Citation Nr: 18151324 Decision Date: 11/19/18 Archive Date: 11/16/18 DOCKET NO. 15-25 322 DATE: November 19, 2018 ORDER Restoration of a 20 percent evaluation for instability of the right knee is granted. REMANDED Entitlement to a separate evaluation for limitation of extension of the right knee is remanded. FINDING OF FACT The preponderance of evidence supports restoration of a 20 percent evaluation for instability of the right knee. CONCLUSION OF LAW The criteria for reduction of right knee instability evaluation were not met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. § 3.344(c), 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDING AND CONCLUSION 1. Restoration of a 20 percent evaluation for instability of the right knee. When a reduction is anticipated, the beneficiary must be notified of the proposed reduction, with notice of the reasons for the proposed reduction. Further, the beneficiary must be allowed a period of at least 60 days to submit additional evidence to show that the rating should not be reduced. After the allotted period, if no additional evidence has been submitted, final rating action will be taken and the rating 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 expires. 38 C.F.R. § 3.105(e). Here, the RO complied with the procedures required under 38 C.F.R. § 3.105(e) for reducing the Veteran’s disability rating. In a May 2014 letter, the RO notified the Veteran of the proposed reduction in benefits and his due process rights. An October 2014 rating decision effectuated the proposed reduction of disability benefits for right knee instability disability from 20 to 0 percent effective from January 1, 2015. The Board finds that the RO complied with the procedural requirements of 38 C.F.R. § 3.105 to include the effective date of the reduction. The provisions of 38 C.F.R. § 3.344 provide criteria and considerations to take into account when determining whether a reduction in a rating is warranted. The provisions of paragraph (a) apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Re-examination disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating. 38 C.F.R. § 3.344(c). Where an evaluation has continued at the same level for five or more years, the analysis is conducted under 38 C.F.R. § 3.344(a) and (b). In the present case, the Veteran’s 20 percent evaluation for right knee instability was awarded effective April 12, 2013, and were reduced effective December 1, 2015, less than 5 years later. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). Thus, the requirements under 38 C.F.R. § 3.344(a) and (b) do not apply in the instant case; but rather, 38 C.F.R. § 3.344(c) applies in this appeal, which provides that evidence disclosing improvement in the disability is sufficient alone to warrant reduction in a rating. See 38 C.F.R. § 3.344(c). Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran’s right knee instability is rated under Diagnostic Code 5257. 38 C.F.R. § 4.71a. Under that diagnostic code, mild subluxation or lateral instability is rated at 10 percent, moderate subluxation or lateral instability at 20 percent, and severe subluxation or lateral instability at 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The terms “mild,” “moderate,” and “severe” are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. A December 2009 rating decision granted service connection with a 10 percent evaluation for right knee instability. In an October 2014 rating decision, the Regional Office (RO) reduced the rating to 0 percent effective January 1, 2015 based on lack of evidence of instability. The Veteran disagrees with the October 2014 rating decision and contends that assistive devices are used for instability. The question for the Board is whether restoration of a 20 percent evaluation for right knee instability is warranted. The Board concludes that the evidence supports restoration of a 20 percent evaluation for right knee instability. 38 C.F.R. § 3.344(c), 4.71a, Diagnostic Code 5257. In a July 2013 VA examination, the examiner noted weakened movement, excess fatigability, pain on movement, instability of station, and disturbance of locomotion. The Veteran presented with limitation of flexion to 60 degrees, but full extension. Medial-lateral instability was noted as moderate, and the Veteran reported to occasionally use a knee brace. The examiner opined that right knee instability was present and indicated a progression of the disability. In a May 2014 VA examination, the Veteran again presented with limitation of flexion to 60 degrees, but now with limitation of extension to 25 degrees. The examiner noted regular use of knee braces, less movement than normal, weakened movement, swelling, and pain on movement. Although instability was not indicated on examination, the examiner opined that the condition is active and there is no change in the diagnosis. The Veteran has consistently asserted that right knee pain and weakness causes instability, and requires use of assistive devices. VA medical records show prescribed knee braces. Even though the degree of instability was noted as normal on the most recent examination, the examiner opined that there is no change in the previous diagnosis of right knee instability. Moreover, Diagnostic Code 5257 does not indicate that objective medical evidence of instability is required to support a compensable evaluation. See Petitti v. McDonald, 27 Vet. App. 415, 427 (2015). The weight of the evidence supports the claim. Accordingly, the claim for restoration is granted. REASON FOR REMAND 1. Entitlement to a separate evaluation for limitation of extension of the right knee. The issue of entitlement to a separate rating for limitation of extension has been raised by the record in the May 2014 VA examination, but 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). Accordingly, the appeal is REMANDED for the following action: The AOJ must undertake any indicated development, and then adjudicate the issue of entitlement to a separate rating for limitation of extension of the right knee. If denied, the AOJ must issue a Supplemental Statement of the Case. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Thaddaeus J. Cox, Associate Counsel