Citation Nr: 18148700 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 16-10 279 DATE: November 8, 2018 ORDER The reduction from 10 percent for status post right fibula fracture with right knee arthritis with limited extension, to a noncompensable rating, effective January 1, 2016, was improper. FINDING OF FACT 1. The 10 percent rating for the Veteran’s status post right fibula fracture with right knee arthritis with limited extension, had been in effect longer than five years at the time of the rating reduction on January 1, 2016. 2. The Agency of Original Jurisdiction (AOJ) did not properly apply the provisions of 38 C.F.R. § 3.344. CONCLUSION OF LAW The reduction of the rating for right fibula fracture with right knee arthritis and limited extension, from 10 percent disabling to a noncompensable rating, effective January 1, 2016, was improper and the 10 percent rating is restored. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.105(e), 3.344 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1966 to April 1969. This case comes to the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision by a Department of Veterans’ Affairs (VA) Regional Office (RO). In its May 2018 Informal Hearing Presentation, the Veteran’s representative appears to raise a claim for an increased rating for the status-post right fibula fracture with right knee arthritis. This claim has 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. 38 C.F.R. § 19.9(b) (2017). Propriety of Reduction A Veteran’s disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. See 38 U.S.C. § 1155 (2012). Prior to reducing a Veteran’s disability rating, VA is required to comply with several general regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. See 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13 (2017); see also Brown v. Brown, 5 Vet. App. 413, 420 (1993). These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of the Veteran’s disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. In any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that the 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, 350 (2000). It is essential, both in the examination and evaluation of the disability, that each be viewed in relation to its history. 38 C.F.R. § 4.1. If an examination report does not contain sufficient detail, or the diagnosis is not supported by the findings on the examination report, it must be returned as inadequate for rating purposes. 38 C.F.R. § 4.2. In certain rating reduction cases, VA benefits recipients are to be afforded greater protections, set forth in 38 C.F.R. § 3.344 (a) and (b). These provisions provide that rating agencies will handle cases affected by change of medical findings so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. The provisions of 38 C.F.R. § 3.344(c) specify that these considerations are required for ratings that have continued for long periods at the same level (five years or more), and that they do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement in these disabilities will warrant a reduction in rating. Under 38 C.F.R. § 3.344 (a) and (b), VA must find the following before reducing a rating: (1) based on a review of the entire record, the examination forming the basis for the reduction is full and complete, and at least as full and complete as the examination upon which the rating was originally based; (2) the record clearly reflects a finding of material improvement; and, (3) it is reasonably certain that the material improvement found will be maintained under the ordinary conditions of life. See Kitchens v. Brown, 7 Vet. App. 320 (1995). The provisions of 38 C.F.R. § 3.344 (a) and (b) further provide certain procedural protections to a Veteran with regards to reductions of rating. As noted above, the regulation is applicable if the evaluation was in effect more than five years; otherwise, 38 C.F.R. § 3.344(c) is applicable. Here, the prior disability rating for the Veteran’s status post right fibula fracture with right knee arthritis with limited extension was in effect for over five years. Thus, the provisions of 38 C.F.R. § 3.344 (a) and (b) apply in this case. In considering whether a reduction was proper, the Board must focus on the evidence of record available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition had demonstrated sustained, actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). However, post-reduction evidence may not be used to justify an improper reduction. VA is required to establish, by a preponderance of the evidence, that a rating reduction is warranted. See Kitchens, supra. At issue is the propriety of the RO’s decision to reduce the Veteran’s rating for his status-post right fibula fracture with right knee arthritis and limited extension from 10 percent disabling to zero percent, effective January 1, 2016. Prior to the reduction, the 10 percent rating for status-post right fibula fracture with right knee arthritis and limited extension was in effect for more than five years, from January 7, 2009 to January 1, 2016. The reduction in rating, therefore, could not be effectuated without meeting the requirements of 38 C.F.R. § 3.344(a) and (b). That is, the greater protections afforded to the Veteran under provisions of 38 C.F.R. § 3.344 (a) and (b) are applicable in the present case. To properly reduce a 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). In a June 2015 rating decision and notice letter dated the same month, the RO informed the Veteran of the proposal to reduce the rating assigned for his service-connected status-post right fibula fracture with right knee arthritis and limited extension, from 10 percent to zero percent, which would reduce his combined evaluation for all service-connected disabilities from 60 percent to 50 percent. The Veteran was given a period of 60 days after that letter to submit evidence showing that the rating should not be reduced. The Veteran was also provided written notice of the final action. The reduction was effectuated in an October 2015 rating decision and notice letter dated the same month, and the effective date of the reduction, January 1, 2016 was provided. Therefore, the record indicates that the RO complied with the specific notice provisions applicable to rating reductions. See 38 C.F.R. § 3.105(e). The Board must now consider whether the reduction in ratings was proper. In cases such as this, where a rating has been in effect for five years or more, the rating agency must make reasonably certain that the improvement will be maintained under the conditions of ordinary life even if material improvement in the physical or mental condition is clearly reflected. Kitchens v. Brown, 7 Vet. App. 320 (1995). A rating that has been in effect for five years or more may not be reduced on the basis of only one examination in cases where the disability is the result of a disease subject to periodic or episodic improvement. 38 C.F.R. § 3.344(a). The five-year period is calculated from the effective date of the rating to the effective date of the reduction. Brown v. Brown, 5 Vet. App. 413 (1993). If doubt remains, after according due consideration to all the evidence, the rating agency will continue the rating in effect. 38 C.F.R. § 3.344(b). 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). The RO reduced the rating for the Veteran’s status-post right fibula fracture with right knee arthritis and limited extension based upon a June 2015 VA examination that found extension to be limited by five degrees. However, the June 2015 and October 2015 rating decisions, and December 2015 statement of the case show that the RO did not properly apply the provisions of 38 C.F.R. § 3.344, the primary regulation governing rating reductions. Specifically, the RO did not address whether any demonstrated improvement in the Veteran’s ability to function would be maintained under the ordinary conditions of life and work. 38 C.F.R. §§ 4.1, 4.2, 4.13; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board emphasizes that the failure to properly apply the provisions of 38 C.F.R. § 3.344 renders a rating reduction void ab initio. Such an omission is error and not in accordance with the law. Greyzck v. West, 12 Vet. App. 288 (1999); Hayes v. Brown, 9 Vet. App. 67 (1996); Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). Accordingly, the reduction in rating for the Veteran’s status-post right fibula fracture with right knee arthritis and limited extension from 10 percent disabling to zero percent, is not proper and is void ab initio. Thus, the 10 percent rating must be restored effective January 1, 2016. Because the outcome warranted in view of this procedural defect, the Board need not address, from an evidentiary standpoint, the actual merits of the reduction. KRISTY L. ZADORA Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD O. Owolabi, Law Clerk