Citation Nr: 18146268 Decision Date: 10/31/18 Archive Date: 10/30/18 DOCKET NO. 18-41 260 DATE: October 31, 2018 ORDER The reduction of the 20 percent disability rating to 0 percent for the service-connected left knee instability, effective from April 1, 2018, was proper; restoration of the 20 percent of the disability rating for left knee instability from April 1, 2018 is denied. FINDING OF FACT 1. A January 2018 rating decision reduced the rating for the service-connected left knee instability from 20 percent to 0 percent, effective April 1, 2018, and met all due process requirements. 2. As of April 1, 2018, the 20 percent rating for the service-connected left knee instability had been in effect for less than five years. 3. At the time the reduction in the disability rating was effectuated, the service-connected left knee instability had undergone actual improvement; there was no longer left knee instability demonstrated. CONCLUSION OF LAW The reduction of the disability rating for the service-connected left knee instability from 20 percent to 0 percent effective April 1, 2018 was proper. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.71a, Diagnostic Code (DC) 5257. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active service in the U.S. Marine Corps from June 1968 to November 1988. This matter is on appeal from a January 2018 rating decision. Rating Reduction Criteria and Restoration Analysis In June 2017, the RO proposed to reduce the 20 percent rating for the service-connected left knee instability to 0 percent. This reduction was accomplished in a January 2018 rating decision, effective April 1, 2018. Initially, the Board observes the RO complied with the procedural safeguards regarding notice of the proposed rating reduction and the implementation of that reduction. See 38 C.F.R. § 3.105. The Board will now consider the propriety of the rating reduction. At the time that the rating reduction became effective, April 1, 2018, the 20 percent rating for the left knee instability had been continuously in effect for less than five years. A rating reduction is not proper unless the Veteran’s disability shows actual improvement in his or her ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated (although post-reduction medical evidence may be considered in the context of considering whether actual improvement was demonstrated). Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). The Veteran need not demonstrate that retention of the higher rating is warranted; rather, it must be shown by a preponderance of the evidence that the reduction was warranted. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). The question of whether a disability has improved involves consideration of the applicable rating criteria. At the time of the rating reduction, the left knee instability had been rated under the criteria found at 38 C.F.R § 4.71a, DC 5257 for other impairment of the knee. DC 5257 provides for a 10 percent rating when there is evidence of slight impairment of the knee manifested by recurrent subluxation or lateral instability, a 20 percent rating for moderate impairment of the knee manifested by recurrent subluxation or lateral instability, and a 30 percent rating for severe impairment of the knee manifested by recurrent subluxation or lateral instability. 38 U.S.C. § 4.71a. In this case, the Board finds that the weight of the evidence showed actual improvement of the left knee instability, including under the ordinary conditions of life and work, at the time of the reduction; therefore, the rating reduction was proper, and the criteria for restoration of a 20 percent rating for the left knee instability, effective from April 1, 2018, are not met. Historically, in the December 2016 rating decision, the RO granted service connection for left knee instability with a 20 percent rating under DC 5257 effective from October 30, 2015 based on the September 2016 VA examination results showing left knee instability as manifested by positive anterior instability (i.e., 5 to 10 millimeters), posterior instability (i.e., 5 to 10 millimeters), medial instability (i.e., 5 to 10 millimeters), and lateral instability (i.e., 5 to 10 millimeters) tests. The RO found that the symptoms and impairment associated with left knee instability approximated moderate impairment of the knee manifested by recurrent subluxation or lateral instability, so that a 20 percent schedular rating under DC 5257 was warranted. At the time of the rating reduction decision in January 2018, the May 2017 VA examination report of record showed normal anterior, posterior, and medial-lateral instability tests, so no left knee instability was objectively demonstrated at the examination. The disability picture as shown by the May 2017 VA examination findings was consistent with a noncompensable (0 percent) rating under DC 5257, so the RO granted a 0 percent rating under DC 5257. 38 C.F.R. § 4.71a. When compared to the September 2016 VA examination findings showing left knee instability objectively demonstrated during positive anterior instability, posterior instability, medial instability, and lateral instability testing, the evidence at the time of the rating reduction showing no left knee instability during anterior instability, posterior instability, medial instability, and lateral instability testing reflects a material improvement of left knee instability symptoms. Improvement of left knee instability to the extent that left knee instability was no longer demonstrated during testing on examination, particularly when compared to the evidence of record at the time that the 20 percent schedular rating was assigned, would necessarily show an increased ability to function under the ordinary conditions of life and work. Moreover, although not relied upon to justify the rating reduction, there is post-reduction evidence consistent with finding that a material improvement of the left knee instability was demonstrated, including under the ordinary conditions of life and work. The May 2018 VA examination report similarly shows no left knee instability as demonstrated by normal anterior instability, posterior instability, medial instability, and lateral instability, and would necessarily reflect an actual improvement under the ordinary conditions of life and work. In the context of considering whether material improvement of the left knee instability was demonstrated, the Board finds that the May 2018 VA examination report is consistent with the evidence relied upon for the rating reduction, which also showed a material improvement of the left knee instability (i.e., left knee instability was no longer demonstrated). The Board notes that, on the post-reduction August 2018 VA Form 9, the Veteran wrote that he had no stability in the left knee and he had to constantly wear a knee brace and walk with a cane due to left knee instability; however, the statement is inconsistent with earlier statements made by the Veteran. At the May 2017 VA examination, he denied having to wear a knee brace and reported only occasional use of a cane. Then, at the May 2018 VA examination performed after the rating reduction was effectuated, the Veteran reported regular use of a knee brace and regular use of a cane. It was not until later submitting the August 2018 VA Form 9 that the Veteran reported constant use of a knee brace and constant use of a walker due to left knee instability. In light of the Veteran’s inconsistent and evolving statements during the course of the appeal and the normal left knee stability demonstrated at both the May 2017 and May 2018 VA examinations, the Board does not find the Veteran’s account of no left knee stability resulting in constant use of a knee brace and a walker to be credible, so it is of no probative value. Furthermore, to the extent that there has been any use of a knee brace and a walker due to left knee disability, it is reasonable to infer that it was due to symptoms and impairment attributable to the service-connected left knee osteoarthritis and strain, which is rated at 10 percent under DC 5003-5260, rather than any left knee instability because left knee stability tests were normal at the May 2017 and May 2018 VA examinations. For the foregoing reasons, the Board finds that the preponderance of the evidence demonstrates a material improvement of the left knee instability, including under the ordinary conditions of life and work, so as to warrant a rating reduction from 20 percent to 0 percent effective from April 1, 2018; therefore, the reduction was proper, and restoration of the 20 percent rating is not warranted. 38 C.F.R. § 3.105(e). J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Ferguson, Counsel