Citation Nr: 1124366	
Decision Date: 06/27/11    Archive Date: 07/06/11

DOCKET NO.  08-16 395	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUE

Propriety of reduction of evaluation for service-connected right knee disability from 30 percent to 10 percent, with an effective date of August 1, 2007.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

T. Stephen Eckerman, Counsel


INTRODUCTION


The Veteran served on active duty from February 1969 to February 1971.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from n April 2007 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which reduced the Veteran's evaluation for his service-connected right knee disability from 30 percent to 10 percent, with an effective date of August 1, 2007.  In May 2010, the Board remanded the claim for additional development.  

In January 2010, the Veteran was afforded a videoconference hearing before F. Judge Flowers, who is the Veterans Law Judge rendering the determination in this claim and was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 2002).  


FINDING OF FACT

The RO's April 2007 RO rating decision, which reduced the Veteran's rating for his service-connected right knee disability from 30 percent to 10 percent, effective August 1, 2007, did not consider required regulatory provisions and denied the Veteran due process.


CONCLUSION OF LAW

The RO's April 2007 RO rating decision, which reduced the Veteran's rating for his service-connected right knee disability from 30 percent to 10 percent, is void ab initio, and the criteria for restoration of the 30 percent rating for this condition are met at all times since August 1, 2007.  38 C.F.R. §§ 3.105, 3.344 (2010).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran asserts that he is entitled restoration of the 30 percent rating for his service-connected right knee disability.  

In March 1971, the RO granted service connection for "impairment of the right knee, slight, torn medial meniscus with chondromalacia, evaluated as 10 percent disabling.  There was no appeal, and the RO's decision became final.  See 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2009).  In March 2005, the RO increased the Veteran's rating to 30 percent, with an effective date of November 15, 2004.  

In January 2006, the RO notified the Veteran that it proposed to reduce his rating to 10 percent.  An associated "proposed rating decision," also dated in January 2006, essentially stated that the basis for the proposed reduction was that recent VA reports indicated that his right knee symptoms warranted no more than a 10 percent rating.  

In April 2007, the RO decreased the Veteran's evaluation for his right knee disability to 10 percent, with an effective date of April 1, 2007.  

The issue is whether the RO's April 2007 reduction in the disability rating from 30 percent to 10 percent, effective April 1, 2007, was legally proper.  

As previously stated, in March 2005, the RO increased the Veteran's rating to 30 percent, with an effective date of November 15, 2004.  Thus, at the time of the RO's April 2007 rating decision, the Veteran's 30 percent rating had not been in effect for more than 5 years.  

The provisions of paragraphs § 3.344 (a) and (b) apply to ratings which have continued for long periods at the same level (5 years or more).  They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating.  See 38 C.F.R. § 3.344(c) (2010).  The United States Court of Appeals for Veterans Claims (Court) stated in Lehman v. Derwinski, 1 Vet. App. 339 (1991) that use of parentheses suggests that the five year time frame is merely a guideline, not a mandate; and that the regulation is devoid of any language which could be construed as intended to establish an inflexible mandatory minimum time period.

In addition, although the regulatory requirements under 38 C.F.R. § 3.344(a) and (b) apply only to reductions of ratings that have continued for long periods at the same level, the Court has held that several general regulations are applicable to all rating reduction cases, regardless of whether the rating at issue has been in effect for five or more years.  The Court has stated that certain regulations "impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon review of the entire history of the veteran's disability."  Brown v. Brown, 5 Vet. App. 413, 420 (1993) (referring to 38 C.F.R. §§ 4.1, 4.2, 4.13).

The Brown case articulated three questions that must be addressed in determining whether a rating reduction was warranted by the evidence.  First, a rating reduction case requires ascertaining "whether the evidence reflects an actual change in the disability."  Second, it must be determined whether the examination reports reflecting such change were based upon thorough examinations.  Third, it must be determined whether 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.  

It appears that the procedural safeguards have been met.  Specifically, when a reduction in evaluation is considered warranted, a rating proposing severance will be prepared setting forth all material facts and reasons.  38 C.F.R. § 3.105(e).  In this case, the RO's January 2006 notification to the Veteran of the proposed reduction, and the accompanying January 2006 "proposed rating decision," both indicated that the Veteran's rating for his right knee disability was to be reduced to 10 percent, and the reasons for the proposed reduction were discussed.  

However, a review of the RO's April 2007 decision, the May 2008 statement of the case (SOC), and the supplemental statements of the case (SSOC's), dated in May 2009 and February 2011, shows that the RO appears to have essentially analyzed the issue of reduction of the 30 percent rating just as it would a claim for an increased rating.  Specifically, although the SOC listed the provisions at 38 C.F.R. §§ 3.105 and 3.344, the April 2007 decision, the SOC, and the May 2009 SSOC, all phrased the issue solely as one of an "evaluation."  Although the February 2011 SSOC phrased the issue correctly, as the propriety of the reduction from 30 percent to 10 percent, the fact remains that the RO's analyses in its April 2007 rating decision, the SOC, and both of the SSOC's, only discussed the criteria at various diagnostic codes at 38 C.F.R. § 4.71a (i.e., Diagnostic Codes 5003, 5010, 5257, 5260, 5261, and 5262).  The RO completely failed to discuss the provisions of 38 C.F.R. § 3.344 in its analysis.  Of particular note, its analysis did not discuss the issue of whether there was "an actual improvement in the Veteran's ability to function under the ordinary conditions of life and work."  Id.; Brown.  In summary, it does not appear that the RO's analysis was in compliance with 38 C.F.R. § 3.344 and Brown.  

The Court has stated that both decisions by the RO and by the Board that do not apply the provisions of 38 C.F.R. § 3.344, when applicable, are void ab initio (i.e., at their inception).  Lehman v. Derwinski, 1 Vet. App. 339 (1991); Peyton v. Derwinski, 1 Vet. App. 282 (1991); Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992); Brown v. Brown, 5 Vet. App. 413 (1993); see also Hayes v. Brown, 9 Vet. App. 67, 73 (1996) (where VA reduces the appellant's rating without observing applicable laws and regulations the rating is void ab initio and the Court will set aside the decision).  

Since the rating decision that accomplished the reduction of the 30 percent evaluation for the Veteran's service-connected right knee disability did not properly apply the provisions of 38 C.F.R. § 3.344, the reduction is void.  The appropriate remedy in this case is a restoration of the 30 percent evaluation effective on the date of the reduction.  See Hayes, 9 Vet. App. at 73 (improper reduction reinstated effective date of reduction).  

The Board finds that the Veteran's 30 percent evaluation was improperly reduced, that the reduction of the evaluation is void ab initio, and that the 30 percent evaluation for the Veteran's right knee disability should be restored.  Accordingly, the Board finds that restoration of the 30 percent evaluation for the Veteran's right knee disability, effective August 1, 2007, is warranted.  

The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010).  In this case, as the Board has fully granted the Veteran's claim for restoration of the 30 percent rating for his right knee disability, the Board finds that a detailed discussion of the VCAA is unnecessary.  Any potential failure of VA in fulfilling its duties to notify and assist the Veteran is essentially harmless error.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  


ORDER

Restoration of the 30 percent disability evaluation for service-connected right knee disability is granted effective August 1, 2007, subject to the laws and regulations governing the award of monetary benefits.


____________________________________________
F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs