Citation Nr: 1808163 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 13-21 578A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Whether a rating reduction from 20 percent to 0 percent, with an effective date of June 1, 2010, for status post reconstructive surgery, right knee, with instability, was proper. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Steven D. Najarian, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1980 to August 1984. He died in June 2015. The Appellant is the surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In October 2009, the Veteran testified at an RO hearing held at the New Orleans RO as to the issue of the proposed reduction of the right knee evaluation. A transcript of the hearing is of record. By a filing of October 2013, the Veteran withdrew his request for a Board hearing. The March 2010 rating decision decreased from 20 percent to 0 percent, effective June 1, 2010, the evaluation of the Veteran's service-connected disability of status post reconstructive surgery, right knee, with instability. The Veteran appealed. See notice of disagreement of March 2010; VA Form 9 of July 2013. A rating decision of September 2014 increased the evaluation of status post reconstructive surgery, right knee, with instability from 0 percent to 20 percent from August 7, 2013. Because the September 2014 rating decision does not represent a total grant of the benefits sought on appeal, the appeal as to the rating reduction remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). The Veteran seeks restoration of the 20 percent evaluation from June 1, 2010. See appellate brief of January 2018. The appeal has been certified to the Board for adjudication with the Veteran listed as the appellant. See VA Form 8 of October 2014. Upon the death of a claimant, a person who would be eligible to receive accrued benefits due to the claimant may be substituted as the claimant for the purpose of processing the claim to completion. See 38 U.S.C. § 5121A (2012). The RO has recognized the Appellant, the surviving spouse, as a substitute. See correspondence of April 2016; deferred rating decision of April 2016. FINDING OF FACT The Veteran's right knee instability did not materially improve under the ordinary conditions of daily life and work from June 1, 2010. CONCLUSION OF LAW The reduction from 20 percent to 0 percent for status post reconstructive surgery, right knee, with instability was improper; the criteria for restoration of a 20 percent rating for status post reconstructive surgery, right knee, with instability from June 1, 2010 have been met. 38 U.S.C. §§ 1154(a), 1155 (2012); 38 C.F.R. §§ 3.105, 3.159, 3.344, 4.2, 4.3, 4.7, 4.10, 4.13 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION A March 2010 rating decision decreased from 20 percent to 0 percent, effective June 1, 2010, the evaluation of the Veteran's service-connected disability of status post reconstructive surgery, right knee, with instability. In a rating reduction case, VA has the burden of establishing that the disability has improved. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the disability actually improved. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). Generally, 38 C.F.R. § 3.105(e) allows for the reduction in evaluation of a service-connected disability when warranted by the evidence and after certain procedural guidelines have been followed. The RO must issue a rating action proposing the reduction and setting forth all material facts and reasons for it. A veteran must then be given 60 days to submit additional evidence and to request a predetermination hearing. Then a rating action will be taken to effectuate the reduction. The effective date of the reduction will be the last day of the month in which a 60-day period from the date of notice to the veteran of the final action expires. See 38 C.F.R. §§ 3.105(e), (i)(2)(i) (2017). The Veteran received a 60-day notice of a proposed reduction in the assigned rating for the disability. See notice of February 2009. Certain procedural protections apply to stabilized disability ratings that "have continued for long periods at the same level (5 years or more)." 38 C.F.R. § 3.344(c) (2017). The use of parentheses in 38 C.F.R. § 3.344(c) suggests that the five-year time frame is a guideline, not a mandatory minimum time period. See Lehman v. Derwinski, 1 Vet. App. 339 (1991). At the time of the RO's March 2010 rating decision, the Veteran's 20 percent evaluation had been in effect for approximately ten years. Several general regulations apply to all rating reduction cases, regardless of whether the rating at issue has been in effect for five or more years. VA rating reductions, as with all VA rating decisions, must be based upon review of the entire history of a veteran's disability. See Brown v. Brown, 5 Vet. App. 413, 420 (1993) (referring to 38 C.F.R. §§ 4.1, 4.2, 4.13). A rating reduction is not proper unless a veteran's disability shows actual improvement in the ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000); Murphy v. Shinseki, 26 Vet. App. 510, 517 (2014). The evidence must reflect an actual change in a veteran's condition and not merely a difference in the thoroughness of the examination or in the use of descriptive terms. See 38 C.F.R. § 4.13 (2017). It must be determined that any such improvement also reflects an improvement in a veteran's ability to function under ordinary conditions of life and work. See 38 C.F.R. §§ 3.344(c), 4.2, 4.10 (2017). Given the above criteria, the Board finds that the rating reduction was improper. The evidence does not establish that there was an improvement in the disability under the ordinary conditions of daily life and work. A review of the March 2010 rating decision shows that the RO analyzed the issue of reduction of the 20 percent evaluation as it would a claim for an increased rating. Specifically, the RO failed to discuss an actual improvement in the Veteran's ability to function under the ordinary conditions of life and work. The March 2010 rating reduction was made on the basis of VA examination reports of October 2006 and April 2008, which failed to show objective evidence of instability or subluxation of the right knee. The rating decision also noted the Veteran's report of pain, weakness, swelling, popping, and giving way of the right knee. No mention was made, however, of the Veteran's report, during the October 2009 RO hearing, that his right knee is always swollen and continues to limit his activities at home and at work. While the VA examination reports indicated some improvement in the disability upon examination, the evidence of record does not indicate that objective improvement in right knee stability reflected an improvement in the Veteran's ability to function under the ordinary conditions of life and work. The Veteran complained of instability and did not assert that his ability to perform everyday functions has improved. The Board finds that the evidence of record does not show that the Veteran's service-connected right-knee instability had improved to the point where he was better able to function under the ordinary conditions of life and work at the time of the rating reduction. Therefore the reduction was improper, and the 20 percent rating for status post reconstructive surgery, right knee, with instability will be restored effective the date of the reduction, June 1, 2010. ORDER Subject to the law and regulations governing payment of monetary benefits, the 20 percent rating for status post reconstructive surgery, right knee, with instability is restored effective June 1, 2010. ____________________________________________ G. A. Wasik Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs