Citation Nr: 1307592 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 10-31 387 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to restoration of a 20 percent disability rating for service-connected status post anterior cruciate ligament repair surgery with medial collateral ligament laxity and slight instability, formerly classified as left knee sprain with medial collateral ligament laxity. 2. Entitlement to increased evaluations for service-connected status post anterior cruciate ligament repair surgery with medial collateral ligament laxity and slight instability, formerly classified as left knee sprain with medial collateral ligament laxity, rated as 20 percent disabling prior to December 11, 2006, and rated as 10 percent since December 11, 2006. 3. Entitlement to an initial increased evaluation for service-connected scars and degenerative joint disease associated with anterior cruciate ligament repair surgery, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran served on active duty from May 1981 to August 1998. This matter has come before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (the RO) in Houston, Texas. In November 2012, the Veteran and his spouse testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. The RO listed one of the issues on appeal as whether clear and unmistakable error exists in the reduction from 20 percent to 10 percent for service-connected status post anterior cruciate ligament repair surgery with medial collateral ligament laxity and slight instability, formerly classified as left knee sprain with medial collateral ligament laxity. The October 2007 rating decision reducing the rating for this disability is not final. Therefore, it is not subject to review on a clear-and-unmistakable basis and the issue regarding the reduction is as stated on the title page. FINDINGS OF FACT 1. In an October 2007 rating decision, the RO in essence reclassified the service-connected left knee sprain with medial collateral ligament laxity as status post anterior cruciate ligament repair surgery with medial collateral ligament laxity and slight instability by granting service connection for status post anterior cruciate ligament repair surgery and reduced the disability rating for this disability from 20 percent to 10 percent effective December 11, 2006. 2. At the time of the reduction in the assigned disability rating from 20 to 10 percent on December 11, 2006, the competent medical evidence did not clearly demonstrate that a material improvement in the severity of the Veteran's service-connected left knee disorder manifested by laxity had actually occurred and that any such improvement would be maintained under ordinary conditions of life. 3. On November 12, 2012, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant that a withdrawal of the appeal of the following issues is requested: entitlement to an increased evaluation for service-connected status post anterior cruciate ligament repair surgery with medial collateral ligament laxity and slight instability, formerly classified as left knee sprain with medial collateral ligament laxity, now rated as 20 percent disabling prior to December 11, 2006, and since December 11, 2006; and entitlement to an initial increased evaluation for service-connected scars and degenerative joint disease associated with anterior cruciate ligament repair surgery, currently rated as 10 percent disabling. CONCLUSIONS OF LAW 1. The reduction in the rating assigned for the Veteran's status post anterior cruciate ligament repair surgery with medial collateral ligament laxity and slight instability, formerly classified as left knee sprain with medial collateral ligament laxity, from 20 to 10 percent effective December 11, 2006, was not warranted. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.344, 4.1, 4.2., 4.10, 4.71a, Diagnostic Code 5257 (2012). 2. The criteria for withdrawal of entitlement to an increased evaluation for service-connected status post anterior cruciate ligament repair surgery with medial collateral ligament laxity and slight instability, formerly classified as left knee sprain with medial collateral ligament laxity, now rated as 20 percent disabling prior to December 11, 2006, and since December 11, 2006, by the appellant have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 3. The criteria for withdrawal of entitlement to an initial increased evaluation for service-connected scars and degenerative joint disease associated with anterior cruciate ligament repair surgery, currently rated as 10 percent disabling, by the appellant have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Entitlement to restoration of a 20 percent disability rating for service-connected status post anterior cruciate ligament repair surgery with medial collateral ligament laxity and slight instability, formerly classified as left knee sprain with medial collateral ligament laxity Veterans Claims Assistance Act The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. Given the decision below, a detailed explanation of how VA complied with the Act is unnecessary. Governing law and regulations Ratings reductions The law provides that where a rating reduction was made without observance of law, although a remand for compliance with that law would normally be an adequate remedy, in a rating reduction case the erroneous reduction must be vacated and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). A veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C.A. § 1155 (West 2002). When a veteran's disability rating is reduced by a RO without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999). Prior to reducing a veteran's disability rating, VA is required to comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. See 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of the veteran's disability. Schafrath, 1 Vet. App. at 594. 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. See Faust v. West, 13 Vet. App. 342, 350 (2000). In certain rating reduction cases, VA benefits recipients are to be afforded greater protections, set forth in 38 C.F.R. § 3.344. The provisions of 38 C.F.R. § 3.344(c) specify that these considerations are required for ratings which have continued for long periods at the same level (five years or more). The United States Court of Appeals for Veterans Claims (the Court) has determined that once the five-year requirement of 38 C.F.R. § 3.344(c) has been satisfied, a reduction of the pertinent rating percentages can only be effective if the reduction complies with the provisions of 38 C.F.R. § 3.344(a), which the Court described as a four-prong test. See Brown v. Brown, 5 Vet. App. 413 (1993). Specifically, the Court requires that adjudicators must: (1) Review the entire record of examinations and medical and industrial history to ascertain whether the recent examination or examinations on which the reduction was based were full and complete; (2) decline to use examinations which are less full and complete and those on which payments were authorized or continued; (3) nor reduce an evaluation for a disability which is subject to periodic improvement on one examination except in cases where all the evidence clearly warrants a finding of material improvement; and (4) consider whether the evidence makes it reasonably certain that any improvement found will be maintained under the ordinary conditions of life. Brown, 5 Vet. App. at 419. If doubt remains, after according due consideration to all the evidence developed by the several items discussed in 38 C.F.R. § 3.344(a), the rating agency will continue the rating in effect, citing the former diagnosis with the new diagnosis in parentheses, and following the appropriate code there will be added the reference "Rating continued pending reexamination -- -- -- months from this date, § 3.344." The rating agency will determine on the basis of the facts in each individual case whether 18, 24 or 30 months will be allowed to elapse before the reexamination will be made. 38 C.F.R. § 3.344(b). In an August 1998 rating decision, the RO granted service connection for left knee sprain with medial collateral ligament laxity and assigned a 20 percent disability rating for the disability under Diagnostic Code 5257 (knee, other impairment of) effective September 1, 1999. Therefore, the greater protections, set forth in 38 C.F.R. § 3.344, do apply in this case because the 20 percent disability rating for that left knee disorder was in effect for five or more years at the time of the reduction. Generally, when reduction in the evaluation of a service-connected disability is contemplated and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified at his latest address of record of the contemplated action and furnished detailed reasons therefore. The beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e). Analysis In an October 2007 rating decision, the RO in essence reclassified the service-connected left knee sprain with medial collateral ligament laxity as status post anterior cruciate ligament repair surgery with medial collateral ligament laxity and slight instability by granting service connection for status post anterior cruciate ligament repair surgery and reduced the disability rating for this disability from 20 percent to 10 percent effective December 11, 2006. The RO did not notify the Veteran of the reduction prior to the October 2007 rating decision in which the reduction was made. There was, however, no reduction in compensation benefits currently being made because the claimant's overall disability rating remained 40 percent. Therefore, the RO did not have to notify the appellant of the proposed reduction and set forth all material facts and reasons for the proposed reduction, nor did the RO have to give him 60 days to respond to the proposed reduction. Without a reduction in compensation benefits currently being made, the RO properly applied the regulations regarding the procedure for notification of reductions in ratings. The question that remains is whether the RO correctly applied the substantive law and regulations regarding a reduction. Although 38 C.F.R. § 3.105(e) indicates that this regulation only applies when there is reduction in compensation benefits currently being made, the provisions of C.F.R. §§ 3.344, 4.1, 4.2, and 4.10 and the holdings in Schafrath, Brown, and Faust do not indicate these regulations and cases do not apply when there is not a reduction in compensation benefits currently being made. Therefore, the provisions of C.F.R. §§ 3.344, 4.1, 4.2, and 4.10 and the holdings in Schafrath, Brown, and Faust do apply in this case. The RO did not apply 38 C.F.R. §§ 3.344, 4.1, 4.2, and 4.10, or the holdings in Schafrath, Brown, and Faust at all. The RO simply reclassified the service-connected left knee sprain with medial collateral ligament laxity as status post anterior cruciate ligament repair surgery with medial collateral ligament laxity and slight instability by granting service connection for status post anterior cruciate ligament repair surgery and rated the disability as 10 percent disabling effective December 11, 2006. The Board finds that the reduction was not warranted in this instance because the provisions of C.F.R. § 3.344 and the holdings in Brown, and Faust were not met. Therefore, the RO erred in its October 2007 rating decision by reducing the 20 percent evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5257 for the primary left knee disability, to 10 percent disabling effective December 11, 2006. In this regard, the RO reduced the rating for the left knee disability effective December 11, 2006, the date of a private treatment record showing that the left knee was stable. The July 2007 VA examination report reflects that the instability in the left knee was described as only being slight. On the other hand, in a January 2007 statement, Dr. Lunke indicated that in all probability the Veteran will require additional treatment, that is, possible right knee arthroscopy. Dr. Lunke added that the appellant remains disabled from performing heavy-type work and that it is permissible for him to continue his current light work as a computer analyst. The Veteran also testified that the improvement in his left knee happened after the early post-service surgery. In other words, he did not testify that the left knee had improved at the time of the December 11, 2006, treatment. Hearing transcript, page 3-4. Dr. Lunke's statement indicating that there may be a future need for an arthroscopy and that the claimant was unable to perform heavy-type work is persuasive in establishing that the evidence did not demonstrate material improvement and that it was not reasonably certain that any improvement found would be maintained under the ordinary conditions of life. Accordingly, the 20 percent evaluation assigned for status post anterior cruciate ligament repair surgery with medial collateral ligament laxity and slight instability, formerly classified as left knee sprain with medial collateral ligament laxity, under 38 C.F.R. § 4.71a, Diagnostic Code 5257 is restored, effective from December 11, 2006. While the Board restores the 20 percent rating because of the lack of material improvement and the maintaining of improvement under ordinary conditions of life, this decision does not preclude the RO from reducing the Veteran's rating in the future if the evidence so warrants and provided that VA complies with the laws and regulations that govern VA compensation benefits. Entitlement to an increased evaluation for service-connected status post anterior cruciate ligament repair surgery with medial collateral ligament laxity and slight instability, formerly classified as left knee sprain with medial collateral ligament laxity, rated as 20 percent disabling prior to December 11, 2006, and since December 11, 2006 Entitlement to an initial increased evaluation for service-connected scars and degenerative joint disease associated with anterior cruciate ligament repair surgery, currently rated as 10 percent disabling The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the appellant has withdrawn the appeal of the following issues - entitlement to an increased evaluation for service-connected status post anterior cruciate ligament repair surgery with medial collateral ligament laxity and slight instability, formerly classified as left knee sprain with medial collateral ligament laxity, now rated as 20 percent disabling prior to December 11, 2006, and since December 11, 2006; and entitlement to an initial increased evaluation for service-connected scars and degenerative joint disease associated with anterior cruciate ligament repair surgery, currently rated as 10 percent disabling - and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeals of these two issues and they are dismissed. (CONTINUED ON NEXT PAGE) ORDER Restoration of a 20 percent evaluation for status post anterior cruciate ligament repair surgery with medial collateral ligament laxity and slight instability, formerly classified as left knee sprain with medial collateral ligament laxity, is granted effective from December 11, 2006, subject to the laws and regulations governing the award of monetary benefits. The appeal of entitlement to an increased evaluation for service-connected status post anterior cruciate ligament repair surgery with medial collateral ligament laxity and slight instability, formerly classified as left knee sprain with medial collateral ligament laxity, now rated as 20 percent disabling prior to December 11, 2006, and since December 11, 2006, is dismissed. The appeal of entitlement to an initial increased evaluation for service-connected scars and degenerative joint disease associated with anterior cruciate ligament repair surgery, currently rated as 10 percent disabling, is dismissed. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs