Citation Nr: 1326281	
Decision Date: 08/19/13    Archive Date: 08/26/13

DOCKET NO.  11-13 356	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to restoration of a 10 percent rating for right knee limited extension.

2.  Entitlement to restoration of a 30 percent rating for right knee anterior cruciate ligament repair with nondisabling surgical scars.


REPRESENTATION

Veteran represented by:	Vietnam Veterans of America


ATTORNEY FOR THE BOARD

J. Hager, Counsel




INTRODUCTION

The Veteran served on active duty from January 2002 to July 2002.

These matters come before the Board of Veterans' Appeals (Board) from April and June 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  In those decisions, the RO reduced the rating for the Veteran's right knee limited extension from 10 to 0 percent and the rating for the right knee anterior cruciate ligament repair from 30 to 10 percent.


FINDINGS OF FACT

1.  The Veteran's right knee ratings were in effect for more than 5 years when they were proposed to be reduced.

2.  An examination less full and complete than those on which payments were authorized was used as a basis of each reduction.


CONCLUSIONS OF LAW

1.  The criteria for restoration of a 10 percent rating for right knee limited extension have been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.344(a), 4.71a, Diagnostic Code 5010-5261 (2012).

2.  The criteria for restoration of a 30 percent rating for right knee anterior cruciate ligament repair with nondisabling surgical scars have been met.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.344(a), 4.71a, Diagnostic Code 5257 (2012).





REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

There is no question that a disability rating may be reduced.  The circumstances under which rating reductions can occur are, however, specifically limited and carefully circumscribed by VA regulations.  Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992).  In an October 2002 rating decision, the RO granted service connection for right knee limited extension and assigned a rating of 10 percent under Diagnostic Code 5010-5261, effective August 1, 2002.  The RO also granted service connection for laxity, right knee status post anterior cruciate ligament tear and assigned a 30 percent rating, also effective August 1, 2002.  In a February 2010 rating decision, the RO proposed to reduce these ratings.  Such action occurred in April and June 2010 rating decisions.  Accordingly, these evaluations were in effect for more than five years.  

For ratings in effect for more than five years there are multiple restrictions that apply. 38 C.F.R. § 3.344(a).  For example, examinations less full and complete than those on which payments were authorized or continued may not be used as a basis of reduction.  The payments for the Veteran's right knee disabilities were initially authorized based on a June 2002 VA general examination.  The reduction was based in part on a January 2010 VA examination.

The Board finds that 2010 VA examination was less full and complete than the June 2002 VA examination.  First, the January 2010 VA examiner indicated that the claims file was not present.  See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009) (finding that VA failed to fulfill its duty to assist in not obtaining service treatment records in a case involving a claim for an increased rating because these records were relevant).  The June 2002 VA examiner indicated that he reviewed the service treatment records, which reflect that he reviewed the claims file.  Second, the factual findings on the January 2010 VA examination are less extensive than those on the June 2002 VA examination.  The Board thus finds that the reduction was based on an examination less full and complete than the one on which payments were authorized.  Restoration of the 10 and 30 percent ratings for right knee limited extension and right knee anterior cruciate ligament repair with nondisabling surgical scars is, therefore, warranted.  

With respect to this claim, because it is granted in full, VA's duties to notify and assist are deemed fully satisfied and there is no prejudice to the Veteran in proceeding to decide the issue on appeal.  See 38 U.S.C.A. §§ 5103, 5103A, 5107(West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2012).  This includes not remanding for RO consideration of new evidence the Veteran submitted in June 2013.  This is a full grant of the benefits on appeal because the Veteran has not asserted at any point, entitlement to increased evaluations.  In each of his submissions, he requested restoration of the prior knee ratings.  As the Board is granting the benefits sought, it need not address the other arguments of the Veteran's representative or any procedural, notification, or assistance requirements.  


ORDER

Entitlement to restoration of a 10 percent rating for right knee limited extension is granted.

Entitlement to restoration of a 30 percent rating for right knee anterior cruciate ligament repair with nondisabling surgical scars is granted.



____________________________________________
K. MILLIKAN
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs