Citation Nr: 1802110	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  13-33 463	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1.  Whether the reduction in the rating from 20 percent to 10 percent for service-connected laxity, residuals of the left knee, effective January 1, 2012, was proper.

2.  Entitlement to an increased rating for service-connected left knee disability. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

James R. Springer, Associate Counsel




INTRODUCTION

The Veteran served on active duty from September 1985 to June 1988.

These matters are before the Board of Veterans' Appeals (Board) on appeal from June 2011 and October 2011 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.

The June 2011 rating decision assigned a separate 10 percent rating for the Veteran's service-connected left knee disability based on painful and limited flexion.  Thereafter, he filed a notice of disagreement in August 2011; however, as will be discussed further below, a statement of the case has not been provided as to those issues.  See Manlincon v. West, 12 Vet. App. 238 (1999).

The issue of entitlement to an increased rating for service-connected left knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The Veteran was in receipt of a 20 percent rating for service-connected laxity, residuals of the left knee from July 23, 1993, to January 1, 2012, a period of more than five years.

2.  The October 2011 rating decision, the November 2013 Statement of the Case, and the March 2016 Supplemental Statement of the Case, all failed to provide notice of, and consider, the provisions of 38 C.F.R. § 3.344.


CONCLUSION OF LAW

Since the reduction of the rating for service-connected laxity, residuals of the left knee from 20 percent to 10 percent was not in accordance with applicable law and regulations, the criteria for restoration of the 20 percent rating, effective January 1, 2012, are met.  38 U.S.C. §§ 1155, 5112 (2014); 38 C.F.R. §§ 3.105(e), 3.344, 4.1, 4.2, 4.13 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Congress has provided that a Veteran's disability will not be reduced unless an improvement in the disability is shown to have occurred.  38 U.S.C. § 1155.  When an AOJ reduces a rating without following the applicable regulations, the reduction is void ab initio.  Greyzck v. West, 12 Vet. App. 288, 292 (1999).

Initially, 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 will be prepared setting forth all material facts and reasons.  The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level.  If additional evidence is not received within that period, 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 beneficiary of the final rating action expires.  38 C.F.R. § 3.105(e).  

In the instant case, the AOJ complied with § 3.105(e) in a July 2011 letter.

For reductions in ratings to be properly accomplished, specific requirements must be met.  See 38 C.F.R. § 3.344; see also Dofflemyer, 2 Vet. App. 277 (1992).  In regard to disability ratings in effect for a period of 5 years or more, the provisions of 38 C.F.R. § 3.344(a) and (b) are for application.  See 38 C.F.R. § 3.344(c).  Where a veteran's schedular rating has been both stable and continuous for 5 years or more, the rating may be reduced only if the examination on which the reduction is based is at least as full and complete as that used to establish the higher evaluation.  38 C.F.R. § 3.344(a).  Ratings for disease subject to temporary or episodic improvement will not be reduced on the basis of any one examination, except in those instances where the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated.  Id.  Moreover, though material improvement in the mental or physical 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.  Id. 

In considering the propriety of a reduction, VA must focus on the evidence of record available to the AOJ at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition has demonstrated actual improvement.  Cf. Dofflemyer, 2 Vet. App. at 281-82.  Care must be taken, however, to ensure that a change in an examiner's evaluation reflects an actual change in the Veteran's condition, and not merely a difference in the thoroughness of the examination or in descriptive terms, when viewed in relation to the prior disability history.  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.  See 38 C.F.R. §§ 4.1, 4.2, 4.13; see also Brown, 5 Vet. App. at 420-22; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).

Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved.  See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991).

Historically, a November 1993 rating decision granted service connection for residuals of injury to left knee, and assigned a 10 percent disability rating for mild instability under 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2017), effective July 27, 1993.  A June 1997 rating decision increased the Veteran's disability rating to 20 percent for moderate instability under Diagnostic Code 5257, effective July 27, 1993.

In January 2011, the Veteran filed a claim for an increased rating for his service-connected left knee disability.

A June 2011 rating decision proposed to reduce the Veteran's rating for his service-connected laxity, residuals of the left knee from 20 percent to 10 percent based on a February 2011 VA examination which found mild laxity in the left knee.

In an October 2011 rating decision, the AOJ reduced the rating for the Veteran's service-connected laxity, residuals of the left knee from 20 to 10 percent, effective January 1, 2012, based on the February 2011 VA examination report.  This decision resulted in the Veteran's overall disability rating decreasing from 30 percent to 20 percent.

Because the Veteran's 20 percent rating had been in effect more than five years at the time of the October 2011 rating decision; 38 C.F.R. § 3.344 (a) and (b) are applicable.  However, the July 2011 notification letter, the October 2011 rating decision, the November 2013 Statement of the Case, and the March 2016 Supplemental Statement of the Case all fail to provide notice of, or reflect consideration of, the provisions of 38 C.F.R. § 3.344.  Specifically, the October 2011 rating decision, the November 2013 Statement of the Case, and the March 2016 Supplemental Statement of the Case all fail to address whether the February 2011 VA examination report were as full and complete as the examination upon which the original rating was established.  Additionally, the October 2011 rating decision, the November 2013 Statement of the Case, and the March 2016 Supplemental Statement of the Case all fail to discuss whether the evidence demonstrated a material improvement that would be maintained under the ordinary conditions of life.  38 C.F.R. § 3.344(a); Kitchens v. Brown, 7 Vet. App. 320 (1995).

The Board emphasizes that failure to consider and apply the provisions of 38 C.F.R. § 3.344, if applicable, renders a rating decision void ab initio as such omissions are error and not in accordance with the law.  See Greyzck, 12 Vet. App. at 292.  See also Hayes v. Brown, 9 Vet. App. 67, 73 (1996); Dofflemyer, 2 Vet. App. 277.  Accordingly, the 20 percent disability rating for the Veteran's service-connected laxity, residuals of the left knee is restored, effective January 1, 2012.


ORDER

Restoration of the 20 percent rating for service-connected laxity, residuals of the left knee is granted, effective January 1, 2012.


REMAND

With regard to the issue of entitlement to an increased ratings for the Veteran's service-connected left knee disability, following a June 2011 rating decision which denied a higher rating, he submitted a timely and adequate notice of disagreement in August 2011.  See 38 C.F.R. § 20.201 (2010).  However, a statement of the case has not been issued yet.

When there has been an initial AOJ adjudication of a claim and a notice of disagreement as to its denial, the claimant is entitled to a statement of the case.  See 38 C.F.R. § 19.26 (2014).  Thus, a remand for the issuance of a statement of the case is necessary.  Manlincon, supra.  However, this claim will be returned to the Board after the issuance of the statement of the case only if perfected by the filing of a timely substantive appeal.  See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997).

Accordingly, the case is REMANDED for the following action:

Send the Veteran a statement of the case concerning his claim for increased ratings for his service-connected left knee disability.  Advise the Veteran that he still needs to file a timely substantive appeal in response to the statement of the case to "perfect" an appeal to the Board concerning this additional claim.  He also must be advised of the time period he has to perfect this appeal.  If, and only if, he submits a timely substantive appeal in response to the statement of the case, thereby perfecting his appeal of this additional claim, should it be returned to the Board for further appellate consideration.

The Veteran has the right to submit additional evidence and argument on the matter or matters 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 United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs