Citation Nr: 18124093
Decision Date: 08/06/18	Archive Date: 08/03/18

DOCKET NO. 15-35 192A
DATE:	August 6, 2018
ORDER
The reduction from a 20 percent disability rating to a 10 percent rating for service-connected right knee patellar subluxation was proper; restoration of the 20 percent rating from March 1, 2015 is denied. 
As new and material evidence has been received, reopening of the claim for service connection for an acquired psychiatric disorder, to include PTSD, is granted.
REMANDED
Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded.
FINDINGS OF FACT
1. In a June 2012 rating decision, the RO assigned a separate 20 percent disability rating for right knee patellar subluxation based on findings of moderate subluxation of the right knee in a June 2012 VA examination. 
2. Following a July 2014 VA examination, the RO proposed to reduce the disability rating, in a September 2014 rating decision, for right knee subluxation from 20 percent to 10 percent disabling on the basis that there was evidence of slight subluxation of the right knee. 
3. In a December 2014 rating decision, the RO implemented the proposed reduction, decreasing the rating for right knee subluxation to 10 percent disabling, effective March 1, 2015.
4. The 20 percent disability rating for right knee subluxation had not been in effect for more than five years.
5. The evidence of record shows a permanent improvement in the service-connected right knee subluxation. 
6. In a final decision issued in June 2012, the RO denied the Veteran’s claim of entitlement to service connection for PTSD.
7. Evidence added to the record since the June 2012 rating decision is not cumulative or redundant and raises a reasonable possibility of substantiating the Veteran’s claims of entitlement to service connection for a psychiatric disorder.
CONCLUSIONS OF LAW
1. The criteria for restoration of the 20 percent rating for right knee patellar subluxation have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.71a, Diagnostic Code 5260 (2017).
2. The June 2012 rating decision that denied service connection for PTSD is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017).
3. New and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder.  38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a) (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
1. Whether a reduction in disability rating from 20 percent to 10 percent disabling for right knee patellar subluxation was proper.
Rate reductions
At issue is the propriety of the RO’s decision to reduce the Veteran’s disability evaluation for his service-connected right knee patellar subluxation from 20 percent to 10 percent, effective March 1, 2015. 
To properly reduce a disability rating, VA must meet both procedural and substantive benchmarks.  Procedurally, where the reduction in the rating 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.  38 C.F.R. § 3.105 (e). 
Reducing a rating also brings concurrent substantive requirements that must be followed.  Where a disability rating has been in effect less than five years, a rating reduction is warranted where reexamination of the disability discloses improvement of that disability. 38 C.F.R. § 3.344 (c).  In making this determination, VA is required to comply with several regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; Brown v. Brown, 5 Vet. App. 213, 413, 420 (1993). The Board notes that for ratings in effect for five years or more, there are other specific requirements that must be met before VA can reduce a disability rating; however, as the Veteran’s 20 percent disability rating for his right knee patellar subluxation was in effect for approximately three years prior to the reduction, those additional requirements are not for application.  See 38 C.F.R. § 3.344.
These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of the veteran’s disability.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  Such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Thus, in any rating reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work.  38 C.F.R. §§ 4.2, 4.10, 4.13; Faust v. West, 13 Vet. App. 342, 350 (2000).
Further, though a rating reduction must have been supported by the evidence on file at the time of the reduction, pertinent post-reduction evidence favorable to restoring the rating also must be considered. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992).
Disability evaluations
Disabilities of the knee are rated under the provisions of 38 C.F.R. § 4.71a, Diagnostic Codes 5256 through 5263.  Diagnostic Codes 5260 and 5261 provide the rating criteria for limitation of knee motion.  Normal range of motion of the knee is from zero to 140 degrees. 38 C.F.R. § 4.71a Plate II.
Diagnostic code 5258 provides a rating for semilunar cartilage dislocation with “locking”, pain, and effusion. Diagnostic code 5259 provides a rating for removal of the semilunar cartilage.  Diagnostic code 5257 provides ratings for recurrent subluxation or lateral instability which is the pertinent provision herein as the Veteran’s disability had initially been evaluated as exhibiting moderate subluxation. 38 C.F.R. § 4.71a.  Under Diagnostic Code 5257, a 10 percent evaluation is warranted when there is slight recurrent subluxation or lateral instability. A 20 percent evaluation is warranted when there is moderate recurrent subluxation or lateral instability.  A 30 percent evaluation is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. Diagnostic Code 5257 is based upon instability and subluxation, not limitation of motion, and as a result, the criteria set forth in DeLuca do not apply.  DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).
Legal Analysis
For the reasons that follow, the Board finds that the reduction of the Veteran’s service-connected right knee patellar subluxation from 20 percent to 10 percent was proper.  
First, the RO did satisfy the procedural requirements of the rating reduction as evidenced in a September 2014 rating decision and notice letter dated the same month.  In said notice, the RO informed the Veteran of the proposal to reduce the disability rating assigned for his service-connected right knee patellar subluxation, from 20 percent to 10 percent, which would reduce his combined evaluation for all service-connected disabilities from 60 percent to 50 percent. The Veteran was given a period of 60 days after that letter to submit evidence showing that the disability rating should not be reduced. The Veteran was also provided written notice of the final action.  The reduction was effectuated in a December 2014 rating decision and notice letter dated the same month, and the effective date of the reduction, March 1, 2015, was provided.  Therefore, the record indicates that the RO complied with the specific notice provisions applicable to rating reductions.  See 38 C.F.R. § 3.105 (e). 
The remaining issue is whether the reduction itself was proper based upon the evidence of record.  After a review of the lay and medical evidence, the Board finds that actual and permanent improvement of right knee subluxation have been demonstrated; therefore, the rating reduction was proper, and restoration of the 20 percent rating for right knee subluxation is not warranted.  In so finding, the Board notes that the Veteran was assigned a separate 20 percent rating based on findings from his June 2012 VA examination which showed a moderate degree of subluxation to his right knee.  
In December 2013, an MRI showed a medial meniscus tear with parameniscal cysts; however, right knee examination showed medial joint line tenderness, but no gross deformity and no laxity.
The Veteran had right knee arthroscopy in May 2014.  In a May 2014 follow-up visit, the examiner noted that the medial portal had a slight degree of redness and moderate effusion, but no subluxation or instability was noted.  The examiner aspirated the knee joint, instructed the Veteran on a home exercise regimen, and advised the Veteran to follow-up in two weeks.
Similarly, in his June 2014 follow-up, the examiner noted that the Veteran walks with a minimal limp, has much less pain, and slight popping; however, there was no evidence of subluxation or instability noted.  Likewise, in the Veteran’s July 2014 VA examination, the examiner noted normal stability tests, slight subluxation/dislocation, and that residuals of the Veteran’s recent meniscectomy of his right knee included a popping sensation and pain with bending the knee.  
The Veteran’s right knee subluxation showed further improvement as evidenced in an August 2014 orthopedic follow-up, where the examiner noted that the Veteran’s right knee exhibited full range of motion with some crepitation, but no ligament laxity, pain, or effusion.  The examiner instructed the Veteran on a home exercise program to continue strengthening, quadriceps, and hamstrings.
Based on the above and remaining evidence, the Board finds that permanent improvement in right knee subluxation has been shown to have occurred. 38 U.S.C. § 1155.  As noted, the Veteran right knee initially exhibited moderate subluxation as shown in his June 2012 VA examination.  However, his July 2014 VA examination showed slight subluxation with no evidence of laxity or instability.  In addition, despite having a meniscal tear, the Veteran’s right knee did not show an increase in subluxation or instability as evidenced by his orthopedic knee examinations and his July 2014 VA examination.  
Further, the Board has considered the Veteran’s reports of “popping,” which seems to suggest subluxation or instability of the right knee.  This is evidenced in a January 2013 treatment note where the Veteran reported that his “right knee pops out at times,” and in an October 2013 telephonic follow-up where the Veteran reported that his right knee “keeps popping out on me.”  However, the Board finds that the Veteran’s reports of “popping” do not amount to evidence of instability or subluxation.  Further, the Veteran reported that he uses a knee brace occasionally, and his primary complaint has been of pain in the right knee.  Moreover, there is no medical evidence of record that substantiates the Veteran’s contentions; rather, the evidence shows that the Veteran’s right knee subluxation has improved with no evidence of instability.
Consequently, the Board finds that the preponderance of the evidence demonstrates actual improvement of right knee subluxation so as to warrant a rating reduction from 20 percent to 10 percent effective March 1, 2015.  Therefore, the reduction was proper, and restoration of a 20 percent rating is not warranted.  38 C.F.R. § 3.105 (e).
2. New and Material Evidence
The Veteran is seeking to reopen a claim of service connection for PTSD.  This claim was denied in a June 2012 rating decision and is considered final as the Veteran did not appeal within one year of the decision.
The Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim.  38 U.S.C. § 7104 (b); King v. Shinseki, 23 Vet. App. 464 (2010); see DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006).  However, the finality of a previously disallowed claim can be overcome by the submission of new and material evidence. See 38 U.S.C. § 5108 (2017).
New evidence means existing evidence not previously submitted to agency decision makers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156 (a) (2017). 
In determining whether evidence is new and material for purposes of deciding whether a claim should be reopened, “the credibility of the evidence is to be presumed.” Savage v. Gober, 10 Vet. App. 488 (1997); Justus v. Principi, 3 Vet. App. 510, 513 (1992).  Only in cases in which the newly submitted evidence is “inherently false or untrue” does the presumption of credibility not apply.  Duran v. Brown, 7 Vet. App. 216, 220 (1994).
Initially, the Board notes that the Veteran’s June 2014 claim to reopen was limited to service connection for PTSD.  However, the AOJ broadened the scope of the claim to include service connection for major depressive disorder with alcohol abuse as evidenced in an August 2015 Statement of the Case.  As such, the Board considers the Veteran’s claim to reopen PTSD to have included an acquired psychiatric disorder, to include PTSD.  
In this regard, the Board notes that the Veteran’s claim for PTSD was previously denied because an acquired psychiatric disorder was not present in service, the Veteran did not have a diagnosis of PTSD, and there was no evidence attributing the Veteran’s depressive disorder to his military service.  Evidence added to the record since the last final denial include a September 2016 medical opinion where the Veteran was diagnosed with depressive disorder secondary to his service-connected right and left knees, left wrist residuals, left ankle residuals, and broken jaw residuals.  
The Board finds that this evidence is new, because it was not available when the Veteran’s first claim was being decided, and it is material because it relates to an unestablished fact necessary to substantiate the claim, namely secondary service connection.  Given the low threshold applicable to the evidence needed to reopen claims under Shade v. Shinseki, 24 Vet. App. 110 (2010), the Board finds that this newly expressed theory and evidence is new and material since it can be substantiated through further development, and that the reopening of the claim for service connection for an acquired psychiatric disorder is warranted.  
REASONS FOR REMAND
Entitlement to service connection for an acquired psychiatric disorder is remanded.
The Board finds that further development is necessary before the Board can properly adjudicate the Veteran’s psychiatric claim.  
As explained above, the Veteran has submitted new evidence which contends the Veteran’s major depressive disorder is related to his service-connected right and left knees, and service-connected residuals of his left broken ankle, broken jaw, and left wrist.  Alternatively, in a June 2015 medical opinion, the VA examiner explained that the Veteran’s depression stems from his use of poor judgment in situations that lead to problems about which he becomes depressed.  
Given that the two medical opinions are conflicting, remand is required to reconcile these inconsistent findings.
The matter is REMANDED for the following action:
1. Obtain all of the Veteran’s outstanding VA treatment records from August 2014 to present.  All efforts to obtain these records must be documented in the Veteran’s claim file.  
2.  Obtain an addendum opinion from an appropriate clinician, different from the June 2015 examiner, to determine the nature and etiology of any current psychiatric disability.  Afford the Veteran a VA examination only if deemed necessary by the examiner.  The claims file must be made available to, and reviewed by the examiner.  Any indicated studies should be performed. 
3. Based on a review of the record, the examiner should first identify all psychiatric disabilities present during the pendency of the claim.  If the examiner determines that any prior diagnoses are incorrect, he or she should provide an explanation for why the diagnosis was in error. 
a)	Then, for each identified psychiatric condition, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that any identified psychiatric disability is etiologically related to service.
b)	The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that any identified psychiatric disability is proximately caused or aggravated by the Veteran’s service-connected disabilities.
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c)	The examiner should specifically consider and address the June 2015 VA medical opinion and the September 2016 private medical opinion referenced above.
4. Then, readjudicate the claim.  If any benefit requested on appeal is not granted to the Veteran’s satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case and provided an opportunity to respond.  The case should then be returned to the Board for further appellate consideration, if in order.
 
GAYLE E. STROMMEN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	K. Laffitte, Associate Counsel 

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