Citation Nr: 23012000 Decision Date: 02/27/23 Archive Date: 02/27/23 DOCKET NO. 18-44 113 DATE: February 27, 2023 ORDER A reduction in evaluation from 20 percent to 10 percent for right knee instability effective March 3, 2018 was improper, and a 20 percent evaluation is restored. A reduction in evaluation from 20 percent to 10 percent for left knee instability effective March 3, 2018 was improper, and a 20 percent evaluation is restored. REMANDED Entitlement to a disability rating higher than 20 percent for right knee instability is remanded. Entitlement to a disability rating higher than 20 percent for left knee instability is remanded. FINDING OF FACT The reduction in the disability ratings for bilateral knee instability from 20 percent to 10 percent was not based on improvement in the ability to function under the ordinary conditions of life and work. CONCLUSIONS OF LAW 1. The criteria for restoration of a 20 percent disability rating for right knee instability, effective March 3, 2018, has been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.343, 3.344. 2. The criteria for restoration of a 20 percent disability rating for left knee instability, effective March 3, 2018, has been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.343, 3.344. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from March 1991 until his honorable discharge in March 2015. The Board of Veterans' Appeals (Board) thanks the Veteran for his service to our country. This matter is before the Board on appeal from an April 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which reduced the ratings for bilateral knee instability. The Veteran filed a Notice of Disagreement with respect to the reductions and the lower ratings. The August 2018 Statement of the Case characterized the issues on appeal as increased rating claims, but included law and regulations applicable to rating reductions. The Veteran's substantive appeal continued to seek higher ratings and disagreed with the reductions. Thus, both the reductions and the increased rating claims are on appeal. 1. Restoration of a 20 percent rating for right knee instability. 2. Restoration of a 20 percent rating for left knee instability. In November 2016, the AOJ granted entitlement to service connection for right and left knee instability with an evaluation of 20 percent effective September 1, 2016, under Diagnostic Code (DC) 5257. In April 2018, the AOJ reduced the evaluation for right and left knee instability to 10 percent disabling, effective March 3, 2018. The Veteran contends he is entitled to restoration of a 20 percent rating for his right knee instability, and restoration of a 20 percent rating for his left knee instability. The Board agrees. Procedurally, because the Veteran's overall combined evaluation for compensation was unaffected by the April 2018 rating reduction, and thus there was no actual reduction in his benefit payment, the RO was not required to observe the usual due process protections which are set forth at 38 C.F.R. § 3.105(e). See Stelzel v. Mansfield, 508 F.3d 1345, 1347-49 (Fed. Cir. 2007) (holding that the provisions of 38 C.F.R. § 3.105(e) do not apply where the overall compensation paid to the Veteran is not reduced). The 20 percent ratings for the Veteran's right and left knee instability were in effect for less than five years. Substantively, the regulations provide that a rating at the same level for less than five years may be reduced if there is a reexamination showing improvement in the disability. 38 C.F.R. § 3.344(c). However, 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. See, e.g., Faust v. West, 13 Vet. App. 342, 349 (2000). The provisions of 38 C.F.R. §§ 4.1, 4.2, and 4.10 also require that a reduction in rating be based upon review of the entire history of a veteran's disability. A rating reduction 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). Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved. In determining whether a reduction was proper, the Board must focus upon the evidence available to the RO at the time the reduction was effectuated. In addressing whether improvement is shown, the comparison point generally is the last examination on which the rating issue was assigned or continued. See Hohol v. Derwinski, 2 Vet. App. 169 (1992). Post-reduction medical evidence may be considered in the context of evaluating whether the condition had actually improved. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). However, post-reduction evidence may not be used to justify an improper reduction. The burden of proof is on VA to establish that a reduction is warranted by the weight of the evidence. The question of whether a disability has improved involves consideration of the applicable rating criteria. Prior to the February 7, 2021 amendments, under DC 5257, a 10 percent rating is warranted for recurrent subluxation or lateral instability of the knee that is slight. A 20 percent rating is warranted for recurrent subluxation or lateral instability of the knee that is moderate. A 30 percent rating is warranted for recurrent subluxation or lateral instability of the knee that is severe. 38 C.F.R. § 4.71a. DC 5257. The words "slight", "moderate", and "severe" used in Diagnostic Code 5257 are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Effective February 7, 2021, DC 5257 provides separate criteria for ratings based on recurrent subluxation or lateral instability and patellar instability. For recurrent subluxation or instability, a 10 percent rating is warranted for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), or walker) or bracing for ambulation. A 20 percent rating is warranted for one of the following: (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), or walker) for ambulation. (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), or walker) or bracing for ambulation. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), or walker), and bracing for ambulation. 38 C.F.R. § 4.71a, DC 5257. For patellar instability, a 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker. A 30 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Id. Factual Background In June 2016, the Veteran presented to the Beckley VA Medical Center (VAMC) with complaints of chronic knee pain. Radiographs of the right knee demonstrated extensive degenerative changes and small right knee effusion; radiographs of the left knee demonstrated status post cruciate ligament repair, with extensive degenerative changes with effusion. In July 2016, the Veteran presented to the Beckley VAMC. He reported chronic bilateral knee pain, worsening with prolonged walking and standing, especially on uneven terrain. Physical exam demonstrated antalgic gait without assistive device. Exam of both knees revealed slight flexion contractures. There was fullness in popliteal fossa bilaterally. There was laxity with varus and valgus stress, but end points maintained. Medial and lateral joint spaces were nontender. Patellar grind and inhibition test were positive. Stable posterior drawer sign. There was increased pain with Lachman's test and anterior drawer sign. The VA physician assessed bilateral knee traumatic arthropathy with chronic ACL deficiency. In September 2016, the Veteran was afforded a VA examination. During the examination the Veteran reported frequent constant knee pain. He reported flare-ups, described as increased knee pain with prolonged walking, standing, and sitting, as well as navigating stairs. He reported functional loss/functional impairment described as limitation in "all outdoor activities." The examiner diagnosed bilateral patellofemoral pain syndrome, degenerative arthritis, post ACL repair with meniscectomy, and chronic ACL deficiency. Initial range of motion for right knee flexion was measured from 0 to 110 degrees, and extension was normal to 0 degrees, with objective evidence of pain on motion. The examiner remarked, pain on exam causes functional loss as the veteran would not be able to squat. He had tenderness or pain to palpation for joint line or soft tissue of mild patella tendon. Muscle strength testing for flexion revealed some resistance (4/5) for flexion, and normal (5/5) for extension. There was a history of recurrent subluxation, recurrent effusion, and moderate lateral instability. Joint stability testing was normal for anterior and posterior instability, and medial and lateral instability was 1+ (0-5 millimeters). The Veteran had a meniscus condition (semilunar cartilage condition) of meniscal tear with frequent episodes of joint pain and joint effusion. Initial range of motion for left knee flexion was measured from 0 to 115 degrees, and extension was normal to 0 degrees, with objective evidence of pain on motion. The examiner remarked, pain on exam causes functional loss as the veteran would not be able to squat. He had tenderness or pain to palpation for joint line or soft tissue of posterior knee around the joint line. Muscle strength testing for flexion revealed some resistance (4/5) for flexion, and normal (5/5) for extension. There was a history of recurrent subluxation, recurrent effusion, and severe lateral instability. Joint stability testing was normal for anterior and posterior instability, and medial and lateral instability was 1+ (0-5 millimeters). The Veteran had a meniscus condition (semilunar cartilage condition) of meniscal tear with frequent episodes of joint "locking", joint pain, and joint effusion. The Veteran required the occasional use of assistive devices (braces). Lastly, regarding functional impact, the examiner remarked, the Veteran would have difficulty doing physical labor that required climbing, prolonged walking, standing, or lifting. In October 2016, the Veteran presented to the Beckley VAMC with complaints of chronic knee pain, worsening with prolonged walking and standing, especially on uneven terrain. His desire was to continue with the same regimen (injections) if possible and avoid surgery. Physical exam demonstrated antalgic gait without assistive device. Exam of both knees revealed slight flexion contractures. There was fullness in popliteal fossa bilaterally. There was laxity with varus and valgus stress but with end points maintained. Medial and lateral joint spaces were nontender. Crepitus range of motion. Patellar grind and inhibition test were positive. Stable posterior drawer sign. There was increased pain with Lachman's test and anterior drawer sign. The Veteran underwent Supartz injection bilateral knees. Throughout 2017, the Veteran presented to the Beckley VAMC with reports of chronic knee pain, worsening with prolonged walking and standing, especially on uneven terrain. He stated that he wanted to avoid total knee replacement for as long as possible. Physical exam demonstrated antalgic gait without assistive device. Exam of both knees revealed slight flexion contractures. There was fullness in popliteal fossa bilaterally. There was laxity with varus and valgus stress but with end points maintained. Medial and lateral joint spaces were nontender. Crepitus range of motion. Patellar grind and inhibition test were positive. Stable posterior drawer sign. There was increased pain with Lachman's test and anterior drawer sign. He underwent corticosteroid and Supartz injections, bilateral knees. In January 2017, the Veteran stated he wanted to avoid total knee replacement for as long as possible. In April 2017, the VA physician noted, "the Veteran is too young at this time for consideration of a TKA." In July 2017, the Veteran reported chronic knee pain worsening with weight bearing activity and knees giving way. He was remaining as active as possible, and he was trying to wait for surgical intervention. In February 2018, the Veteran presented to the Beckley VAMC. He reported chronic bilateral knee pain, worsening with weight bearing activity, as well as uneven terrain ambulation; swelling; and frequent "giving way or buckling." He stated he was strongly considering total knee replacement. In March 2018, the Veteran was afforded a VA examination. During the examination the Veteran reported contain pain in both knees, worsening when navigating stairs or walking inclines. He reported flare-ups and functional loss/functional impairment. The examiner diagnosed bilateral knee degenerative arthritis with meniscal tear and anterior cruciate ligament tear and knee instability and left knee moderate joint effusion. The examiner remarked the Veteran's diagnoses had changed. The examiner explained, "both the meniscus and cruciate ligaments are necessary for stability of a normal, healthy knee. When either, or both, of these structures have been altered or damaged the knee joint can become unstable to varying degrees depending on the degree of change in either of these anatomical structures. Such as the case with this veteran's knees." Initial range of motion for right and left knee flexion was measured from 0 to 140 degrees, and extension was normal to 0 degrees. There was pain with weight bearing. Muscle strength testing was normal. There was no history of recurrent subluxation and lateral instability. There was a history of recurrent effusion left knee. Joint stability testing was normal for posterior, medial, and lateral instability, and anterior instability was 1+ (0-5 millimeters). The Veteran had bilateral meniscus condition (semilunar cartilage condition) of meniscal tear, with history of meniscal repair with ACL repair. Lastly, regarding functional impact, the examiner remarked, the Veteran would have poor tolerance for prolonged walking (incline/decline) and climbing. Analysis Given the similarities in the Beckley VAMC records, and the September 2016 and March 2018 examination findings, as described above, the Board finds that the nature and severity of the Veteran's right and left knee instability does not support a finding that there was an improvement in his ability to function under ordinary conditions of life and work. Thus, the reductions were improper. In addition, the RO decision reducing the Veteran's ratings did not address whether there was an actual improvement in his ability to function under ordinary conditions of life and work. Rather, the RO appears to have essentially analyzed the reductions as it would a claim for an increased rating. In considering the entire record and viewing all the evidence in the light most favorable to the Veteran, (i) the reduction of the disability rating for right knee instability was not proper, and restoration of the 20 percent rating, effective March 3, 2018, is warranted; and (ii) the reduction of the disability rating for left knee instability was not proper, and restoration of the 20 percent rating, effective March 3, 2018, is warranted. REASONS FOR REMAND 1. Entitlement to an increased rating higher than 20 percent for right knee instability is remanded. 2. Entitlement to an increased rating higher than 20 percent for left knee instability is remanded. Although further delay is regrettable, the Board finds a remand is necessary to endure due process is followed and there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran contends he is entitled to an increased rating higher than 20 percent for his service-connected right and left knee instability. The Veteran was last afforded a VA examination in March 2018. Although VA examinations do not necessarily expire or go stale due to the mere passage of time, adequate examinations must be sufficiently detailed for the Board's evaluation of the claimed disabilities to be a fully informed decision. Barr v. Nicholson, 21 Vet. App. 303 (2007). As nearly five years have passed since the most recent VA examination that addressed the nature and severity of the Veteran's right and left knee instability, the Board finds that remand for a new VA examination is warranted. To this end, the Board also notes that VA treatment records in the Veteran's claim file appear to be incomplete. Here, the last VA treatment record is from March 2018. Consequently, the Board finds that remand is required for the VA to fulfill its duty to the Veteran and to acquire updated treatment records regarding his right and left knee instability. These matters are REMANDED for the following action: 1. Obtain VA treatment records from March 2018. 2. Schedule the Veteran for an examination with an appropriate clinician, who has not previously examined the Veteran, to assess the nature and severity of the Veteran's service-connected right knee instability and left knee instability. The entire claims file, to include a copy of this Remand, must be made available to the examiner and the examination report should reflect that the file was reviewed. The examiner should assess instability in terms of joint stability testing (Lachman test, Posterior drawer test, Valgus pressure to knee in extension with 30 degrees of flexion and Varus pressure to knee in extension with 30 degrees of flexion). The examiner must also determine whether the Veteran's service-connected left knee instability has manifested in any of the following symptoms or impairments since February 7, 2021 (based on examination findings or a review of the claims file): 3. Recurrent subluxation or instability with one of the following: A) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; OR B) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), or a walker) or bracing for ambulation; (a) recurrent subluxation or instability with unrepaired or failed repair of complete ligament tear causing persistent instability, AND a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation; (b) patellar instability with a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane or walker; (c) patellar instability with a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or walker. Note: In this context, "patellofemoral complex" consists of the quadriceps tendon, the patella, and the patellar tendon. If any requested findings are not possible without resort to mere speculation, not feasible, medically contraindicated, raise a risk of injury to the Veteran, or otherwise cannot be provided, then the examiner must explain why with a full rationale. Rebecca N. Poulson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Grace Johnk, 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.