Citation Nr: 18143159 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 16-08 039 DATE: October 18, 2018 ORDER The rating reduction from 10 percent to 0 percent for a service connected right knee instability, effective June 1, 2015, was improper, and restoration of the prior rating is granted, subject to the laws and regulations governing the award of monetary benefits. The rating reduction from 30 percent to 10 percent for a service connected left knee disability, effective June 1, 2015, was proper, and restoration of the prior rating is granted, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACTS 1. Examinations of the Veteran’s right knee since May 2012 have not shown any improvement in his ability to function under the ordinary conditions of life and work. 2. Examinations of the Veteran’s left knee since May 2012 have not shown improvement in his ability to function under the ordinary conditions of life and work. CONCLUSIONS OF LAW 1. The reduction from 10 percent to 0 percent, effective June 1, 2015, for the Veteran’s service connected right knee disability is void ab initio, and restoration is granted. 38 U.S.C. §§ 1155, 5112; 38 C.F.R. §§ 3.105, 3.344, 4.59, 4.71a, Diagnostic Code 5257. 2. The reduction from 30 percent to 10 percent, effective June 1, 2015, for the Veteran’s service connected left knee disability ab initio, and restoration is granted. 38 U.S.C. §§ 1155, 5112; 38 C.F.R. §§ 3.105, 3.344, 4.59, 4.71a, Diagnostic Code 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1977 to May 1978. This matter is on appeal from an October 2014 rating decision. Propriety of Reductions To properly reduce a disability rating, VA must meet both procedural and substantive benchmarks. Procedurally, where the 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 will be prepared setting forth all material facts and reasons. 38 C.F.R. § 3.105 (e). VA, “in any rating-reduction case,” must determine (1) “based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability”; (2) “whether the examination reports reflecting such change are based upon thorough examinations”; and (3) whether any improvement “actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work”. See Faust v. West, 13 Vet. App. 342, 349 (2000). If a rating has been in effect for more than 5 years, then rating agencies will handle cases of changes 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. 38 C.F.R. § 3.344(a). It is essential that the entire record of examination and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. Id. Examinations which are less thorough than those on which payments were originally based will not be used as a basis for reduction. Id. Ratings on account of diseases subject to temporary or episodic improvement 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. Id. 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. Id. When an RO reduces a rating without following the applicable regulations, the reduction is void ab initio. Greyzck v. West, 12 Vet. App. 288 (1999). By way of history, the Veteran was granted service connection in June 2013 for a right knee disability at 10 percent for instability, effective May 8, 2012. He was also granted service connection for a left knee disability due to limited extension at 30 percent disabling, effective May 8, 2012. In July 2014, the Veteran filed for an increased rating, asserting that his knees have worsened. He was scheduled for a VA examination, and based on the findings at that examination, the RO reduced the Veteran’s right knee disability rating from 10 percent to 0 percent. In that same rating decision, the Veteran’s rating for his left knee was reduced from 30 percent to 10 percent. The Veteran now disputes the reduction in his ratings. The Board finds that RO complied with the specific notice provisions applicable to rating reductions. See 38 C.F.R. § 3.105 (e). A September 2014 VA examination report showed an initial forward flexion of 90 degrees in the right knee (with pain) and 80 degrees in the left knee (with pain). Both knees demonstrated normal extension. A repetitive use testing showed no change in limitation of motion. He reported no functional loss in either knee but did report less movement than normal, pain of movement, swelling, disturbance of locomotion, and interference with sitting in his left knee. He demonstrated normal strength in both knees. A joint instability test showed normal results with regard to anterior, posterior, and medial-lateral instability. There was no evidence of ankylosis, meniscal condition, patellar subluxation or dislocation in either knee. VA treatment records in October 2014 noted that the Veteran was seen for arthritic knees, left worse than the right. He received injections only in the left knee. He complained of weightbearing pain, specifically when he climbs stairs. His range of motion was noted as 120 degrees, bilaterally. He had moderate lateral laxity of about 10 degrees in the more symptomatic left knee. In his March 2015 Notice of Disagreement, the Veteran asserted that both his left and right knee have worsened to the point where a he cannot walk without a cane. He also has trouble climbing stairs and walking up and down hill. On his Form 9, the Veteran asserted that the pain in his right knee have only worsened and that his left knee locks up when he walks. He is unable to work, because it requires standing, squatting, and climbing ladders, which he is unable to do. The Board must now consider whether the reduction in ratings was proper. Here, RO reduced the evaluation of the Veteran’s left and right knee disabilities based on a September 2014 VA examination. In that examination, the Veteran’s right knee demonstrated noncompensable limited flexion, but no instability. The Veteran’s lay statements did not report problems with instability in the right knee. With regards to his left knee, the September 2014 VA examination revealed a limited flexion at a noncompensable level. The Veteran showed no limitation in his left knee extension. The Board notes that the Veteran is currently ambulating with a cane when he walks. Here, the VA examination in 2014 clearly showed findings that would support the lower ratings that the RO reduced the Veteran’s ratings to, and had that examination been provided in conjunction with the claim for service connection, then the reduced rating levels would be justified. However, that is not the case here, and the fact remains that the medical evidence, lay statements, and representative arguments clearly show that the Veteran’s knees continue to deteriorate, requiring injections and potentially total knee replacement surgeries bilaterally. Given this fact patter, the Board simply cannot find that the examination actually reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. Therefore, the reduction is void ab initio and the Veteran’s knee ratings should be restored. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N.Yeh, Associate Counsel