Citation Nr: 18151145 Decision Date: 11/19/18 Archive Date: 11/16/18 DOCKET NO. 15-41 243 DATE: November 19, 2018 ORDER The reduction of the 40 percent disability rating for left knee disability was improper, and the 40 percent rating is restored, effective November 1, 2014. FINDING OF FACT The evidence at the time of the July 2014 rating decision did not demonstrate a material improvement of the Veteran’s left knee disability. CONCLUSION OF LAW The reduction of the rating for the Veteran’s service-connected left knee arthralgia from 40 percent to 10 percent was improper; and, the 40 percent rating is restored, effective from November 1, 2014. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.71a, Diagnostic Codes 5003, 5261. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from December 1975 to February 1977. This matter comes before the Board from an July 2014 rating decision. 1. The propriety of the reduction for left knee arthralgia In May 2013, the RO proposed to reduce the Veteran’s 40 percent rating for his service-connected left knee arthralgia to 10 percent. This reduction was accomplished in a July 2014 rating decision, effective November 1, 2014. Initially, the Board observes the RO procedurally complied with the procedural safeguards regarding the manner in which the Veteran was given 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. The circumstances under which a rating may be reduced are specifically limited and carefully circumscribed by regulation. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). VA will handle cases affected by change of medical findings or diagnosis so as to produce the greatest degree of stability of ratings consistent with the law and regulations governing disability compensation and pension. Where a rating has been in effect for less than five years, as is in the present case, the service connected disability has not become stabilized, or the disability is likely to improve, a rating may be reduced based upon reexaminations disclosing improvement, physical or mental, of the disability. 38 C.F.R. § 3.344 (c). 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 evaluation 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. Pursuant to Diagnostic Code 5260 flexion of the leg limited to 45, 30, and 15 degrees of motion warrant 10 percent, 20 percent, and 30 percent evaluations, respectively. Extension of the leg limited to 45, 30, 20, 15, 10, and 5 degrees of motion warrants 50 percent, 40 percent, 30 percent, 20 percent, 10 percent, and non-compensable respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5261. A 40 percent evaluation was assigned by a February 2012 rating decision, and was based on a December 2011 VA examination. Flexion was limited to 100 degrees. Extension was normal. However, following repetitive motion, extension was limited to 30 degrees. Such considered the Veteran’s complaints of pain on movement, weakness, and fatigability. The Veteran reported his daily activities including, hiking, walking, mowing the yard, driving, and standing for prolonged periods of time are limited due to his knee disabilities. Since the December 2011 examination, the evidence of record includes treatments records indicating increased pain, stiffness, and locking of the left knee and reports that the Veteran is more limited in his ability to do things requiring long-term standing or walking. Additionally, in December 2012, the Veteran applied for compensation based on unemployability citing, in part, his bilateral knee condition. The Veteran was afforded another VA examination in February 2013. At this examination, range of motion of the left knee was from zero to 90 degrees. Post-test range of motion was from zero to 75 degrees. In short, extension was essentially normal. However, the examiner also noted weakened movement, excess fatigability, pain on movement, and swelling. The examiner indicated there was interference with sitting, standing, and weight-bearing due to the Veteran’s knee disability and found that the Veteran does have functional loss/ impairment of the left knee and lower leg. The examiner also opined that the severity of the Veteran’s bilateral knee conditions would preclude any significant gainful physical employment. In a 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. Brown v. Brown, 5 Vet. App. 413, 420-21 (1993). In the present case, the evidence does not show that the improved ROM in the Veteran’s left knee reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. The VA examinations, treatment records, and statements from the Veteran indicate pain, weakness, stiffening, and limitations on daily activities such as walking, sitting, and driving. He had functional impairment severe enough to preclude any type of physical employment. Based on the evidence above, the Board finds that the preponderance of the evidence demonstrates that the Veteran’s service-connected left knee disability has not undergone sustained improvement, including under the ordinary conditions of life and work. Therefore, at the time of the July 2014 rating decision, the reduction was improper. The 40 percent rating is restored, effective November 1, 2014. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Rekowski, Associate Counsel