Citation Nr: 1806114	
Decision Date: 01/31/18    Archive Date: 02/07/18

DOCKET NO.  16-05 368	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUES

1.  Whether the reduction of the Veteran's disability for left knee patellar tendonitis with degenerative arthritis from 20 percent to 10 percent, effective January 5, 2015, was proper.

2.  Entitlement to a disability rating in excess of 20 percent for left knee patellar tendonitis with degenerative arthritis.

3.  Entitlement to a disability rating in excess of 20 percent for lumbar spine sprain with degenerative arthritis.  


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Ryan Frank, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the Navy from June 2008 to March 2013. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.  In the January 2015 rating decision, in pertinent part, the RO denied the Veteran's claim for a rating in excess of 20 percent for lumbar spine sprain with degenerative arthritis and reduced the Veteran's rating for left knee patellar tendonitis with degenerative arthritis from 20 percent to 10 percent.  

In October 2017, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is of record. 

In November 2015, the Veteran testified at a Board videoconference hearing before a different Veterans Law Judge regarding the issues of entitlement to an increased rating for bilateral pinguecula and to service connection for a sleep disorder and hemorrhoids.  The Board remanded those issues for additional development in September 2017, development remains ongoing, and they will be the subject of a separate Board decision issued at a later date.  

Generally, the propriety of a rating reduction is a separate issue from a claim for an increased evaluation.  See Dofflemeyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992); see also Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991).  However, by consistently treating a claim as if it is part of a timely filed substantive appeal, VA effectively waives all objections to the procedural adequacy of the appeal with respect to that issue.  See Percy v. Shinseki, 23 Vet. App. 37, 46 (2009).  The January 2015 rating decision resulted from the Veteran's claim for an increased rating for left knee patellar tendonitis.  In its January 2016 Statement of the Case (SOC), the RO framed the issue as the overall evaluation of the Veteran's left knee patellar tendonitis with degenerative arthritis.  The Board finds that the RO led the Veteran to believe that the issue of entitlement to an increased rating for left knee patellar tendonitis was on appeal and has therefore taken jurisdiction of that issue, as listed above.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).

The issues of entitlement to increased ratings for left knee patellar tendonitis with degenerative arthritis and lumbar spine sprain with degenerative arthritis are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The reduction of the disability rating for left knee patellar tendonitis with degenerative arthritis from 20 percent to 10 percent, effective January 5, 2015, failed to comply with applicable law and regulations.


CONCLUSION OF LAW

Reduction of the rating for left knee patellar tendonitis with degenerative arthritis from 20 percent to 10 percent, effective January 5, 2015, was not proper.  38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.2, 4.10, 4.13, 4.71a, Diagnostic Code 5261 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Where a reduction in the rating of a service-connected disability 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 must be prepared setting forth all material facts and reasons.  The RO must also notify the veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level.  38 C.F.R. § 3.105 (e) (2017).  Because this reduction in rating did not result in a reduction of compensation payments, this procedural requirement does not apply.  

In Brown v. Brown, 5 Vet. App. 413 (1993), the Court of Appeals for Veterans Claims (Court) identified general regulatory requirements that are applicable to all rating reductions, including those which have been in effect for less than five years.  Brown, 5 Vet. App. at 417.  Pursuant to 38 C.F.R. § 4.1, it is essential, both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history.  Id. at 420.  Similarly, 38 C.F.R. § 4.2 establishes that "[i]t is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of the disability present."  Id.  The Court has held that these provisions "impose a clear requirement" that rating reductions be based on the entire history of a veteran's disability.  Id. 

Furthermore, the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms.  38 C.F.R. § 4.13.  Additionally, in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work.  See Brown, 5 Vet. App. at 420-421; see also 38 C.F.R. §§ 3.344(c), 4.2, 4.10 (2017).  A claim as to whether a rating reduction was proper must be resolved in the Veteran's favor unless VA concludes that a fair preponderance of evidence weighs against the claim.  Brown, 5 Vet. App. at 421.

When VA reduces a veteran's disability rating without observing applicable laws and regulations, the rating is void ab initio and not in accordance with the law.  See Hayes v. Brown, 9 Vet. App. 67, 73 (1996) (citing Kitchens v. Brown, 7 Vet. App. 320, 325 (1995)).

In reducing the Veteran's disability rating for left knee patellar tendonitis with degenerative arthritis from 20 percent to 10 percent, effective January 5, 2015, the RO in its January 2015 rating decision cited the results of a January 5, 2015 VA examination.  The decision explained how the results of that examination were a closer match to the criteria for a 10 percent rating than a 20 percent rating.  However, the RO's decision contains no consideration of the Veteran's history other than that examination and no finding that the record reflected any actual improvement in the Veteran's ability to function under ordinary conditions of life and work.  The RO's January 2016 Statement of the Case (SOC) also contains no such analysis.  

Because the RO failed to consider and apply the applicable laws and regulations in its reduction of the Veteran's disability rating for left knee patellar tendonitis with degenerative arthritis, the 20 percent rating must be restored, effective January 5, 2015.  


ORDER

As the disability rating of left knee patellar tendonitis with degenerative arthritis was not properly reduced from 20 percent to 10 percent, effective January 5, 2015, restoration to 20 percent as of that date is granted.  


REMAND

The Veteran was last afforded VA examinations for his left knee tendonitis with degenerative arthritis and lumbar sprain with degenerative arthritis in January 2015.  During the October 2017 hearing, the Veteran testified that his back and left knee symptoms have worsened.  The Veteran stated during a pre-hearing conference that he would attempt to obtain updated examinations after the hearing.  A December 2017 Report of General Information notes that the Veteran attempted to seek updated examinations from his VA primary care physician but "[h]is doctor was unwilling to complete the forms because of how long it would take."  The record thus raises the possibility that the Veteran's back and left knee might now be more severe than the January 2015 examination reports reflect.  "Where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted."  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).  A remand for new examinations is thus warranted.  

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Arrange for the Veteran to have an examination by an appropriate clinician for the purpose of determining the current severity of his left knee patellar tendonitis with degenerative arthritis.  The electronic claims file must be made available to the examiner for review, and the examination must reflect that such review has been accomplished.  

The examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of any symptoms of left knee patellar tendonitis with degenerative arthritis.

A complete rationale for any opinion expressed must be provided.  If the examiner is unable to provide any requested opinion, that fact must be stated and the reasons why an opinion cannot be provided explained.  

2.  Arrange for the Veteran to have an examination by an appropriate clinician for the purpose of determining the current severity of his lumbar sprain with degenerative arthritis.  The electronic claims file must be made available to the examiner for review, and the examination must reflect that such review has been accomplished.  

The examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of any symptoms of lumbar sprain with degenerative arthritis.

A complete rationale for any opinion expressed must be provided.  If the examiner is unable to provide any requested opinion, that fact must be stated and the reasons why an opinion cannot be provided explained.  

3. Then, readjudicate the claims.  If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response.  Then, return the case to the Board.  

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 of Veterans' Appeals 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. §§ 5109B, 7112 (2012).




______________________________________________
D. Martz Ames
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs