Citation Nr: 1331071 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 09-10 940 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for bilateral flat feet. 2. Whether reduction of the disability rating for right chondromalacia patella from 30 percent to a noncompensable disability rating, effective from July 1, 2008, was proper. 3. Whether reduction of the disability rating for left chondromalacia patella from 20 percent to a noncompensable disability rating, effective from July 1, 2008, was proper. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from August 1982 through August 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan in April 2008 and in March 2009. In the April 2008 rating decision, the RO effectuated reductions of disability ratings assigned for service-connected chondromalacia patella of the right and left knees, from 30 percent to a noncompensable rating and from 20 percent to a noncompensable rating respectively, effective from July 1, 2008. A responsive and timely Notice of Disagreement (NOD) contesting the effectuated reductions was received from the Veteran in April 2008. After a Statement of the Case (SOC) addressing those issues was mailed in December 2008, the Veteran perfected his appeal as to those issues in March 2009, via VA Form 9 substantive appeal. The Board notes that the Veteran's substantive appeal expressly narrows the scope of his appeal to the issues relating to the propriety of the reductions effectuated for his bilateral chondromalacia patella disabilities. In the March 2009 rating decision, the RO apparently reopened a prior claim for service connection for bilateral flat foot disabilities, but denied service connection. A timely NOD as to that issue was received from the Veteran later that month. After an SOC addressing that issue was mailed in August 2009, the Veteran perfected his appeal relating to service connection for flat feet in September 2009, via VA Form 9 substantive appeal. In July 2012, the Board determined that new and material evidence was received to reopen the Veteran's claim for service connection for bilateral flat foot disabilities and remanded the service connection claim for further development. The Board also determined that the RO properly reduced the disability ratings assigned for the Veteran's bilateral chondromalacia patella disabilities. Subsequently, the Veteran appealed the Board's decision relating to the propriety of those reductions to the United States Court of Appeals or Veterans Claims (Court). In March 2013, counsel for the Veteran and for the VA Secretary filed a Joint Motion for Partial Remand in which they asserted that the Board's July 2012 decision was inadequate because it did not provide an adequate statement of reasons and bases for its conclusions. In that regard, the parties noted in sum that the Board failed to fully discuss its application of the provisions under 38 C.F.R. § 3.344 in this case. The parties' motion was granted by the Court. Thus, the issues of the propriety of the effectuated ratings reductions for the bilateral chondromalacia patella disabilities is remanded to the Board for further action consistent with the parties' motion. The Board also notes that the directed development action in relation to the Veteran's claim for service connection for bilateral flat feet has been performed. The Board is also prepared to proceed with its de novo consideration of that issue. This appeal also initially included the issues of the propriety of effectuated reductions of the disability ratings assigned for bilateral knee degenerative arthritis; left shoulder bursitis with rotator cuff tenderness and degenerative arthritis; and right ankle inversion sprain with degenerative arthritis, as well as entitlement to a higher disability rating for sinusitis with cephalgia. However, the Veteran has not perfected his appeal as to the aforementioned reduction issues by filing a substantive appeal. Accordingly, those issues do not remain before the Board on appeal. Also, the issue of entitlement to a higher disability rating for sinusitis with cephalgia was denied by the Board in its July 2012 decision and remand. As that issue has been fully adjudicated and the Board's adjudication of that issue is undisturbed by the parties' JMR, that issue also is no longer on appeal. The issue of entitlement to service connection for gastroesophageal reflux disease, claimed as secondary to low back, left shoulder, and bilateral knee disabilities, has 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 it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran had pre-service bilateral flat feet that were noted on his enlistment examination report. 2. The Veteran's bilateral flat feet have been shown as having been aggravated beyond its natural progression by his active duty service, and is currently manifested by bilateral plantar fasciitis disabilities and a calcaneal spur on the left heel. 3. A September 2005 rating decision granted service connection for chondromalacia patella of both knees and assigned initial disability ratings of 30 percent for the right knee and 20 percent for the left knee, effective May 13, 2003. 4. An October 2007 rating action proposed reductions of the chondromalacia patella ratings for both knees, and the Veteran was notified in October 2007 of the proposed reduction from 30 percent to a noncompensable rating for the right knee, and from 20 percent to a noncompensable rating for the left knee. 5. An April 2008 rating decision effectuated the proposed reductions for chondromalacia patella in the right knee from 30 percent to a noncompensable rating and in the left knee from 20 percent to a noncompensable rating. 6. The RO complied with the procedural requirements under 38 C.F.R. § 3.105(e) for effectuating rating reductions. 7. The 30 percent and 20 percent disabilities ratings for right and left knee chondromalacia patella respectively have been in effect for more than five years. 8. The provisions of 38 C.F.R. § 3.344 were not considered and applied, and the clinical evidence of record at the time of the April 2008 rating decision effectuating the reductions fails to demonstrate sustained material improvement in the Veteran's chondromalacia patella disabilities under the ordinary conditions of life. 9. The April 2008 rating decision reducing the disability ratings for right and left knee chondromalacia patella was not in accordance with the law and is thus void ab initio. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral flat feet have been met. 38 U.S.C.A. §§ 1131, 1153, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.306 (2012). 2. The criteria for the restoration of a 30 percent disability rating for the Veteran's right knee chondromalacia patella have been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.105, 3.159, 3.344 (2012). 3. The criteria for the restoration of a 20 percent disability rating for the Veteran's left knee chondromalacia patella have been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.105, 3.159, 3.344 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has considered whether VA has fulfilled its notification and assistance requirements under 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 and 38 C.F.R. § 3.159. Nevertheless, given the favorable action taken below as to the issues remaining on appeal, no further notification or assistance in developing the facts pertinent to these limited matters is required at this time. Indeed, any such action would result only in delay. I. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b). In support of his claim for service connection for bilateral pes planus, the Veteran argued in his March 2009 NOD that he had bilateral flat feet at the time of his enlistment into service and that his enlistment was nearly denied due to the severity of his flat feet. He alleged further that he experienced pain symptoms in both feet during his service. These allegations are supported by a September 2008 statement from his spouse, who recalled that the Veteran began complaining to her of problems in his feet during basic training. She also recalled that after being married after completion of basic training, the Veteran continued to complain on a daily basis of pain in his feet. She stated further that the Veteran attempted to treat his symptoms during service on his own by wearing over-the-counter orthotic supports. She stated that the Veteran continues to experience foot pain to this day. The Veteran's service treatment records include a March 1982 enlistment examination report which notes that the Veteran had a bilateral pes valgus disorder that pre-existed his active duty service. There is no indication in the service treatment records that the Veteran ever received treatment for any foot problems during service. Post-service treatment records include private records from Grand Valley Health, dated from December 1985 through January 2004. These records show that the Veteran began receiving medical treatment for left heel pain in September 1999. X-rays performed at that time revealed a calcaneal spur in the left heel. In January 2004, the Veteran complained of ongoing bilateral foot pain that had reportedly been present "for a number of years." X-rays of the feet taken at that time continued to reveal a large plantar calcaneal spur in the left foot. During a March 2005 VA examination, which was performed in conjunction with a review of the claims file, the Veteran reported again that he had problems in his heels during service, and elaborated that his foot problems were particularly noticeable while going on road marches while wearing a heavy rucksack. During the examination, the examiner noted that the Veteran complained of immediate pain upon heel strike while walking. The Veteran was unable to stand in one position, apparently due to foot pain. In that regard, the Veteran reported that he was able to stand for up to 40 to 45 minutes and walk for distances of up to 500 yards. He stated that he was unable to run, jump, or participate in contact sports. During the physical examination, the Veteran demonstrated an altered gait which favored his right side. The examiner noted loss of the medial arches of both feet during weightbearing. The Veteran was able to walk on his toes but was hesitant to walk on his heels. Tenderness was elicited over the fascia and central calcaneal area of the left foot. Swelling was also observed over the fascia. The examiner diagnosed pes planus that most likely contributed to current bilateral plantar fasciitis, calcaneal spurs, and degenerative changes in the toes of both feet with he opined were at least as likely as not secondary to biomechanical favoritism during service. The examiner opined further that the Veteran's plantar fasciitis and calcaneal spurs are most likely secondary to pes planus valgus by aggravation of in-service activity and by ongoing activity as well. Although the examiner acknowledged that he was unable to "divide out how much service activity and how much activity since his service have contributed to [these conditions]." The examiner insisted nonetheless, that proximation between the Veteran's current foot conditions and active duty service was present. Subsequent VA treatment records, dated from August 2005 through September 2008, show that the Veteran was followed for ongoing bilateral foot pain and ongoing diagnoses of plantar fasciitis and calcaneal spurs. In a September 2008 letter, the Veteran's treating VA physician related, based upon the Veteran's subjectively reported history, that the Veteran had ongoing problems with plantar fasciitis throughout the duration of his military service and that he was issued army boots which did not provide any arch support. He stated further, also based on the Veteran's reported history, that the Veteran's feet "ached constantly" during service and that he was required to run during physical training three times per week after his basic training. The physician opined that this in-service activity likely contributed to cause the Veteran's current plantar fasciitis and heel spur. Thus, the physician concluded, the Veteran's plantar fasciitis and heel spur are related to his active duty service. The favorable March 2005 and September 2008 opinions are rebutted by opinions expressed in an August 2012 VA examination report. In that report, the VA examiner noted that the Veteran denied having any heel pain at the time of his separation from service and that his heel pain developed over time. On review of the claims file, the examiner noted, consistent with the Board's own review, that the Veteran first reported left heel pain in September 1999 and that a left heel spur was first noted at that time. Occupationally, the Veteran reported that he was working as a medical technician at the VA Medical Center in Grand Rapids, Michigan. According to the Veteran, his feet hurt all the time and he was required to stand and walk frequently in his job. A physical examination of the feet confirmed decreased arches in both feet with objective evidence of pronation. Inward bowing of the left Achilles tendon was also noted, as well as hammertoes of the second toes of both feet and tenderness over the bilateral arches. Overall, the examiner opined that the Veteran's pre-existing pes planus disability was less likely than not aggravated beyond the natural progress of the disease as a result of his active duty service. In support of this conclusion, the examiner noted that there is no evidence of subjectively reported or objectively noted foot complaints until 1999. Further, the examiner noted, pes planus typically worsens with age and plantar spurs and fasciitis are extremely common conditions. Thus, the examiner stated, there is nothing in the record in this case to suggest that the Veteran's active duty service, in which he served as a lab technician, contributed to or aggravated his pes planus. In that regard, the examiner opined that the Veteran's duties during service did not entail heavy physical labor or entail daily marching. The examiner also opined that the September 2008 opinion provided by the Veteran's treating VA physician, Dr. D.C.K., was based solely upon the Veteran's reported history and without any objective evidence. Thus, the examiner appears to suggest that the September 2008 opinion is invalid. The examiner did not address the positive opinion provided in the prior March 2005 VA examination. As discussed, the Veteran's foot condition was noted in his enlistment examination report, and as such, pre-existed his active duty service. A pre-existing disability or disease will be considered to have been aggravated by active service when there is an increase in disability during service, unless there is clear and unmistakable evidence (obvious and manifest) that the increase in disability is due to the natural progress of the disability or disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a), (b). Aggravation of a pre-existing condition may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); see also Falzone v. Brown, 8 Vet. App. 398, 402 (1995) (holding that the presumption of aggravation created by section 3.306 applies only if there is an increase in severity during service). In this case, the Veteran and his spouse credibly assert that the Veteran experienced increasing foot pain during his active duty service. In that regard, the Board acknowledges that the service treatment records do not reflect any in-service treatment for foot problems; however, the Board notes that the Veteran does not contend that he treated his feet during service, only that he treated his foot problems with over-the-counter remedies. As such, the absence of in-service treatment is not inconsistent with the lay assertions made by the Veteran and his spouse. Based on the foregoing, the Board finds that the evidence does show that the Veteran's pre-service pes valgus worsened during his active duty service. Post-service records show that the Veteran's bilateral foot condition has continued to worsen and is currently manifested by bilateral plantar fasciitis, left heel calcaneal spur, and arthritis of the toes. The evidence does not clearly and unmistakably show that the noted increase in the Veteran's bilateral foot disability is merely the result of natural progression. As noted above, opinions rendered in March 2005 and September 2008 both opine that the Veteran's foot disabilities are aggravated, or related to, his active duty service. Although the Board recognizes that the September 2008 opinion is based largely upon the Veteran's subjectively reported history, such history appears to be credibly reported and is essentially consistent with earlier lay assertions made by the Veteran and his spouse. Similarly, the March 2005 VA examiner's findings and conclusions are based upon an accurate review of the claims file, medical history credibly reported by the Veteran, and reported objective findings from the examination. Although these findings and conclusions are rebutted by the August 2012 VA examiner's contrary negative opinion, the August 2012 report does not provide any basis or rationale as to why the findings and opinions expressed in the March 2005 report might be inaccurate or unreliable. The Board recognizes that the March 2005 examiner acknowledged that he was unable to separate the extent that the Veteran's in-service activity contributed to his current condition from the extent that his post-service activity contributed to his current condition. Nonetheless, the Board notes that, for purposes of determining whether there was in-service aggravation of the Veteran's pre-existing foot condition, the examiner is not required to form such a conclusion. Rather, the VA examiner's insistence that there is proximation between the Veteran's current foot conditions and active duty service is sufficient. Overall, the Board finds that the March 2005 and September 2008 opinions are due full probative weight. In contrast, the August 2012 VA examiner's opinion appears to be based largely upon the examiner's perception that the Veteran performed his in-service duties in a laboratory and did not engage in any heavy physical labor or daily marching. The examiner's reliance on this assumption, however, underscores the deficiency that the examiner did not consider or discuss the credible lay assertions made by the Veteran and his spouse, which includes assertions that he began experiencing foot problems during basic training and that even after basic training the Veteran was required to participate in regular road marches. Moreover, the Veteran has related that his current job as a medical technician, which would appear to be similar in nature and duty to his in-service duties as a lab technician, require him to be frequently on his feet. Under the circumstances, the August 2012 VA examiner's opinion appears to be predicated on an unsubstantiated assumption that is contrary to the evidence in the record. Moreover, the Board notes that the August 2012 opinion is also based largely upon the gap in treatment records between the Veteran's 1985 separation from service and initial treatment for his feet in 1999. In that regard, the August 2012 VA examiner suggests that there is no evidence of subjectively reported or objectively noted foot complaints until 1999. Nonetheless, and as discussed above, both the Veteran and his spouse have credibly asserted that the Veteran has experienced ongoing foot pain since his active duty service. In the absence of any discussion of these assertions, the August 2012 opinion appears to be based on an incomplete understanding of the evidence. For the foregoing reasons, the August 2012 opinion carries far less probative weight than the favorable March 2005 and September 2008 opinions. As such, the evidence shows that the Veteran's pre-service pes valgus was aggravated by his active duty service. Accordingly, service connection for bilateral flat feet is granted. II. Disability Rating Reductions Initially, the Board notes that where the reduction in evaluation of a service-connected disability or employability status 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 and setting forth all material facts and reasons must be prepared. The appellant will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. The appellant is also to be informed that he or she may request a predetermination hearing, provided that the request is received by the VA within 30 days from the date of the notice. If additional evidence is not 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) (2012). In this case, an October 2007 letter provided the Veteran with appropriate notice of the proposed reduction of his chondromalacia patella ratings. During the ensuing 60 day period, the Veteran responded by providing medical evidence and a lay statement expressing his disagreement with the proposed reductions. He did not request a predetermination hearing. This evidence was considered by the RO before it issued the April 2008 rating decision which effectuated the proposed reductions, effective from July 1, 2008. Based upon these facts, the Board finds that the RO's reductions of the ratings for the Veteran's right and left knee chondromalacia patella were procedurally in accordance with the provisions of 38 C.F.R. § 3.105. As noted in the introduction, service connection for chondromalacia patella of both knees has been in effect since May 13, 2003. The 30 percent and 20 percent initial disability ratings assigned for his right and left knee respectively were undisturbed until the reductions at issue, which were effective from July 1, 2008. Accordingly, the initial disability ratings were in effect for a period of more than five years before they were reduced. See Brown v. Brown, 5 Vet. App. 413, 418 (1993) (noting that the duration of a rating must be measured from the effective date assigned that rating until the effective date of the actual reduction). Therefore, the requirements pertaining to reductions of ratings that have been in effect for at least five years are applicable in this case. 38 C.F.R. § 3.344(a), (b). Under 38 C.F.R. § 3.344(a), rating agencies will handle cases affected by change of medical findings or diagnosis so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. It is essential that the entire record of examinations and the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc., 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. Moreover, though material improvement in the physical or mental condition is 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. The provisions above apply to ratings which have continued for long periods at the same level (five years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Re-examinations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating. 38 C.F.R. § 3.344(c). Here, VA treatment records show that the Veteran complained of his knee giving out occasionally and pain in the morning. He stated that he was having difficulty biking and running due to his knee pain. X-rays taken in May 2007 revealed asymmetric degenerative changes in the knees. The Veteran underwent a VA examination of his knees in September 2007. During that examination, the Veteran reported constant pain in both knees, stiffness, swelling, giving way, locking up, fatigability, weakness, and instability. He also reported flare-ups after overuse, lifting, walking, and due to weather. According to the Veteran, these flare-ups lasted for periods ranging from five minutes to one hour and occurred several times a week. He stated that during flare-ups, he experienced increased pain and weakness which resulted in further loss of motion in his knees. Functionally, he reported that he was able to walk up to one quarter of a mile. He reported feelings of unsteadiness and occasional giving out or locking that caused him to stumble. He stated that he was able to stand for periods of 15 minutes to one hour, used a neoprene knee brace during flare-ups, and medicated with Tramodol, Diclofenac, and Motrin on a daily basis. Occupationally, the Veteran reported that he was employed as a medical technologist and stated that he experienced difficulty at work getting out of chairs, climbing stairs, bending to lift items from the floor, and standing. Recreationally, he reported difficulty driving, walking, climbing stairs, and getting in and out of chairs. During the physical examination, the Veteran demonstrated a slightly antalgic gait with shortened stance, secondary to left knee pain. He was able to squat and stand on his toes and heels, albeit with complaints of pain. The knees were normal color and were not warm; however, slight swelling was seen in the right knee. The patellae appeared to track normally, although mild crepitus was noted and the Veteran complained of pain. The patella over both knees was diffusely tender to palpation. Varus and valgus testing of the medial and lateral collateral ligaments did not show any laxity. Also, Lachman's testing of the anterior and posterior cruciate ligaments did not show any laxity. Demonstrated range of motion of the knees revealed full extension to zero degrees with pain reported from -10 degrees bilaterally, and flexion to 110 degrees with reported pain from 90 degrees bilaterally. Repetitive motion did not reveal any further changes in either knee. Overall, the examiner noted, the Veteran demonstrated mild pain during motion, but more pain on weightbearing or squatting. The examiner opined further that flare-ups after repetitive use were productive of a loss of 10 degrees of extension and flexion limited to 90 degrees due to pain. Ongoing diagnoses of chondromalacia patella with arthritis were confirmed for both knees. A November 2007 letter from the Veteran's treating VA physician, Dr. D.C.K., reflects the opinion that the Veteran's knee problems are non-reversible and worsened over the years. In that regard, Dr. D.C.K. noted that a comparison of x-rays taken in March 2003 and May 2007 indicated objective signs of worsening and narrowed patellofemoral spaces in both knees. Dr. D.C.K. also noted that the Veteran continued to experience exacerbations of his symptoms after walking and using stairs, and required knee braces. In his March 2009 substantive appeal, the Veteran reported ongoing problems with mobility and endurance in his knees, difficulty climbing stairs and getting out of chairs, giving out and locking in his knee, pain, stiffness, swelling, and weakness. A second VA examination of the Veteran's knees was performed in May 2009. At that time, the Veteran continued to report pain symptoms and stated that they had worsened since his prior September 2007 examination. In that regard he reported that he was having intermittent pain in his knees while sitting and constant pain while standing. He continued to report associated symptoms of instability, locking, giving way, weakness, stiffness, and swelling. He also reported ongoing flare-ups after bending, lifting, walking, weather, and overuse, marked by increased severity of pain. He stated that these flare-ups still caused additional moderate loss of motion due to pain. Functionally, the Veteran reported that his knee problems still affected his ability to stand and walk; elaborating that he remained able to walk distances of up to one quarter mile, but stated that he did not feel unsteady and did not fall. He reported that he was able to stand for periods of up to 15-30 minutes. Occupationally, the Veteran continued to report being employed as a medical technician and stated that he was experiencing ongoing impairment of his work duties due to difficulty with walking and standing. He also reported that he had increased absenteeism at work and required more frequent rest breaks. Recreationally, he reported ongoing difficulties with chores, driving, and shopping. During the examination, the Veteran demonstrated a normal gait and stance. He was able to rise onto his toes and tandem walk without difficulty; however, demonstrated ongoing pain and difficulty while rising onto his heels and rising from a shallow squat position. A physical examination of the knees revealed ongoing but improved loss of motion, in comparison to range of motion studies previously performed during the September 2007 examination. The knees remained normal in color, and this time, did not demonstrate any sign of swelling. The patella continued to track normally in both knees, and the Veteran did not report any pain or crepitus during movement. Palpation over the medial joint lines and lateral joint lines did not produce any complaints of tenderness. Varus, valgus, and Lachman's testing still did not reveal any laxity of the medial and lateral collateral ligaments or the anterior and posterior cruciate ligaments. Overall, the examiner opined that the Veteran demonstrated full flexion to zero degrees bilaterally, during flare-ups and after repetitive motion. He opined further that flare-ups and repetitive motion were productive of limited flexion to 120 degrees. In a July 2009 statement, the Veteran disputed the findings expressed in the March 2009 examination report. In that regard, he stated that he did feel crepitus when he moved his knees up and down. He continued to report ongoing problems rising out of chairs and climbing stairs; pain; weakness; lack of mobility which affects his daily activities; and ongoing giving out of his knees, especially while going down stairs. As discussed above, a veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. The Board notes that separate disability ratings are assigned for each knee for separate disabilities due to chondromalacia patella and degenerative arthritis. As noted above, the appeal at issue is limited to effectuated reductions of the disability ratings assigned for chondromalacia patella. When the RO assigned the initial 30 percent and 20 percent disability ratings for the chondromalacia patella in the right and left knees, as expressed by the RO in its September 2005 rating decision, those ratings were based primarily upon manifestations of subluxation and instability, and were rated by analogy under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5257. DC 5257, which is the criteria for disabilities due to recurrent subluxation or lateral instability of the knee, provides for 10 percent disability rating where such disabilities may be characterized as slight. A 20 percent disability rating is assigned for moderate disabilities. A maximum schedular 30 percent disability rating is assigned for disabilities that are characterized as being severe. The initial disability ratings assigned for the Veteran's chondromalacia patella appear to have been based primarily upon reported complaints and findings during a March 2005 VA examination. In relation to the right knee, the RO based the initial 30 percent disability rating primarily upon pain, cracking, popping, and locking reported by the Veteran during a March 2005 VA examination. The RO also noted that physical examination revealed patellar effusion, ballottement, crepitation, and valgus laxity. Regarding the left knee, the RO assigned the initial 20 percent disability rating based upon symptoms of crepitation, pain, and ballottement. On review of the March 2005 VA examination report, the Board notes that functionally, the Veteran complained of difficulty using stairs and that squatting and stooping aggravated his symptoms. He stated that he was able to walk distances of up to 100 yards before feeling aggravated pain symptoms and that he was able to "stand okay" but was required to shift his weight to maintain comfort. He stated that he did not wear a brace on either knee. After considering the pertinent medical history, as detailed above, the Board finds that the RO's April 2008 rating action to reduce the Veteran's disability ratings for his bilateral chondromalacia patella did not meet the regulatory standards of 38 C.F.R. § 3.344 and were therefore improper. The totality of the evidence does not clearly warrant the conclusion that the Veteran has had sustained improvement of his chondromalacia patella condition in either knee. In that regard, the evidence does not make it reasonably certain that any improvement shown during the September 2007 and May 2009 VA examinations will be maintained under the ordinary conditions of life. In contrast to VA examination performed in March 2005, which showed the presence of valgus laxity, the VA examinations performed in September 2007 and May 2009 did not reveal any ligamentous laxity or subluxation. Nonetheless, the Board notes that the Veteran has consistently reported ongoing symptoms of pain, crepitus, swelling, stiffness, and weakness. He has also continuously reported intermittent episodes of locking or giving way, particularly while using stairs. The Veteran has also consistently reported functional limitations such as squatting, bending, rising out of chairs from a seated position, driving, standing for extended periods, and walking for extended distances. Occupationally, during his May 2009 VA examination, he reported increased absenteeism and the need for more frequent breaks due to his knee symptoms. In his November 2007 letter, the Veteran's treating VA physician has opined that the Veteran's knee problems are not reversible, but rather, are likely to worsen with age. Further, the physician noted, a comparison of x-rays taken in March 2003 and in May 2007 demonstrated worsening in both knees, marked by narrowed patellofemoral spaces. This opinion was not rebutted or addressed in any way by the September 2007 and May 2009 VA examiners' opinions. To that extent, the September 2007 and May 2009 opinions are not based upon a complete review and understanding of the Veteran's medical history during the period relevant to this issue. Given the VA examiners' inability to consider the contrary November 2007 opinion, the probative value of the VA examiners' diagnoses and opinions are severely diminished. Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (factors for assessing the probative value of a medical opinion may include the physician's access to the claims file and the thoroughness and detail of the opinion); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (the probative value of medical evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches; as true with any piece of evidence, the credibility and weight to be assigned to these opinions are within the province of the Board as adjudicators). In this regard, the Board re-emphasizes that examinations that are less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. See supra 38 C.F.R. § 3.344(a). In sum, the evidence shows that the Veteran has continued to experience symptoms of pain, intermittent instability and locking, crepitus, swelling, and weakness in his knee, with occasional flare-ups. He also has experienced ongoing functional and occupational impairment marked by difficulty using stairs, climbing out of chairs, standing for periods of more than 30 minutes, walking farther than a quarter mile, and driving. Given the same, the Board cannot find that there is any basis in these records to conclude that the Veteran had attained sustained material improvement in his bilateral chondromalacia patella under the ordinary conditions of life. 38 C.F.R. §§ 3.343(a), 3.344(a). Also, there is nothing in the evidence of record to show that the RO considered 38 C.F.R. § 3.344(a) and (c) when they reduced the disability ratings assigned for the Veteran's bilateral chondromalacia patella. Disregarding the fact that the clinical evidence of record at the time of the RO's April 2008 reduction failed to indicate material improvement in the Veteran's chondromalacia patella conditions including improvement under the ordinary conditions of life, the RO did not even address the question of material improvement or otherwise indicate that it considered and applied the aforementioned regulations. The Board notes that the Court held in Dofflemyer v. Derwinski, 2 Vet. App. 277, 282 (1992) that the failure to consider and apply either the provisions of 38 C.F.R. § 3.343(a) or 38 C.F.R. § 3.344, as applicable, renders a rating decision void ab initio. In view of the foregoing, the Board finds that the April 2008 rating decision effectuating reductions of the disability ratings assigned for bilateral chondromalacia patella was no in accordance with the law and is void ab initio. As such, the Board has no legal option but to restore the 30 percent and 20 percent disability ratings for the right and left knee chondromalacia patella disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 3.343(a), 38 C.F.R. § 3.344(a) and (c). ORDER Service connection for bilateral flat feet with plantar fasciitis and left calcaneal heel spur is granted. Entitlement to restoration of a 30 percent disability rating for right chondromalacia patella is granted, effective July 1, 2008, subject to the law and regulations governing the awards of monetary benefits. Entitlement to restoration of a 20 percent disability rating for left chondromalacia patella is granted, effective July 1, 2008, subject to the law and regulations governing the awards of monetary benefits. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs