Citation Nr: 23027348 Decision Date: 05/08/23 Archive Date: 05/08/23 DOCKET NO. 16-38 010 DATE: May 8, 2023 ORDER The timeliness of the Veteran's February 2018 Substantive Appeal (VA Form 9) under the legacy appeal system is waived and, to this extent only, the appeal is granted. New and material evidence to reopen claim of service connection for acquired psychiatric disorder has been presented; to this extent, the appeal is granted. The reduction in the disability rating for left knee patellofemoral condition from 20 percent disabling to non-compensable, effective September 1, 2014, was not proper; a 20 percent rating for left knee patellofemoral condition is restored, effective September 1, 2014. The reduction in the disability rating for right knee patellofemoral condition from 20 percent disabling to non-compensable, effective September 1, 2014, was not proper; a 20 percent rating for right knee patellofemoral condition is restored, effective September 1, 2014. REMANDED A rating more than 10 percent for right knee limitation of flexion is remanded. A rating more than 10 percent for left knee limitation of flexion is remanded. Service connection for acquired psychiatric disorder is remanded. FINDINGS OF FACT 1. The timeliness of the Veteran's VA Form 9, received in February 2018, is waived. 2. The Veteran's left knee did not improve under the ordinary conditions of life and work. 3. The Veteran's right knee did not improve under the ordinary conditions of life and work. 4. The evidence received is not duplicative or cumulative of evidence previously of record and raises a reasonable possibility of substantiating the Veteran's acquired psychiatric disability claim. CONCLUSIONS OF LAW 1. The requirement of a timely-filed substantive appeal is waived, and the Veteran's February 2018 substantive appeal of the June 2014 reduction of his service-connected knee conditions, has been perfected under the legacy appeals system. 38 C.F.R. §§ 20.302, 20.303. 2. New and material evidence having been submitted, the service connection claim for an acquired psychiatric disorder is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for the reduction in the disability rating for left knee condition from 20 percent disabling to 0 percent, effective September 1, 2014, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5257. 4. The criteria for the reduction in the disability rating for right knee condition from 20 percent disabling to 0 percent, effective September 1, 2014, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.3, 4.7, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 2008 to May 2009. The Veteran's appeal comes before the Board of Veterans' Appeals (Board) from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the matters in November 2018 for additional development. In a June 2021 decision, the Board dismissed the issues of reduction for bilateral knee patellofemoral pain syndrome and denied reopening the claim for acquired psychiatric condition and increased ratings more than 10 percent for bilateral knee limitation of flexion. The Veteran appealed the Board's June 2021 decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to an October 2022 Court Joint Motion for Remand (JMR), the Court vacated the Board's June 2021 decision, and remanded the matter to the Board for further action. The Veteran's depression disorder claim has been recharacterized to include all psychiatric disorders reasonably raised by the record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). New and Material Evidence 1. New and material evidence for an acquired psychiatric condition. The Veteran submitted claims for entitlement to service connection for an acquired psychiatric disorder. Since that time, in connection with his claims, the Veteran submitted VA treatment records regarding his claimed condition. These documents and statements were new, not duplicative of evidence previously of record, and material in that they addressed the issue at hand. Thus, the Board finds that new and material evidence has been received to reopen his previously denied claims for an acquired psychiatric disorder. See 38 C.F.R. § 3.156 Timeliness of Substantive Appeal 2. The timeliness of the Veteran's VA Form 9 under the legacy appeal system. An appeal to the Board is initiated by a notice of disagreement and completed by a substantive appeal (VA Form 9) after a Statement of the Case (SOC) is furnished. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.203. A substantive appeal must be filed within 60 days from the date that the agency of original jurisdiction (AOJ) mails the SOC to the appellant, or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. The date of mailing of the SOC will be presumed to be the same as the date of the SOC for purposes of determining whether an appeal has been timely filed. 38 C.F.R. § 20.302. Extensions of time for filing a substantive appeal may be granted for good cause. 38 C.F.R. § 20.303. However, the United States Court of Appeals for Veterans Claims (Court) has held that 38 U.S.C. § 7105, which sets forth the time for filing a substantive appeal after receipt of an SOC, does not operate as a jurisdictional bar precluding the Board's consideration of an appeal when the substantive appeal is untimely. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). The Court specifically noted that while the AOJ "may" close a case if a substantive appeal is not timely filed, such an action is discretionary, not mandatory. Given the permissive nature of this section, including express authority to grant indeterminate extensions of time, the Court held that VA may waive its objection to an untimely substantive appeal. Further, the Board may properly adjudicate a matter where there has been such waiver because the 60-day filing period is not jurisdictional in nature. See also Rowell v. Principi, 4 Vet. App. 9, 17 (1993); Beryle v. Brown, 9 Vet. App. 24 (1996). Here, the RO reduced the Veteran's bilateral knee patellofemoral pain syndrome, in a June 2014 rating decision, notice of which was provided on June 26, 2014. The Veteran appealed this denial in a June and July 2014, notices of disagreement (NOD). In February 2017 the RO issued a Statement of the Case (SOC). In February 2018, the Veteran submitted a VA form 9. In November 2018, the Board requested that the RO issue another SOC since the February 2017 SOC mischaracterized the reduction issues on appeal. In August 2020, the RO reissued the SOC. At this time, the Veteran was incarcerated and in his February 2018 Form 9 he already demonstrated his desire to appeal this reduction that was affirmed by the August 2020 SOC. In light of the Veteran's circumstances in this case, the Board waives the requirement of a timely-filed appeal, and accepts the Veteran's February 2018 substantive appeal. See Percy, 23 Vet. App. at 45; Rowell, 4 Vet. App. at 17. Accordingly, the merits of the underlying claim on appeal are presently before the Board under the legacy appeals system. Reductions 2. Reduction for left knee patellofemoral condition from 20 percent disabling to non-compensable, effective September 1, 2014. 3. Reduction for right knee patellofemoral condition from 20 percent disabling to non-compensable, effective September 1, 2014. In June 2014, the RO reduced the Veteran's 20 percent rating for his bilateral knee patellofemoral pain syndrome due to a medical examination in January 2014. The rationale was that the examination noted improvements in the condition that warrant a reduced evaluation to non-compensable. See Rating decision (June 2014). Where a reduction in an evaluation of a service-connected disability is considered warranted, and the lower evaluation would result in a reduction or termination of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons, and the AOJ must notify the Veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. The Veteran must also be informed that he may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. 38 C.F.R. § 3.105 (e), (i). The record show that the Veteran was notified of this reduction on the March 2014 rating decision, and in April 2014 he filed a statement expressing his disagreement with the proposed reduction. See Correspondence (April 2014). The Veteran's 20 percent rating was in effect from January 2012 to September 2014. Therefore, it was effective for less than 5 years at the time it was reduced in June 2014. As a result, the regulations governing stabilization of disability evaluations found in 38 C.F.R. § 3.344 (a) and (b) are not applicable. 38 C.F.R. § 3.344 (c). Instead, reexaminations disclosing improvement will warrant a reduction in rating. Id. Nonetheless, the evidence must show that there was actual improvement in the Veteran's ability to function under the ordinary conditions of life and work. Congress has provided that a veteran's disability will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155; 38 C.F.R. § 3.105(e). In cases where a rating has been in effect for 5 years or more, the rating agency must make reasonably certain that the improvement will be maintained under the conditions of ordinary life even if material improvement in the physical or mental condition is clearly reflected. Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). Moreover, a rating that has been in effect for 5 years or more may not be reduced on the basis of only one examination in cases where the disability is the result of a disease subject to periodic or episodic improvement. 38 C.F.R. § 3.344(a). The 5-year period is calculated from the effective date of the rating to the effective date of the reduction. Brown v. Brown, 5 Vet. App. 413, 419 (1993). A rating becomes entitled to heightened procedural protections under § 3.344(c) only when it has existed at the exact same percentage for at least 5 years. Simon v. Wilkie, 30 Vet. App. 403, 410 (2018). The applicability of § 3.344 is premised on how long a disability rating per VA's rating schedule has been in place, as opposed to how long some baseline symptomatology has existed. Id. at 411. Section 3.344(a) applies when a rating exists for 5 years without changing its degree or position on the rating schedule. Id. These requirements do not apply to ratings that have not continued for long periods at the same level (five years or more) or to disabilities which have not become stabilized and are likely to improve. Rather, in such cases, reexaminations disclosing improvement, physical or mental, in these disabilities will warrant a rating reduction. 38 C.F.R. § 3.344(c). Yet, without regard to whether a rating has been in effect for five years or more, 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, 5 Vet. App. at 421. Moreover, reports of examination must be interpreted in the light of the whole evidentiary history and reconciled with the various reports into a consistent picture, so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. "[T]he Board must 'establish, by a preponderance of the evidence and in compliance [with] 38 C.F.R. § 3.344, that a rating reduction is warranted.'" Green v. Nicholson, 21 Vet. App. 512 (2006). If there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt shall be resolved in favor of the Veteran. 38 U.S.C. § 5107(a); see also Brown, 5 Vet. App. at 421. The Veteran seeks the restoration of his 20 percent rating for bilateral knee patellofemoral syndrome under DC 5257. Under the former regulations, DC 5257 covers recurrent subluxation or lateral instability, other impairment of the knee, where a 10 percent rating requires for the condition to be slight, 20 percent for moderate and 30 percent for severe. See 38 C.F.R. § 4.71a DC 5257. In support, the record shows that the Veteran suffers from pain, flare ups, moderate instability, need for knee brace, and worsening pain with movement. See VA medical examination (February 2012). In June 2014 the RO reduced the Veteran's bilateral knee ratings from 20 percent to 0 percent. Although a January 2014 VA examination was conducted, the examination is inadequate as the findings do not represent the Veteran's severity of his bilateral knee disability, to include flare ups, limitation of motion, instability, and pain. Thus, the February 2012 examination is the only examination adequate on record before the reduction of June 2014. In light of the foregoing, the Board finds that the severity and frequency of the Veteran's bilateral knee conditions, more nearly approximates a 20 percent rating. Consequently, the probative evidence does not show that the Veteran's bilateral knee conditions improved under the ordinary conditions of life and work. The reduction from 20 percent to 0 percent from September 1, 2014, was not proper. Thus, a 20 percent rating for bilateral knee patellofemoral syndrome under DC 5257 is restored from September 1, 2014. REASONS FOR REMAND 4. Service connection for acquired psychiatric condition. The Veteran seeks service connection for an acquired psychiatric disorder since is related to service and his service-connected disabilities. In support, the Veteran has been diagnosed with adjustment disorder, depression, and anxiety. See VA medical treatment record (March 2018). The Board notes that the Veteran's medical record is incomplete. The most current medical evidence is from July 2022. On remand, the RO must make all the appropriate efforts to obtain the Veteran's medical records. Furthermore, the Veteran has not been afforded a VA medical examination for his acquired psychiatric disorder. In light of the evidence presented, the Board finds that the "low threshold" requirements set forth by the Court of Appeals for Veterans Claims in McLendon v. Nicholson, 20 Vet. App. 79 (2006) are met, and the Veteran should be afforded a VA examination to determine the nature and etiology of his acquired psychiatric disorder. 5. A rating more than 10 percent for right knee limitation of flexion. 6. A rating more than 10 percent for left knee limitation of flexion. The Veteran seeks higher ratings for his bilateral knee conditions. These disabilities are currently rated 10 percent under DC 5260 effective January 2012. The Veteran was afforded VA examinations in February 2012, January 2014, August 2015, and June 2022. He did not show for an October 2019 examination. Regarding the October 2019 VA examination, the Board finds good cause for the no show as the Veteran was incarcerated at the time. Additionally, although the Board finds the February 2012 examination adequate for patellofemoral syndrome under DC 5257, the examination does not detail current information regarding the impact and severity of the bilateral knee conditions to properly rate them. Moreover, as to the other performed medical examinations, the Board finds these examinations inadequate since the examiners did not fully address the Veteran's flare ups, active and passive motion, and weight and non-weigh bearing. See Sharp v. Shulkin,29 Vet. App. 26(2017); Correia v. McDonald, 28 Vet. App. 158 (2016). Additionally, the examiners did not provide a retrospective medical opinion regarding the severity and impact of the Veteran's conditions in his knees, throughout the appeal. See Chotta v. Peake, 22 Vet. App. 80, 85-86 (2008); see also Vigil v. Peake, 22 Vet. App. 63 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the relevant time period). On remand, the examiner must provide a retrospective medical examination to determine the severity of his knee conditions, throughout the appeal, including if he suffers from flare ups, instability, locking and any other knee impairment found to be present. Also, the examiner must discuss the credible medical and lay evidence in record, with a complete rationale, regarding the symptoms and impairment of his claimed condition. See Miller v. Wilkie, 32 Vet. App. 249, 260 (2020). Noncompliance of these remand instructions will render the examination inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (probative value of a medical opinion is derived from it being factually accurate, fully articulated, and soundly reasoned); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). Although the Veteran may be incarcerated, the United States Court of Appeals for Veterans Claims (Court) has long held that incarcerated veterans are entitled to the same care and consideration given to their fellow veterans. See Bolton v. Brown, 8 Vet. App. 185, 191 (quoting Wood v. Derwinski, 1 Vet. App. 190 (1991)). The Court cautioned "those who adjudicate claims of incarcerated veterans to be certain that they tailor their assistance to the peculiar circumstances of confinement." Id. Therefore, the RO is reminded that VA breaches its duty to assist by not providing the Veteran with a VA examination despite being incarcerated. See 38C.F.R. §3.159. Thus, the RO must make all appropriate efforts to provide a medical examination to the Veteran regardless of incarceration. The matters are REMANDED for the following action: 1. Obtain any outstanding records, including those at the prison facility where the Veteran is incarcerated. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service psychiatric problems. Additionally, the impact and severity of his bilateral knee conditions. The Veteran shall also be invited to submit medical evidence addressing whether his psychiatric disability is related to service or his service-connected disabilities. The Veteran must be provided an appropriate amount of time to submit this lay evidence. 3. Schedule a VA examination, for the Veteran's service-connected bilateral knee conditions, and conduct all necessary testing to determine the impact and severity of the claimed conditions. The examiner must determine the severity and impact of the Veteran's service-connected bilateral knee conditions and provide a retrospective opinion throughout the appeal. The examiner shall provide a full description of the Veteran's bilateral knee conditions, severity and report all signs and symptoms necessary for evaluating the Veteran's disability. In doing so, the examiner must specifically acknowledge and discuss the Veteran's medical and competent lay reports regarding the severity of his knees during flare ups. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. The examiner shall identify all impairment found to be present in his knees. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she will clearly explain why that is so. The examiner shall describe any pain, weakened movement, excess fatigability, instability of station and incoordination present for his claimed conditions. The examiner shall also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner will provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. 4. Schedule a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible). The examiner shall address the following: (a) The examiner must identify all psychiatric disabilities found to be present. The examiner must discuss the credible medical and lay evidence in record that support a diagnosis, functional impairment, problems, and symptoms for the claimed condition. (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 psychiatric disability is related, at least in part, to service? (c) 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 psychiatric disability conditions had its onset in, at least in part, in service? (d) 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 psychiatric disability is proximately due to his service-connected conditions, or medications? (e) 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 psychiatric disability has been aggravated by his service-connected conditions, or medications. Separate opinions addressing proximate cause and aggravation are required for his service-connected disabilities and his claimed conditions. A complete rationale must be given for all opinions and conclusions expressed. It is not necessary that the service-connected conditions be diagnosed or even service-connected at the time the claimed conditions incurred to establish service connection, and reliance on this fact will render any secondary opinion inadequate. If the Veteran remains incarcerated and it is not possible to afford him a VA examination at a VA medical facility, the RO must coordinate with the prison facility to attempt to have the VA examination administered at that facility. If the Veteran remains incarcerated and it is not possible to afford him a VA examination at a VA medical facility, the RO must contact the correctional facility and request that an examiner at the correctional facility perform the above examination. If the Veteran remains incarcerated and an examiner at the correctional facility is unwilling or unable to perform the above examination, the RO should arrange for the Veteran's claims folder to be reviewed by a VA examiner based on a review of the file, to include any prison records. The RO must make all appropriate efforts to provide the Veteran with a VA examination with either a VA provider or contracting medical officer. In offering these opinions, the examiner must acknowledge and discuss the Veteran's competent and credible lay reports, regarding the nature and onset of his claimed conditions problems in service and thereafter. In doing so, the examiner must provide a complete rationale and explanation for all opinions reached. If the examiner is unable to provide any requested opinion without resort to speculation, he or she must explain why this is so. If unable to opine without speculation, the examiner shall indicate whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). SHAUN S. SPERANZA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Alvarado 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.