Citation Nr: 1322566 Decision Date: 07/16/13 Archive Date: 07/24/13 DOCKET NO. 09-21 388 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Whether a reduction from 20 percent to 10 percent effective from August 1, 2008, for chondromalacia with quadriceps atrophy of the left knee was proper. 2. Whether a reduction from 20 percent to 10 percent effective from August 1, 2008, for chondromalacia with quadriceps atrophy of the right knee was proper. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran served on active duty from June 1981 to February 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affair (VA) Regional Office (RO) in Winston-Salem, North Carolina. That decision reduced the Veteran's disability evaluations for chondromalacia with quadriceps atrophy of the left and right knee each from 20 percent to 10 percent effective from August 1, 2008. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The issues of entitlement to an increased rating for the service-connected chondromalacia with quadriceps atrophy of the left and right knees have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The May 2007 VA examination report upon which the rating reductions to 10 percent were based was not as complete as complete as the examination report upon which the 20 percent rating was established. 2. There is insufficient evidence to show that the Veteran's chondromalacia with quadriceps atrophy of the right and left knees has improved or that any perceived improvement will be sustained under ordinary conditions of daily life. CONCLUSIONS OF LAW 1. The criteria to reduce the disability evaluation for service-connected chondromalacia with quadriceps atrophy of the left knee from 20 percent to 10 percent have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.2 (2011); Kitchens v. Brown, 7 Vet. App. 320 (1995). 2. The criteria to reduce the disability evaluation for service-connected chondromalacia with quadriceps atrophy of the right knee from 20 percent to 10 percent have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.2 (2011); Kitchens v. Brown, 7 Vet. App. 320 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and, (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In rating reduction cases, which arise from action initiated by the RO as opposed to the veteran, there are particular notification and assistance procedures that VA must perform. 38 C.F.R. § 3.105(e), (i). However, in the decision below, the Board has restored the Veteran's separate 20 percent disability evaluations for his right and left knee chondromalacia with quadriceps atrophy. Accordingly, regardless of whether VA successfully met its notification and assistance obligations, no harm or prejudice to the appellant has resulted. See, e.g., Mayfield v. Nicholson, 19 Vet. App. 103, 115 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. Law and Analysis Rating of a disability is rendered upon the application of a schedule of ratings, which is predicated upon the average impairment of earning capacity. See 38 U.S.C.A. § 1155; 38 C.F.R. § 3.321(a) and 4.1. Separate diagnostic codes identify various disabilities. See 38 C.F.R. Part 4. The degree of impairment resulting from a disability involves a factual determination of the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55 (1994); Solomon v. Brown, 6 Vet. App. 396 (1994). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Before an evaluation for a service-connected disability may be reduced or discontinued, the procedural requirements of 38 C.F.R. § 3.105(e) must be satisfied. Specifically, 38 C.F.R. § 3.105(e) provides that a rating proposing the reduction or discontinuance must be prepared, setting forth all material facts and reasons for the action. Additionally, the RO must advise the appellant of the proposed rating or discontinuance and afford 60 days in which to present additional evidence showing that compensation should be continued at the present evaluation level. If such additional evidence is not received within the 60-day period, the RO is to take final rating action and the award is to be reduced or discontinued as set forth in the proposal. 38 C.F.R. § 3.105(e). When a rating has been in effect for at least five years, 38 C.F.R. § 3.344 requires that the RO and the Board ensure that a rating reduction be based on an examination that is as complete as the examinations that formed the basis for the original rating and that the condition not be likely to return to its previous level. 38 C.F.R. § 3.344(a), (b), (c); Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). A reduction may be accomplished when the rating agency determines that evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). However, where a rating has been in effect for less than five years, the regulatory requirements under 38 C.F.R. § 3.344(a) and (b) are inapplicable, as set forth in 38 C.F.R. § 3.344(c). In such cases 38 C.F.R. § 3.344(c) states that reexamination disclosing improvement will warrant reduction in rating. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth at 38 U.S.C. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). In this case, the RO issued a supplemental statement of the case in August 2000 and increased the separate evaluations for the Veteran's right and left knee chondromalacia with maltrackng to 20 percent each effective from February 29, 1992. The decision was based primarily on the findings of a March 2000 VA examination. The Board notes that the RO also granted separate 20 percent evaluations for instability of the right and left knees in the August 2000 rating decision. However, those evaluations have remained in effect, and thus, they are not currently before the Board at this time. In April 2001, the Board issued a decision denying an evaluation in excess of 20 percent for both right and left knee chondromalacia. The Veteran later submitted a claim for an increased evaluation in January 2006. In an April 2006 rating decision, the RO continued the 20 percent ratings assigned for the chondromalacia with quadriceps atrophy of the left and right knee pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5260. The continued 20 percent ratings were based primarily on a February 2006 VA examination. The Veteran subsequently submitted a claim for a total evaluation based upon individual unemployability due to service-connected disabilities, and the Veteran was afforded a VA examination in May 2007. In an August 2007 rating decision and letter, the RO proposed to reduce the Veteran's ratings for the chondromalacia with quadriceps atrophy of the left and right knee both from 20 percent to 0 percent based primarily on the May 2007 VA examination. The RO provided the Veteran 60 days to respond to the notice of the rating reduction. In October 2007, the Veteran responded to the proposed reduction and submitted an August 2007 private treatment record documenting continued treatment for "rather significant chondromalacia causing him significant pain leading to atrophy and weakness as well as instability." In May 2008, the RO implemented the rating reduction from 20 percent to 10 percent for the chondromalacia with quadriceps atrophy of the left and right knee effective from August 1, 2008. The procedural requirements regarding proper notification of the proposed rating reductions from 20 percent to 10 percent for the Veteran's left and right knee disabilities were satisfied by the letter sent to him in August 2007. This correspondence referred to the accompanying August 2007 rating decision that detailed the material facts and reasoning behind the proposed rating reduction. The letter also apprised the Veteran that he had 60 days to submit additional evidence demonstrating that his current disability evaluation should be maintained. He was further advised that he could request a personal hearing. See 38 C.F.R. § 3.105(e). Because the Veteran's 20 percent ratings for chondromalacia with quadriceps atrophy of the left and right knees were in effect for greater than five years, the provisions of 38 C.F.R. § 3.344 require that the RO and the Board ensure that the rating reduction be based on an examination that is as complete as the examination that formed the basis for the original rating and that the condition not be likely to return to its previous level. 38 C.F.R. § 3.344(a), (b), (c); Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). Further, the RO and the Board must ensure that evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). After review, the Board finds that the May 2007 VA examination report upon which the rating reductions to 10 percent were based was not as complete as the March 2000 VA examination report upon which the 20 percent rating was established. In this regard, the Board notes that the March 2000 VA examiner reviewed the claims file and discussed pertinent medical records, whereas the May 2007 VA examiner did not indicate that he had reviewed the claims file and did not reference any medical records. Moreover, the March 2000 VA examiner provided more findings than were addressed by the May 2007 VA examiner. For example, the March 200 VA examiner discussed whether there was dislocated or symptomatic removal of semilunar cartilage and whether there was any evidence of genu recurvatum or impairment of the tibia and fibula. The May 2007 VA examiner did not report whether there was any such manifestations. Moreover, there is no medical or adjudicative determination as to whether the perceived improvement in the Veteran's chondromalacia with quadriceps atrophy of the left and right knees is reasonably certain to be maintained under the ordinary conditions of life, so that the requirements for rating reduction set forth at 38 C.F.R. § 3.344(a) are not met. Rather, there is medical evidence that suggests that the perceived improvement is not sustainable and in fact may have increased. In this regard, the May 2007 VA examination report indicates that the left knee disability had progressed to left knee degenerative joint disease with pain, fatigue, weakness, and lack of endurance resulting in major functional impact. The diagnosis for the right knee had also changed to postoperative chondromalacia with quadriceps atrophy of the right knee with residual scar, as well as pain, fatigue, weakness, and lack of endurance having a major functional impact. There is simply no demonstration that the perceived improvement is reasonably certain to be maintained under the ordinary conditions of life. In this regard, the Board notes that the Veteran's complaints have been consistent and that his knee disabilities have been productive of weakness, stiffness when driving, swelling when driving, giving way while walking or standing (lack of endurance), locking, fatigability, and constant pain. Additionally, in the August 2007 private treatment record, the Veteran's physician concluded that he suffered from "rather significant chondromalacia causing him significant pain leading to atrophy and weakness as well as instability." Thus, the Board must conclude that there is nothing in the record to establish that it is reasonably certain that the perceived improvement in the Veteran's left and right knees will be maintained under ordinary conditions of daily life. Rather, it would seem any improvement is intermittent with intervening episodes of worsening. The Board can find no medical statement or rationale as to whether his condition has improved and whether such improvement will be maintained under ordinary conditions of life. In consideration of the foregoing, the Board finds that the criteria for rating reductions are not met and that the reductions were not in accordance with applicable VA regulations. See 38 C.F.R. § 3.344(a), (b), (c); Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). Accordingly, restoration of the separate 20 percent ratings for chondromalacia with quadriceps atrophy of the left and right knees is warranted. Kitchens v. Brown, 7 Vet. App. at 325. ORDER Restoration of a 20 percent rating for chondromalacia with quadriceps atrophy of the left knee is granted. Restoration of a 20 percent rating for chondromalacia with quadriceps atrophy of the right knee is granted. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs