Citation Nr: 1324218 Decision Date: 07/30/13 Archive Date: 08/07/13 DOCKET NO. 09-42 994 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Whether a reduction from 50 percent to 10 percent, effective July 1, 2009, for left knee degenerative joint disease was proper. 2. Entitlement to an evaluation in excess of 50 percent for left knee degenerative joint disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran served on active duty from August 1985 to August 1989. This matter comes before the Board of Veterans' Appeals (Board) from rating actions of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In an April 2009 decision, the RO reduced a schedular rating for left knee degenerative joint disease from 50 percent to 10 percent, effective July 1, 2009. The Veteran appealed for restoration of the former rating and also for higher schedular ratings for left knee degenerative joint disease. A March 2011 RO rating decision granted service connection for left knee instability and assigned a 10 percent rating effective January 25, 2010. An April 2011 rating decision granted a 20 percent rating for left knee instability from August 22, 2006, to January 24, 2010. The Veteran has not expressed disagreement with either decision. Because left knee instability is a disability separate and distinct from limited range of motion of the left knee, and because a notice of disagreement with the left knee instability ratings or their effective dates has not been submitted, the Board lacks jurisdiction to address the left knee instability ratings or their effective dates. 38 U.S.C. § 7105(a) (Appellate review will be initiated by a notice of disagreement.). In February 2012, the Board denied an appeal for restoration of a 50 percent schedular rating for left knee degenerative joint disease effective July 1, 2009. In a February 2013 memorandum decision, however, the United States Court of Appeals for Veterans Claims (hereinafter: the Court) reversed the Board's decision and remanded the case for restoration of a 50 percent rating effective on the date of the reduction. In the decision below, the Board will implement the Court's memorandum decision. Entitlement to an evaluation in excess of 50 percent for left knee degenerative joint disease is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The evidence of record does not reflect an improvement in the Veteran's ability to function under the ordinary conditions of life and work during the appeal period. CONCLUSION OF LAW The criteria for reduction of a schedular rating for left knee degenerative joint disease are not met and the reduction from 50 percent to 10 percent for left knee degenerative joint disease was improper. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.344, 4.71a, Diagnostic Code 5010-5261 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As set forth at 38 U.S.C.A. §§ 5100, 5103A, 5107, 5126 (West 2002); 38 U.S.C.A. §§ 5102, 5103 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), VA must notify claimants of certain procedural aspects of their claims and must assist claimants in obtaining evidence that might substantiate their claims. Because the Board is granting the benefits sought by the claimant, any error (if committed) with respect to VA's duty to notify or assist does not result in unfair prejudice to the claimant and need not be discussed. As noted in the Introduction, the Court found a reduction of a 50 percent schedular rating for left knee degenerative joint disease to have been improper. The Court then remanded the case, "...to the Board to reinstate the appellant's prior 50% disability rating for left knee DJD, effective the date of the reduction." No additional discussion or analysis is necessary. The Board hereby grants the appeal for restoration of a prior 50 percent rating for left knee degenerative joint disease. That matter is considered resolved. ORDER Restoration of a 50 percent schedular rating for left knee degenerative joint disease is granted, subject to the laws and regulations governing the payment of monetary awards. REMAND Because a prior 50 percent rating for left knee degenerative joint disease has been restored above, the evidence necessary for a grant of an increased schedular rating has changed. To allow the Veteran and his representative an opportunity to submit any additional argument and evidence for a schedular rating greater than 50 percent, the appeal for an increased schedular rating for left knee degenerative joint disease should be re-adjudicated by the RO prior to Board adjudication. If the benefit sought is not granted, an appropriate supplemental statement of the case (SSOC) should be issued. Accordingly, the case is REMANDED for the following action: 1. The AMC must review the claims files and ensure that all notice obligations have been satisfied with respect to the left knee claim. The AMC should notify the Veteran that he may submit any argument or evidence on the matter. If he identifies the source of any other evidence, VA will assist in obtaining that evidence. The Veteran may be re-examined for this purpose if necessary. 2. After the development requested above has been completed to the extent possible, the AMC should re-adjudicate the claim for a higher schedular rating for left knee degenerative joint disease. If the benefit sought remains denied, the Veteran and his representative should be furnished an SSOC and given an opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. No action by the Veteran is required until he receives further notice; however, the Veteran is advised that failure to report for examination, without good cause (if an examination is scheduled), may have adverse consequences on his claims. 38 C.F.R. § 3.655 (2012). The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court, for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs