must be accompanied by a summary of the facts, findings, and reasons supporting the conclusion. 38 C.F.R. § 3.105(d). To establish that a grant of service connection was the product of CUE, VA must show that (1) either the correct facts as they were known at the time were not before the adjudicator, the adjudicator made an erroneous factual finding, or the statutory or regulatory provisions were incorrectly applied; (2) the alleged error was undebatable, not merely a disagreement as to how the facts were weighed or evaluated; and (3) the error manifestly changed the outcome of the prior decision. See Allen v. Nicholson, 21 Vet. App. 54, 58-59 (2007); Stallworth v. Nicholson, 20 Vet. App. 482, 487-88 (2006); cf. Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14, 319 (1992) (en banc). A clear and unmistakable error is one about which reasonable minds could not differ. See, e.g., 38 C.F.R. § 20.1403(a). In most respects, the CUE standard for severing service connection under § 3.105(d) is equivalent to the CUE standard for reversing or revising a prior final decision under 38 C.F.R. § 3.105(a). See Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). Section 3.105(d) places at least as high a burden of proof on the VA when it seeks to sever service connection as § 3.105(a) places upon an appellant seeking to have an unfavorable previous determination overturned. See id. However, the determination is not limited to the law and the record that existed at the time of the original decision. VA may consider medical evidence and diagnoses that postdate the original award of service connection to demonstrate that the diagnosis on which service connection was predicated is clearly erroneous. Stallworth, 20 Vet. App. at 488. The Secretary's burden is not to prove clear and unmistakable error in the original decision in the same manner a claimant would show CUE under sections 5109A or 7111. Id. A decision that is reversed or amended based on CUE is revised to conform to the true state of the facts or the law that existed at the time of the original adjudication. Allen, 21 Vet. App. at 62 (internal quotations omitted). The initial question for the Board is whether the RO followed the due process requirements of 38 C.F.R. § 3.105(d) for severing service connection. The Board finds that it did. The RO issued the proposed ratings and the Veteran was notified in October 2015 at his latest address of record of this contemplated action and furnished detailed reasons. The Veteran was given 60 days for the presentation of additional evidence to show the separate evaluation should be maintained. The October 2015 notice also informed the Veteran he had the opportunity to attend a hearing if such a request was made within 30 days of the notice. See 38 C.F.R. § 3.105(i). Thereafter, the RO issued the July 2017 rating decision severing the separate evaluation for left knee locking, effective October 1, 2017, following the mandatory 60-day waiting period. Notification of this rating decision, plus his appeal rights, were sent to the Veteran in July 2017. Thus, all due process requirements were met in severing service connection for left knee chondromalacia patella with frequent locking. See 38 C.F.R. § 3.105(d). The question remaining before the Board is whether the grant of service connection for left knee chondromalacia patella with frequent locking was clearly and unmistakably erroneous. The RO granted service connection for the disability as a separate and distinct disability and the critical question is whether the symptoms and manifestations of the disability are clearly and unmistakably not separate and distinct apart from the left knee chondromalacia patella with degenerative changes and bursitis. The Board concludes that the severance of service connection and the assignment of the separate 20 percent evaluation was improper because there is probative evidence showing the left knee locking is a separate and distinct disability. Thus, there was a legal and factual basis for the separate 20 percent rating. Furthermore, separate ratings may be assigned for limitation of flexion, extension, instability, and a meniscal disability of the same knee under Diagnostic Codes 5260, 5261, 5237, 5258 or 5259. Lyles v. Shulkin, 29 Vet. App. 107 (2017); VAOPGCPREC 09-04 (September 17, 2004). The November 2011 VA examination indicated the Veteran has a meniscus (semilunar cartilage) condition to include frequent episodes of joint "locking." The July 2015 VA examination noted the Veteran has a current meniscus condition to include frequent episodes of joint "locking" and joint pain. The most recent VA examination conducted in January 2019, does not indicate the Veteran experiences any meniscal condition, however, this is contradictory to his testimony. During his hearing with the undersigned VLJ, he testified that his knee locks and reported that it "slips out of place." In addition, he reported instability. On this record, there is not clear and unmistakable evidence that the manifestations and symptoms of the left knee locking are not separate and distinct from left knee degenerative changes and bursitis. In effect, the RO does not find that the Veteran's condition was not service connected. The RO's actual finding concerns the propriety of awarding a separate rating for the disability. See generally Ferenc v. Nicholson, 20 Vet. App. 58 (2006) (discussing the distinction in the terms "compensation," "rating," and "service connection" as although related, each having a distinct meaning as specified by Congress). The RO found that the left knee locking was a symptom of the left knee degenerative changes and bursitis and not a separately ratable disability. Generally, pyramiding, which is the evaluation of the same manifestation under different diagnoses, is to be avoided. 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations relating to the same injury, he should be compensated under different diagnostic codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). Separate ratings may be assignable under different diagnostic codes where a disability involves distinct conditions. Cullen v. Shinseki, 24 Vet. App. 74, 80-81, 84 (2010). The critical element for separate evaluations is that none of the symptoms for any one of the residuals was duplicative of or overlapping with the symptoms of the other conditions, but the pyramiding inquiry does not end with whether two disabilities share a common manifestation. It must also be determined whether that common manifestation would be improperly compensated more than once. Lyles, 29 Vet. App. at 118. Here, the RO awarded a separate 20 percent rating for chondromalacia patella, left knee with frequent locking based on the findings of the November 2011 VA examination. That examination, along with the July 2015 VA examination, document the Veteran experiences frequent locking and/or pain. Under DC 5258, a 20 percent evaluation is assigned for semilunar, dislocated cartilage with frequent episodes of "locking" pain, and effusion into the joint. The Veteran's left knee locking with pain is a separate and distinct condition from the left knee with degenerative changes and bursitis. Furthermore, given the Veteran's credible testimony regarding the ongoing symptoms with his knee, this is further evidence that the disabilities are separate and distinct. The RO's decision to sever service connection (i.e., a separate rating) for left knee chondromalacia patella, left knee with frequent locking was improper. As the severance of service connection was improper, service connection (i.e., a separate rating) is restored, and the appeal of this issue is granted. REASONS FOR REMAND 1. Entitlement to service connection for a left shoulder disability, to include as secondary to service-connected left knee disability is remanded. In this case, the Veteran seeks service connection for a left should disability to include as secondary to his service-connected left knee disability. A November 2018 report from the Veteran indicates he uses a walker and cane to get around which aggravates his left shoulder disability. The Veteran was afforded a VA examination in January 2019. The examiner diagnosed the Veteran with a shoulder strain to include degenerative arthritis. An etiological opinion was obtained in January 2019. The examiner stated that the claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected disability. The examiner provided the sole rationale that there is no secondary service connection because the Veteran's shoulder and knees are unrelated. With regard to the Veteran's specific claim regarding aggravation, the examiner simply provided that "this is extremely unlikely." The Board finds this opinion to be inadequate and of no probative value. The examiner failed to provide adequate rationale for their reasoning and instead provided a conclusory statement. Furthermore, the examiner never opined as to whether the Veteran's left knee disabilities aggravated his left shoulder, specifically, the use of mobile assistance devices, i.e., cane and walker. The examiner dismissed the Veteran's contentions without proper rationale. In sum, the Board finds that remand for an additional examination and opinion is necessary. 2. Entitlement to a rating in excess of 20 percent for chondromalacia patella, left knee, with frequent locking, is remanded. 3. Entitlement to a rating in excess of 10 percent for chondromalacia patella with degenerative changes, is remanded. As a result of the above findings, to include the Veteran's credible testimony regarding the current symptomatology and increase in severity of his left knee disabilities, the Board concludes a remand is necessary in order to provide the Veteran with an additional VA examination to determine the current severity of his left knee disabilities to include degenerative changes with bursitis and frequent locking and pain. 4. Entitlement to a TDIU, to include on an extraschedular basis, is remanded. The Veteran contends he is unable to work as a result of his service-connected disabilities. First, the Board notes that prior to this decision, the Veteran does not meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a). However, in light of the Board's decision to find the severance of service connection for left knee locking to be improper, and the additional action requested with respect to the above remanded issues, the Veteran's pending appeal for a TDIU is inextricably intertwined with the issues granted and remanded herein. Therefore, a final decision on the issue cannot be rendered at this time. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Second, where the percentage requirements of 38 C.F.R. § 4.16(a) are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). After adjudication of the remanded issues, if the Veteran does not meet the schedular requirements under 38 C.F.R. § 4.16(a), the TDIU claim should be referred to the Director of Compensation for extraschedular consideration. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left knee disabilities. The examiner should review the Veteran's April 2022 testimony and provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran's left shoulder disability to include as secondary to his service-connected left knee disabilities. The examiner should provide a full description of the disability and provide an answer to the following questions: (a.) Whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's left shoulder disability had its onset in service or is otherwise etiologically related to his active-duty service. (b.) Whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's left shoulder disability to include strain and degenerative arthritis was caused or aggravated beyond its natural progression by his left knee disabilities and/or, In regard to (b.), the examiner should specifically address whether the Veteran's left knee disabilities aggravated his left shoulder due to the need for the Veteran to use mobile assistance devices, i.e., cane and walker as a result of his service-connected left knee disabilities. 3. The AOJ must also take any appropriate actions necessary to develop and readjudicate the Veteran's TDIU appeal, to include referral of the appeal to the Director of Compensation Service for any period where the Veteran's combined evaluation does not meet the schedular requirements for TDIU. 4. Thereafter, the AOJ must readjudicate the Veteran's appeal based on the totality of the record. If the benefit sought is not granted to the fullest extent, the Veteran must be provided a copy of the readjudication and afforded an appropriate opportunity to respond. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. DeBoer, 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.