Citation Nr: 18153056 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-15 647 DATE: November 27, 2018 ORDER The reduction from a 20 percent rating to a 10 percent rating for the service-connected right knee strain was proper; restoration of the 20 percent rating from January 1, 2015, is denied. The reduction from a 20 percent rating to a 0 percent rating for the service-connected left knee strain was proper; restoration of the 20 percent rating from January 1, 2015, is denied. FINDINGS OF FACT 1. In a May 2010 rating decision, the Regional Office (RO), in pertinent part, granted service connection and assigned separate 10 percent disability ratings for right and left knee strain based on findings of objective pain of the right and left knee at the January 2010 QTC medical examination. 2. In an October 2012 rating decision, the RO increased the Veteran’s disability ratings for right and left knee strain to 20 percent based on findings of limited extension at the August 2011 VA examination; the RO also assigned a temporary evaluation of 100 percent on July 24, 2012 because of hospitalization over 21 days. 3. In a February 2014 rating decision, following a January 2014 VA examination, the RO proposed to reduce the disability ratings for the right and left knee strain from 20 percent to 0 percent disabling on the basis that the Veteran had diagnosed disabilities with no compensable symptoms. 4. In an October 2014 rating decision, the RO found that there was clear and unmistakable error in the temporary 100 percent evaluation for hospitalization over 21 days/convalescence for his service-connected right knee strain. 5. Also, in the October 2014 rating decision, the RO implemented rating reductions for right and left knee strain, finding that a 10 percent disability rating was proper for the right knee and a 0 percent disability rating was proper for the left knee. Both disability ratings were effective as of January 1, 2015. 6. The 20 percent disability ratings for a right and left knee strain had not been in effect for more than five years. 7. The evidence of record shows demonstrated improvement in the service-connected right and left knees. CONCLUSIONS OF LAW 1. The reduction from 20 percent to 10 percent from January 1, 2015, was proper; the criteria for restoration of a 20 percent rating for the right knee strain have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.105 (e), 3.344, 4.3, 4.7, 4.71a, DC 5257 (2017). 2. The reduction from 20 percent to 0 percent from January 1, 2015, was proper; the criteria for restoration of a 20 percent rating for the left knee strain have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.105 (e), 3.344, 4.3, 4.7, 4.71a, DC 5257 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2002 to September 2006. See DD Form 214. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). Legal Criteria and Analysis Prior to the rating reduction at issue, in May 2010, the Veteran was granted service connection and granted 10 percent ratings for a right and left knee strain, effective October 26, 2009. In an October 2012 rating decision, the RO increased the Veteran’s ratings for his right and left knee strain to 20 percent. In a February 2014 rating decision, the RO proposed to decrease the Veteran’s right and left knee strain ratings from 20 percent to 0 percent. Also, in February 2014, the RO sent the Veteran a letter which informed him of his due process rights and procedures. In October 2014, the RO reduced the rating for a right knee disability from 20 percent to 10 percent, effective January 1, 2015, the first day of the month following 60 days from the date of the notification letter. The RO also reduced the rating for a left knee disability from 20 percent to 0 percent, effective January 1, 2015. In a January 2015 NOD, the Veteran contended that the October 2014 rating reduction was improper, and he sought restoration of the 20 percent ratings previously assigned. The Board, however, finds that restoration of the 20 percent ratings is not warranted. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue (including degree of disability) shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. The RO has rated the Veteran’s service-connected right knee disability under Diagnostic Code (DC) 5260; his left knee disability is rated under DC 5257. Under DC 5260 for limitation of leg flexion, a noncompensable rating is warranted if knee flexion is limited to 60 degrees; a 10 percent disability rating is assigned for flexion limited to 45 degrees; a 20 percent disability rating is assigned for flexion limited to 30 degrees; and a 30 percent disability rating is assigned for flexion limited to 15 degrees. See 38 C.F.R. § 4.71a, DC 5260. Again, the RO has rated the Veteran’s service-connected left knee disability under DC 5257 for recurrent subluxation or lateral instability of the knee. Here, a 30 percent rating is warranted where subluxation or lateral instability is severe. A 20 percent rating is appropriate where subluxation or lateral instability is moderate. And a 10 percent rating is appropriate where subluxation or lateral instability is slight. See 38 C.F.R. § 4.71a, DC 5257. Propriety of Rating Reduction Two of the issues on appeal address restoration of 20 percent disability ratings for service-connected right and left knee strain, including whether the reductions in compensation from 20 percent to 10 percent disabling for the right knee and from 20 percent to 0 percent for the left knee, effective January 1, 2015, were proper. The regulations pertaining to the reduction of ratings for compensation contain their own notification and due process requirements. 38 C.F.R. § 3.105 (e), (i). For this reason, the Board finds that the VCAA does not apply. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991) (“This is a rating reduction case, not a rating increase case.”); Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992) (stating that “the issue presented to the BVA, and to this Court, is not whether the Veteran was entitled to an increase but whether the reduction of appellant’s rating from 100% to 10% was proper”). The propriety of the reduction of the Veteran’s bilateral knee strain is not an increased rating issue; therefore, the current degree of bilateral knee strain, in the context of the facts of this case and the evidence in this case that includes post-reduction lay and medical evidence, would have very little bearing on the restoration issue on appeal and the 2014 reduction. Whether a higher rating is warranted for this disability based on subsequent assertion of worsening is not at issue here. Claims stemming from a rating reduction action are claims for restoration of the prior rating that, typically, does not contemplate a claim for an increased rating. See Peyton, 1 Vet. App. at 286; Dofflemyer, 2 Vet. App. at 280. The relevant factual and legal questions pertinent to these issues are whether there was actual improvement in the right and left knee instability from October 2012 (when the 20 percent disability ratings for right and left knee strain were assigned) to October 2014 (when the rating reductions were implemented). Pursuant to 38 C.F.R. § 3.105 (e), where a 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. The beneficiary will be notified at his latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payment should be continued at their present level. Final rating action will reduce or discontinue the compensation 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. The due process protections of 38 C.F.R. § 3.105 (e) apply in this case because the October 2014 rating decision reducing the rating at issue resulted overall in a reduction of compensation payments. In this case, the Veteran disagrees with the October 2014 rating decision reducing his disability rating for his service-connected right knee disability from 20 percent to 10 percent and his left knee disability from 20 percent to 0 percent, both effective January 1, 2015. Again, the Board finds that the RO complied with the procedural requirements of 38 C.F.R. § 3.105. As such, the RO’s reduction of the Veteran’s ratings for his right and left knee disabilities were procedurally in accordance with the provisions of 38 C.F.R. § 3.105. The remaining issue is whether the reduction was proper based upon the evidence of record. For the reasons set forth below, the Board finds that the RO’s reductions of 20 percent to 10 percent for the right knee disability and 20 percent to 0 percent for the left knee disability were proper. The criteria governing rating reductions for certain service-connected disabilities are found in 38 C.F.R. § 3.344. Ratings that have been continued for five years or more are governed by § 3.344(a) and (b), which provide that any rating reduction is valid only if, after a review of the entire record of examinations and the medical-industrial history, it is based upon an examination that is at least as complete as the examination that formed the basis for the original rating. See Kitchens v. Brown, 7 Vet. App. 320, 324 (1995); Brown v. Brown, 5 Vet. App. 413 (1993). Ratings that have been continued for less than five years are governed by § 3.344(c), which provides that a reexamination disclosing improvement is sufficient to warrant a reduction in rating. As the 20 percent evaluations for the Veteran’s service-connected right and left knee disabilities were in effect from May 2, 2011 to December 31, 2014, which is less than five years, § 3.344(c) governs the propriety of the reductions from 20 percent to 10 percent for the right knee disability and from 20 percent to 0 percent for the left knee disability. After a review of the lay and medical evidence, the Board finds that actual improvement of the right and left knees, when compared to the findings in the January 2010 QTC medical examination (which was the basis for the initial award of 10 percent for both knees) and the August 2011 VA examination (which was the basis for the increased rating of 20 percent for both knees) have been demonstrated. Therefore, the rating reductions were proper and restoration of the 20 percent ratings for right and left knee disabilities is not warranted. Again, prior to the reduction, the Veteran was afforded a VA examination in August 2011. This examination showed extension of the bilateral knees which was limited to 15-19 degrees. Additional evidence at the time of the reduction, which was effective June 1, 2015, includes a January 2014 VA examination, private treatment records, and the Veteran’s lay statements. A September 2011 VA treatment record reveals a diagnosis of knee arthralgia. The Veteran reported swelling, daily pain of 6/10, and minimal pain. Range of motion testing revealed bilateral flexion of the knees to 135 degrees or more and hyperextension of both knees of 10 degrees or more. The Veteran’s radiology reports were unremarkable. The Veteran’s private treatment records, dated in November 2011, reveal that the Veteran was involved in a motorcycle accident and received treatment immediately thereafter. The Veteran was assessed with an open right knee dislocation, to include pain. On examination, it was difficult for the Veteran to move his right knee more than 10 to 20 degrees, secondary to pain and discomfort. The Veteran’s variously-dated VA treatment records reveal multiple knee surgeries and subsequent infections of the right knee, pain, and arthralgia. The January 2014 VA examination revealed diagnoses of a right knee strain which had resolved without residuals and no functional limitation, as well as a left knee strain with no functional limitation. At the time of the examination, the Veteran reported an injury to his right knee in November 2011 due to a motorcycle accident. He stated that he had six surgeries on the right knee with surgery for staph infections, as well a lot of physical therapy. The Veteran reported dull constant pain in the right knee, which was worse with walking and pain in the left knee with prolonged walking. He did not state that he reinjured his left knee, but stated that a hamstring tendon was removed from the left leg to use for surgery of the right knee. Range of motion testing revealed right knee flexion to 105 degrees, with painful motion beginning at 90 degrees; right knee extension to 0; left knee flexion to 120 degrees, with no objective evidence of painful motion; and left knee extension to 0 degrees. The Veteran was able to perform repetitive use testing, with no additional limitation in range of motion. The Veteran had functional loss and/or impairment, to include contributing factors of no functional loss for the left lower extremity, less movement than normal, swelling, and disturbance of locomotion. The Veteran had bilateral tenderness or pain to palpation, normal muscle strength testing, and normal joint stability testing. The Veteran reported the use of regular assistive devices. The Veteran also had degenerative arthritis. The examiner also cited that the abnormal examination findings were not present on the August 2011 examination report. Further, the examiner opined that the Veteran’s right knee disability was a post-service knee injury due to a motorcycle accident with subsequent surgeries and infection. As to lay statements, although following the rating decision, the Veteran reported that his knee difficulties occurred while he was on active duty and that his injuries interfere with his everyday living. See January 2015 NOD. Also, the Veteran reported that he believed that his knee injury occurred while in the military. He also reported that he suffers from pain, swelling, instability, and intermittently uses a cane and braces. See March 2016 Form 9. Here, based on the January 2014 VA reexamination of record, the Board finds that the evidence reflects an actual improvement in the Veteran’s right and left knee disabilities, which is what is required for a rating in effect for less than five years. See 38 C.F.R. § 3.344 (c). First, as to the right knee, the Board again acknowledges that the Veteran sustained a post-service knee injury due to a motorcycle accident. Upon examination, there was pain but no limitation of flexion of 16 to 30 degrees of the right knee and no findings of compensable symptoms, to include subluxation or lateral instability that is slight or moderate relating to the left knee. Given the VA examination findings, the Board has determined that the 10 percent rating for the right knee and 0 percent rating for the left knee are appropriate. Thus, these ratings reflect an actual improvement under the ordinary conditions of daily life. The Board acknowledges the Veteran’s lay statements and private treatment records, but concludes that lay evidence is not competent to assess the severity of the disorder. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Thus, because the Diagnostic Code requires measurements of the Veteran’s flexion, extension, and instability, the Veteran is not competent to render an opinion with respect to the severity of his condition. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (lay evidence is not always competent evidence of a diagnosis or nexus-particularly where complex medical questions or the interpretation of objective medical tests are involved); Kahana v. Shinseki, 24 Vet. App. 428 (2011). Consequently, the Veteran’s lay statements with respect to the severity of his service-connected right and knee disabilities do not constitute competent evidence and have little to no probative value. Additionally, the Veteran’s private treatment records speak to his condition following his interceding events of a November 2011 motorcycle accident and subsequent surgeries and infections, which the examiner noted were not of service origin. As such, the Board assigns more probative weight to the findings provided by the VA examiner. Accordingly, the Board finds that the rating reductions of the Veteran’s service-connected right knee disability from 20 percent to 10 percent and his service-connected left knee disability from 20 percent to 0 percent, both effective January 1, 2015, were proper.   As the preponderance of the evidence shows the reductions were proper, the benefit-of-the-doubt rule does not apply, and the Veteran’s claim is denied. 38 U.S.C. § 5107 (b). Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Tiffany N. Hanson, Associate Counsel