Citation Nr: 18152624 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 16-12 487 DATE: November 23, 2018 ORDER The reduction from a 20 percent rating to a noncompensable rating for post-operative residuals of the right knee was improper; restoration of a 20 percent rating is granted, effective January 1, 2013, subject to the laws and regulations governing the payment of monetary awards. The reduction from a 10 percent rating to a noncompensable rating for chondromalacia of the left knee was improper; restoration of a 10 percent rating is granted, effective January 1, 2013, subject to the laws and regulations governing the payment of monetary awards.   FINDINGS OF FACT 1. At the time of the reduction, the Veteran’s service-connected right knee disability had been rated as 20 percent disabling since November 3, 1993, a period of more than five years. 2. At the time of the reduction, the Veteran’s service-connected left knee disability had been rated as 10 percent disabling since December 17, 1996, a period of more than five years. 3. Any improvement found in the Veteran’s right and left knee disabilities was not maintained under the ordinary conditions of life. CONCLUSIONS OF LAW 1. The reduction of the rating for post-operative residuals of the right knee from 20 percent to noncompensable, effective January 1, 2013, was improper; restoration is warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.71a, Diagnostic Code (DC) 5257. 2. The reduction of the rating for chondromalacia of the left knee from 10 percent to noncompensable, effective January 1, 2013, was improper; restoration is warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1980 to June 1984. The case is on appeal from a June 2012 rating decision. In August 2016, the Veteran testified at a Board hearing. 1. Whether the reduction from a 20 percent rating to a noncompensable rating for the right knee disability was proper. 2. Whether the reduction from a 10 percent rating to a noncompensable rating for the left knee disability was proper. Legal Criteria Congress has provided that a veteran’s disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155; 38 C.F.R. § 3.105(e). For ratings that have been in effect for five years or more, as both knee disabilities are in this case, reduction is warranted when reexamination discloses sustained material improvement. 38 C.F.R. § 3.344(a), (b); Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). In any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in a veteran’s ability to function under the ordinary conditions of life and work. Faust v. West, 13 Vet. App. 342, 350 (2000). When a rating reduction has the effect of reducing the compensation paid to a veteran, 38 C.F.R. § 3.105 imposes certain procedural requirements before VA can effectuate the rating reduction. The Veteran’s bilateral knee disabilities are rated under 38 C.F.R. § 4.71a, DC 5257. Under this diagnostic code, a 30 percent rating is warranted for severe, recurrent subluxation or lateral instability. A rating of 20 percent is warranted for moderate, recurrent subluxation or lateral instability, and a rating of 10 percent is warranted for slight, recurrent subluxation or lateral instability. Analysis The Veteran’s 20 percent right knee rating became effective on November 3, 1993 and was reduced to a noncompensable rating effective January 1, 2013. His left knee was assigned a 10 percent rating December 17, 1996 and was also reduced to noncompensable effective January 1, 2013. As noted, VA must show that there has been sustained material improvement to reduce the Veteran’s ratings. See 38 C.F.R. § 3.344(a); Kitchens, 7 Vet. App. at 324. In August 2010, the RO proposed to reduce the Veteran’s bilateral knee ratings. In a June 2012 rating decision, the RO reduced the ratings to noncompensable effective September 1, 2012. The RO then adjusted the reductions in the October 2012 rating decision, and assigned noncompensable ratings effective January 1, 2013. Under 38 C.F.R. § 3.105, the reductions are not invalid due to a procedural defect. In determining whether there has been sustained material improvement, it is necessary to discuss the VA examinations conducted around the time at which the ratings for the right and left knee disabilities were initially awarded. The Veteran was afforded March 1992 and November 1992 VA examinations for his right knee in which he reported pain in the right knee, giving out, loss of circulation causing him to fall, instability and difficulty performing activities of daily living. Examination revealed the Veteran walked with a marked limp with patellar catching, and painful motion when his knee was manipulated. Slight swelling was found on examination with no atrophy. Diagnoses included patellofemoral syndrome and synovitis of the right knee. The Veteran was then afforded January and February 1994 VA examinations to assess his right knee disability. He was diagnosed with patellofemoral syndrome and the examiner indicated the Veteran’s reported symptoms are genuine and are similar to the 1992 VA examinations. The Veteran reported severe pain which interferes with walking, standing and dancing, and no instability or atrophy. The examiner noted the Veteran’s knee flexes to 145 degrees, with some slight patellar catching and pain reported during all motion, as well as increased crepitus. With regard to the left knee disability, a February 1997 rating decision assigned a 10 percent rating effective December 17, 1996. The Veteran was afforded a January 1997 VA examination in which he reported that due to his right knee difficulty, he developed problems with his left knee. The examiner indicated the Veteran walks with a limp favoring his right knee and in fact, puts most of the pressure on his left knee. He diagnosed the Veteran with chondromalacia of the left knee. Thereafter, the Veteran was afforded an April 2010 VA examination, on which the reductions of both knee ratings were based. The Veteran reported constant bilateral knee pain that was described as pulsating. He stated he has stiffness in the bilateral knees, instability and giving way, locking, as well as swelling and falls due to his knees. The examiner reported that upon examination, the Veteran’s knees had no residual limitations. He noted the Veteran’s claims are not credible and that he essentially magnified or exaggerated the severity of his symptoms. The Board notes the Veteran has received ongoing VA treatment for his knees, including an April 2011 medical opinion from Dr. A.F. He indicated the Veteran suffers from bilateral severe patellofemoral and mild right medial compartmental narrowing from chondrolysis. He stated along with his arthritis, there are multiple oval areas of sclerosis within the left medial and lateral femoral condyles, consistent with multiple bone islands. He indicated there is subtle right medial compartmental narrowing, minimal spurring within the lateral compartments of both knees and marked narrowing of the lateral patellofemoral compartments bilaterally. A June 2012 VA addendum opinion was provided from Dr. A.F. in which he indicated the active range of motion testing of the left knee shows flexion to 132 degrees limited by pain and facial grimacing and full extension. With regard to the right knee, flexion was noted to 131 degrees limited by pain, and full extension. He further stated, “there is no objective evidence for painful joint motion during rest and during active range of motion.” The Board notes additional VA treatment records showed the Veteran consistently reported severe pain and other symptoms in his knees. A February 2013 VA treatment record indicated knee x-rays showed severe arthritis. A March 2013 record noted the Veteran reported sharp pain in the knees upon flexion and extension, as well as diffuse pain through the entire knee joints bilaterally. The examiner indicated the Veteran’s most severe symptoms occurred during the prior three years and such symptoms impact his ability to perform activities of daily living. A June 2014 VA treatment record noted symptoms of pain, weakness and throbbing on a daily basis and an October 2014 record indicated he suffers minimal chondrolysis within the medial compartment of both knees. Similarly, a November 2015 VA record indicated his knee pain worsens as the day progresses, including throbbing, giving way, and limiting his activities. As noted, the Veteran was afforded an August 2016 Board hearing in which he reported he has difficulty walking due to his knee disabilities and suffers from ongoing arthritis. With regard to the April 2010 VA examination on which the reductions were based, he indicated the examiner was manipulating his knees and he requested that she stop due to the pain. He testified his activities of daily living are impacted by his knees, including grocery shopping, and it makes working difficult. He stated his bilateral knee disabilities have not improved since the April 2010 VA examination but have continued to worsen. The Board finds that there has not been sustained material improvement to support the reductions in the Veteran’s bilateral knee ratings and thus, the reduction in the ratings to noncompensable were improper. The reduction in both knee ratings was based on the April 2010 VA examination in which the examiner concluded the Veteran’s knees were essentially normal with no residuals and that his subjective symptoms were being exaggerated. However, the Board determines there is other medical evidence, before and after the April 2010 VA examination, which suggests that the Veteran was experiencing significant bilateral knee pain, as well as instability, weakness, swelling and limitation in his activities. Moreover, it is highly unlikely that the Veteran’s ongoing bilateral knee pain and other symptoms, which were found to be present in five VA examinations during the 1990’s, materially improved to the point that he no longer suffered any residuals. (Continued on the next page)   Moreover, additional VA treatment records showed the Veteran consistently reported severe pain and other symptoms in his knees, including records from March 2013, June 2014 and November 2015. While these records are after the reduction, they support the idea that there has been no sustained material improvement of the Veteran’s ability to function under the ordinary conditions of life and work. See 38 C.F.R. § 3.344(a). As a result, the Board finds the rating reductions improper as to both knees and will restore the 20 percent rating for the right knee disability and 10 percent rating for the left knee disability, from January 1, 2013, the effective date of the reductions. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Isaacs, Associate Counsel