Citation Nr: 18151027 Decision Date: 11/19/18 Archive Date: 11/16/18 DOCKET NO. 16-22 192 DATE: November 19, 2018 ORDER Restoration of a 10 percent rating for surgical scar of the right knee, lateral aspect, is granted, subject to the rules and regulations governing the award of monetary benefits. Restoration of a 10 percent rating for surgical scar of the right knee, medial aspect, is granted, subject to the rules and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. In a December 2014 rating decision, the RO reduced the separate ratings for the Veteran’s scar of the right knee, lateral and medial aspects from 10 percent to 0 percent each, effective April 1, 2015. 2. The reduction of the separate 10 percent rating for the Veteran’s lateral and medial scars of the right knee was based on examinations less full and complete than those on which payment was authorized and continued and was not based on improvement in the Veteran’s ability to function under the ordinary conditions of life and work. CONCLUSIONS OF LAW 1. The reduction in rating for scar of the right knee, lateral aspect, from 10 percent to 0 percent was not proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), 4.118, Diagnostic Code (DC) 7805. 2. The reduction in rating for scar of the right knee, medial aspect, from 10 percent to 0 percent was not proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), 4.118, Diagnostic Code (DC) 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from June 1971 to March 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision in December 2014 by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in a hearing. The transcript has not yet been associated with the claims file, but the Board finds that one is not necessary for a decision on the claims. Reductions Where a reduction in evaluation 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. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor. Additionally, the beneficiary must be given notice that he has 60 days to present additional evidence to show that compensation payments should be continued at the present level. Unless otherwise provided in paragraph (i) of this section, 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) (2017). Since the proposed reduction involved reduction in the overall amount of compensation payable to a beneficiary from 40 percent to 30 percent, the due process protections of 38 C.F.R. § 3.105(e) apply. On October 17, 2014, the RO proposed to reduce the Veteran’s service-connected lateral scar and medial scar of the right knee from 10 percent to noncompensable. On October 24, 2017, the RO informed the Veteran of the proposed reduction and that he had 60 days to submit any additional evidence. On December 29, 2014, the RO issued a rating decision reducing the Veteran’s separately rated lateral scar and medial scar of the right knee from 10 percent to noncompensable, effective April 1, 2015. On January 16, 2015, the RO notified the Veteran that his service-connected lateral scar and medial scar of the right knee were each decreased from 10 percent to noncompensable ratings effective April 1, 2015. The RO complied with the due process protections of 38 C.F.R. § 3.105(e). In this case, the Veteran’s separate disability ratings of 10 percent for lateral and medial scars of the right knee were in effect since October 22, 2002. Specific requirements must be met in order for VA to reduce certain ratings assigned for service-connected disabilities. See 38 C.F.R. § 3.344; see also Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). In that regard, the requirements for reduction of ratings in effect for five years or more, which are applicable here and are set forth at 38 C.F.R. § 3.344 (a) and (b), provide that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction. See Brown v. Brown, 5 Vet. App. 413, 421 (1995); see also Murphy v. Shinseki, 26 Vet. App. 510, 517 (2014) (“Thus, it is well established in the Court’s case law that VA cannot reduce a veteran’s disability evaluation without first finding, inter alia, that the veteran’s service-connected disability has improved to the point that he or she is now better able to function under the ordinary conditions of life and work.”); Faust v. West, 13 Vet. App. 342, 349 (2000) (noting that VA must review the entire history of the veteran’s disability, ascertain whether the evidence reflects an actual change in the disability, and ascertain whether the examination reports reflecting such change are based upon thorough examinations). Examinations less full and complete than those on which payments were authorized or continued will not be used as the basis for reduction. 38 C.F.R. § 3.344 (a). In considering the propriety of a reduction, 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 has demonstrated actual improvement. Dofflemyer, supra. It should be emphasized, however, that such after-the-fact evidence may not be used to justify an improper reduction. A claim as to whether a rating reduction was proper must be resolved in the Veteran’s favor “unless ‘the Board concludes that a fair preponderance of evidence weighs against the claim.’” Brown, 5 Vet. App. at 421 (quoting Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990)). “[T]he Board must ‘establish, by a preponderance of the evidence and in compliance [with] 38 C.F.R. § 3.344, that a rating reduction is warranted.’” Green v. Nicholson, 21 Vet. App. 512 (2006). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting 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 disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Furthermore, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). For the following reasons, the reductions for the Veteran’s separate ratings for lateral and medial scars of the right knee were not proper. The Veteran was granted separate 10 percent ratings for his lateral and medial scars of the right knee based on a March 2003 VA examination. The March 2003 VA examiner described the Veteran’s right knee medical history and noted that the Veteran described his scars symptoms as “severe tingling, especially in the right lateral scar,” but not painful. In contrast, the February 2014 VA examiner did not address whether the Veteran’s scars were painful or unstable, and neither the February 2014 nor the March 2016 VA examiners considered the scars’ effects on the Veteran’s ordinary condition of life. Further, neither examiner discussed the Veteran’s statements that his scars continued to be painful and interfered with his daily function of life. Thus, the February 2014 and March 2016 VA examinations were less full and complete than the March 2003 VA examination on which payments were authorized, and they cannot be used as the basis for reduction. Moreover, the reduction was not based on improvement in the Veteran’s ability to function under the ordinary conditions of life and work. The Court has stated that both decisions by the RO and by the Board that do not apply the provisions of 38 C.F.R. § 3.344, when applicable, are void ab initio (i.e., at their inception). Brown, 5 Vet. App. at 413; see also Hayes v. Brown, 9 Vet. App. 67, 73 (1996) (where VA reduces the appellant’s rating without observing applicable laws and regulations the rating is void ab initio and the Court will set aside the decision). Since the rating decision that accomplished the reduction of the separate 10 percent ratings for the Veteran’s lateral and medial scars of the right knee did not properly apply the provisions of 38 C.F.R. § 3.344, the reductions are void. The appropriate remedy in this case is a restoration of the separate 10 percent ratings. See Hayes, 9 Vet. App. at 73 (improper reduction reinstated effective date of reduction). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Leifert, Associate Counsel