Citation Nr: 18154659 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 15-06 699 DATE: November 30, 2018 ORDER The claim for entitlement to a compensable rating for right hip degenerative joint disease with limitation of extension is dismissed. The claim for entitlement to a compensable rating for right hip degenerative joint disease with impairment of the thigh is dismissed. From the date of the reduction, restoration of the 30 percent rating for the left knee disability is granted. FINDINGS OF FACT 1. In May 2018, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he wanted to withdraw his appeal concerning compensable ratings for right hip degenerative joint disease with limitation of extension and right hip degenerative joint disease with impairment of the thigh. 2. The Veteran’s left knee did not exhibit improvement in the Veteran’s ability to function under ordinary conditions of life prior to the date of reduction. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a Substantive Appeal regarding the issue of entitlement to a compensable rating for right hip degenerative joint disease with limitation of extension have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2018). 2. The criteria for withdrawal of a Substantive Appeal regarding the issue of entitlement to a compensable rating for right hip degenerative joint disease with impairment of the thigh have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2018). 3. The criteria for restoration of the 30 percent rating for the left knee disability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.105, 3.344, 4.71a, Diagnostic Code 5257 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service from March 1985 to September 1999. These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in August 2014 and March 2015. The August 2014 rating decision continued the noncompensable ratings assigned for the right hip degenerative joint disease disabilities and the March 2015 rating decision reduced the rating assigned to the Veteran’s left knee disability from 30 to zero percent effective July 1, 2015. The Veteran presented testimony at hearings before a Decision Review Officer in November 2014 and before the undersigned Veterans Law Judge in May 2018. Transcripts are of record. Withdrawals 1. Entitlement to a compensable rating for right hip degenerative joint disease with limitation of extension 2. Entitlement to a compensable rating for right hip degenerative joint disease with impairment of the thigh Under 38 U.S.C. § 7105 (2012), the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202 (2018). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204 (2018). In May 2018, prior to the promulgation of a decision in the appeal, the Board was advised that the Veteran wanted to withdraw his appeal concerning the claims for increased ratings. See hearing transcript. As the Veteran has withdrawn his appeal concerning entitlement to compensable ratings for right hip degenerative joint disease with limitation of extension and right hip degenerative joint disease with impairment of the thigh, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal concerning these claims and they are dismissed. Reduction 3. Whether the reduction for the service-connected left knee disability from 30 percent to 0 percent disabling effective July 1, 2015, was proper The 30 percent rating for the Veteran’s left knee disability was assigned in a February 2005 rating decision effective September 21, 2004, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5257, which provides the rating criteria for other impairment of the knee. In assigning the 30 percent evaluation, the RO cited subjective and objective manifestations noted during a VA examination that were found to represent severe recurrent subluxation or lateral instability. The 30 percent rating assigned for the left knee was reduced to zero percent effective July 1, 2015, in the March 2015 rating decision that is the subject of this appeal. Where a reduction in an evaluation 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 must be prepared setting forth all material facts and reasons. VA must also notify the Veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. 38 C.F.R. § 3.105 (e) (2018). After completing the predetermination procedures, VA must send the Veteran written notice of the final action, which must set forth the reasons for the action and the evidence upon which the action is based. Where a reduction of benefits is found warranted and the proposal was made under the provisions of 38 C.F.R. § 3.105(e), the effective date of the final action shall be the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires. 38 C.F.R. § 3.105(i)(2) (2018). In the present case, an August 2014 rating decision proposed the reduction of the schedular rating for the Veteran’s left knee disability. The Veteran was notified of the proposed action in an August 29, 2014, letter and was given the required 60 days to present additional evidence before the RO subsequently implemented the rating reduction, effective July 1, 2015. The RO then notified the Veteran of the action taken and his appellate rights in a March 31, 2015, letter. Therefore, VA met the due process requirements under 38 C.F.R. § 3.105 (e) and (i) (2018). In any rating reduction case, VA must determine (1) whether the evidence reflects an actual change in the disability based upon review of the entire recorded history of the condition; (2) whether the examination reports reflecting such change are based upon thorough examinations; and (3) whether any improvement actually reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. Murphy v. Shinseki, 26 Vet. App. 510, 516-17 (2014) citing Brown v. Brown, 5 Vet. App. 413, 421 (1993); see also Faust v. West, 13 Vet. App. 342, 349 (2000) (summarizing the requirements that VA must follow all reduction cases, “regardless of the rating level or the length of time that the rating has been in effect”). Upon review of the record, the Board finds that restoration of the 30 percent rating is warranted because there has not been improvement in the Veteran’s ability to function under ordinary conditions of life. More specifically, the Veteran underwent left knee replacement surgery on December 14, 2015, approximately five months after the reduction in his rating went into effect, due to post-traumatic osteoarthritis. Resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence of record indicates that his left knee disability did not improve such that a reduction to zero percent was warranted. Accordingly, restoration of the 30 percent rating from the date of the reduction is warranted. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel