Citation Nr: 18153526
Decision Date: 11/28/18	Archive Date: 11/27/18

DOCKET NO. 15-06 490A
DATE:	November 28, 2018
ORDER
The rating reduction for service-connected scars of the left knee, status post knee surgery, from 30 percent to a noncompensable rating, as of October 1, 2014, was improper.
FINDING OF FACT
A March 2014 rating decision proposed to reduce the rating for the Veteran’s left knee scars, status post knee surgery; a subsequent March 2014 notice informed the Veteran of the 60-day period to submit additional evidence and to request a predetermination hearing within 30 days.  A July 2014 rating decision effectuated the reduction; however, the evidence of record at that time failed to establish objective improvement in overall functional impairment or the frequency and severity of symptomatology.
CONCLUSION OF LAW
The left knee scars, status post knee surgery disability rating reduction was improper and restoration of the prior rating is warranted.  38 U.S.C. §§ 1155, 5107, 5112 (West 2012); 38 C.F.R. §§ 4.7, 4.10, 4.71a, DC 7629 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from June to September 1980 and from June 1984 to March 1999.
The rating reduction for service-connected scars of the left knee, status post knee surgery, from 30 percent to a noncompensable rating, as of October 1, 2014, was improper
To reduce a rating, the fact-finder must ascertain, based upon a review of the entire record, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon a thorough examination.  It must be determined not only that an improvement in the disability level has actually occurred, but also that such improvement actually reflects an improvement in the ability to function under the ordinary conditions of life and work.  Brown v. Brown, 5 Vet. App. 413, 420-21 (1993) (citing 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13).  The reduction of a rating generally must have been supported by the evidence on file at the time of the reduction, but pertinent post-reduction evidence favorable to restoring the rating must also be considered.  Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992).  The fact-finder must issue a rating decision proposing to reduce the evaluation and notice of the 60-day period for evidence submission and the right to request a predetermination hearing within 30 days.
A March 2014 rating decision proposed to reduce the rating for left knee scars, status post knee surgery, and a March 2014 notice informed the Veteran of the 60-day period for the evidence submission and the right to request a predetermination hearing within 30 days.  A July 2014 rating decision implemented the reduction; however, the evidence of record at the time failed to establish objective improvement in the Veteran’s overall functional impairment under the ordinary conditions of life and work or in the frequency and severity of the symptomatology associated with the disability.  Specifically, the Board notes that 1) a March 2014 private examiner indicated that the Veteran’s skin on his left knee was too thin for knee cream because it would only thin the skin out even more; he had occasional bleeding from the scar and could not bend down on it because the scars hurt to touch and with range of motion 2) the Veteran testified at a March 2015 Decision Review Officer (DRO) hearing that his scars were still painful and tender to the touch, and that he indicated this to the February 2014 VA examiner but it was not taken into account.  Given this evidence, it is clear that the Veteran’s left knee scars, status post knee surgery disability continued after his February 2014 VA examination.  Therefore, the reduction was improper and restoration is warranted.
 
R. FEINBERG
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	I. Warren, Associate Counsel