Citation Nr: 1311016 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 10-34 452 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Propriety of the reduction in the rating assigned to chondromalacia, left knee, status post anterior cruciate ligament and meniscus repair, with degenerative joint disease, from 30 percent to 10 percent, effective July 1, 2010. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Pflugner, Counsel INTRODUCTION The Veteran served on active duty from January 1984 to February 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office in Hartford, Connecticut (RO). The issue of entitlement to a rating in excess of 30 percent for chondromalacia, left knee, status post anterior cruciate ligament and meniscus repair, with degenerative joint disease, has been raised by the record, but has not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over the claim, and it is referred to the RO for appropriate action. FINDING OF FACT The April 2010 rating decision, which reduced the rating for the Veteran's chondromalacia, left knee, status post anterior cruciate ligament and meniscus repair, with degenerative joint disease, from 30 percent to 10 percent, failed to comply with pertinent law and regulations by not assessing how the Veteran's condition had improved and whether it was reasonably certain that such improvement would be maintained under ordinary conditions of life. CONCLUSION OF LAW The April 2010 rating decision that reduced the disability rating for chondromalacia, left knee, status post anterior cruciate ligament and meniscus repair, with degenerative joint disease, to 10 percent effective July 1, 2010, was improper and is void ab initio. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.105, 3.344 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board grants restoration of the 30 percent disability rating for the Veteran's service-connected chondromalacia, left knee, status post anterior cruciate ligament and meniscus repair, with degenerative joint disease, which represents a complete grant of the benefit sought on appeal. Thus, no discussion of VA's duty to notify and assist is necessary. In a December 2009 rating decision, the RO proposed to reduce the disability rating for the Veteran's service-connected chondromalacia, left knee, status post anterior cruciate ligament and meniscus repair, with degenerative joint disease, to 10 percent based on rating decisions dated in June 2008, March 2009, and December 2009. In an April 2010 rating decision, the RO reduced the disability rating assigned to the Veteran's chondromalacia, left knee, status post anterior cruciate ligament and meniscus repair, with degenerative joint disease, from 30 percent to 10 percent, effective July 1, 2010. The Veteran contends that his service-connected chondromalacia, left knee, status post anterior cruciate ligament and meniscus repair, with degenerative joint disease, did not improve to warrant the reduction in rating. Indeed, in February 2008, the Veteran submitted a claim of entitlement to a rating in excess of 30 percent for his service-connected chondromalacia, left knee, status post anterior cruciate ligament and meniscus repair, with degenerative joint disease. Pursuant to this claim, the Veteran asserted that a higher rated was warranted because of increased pain, loss of motion, and a 15-degree angulation at the knee, in addition to arthritis. Generally, 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; see also Greyzck v. West, 12 Vet. App. 288, 292 (1999) (providing, inter alia, that a disability rating may not be reduced based on only one medical examination unless the evidence of records warrants the conclusion that sustained improvement has been demonstrated). Procedurally, where a reduction in an 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 must be prepared setting forth all material facts and reasons. 38 C.F.R. § 3.105(e). In addition, the RO 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. If no additional evidence is received within the 60-day period and no hearing is requested, 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 Veteran expires. 38 C.F.R. § 3.105(e). VA's General Counsel has held that the provisions of 38 C.F.R. § 3.105(e) do not apply where there is no reduction in the amount of compensation payable. See VAOPGCPREC 71-91 (Nov. 1991); see also VAOPGCPREC 29-97 (Aug. 1997). It reasoned that this regulation is only applicable where there is both a reduction in evaluation and a reduction or discontinuance of compensation payable. In the present case, the April 2010 rating reduction caused the Veteran's combined disability rating to be reduced from 60 percent to 50 percent, which, in turn, reduced the Veteran's monthly rate of compensation. See RO's April 2010 letter to Veteran regarding reduction in evaluation and compensation. The provisions of 38 C.F.R. § 3.105(e) are therefore applicable in this case. As for compliance with 38 C.F.R. § 3.105(e), the reduction was effective July 1, 2010, more than 60 days after issuance of the proposed rating reduction in December 2009. Thus, the provisions of 38 C.F.R. § 3.105(e) were met. With regards the propriety of the rating reduction, VA regulations provide that with respect to ratings that have continued for long periods at the same level (5 years or more), it is necessary to ascertain, based upon a review of the entire recorded history of the condition, whether the evidence reflects an actual change in disability and whether examination reports reflecting change are based upon thorough examinations. 38 C.F.R. § 3.344(a). In addition, it must be determined that an improvement in a disability has actually occurred and that such improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. Id. These provisions also prohibit a reduction on the basis of a single examination. Id. A finding of "sustained material improvement" must be supported with a comparison of the previous and current physical or mental condition. Moreover, although material improvement in the physical or mental condition may be clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. Hohol v. Derwinski, 2 Vet. Ap. 169, 172 (1992). The 30 percent rating assigned to the Veteran's chondromalacia, left knee, status post anterior cruciate ligament and meniscus repair, with degenerative joint disease, was granted effective August 31, 2001. Consequently, the Veteran's 30 percent disability rating falls under the special provisions as it was in effect for greater than five years. See Brown v. Brown, 5 Vet. App. 413, 418 (1995) (providing, inter alia, that if a reduction actually takes effect after a rating has been in effect for five years, then it is a reduction of a rating which has continued for five years or more and is hence subject to the requirements of 38 C.F.R. § 3.344(a)). 38 C.F.R. § 3.344 (a) provides that before a stabilized rating can be reduced, the entire record of examinations and the medical-industrial history must be reviewed to ascertain whether the examinations upon which the reduction is based are full and complete; and that examinations less full and complete than those on which payments were authorized or continued cannot be used as a basis of reduction. Further, ratings on account of diseases subject to temporary and episodic improvement will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Id. Additionally, although material improvement in the physical or mental condition is clearly reflected, the evidence must make it reasonably certain that the improvement will be maintained under the ordinary conditions of life. Id. After considering all the evidence, the Board finds that the four requirements set forth above have not been met. In this respect, the December 2009 proposed reduction rating decision and the April 2010 final reduction rating decision reflect no suggestion of any consideration of 38 C.F.R. § 3.344(a) whatsoever. Further, 38 C.F.R. § 3.344(a) was not cited or applied in the July 2010 statement of the case. Additionally, the RO's decision to reduce was not in accordance with law because it did not make a finding of "material improvement," much less that it was reasonably certain that the improvement would be maintained under the ordinary conditions of life. Moreover, there was no specific finding that the Veteran's left knee disability exhibited "sustained improvement." Id. In the April 2010 rating decision, the RO determined only that the Veteran's left knee disability underwent "some" improvement. In making this determination, the RO appears to have based the reduction of the rating for the Veteran's service-connected chondromalacia, left knee, status post anterior cruciate ligament and meniscus repair, with degenerative joint disease, upon the findings contained in June 2008, March 2009, and December 2009 rating decisions, rather than a review of the evidence of record in its entirety. The RO did not cite to any specific VA examination report or treatment report in support of its conclusion that a reduction was warranted. Significantly, the Board finds that evidence of record included a May 2008 VA treatment report that demonstrated that the Veteran may eventually require total left knee arthroplasty should his arthritis progress. Further, pursuant to the Veteran's February 2008 increased rating claim, he underwent a VA examination in May 2008. Ultimately, the examiner concluded that the Veteran's service-connected left knee disability resulted in moderate to severe functional impairment. Moreover, VA treatment reports dated in August 2008 and February 2009 demonstrated that the Veteran complained of increased pain and swelling, and stated that he needed time away from work as a property manager to recuperate. None of this evidence, nor the other relevant evidence of record, was considered by the RO in the April 2010 rating decision. Consequently, the April 2010 rating decision that reduced the rating for the Veteran's chondromalacia, left knee, status post anterior cruciate ligament and meniscus repair, with degenerative joint disease, to 10 percent, effective July 1, 2010, is void ab initio because the provisions of 38 C.F.R. § 3.344 were not met. Schafrath v. Derwinski, 1 Vet. App. 589, 594-96 (1991) (where a rating decision was made without observance of law in a rating reduction case, the erroneous reduction must be vacated and the prior rating restored). As the April 2010 reduction of the disability rating is void ab initio, no further discussion is warranted as to whether the reduction was proper based on the evidence of record. ORDER The 30 percent rating for chondromalacia, left knee, status post anterior cruciate ligament and meniscus repair, with degenerative joint disease, is restored, effective the date of the reduction, and the appeal is granted. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs