Citation Nr: 1736685	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  07-38 064A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1. Whether the reduction in the disability rating for the Veteran's left knee disability from 20 percent to 10 percent effective January 1, 2015 was proper.

2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety disorder, dysthymic disorder, and major depressive disorder (MDD).


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Michael Duffy, Associate Counsel 


INTRODUCTION

The Veteran served in the Army National Guard and was on active duty for training from June 1984 to October 1984 and on active duty from December 1990 to September 1991.  The Veteran served on inactive duty thereafter through March 2000.  

These matters are before the Board of Veterans' Appeals (Board) on appeal from February 2007 and December 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico and Guaynabo, Puerto Rico.  

In an August 2014 decision, the Board reopened previously denied claims of entitlement to service connection for an acquired psychiatric disorder.

By way of a December 2014 rating decision, the Guaynabo RO decreased the rating assigned to the service-connected left knee disorder from 20 percent to 10 percent disabling effective January 1, 2015.  

In an April 2016 decision, the Board noted that it did not yet have jurisdiction over the Veteran's appeal of the reduction at the time, and the Board remanded the issue of entitlement to service connection for an acquired psychiatric disorder to the Agency of Original Jurisdiction (AOJ) for further development.  

The issue of entitlement to service connection for an acquired psychiatric disorder is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.



FINDING OF FACT

The evidence does not show that the Veteran's disability picture for his left knee actually reflects an improvement in his ability to function under the ordinary conditions of life and work effective January 1, 2015.


CONCLUSION OF LAW

The reduction of the evaluation for left knee disability from 20 percent to 10 percent effective January 1, 2015 was not proper.  38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.105(e), 3.321(b)(1), 3.343(a), 3.344, 3.951, 4.1, 4.2, 4.7, 4.10, 4.71a, Diagnostic Codes (DCs) 5003, 5257, 5260, 5261 (2016).  


REASONS AND BASES FOR FINDING AND CONCLUSION

Legal Criteria

In regard to the Veteran's left knee disability, the Veteran is specifically appealing the AOJ's reduction of the disability rating for the left knee from 20 percent to 10 percent effective January 1, 2015.  See May 2016 Appeal to the Board of Veterans' Appeals; November 2015 Notice of Disagreement.  The Veteran's substantive appeal does not include a claim for a higher rating than 20 percent.  

Under 38 C.F.R. § 3.105(e), where a reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a 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 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 compensation payments should be continued at their present level.  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 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.  

Under 38 C.F.R. § 3.105(i), the advance written notice concerning proposed action must inform the beneficiary that he or she will have an opportunity for a predetermination hearing, provided that a request for such a hearing is received by VA within 30 days from the date of the notice.  If a timely request is received, VA will notify the beneficiary in writing of the time and place of the hearing at least 10 days in advance of the scheduled hearing date.  The 10 day advance notice may be waived by agreement between VA and the beneficiary or representative.  The hearing will be conducted by VA personnel who did not participate in the proposed adverse action and who will bear the decision-making responsibility.  If a predetermination hearing is timely requested, benefit payments shall be continued at the previously established level pending a final determination concerning the proposed action.

VA's General Counsel has held that 38 C.F.R. § 3.105(e) does not apply where there is no reduction in the amount of compensation payable.  It is only applicable where there is both a reduction in evaluation and a reduction or discontinuance of compensation payable.  Therefore, 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) is not applicable.  See VAOPGCPREC 71-91 (Nov. 1991); Stelzel v. Mansfield, 508 F.3d 1345, 1347-49 (Fed. Cir. 2007) (holding that provisions of § 3.105(e) do not apply when there is no change in the overall disability rating).

A Veteran's disability rating may not be reduced unless the evidence demonstrates that an improvement in the disability has occurred.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 3.951.  In addressing whether improvement is shown, the comparison point generally is the last examination on which the rating at issue was assigned or continued.  See Hohol v. Derwinski, 2 Vet. App. 169 (1992). 

In regard to ratings in effect for fewer than five years, reduction is usually warranted if the evidence shows improvement of the condition.  See 38 C.F.R. § 3.951.  Additional protections apply in cases involving ratings that have continued for long periods of time at the same level (approximately five years or more by guideline but not mandate).  See 38 C.F.R. §  3.344(a), (b); Lehman v. Derwinski, 1 Vet. App. 339 (1991).  In such cases, rating agencies will handle cases affected by change of medical findings or diagnosis so as to produce the greatest degree of stability of disability evaluations.  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.  38 C.F.R. §  3.344(a); Brown v. Brown, 5 Vet. App. 413, 420-21 (1993); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).

A disability which has been continuously rated at or above any evaluation of disability for 20 or more years for compensation purposes under laws administered by the Department of Veterans Affairs will not be reduced to less than such evaluation except upon a showing that such rating was based on fraud.  See 38 C.F.R. § 3.951(b).  The rating will be computed from the effective date of the evaluation to the effective date of reduction of evaluation.  See id.  


Analysis

The Veteran's left knee disability was first rated at 0 percent under DC 5257, and it is now currently evaluated under DC 5260.  See December 2014 Rating Decision; June 1992 Rating Decision.  The rating was increased to 10 percent effective May 3, 1994.  See September 1994 rating decision.  The rating was increased to 20 percent effective June 10, 1998.  See March 2000 rating decision.  The rating was reduced from 20 percent to 10 percent effective January 1, 2015.  See December 2014 Rating Decision.  Therefore, the Veteran's left knee disability was continuously rated at 20 percent for a long period of time but not 20 years or more.  Accordingly, the additional protections of 38 C.F.R. §  3.344(a) and (b) are applicable, but a showing a fraud under 38 C.F.R. § 3.951(b) is not required to support the reduction.  

The Board finds that while the Veteran was not provided with notice in accordance with the provisions of 38 C.F.R. § 3.105(e), the disability rating reduction for his left knee disability did not result in a reduction or discontinuance of compensation payments currently being made.  See VAOPGCPREC 71-91 (Nov. 1991); Stelzel v. Mansfield, 508 F.3d 1345, 1347-49 (Fed. Cir. 2007).  Here, the Veteran's combined disability rating was 50 percent both prior to and with the reduction of the rating for his left knee disability on January 1, 2015.  Therefore, 38 C.F.R. § 3.105(e) was not applicable in this case at the time of the reduction.

Ultimately, the Board finds that a restoration is in order because the evidence does not show sustained medical improvement of the left knee disability under the ordinary conditions of work and life.  The increase in the Veteran's disability rating to 20 percent was based in part on a July 1999 VA examination.  The July 1999 VA examination revealed 100 degrees flexion, 0 degrees extension, and painful motion.  The range of motion was not additionally limited by pain, fatigue, weakness, or lack of endurance following repetitive use or during flare-ups.  

The July 1999 VA examiner reported that the Veteran used a knee sleeve for knee comfort but did not indicate the need for other assistive devices.  The Veteran could not do recreational sports and had job interruptions of up to 20 minutes at least twice per week due to knee pain.  The condition was precipitated by standing, squatting, running, and walking long distances.  Alleviating factors were rest and anti-inflammatory medications.  The Veteran complained of instability, occasional giving way of the knee when walking, and occasional locking of the knee.  The San Juan RO ultimately increased the Veteran's disability rating under DC 5257 due in part to the findings in the exam indicating the Veteran had moderate instability of the left knee at the time.  See March 2000 Rating Decision.

The Board notes there is substantial evidence that the stability in the Veteran's left knee has improved based on testing during the VA examinations of record.  See December 2014 VA left knee examination (noting there was no recurrent subluxation or lateral instability in the left knee with normal findings on testing of st bility at the time of the examination).  However, the Board finds that the evidence does not demonstrate sustained medical improvement in regard to the Veteran's ability to walk and work unassisted without interruptions under the ordinary conditions of life.  Continued impairment of sustained walking is particularly relevant by comparison to Veteran's complaints of work interruptions due to instability and pain during the July 1999 VA examination.  The evidence shows that the Veteran still has considerable difficulty walking and now regularly uses assistive devices including a knee brace and walker (also due in part to the Veteran's left knee disability).  See, e.g, id.  The Board finds that while the Veteran may have some improved stability in the left knee with regular use of a brace and walker, medical improvement under the ordinary conditions of life is not demonstrated by comparison to the July 1999 VA examination when the Veteran only required a knee sleeve.  

In light of the evidence above and the applicable considerations outlined in 38 C.F.R. §  3.344, the Board finds that the rating of 20 percent for the Veteran's left knee disability must be restored as the reduction was not proper. 


ORDER

A 20 percent disability evaluation for the Veteran's for the Veteran's left knee disability is restored, effective January 1, 2015, the date of the reduction. 



REMAND

After reviewing the evidence, the Board finds that the AOJ did not substantially comply with the Board's April 2016 remand directives.  Specifically, the Board noted that prior VA examinations of the Veteran's mental health and treatment history did not adequately consider the Veteran's subjective mental health complaints.  The Board also noted that the record contained evidence several psychiatric diagnoses including an anxiety disorder and a dysthymic disorder, which were not adequately addressed by the VA examiners and reconciled with the Veteran's current diagnosis of a depressive disorder.

The AOJ has obtained a June 2016 opinion on remand from a VA mental health examiner addressing some of the Board's concerns.  However, the Board finds that the examiner did not fully address and consider the Veteran's subjective complaints and treatment history.  First, the Board notes that the examiner did not discuss the all of the Veteran's prior diagnoses as the Board requested.  These diagnoses should be considered and addressed in the context of the Veteran's treatment history and current mental health disability.

Second, while the VA examiner did address many of the Veteran's subjective complaints including irritability and sleeping difficulties following his service, the examiner did not discuss the Veteran's ongoing memory complaints in the context of his service records and treatment history.  The Veteran's March 1984 enlistment examination shows no psychiatric complaints, sleeping complaints, or memory complaints.  In a September 2006 statement, W.M.S. stated that he accompanied the Veteran to an Air Force Hospital located in Saudi Arabia where the Veteran was treated for nervousness and depression between March and June 1991.  The Board notes that the service treatment records of the Veteran which have been associated with the claims file do not show a diagnosis or ongoing treatment for major depressive disorder.  

However, on the September 1991 separation examination, it was noted that the Veteran was experiencing problems with his memory and sleep.  Treatment records following the Veteran's service also show persistent complaints of memory and sleep problems for many years, and the Veteran reported irritability and anxiety after his return from service.  See July 2002 Primary Care Follow Up Note in medical records from San Juan VA Medical Center (VAMC); 1992 VA examination.  Primary care records from 2002 indicate that the Veteran's psychiatric difficulties were recharacterized from memory complaints to depression, which was referred privately.  Compare July 2002 and October 2002 Primary Care Follow Up Notes in medical records from San Juan VAMC.  

The January 2012 and June 2016 VA mental health examiners indicated that the Veteran's current memory problems and chronic sleep impairment are symptoms of his major depressive disorder.  However, the examiners also indicated that the Veteran's current disability is not related to his service.  The Board finds that the VA examiners have not provide adequate rationale for why the Veteran's prior complaints of memory problems and sleep disruption on separation from service are not etiologically related to his current disability manifested by substantially similar symptoms. 

In light of the above, the AOJ should determine whether there are outstanding relevant records and obtain an addendum opinion fully addressing the Veteran's prior diagnoses and particularly the memory complaints.  To the extent possible, the addendum opinion should address whether the Veteran's memory problems since his service through the present date are a symptom of a current acquired psychiatric disability related to his service.

Accordingly, the case is REMANDED for the following action:

1. The AOJ should contact the Veteran and his representative and request their assistance in identifying any relevant outstanding treatment records to include records from private treatment providers and VA records to include records from Air Force hospitals located in Saudi Arabia.  The AOJ should make reasonable attempts to obtain all outstanding relevant records and associate them with the Veteran's claims file.

2. After associating all identified outstanding relevant records with the Veteran's claim's file, the AOJ should obtain an addendum opinion from an appropriate VA mental health examiner.  The AOJ should provide the examiner with a complete copy of the claims file including this remand order.

The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current acquired psychiatric disorder had its clinical onset during active service or is otherwise the result of a disease or injury in service.  The examiner's attention is directed to diagnoses of an adjustment disorder, anxiety disorder, insomnia, dysthymic disorder and major depressive disorder, evidence of symptoms thereof noted in prior VA mental health examinations in March 1992, July 1999, April 2015, and June 2016.  The examiner should reconcile the diagnoses of record to the extent possible.

The VA examiner should specifically address the reports of memory loss and sleep impairment on the Veteran's September 1991 separation examination and thereafter.  The examiner should also consider the prior VA examiners' assessments that the Veteran has some memory loss associated with a current depressive disorder and experienced irritability and anxiety after returning from the Persian Gulf.  

The VA examiner should opine whether it is as least as likely as not the Veteran's complaints of memory loss, irritability, anxiety, or sleep problems on separation and shortly thereafter are related to his current mental health disabilities.  
 
3. After completing the above, and any other development deemed necessary, the AOJ must reconsider the Veteran's claim for service connection for an acquired psychiatric disorder.  If the benefit sought on appeal is not granted, the AOJ must provide the Veteran and her representative with a supplemental statement of the case before returning the case to the Board.  

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.