Citation Nr: 20007013 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 19-15 294 DATE: January 28, 2020 ORDER Restoration of a 30 percent evaluation for service-connected instability of the left knee effective January 1, 2019 is granted. FINDINGS OF FACT 1. In a November 2011 rating decision, the Veteran was granted a separate rating for left knee instability, evaluated at 30 percent, from March 30, 2011. 3. In an October 2018 rating decision, the RO reduced the rating for service-connected left knee instability to 10 percent, effective January 1, 2019. 4. The record then available did not reflect that there had been improvement in the service-connected left knee instability under the ordinary conditions of life and work. CONCLUSION OF LAW Restoration of a 30 percent disability rating for the Veteran’s service-connected left knee instability is warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105(e), 3.344, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1999 to October 1999, and January 2002 to August 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which reduced the assigned rating for service-connected left knee instability to 10 percent from January 1, 2019. The Veteran disagreed with the reduction and this appeal follows. Reduced Rating Criteria The law provides that where a rating reduction was made without observance of law, the erroneous reduction must be vacated, and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). 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. When a RO reduces a veteran’s disability rating without following the applicable regulations, the reduction is void ab initio. Greyzck v. West, 12 Vet. App. 288, 292 (1999). Prior to reducing a Veteran’s disability rating, VA is required to comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. See 38 C.F.R. §§ 4.1, 4.2, 4.10. These provisions impose a requirement that VA rating reductions be based upon review of the entire history of the Veteran’s disability. Schafrath, 1 Vet. App. at 594. The review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Thus, 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 the Veteran’s ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 350 (2000). In certain rating reduction cases, VA benefits recipients are to be afforded greater protections, set forth in 38 C.F.R.§ 3.344 (a) and (b) are only applicable for ratings which have continued for long periods at the same level (five years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Generally, when reduction in the evaluation of a service-connected disability is contemplated and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified at his latest address of record of the contemplated action and furnished detailed reasons therefore. The beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105 (e). 1. Restoration of a 30 percent rating for left knee instability, effective January 1, 2019. Here, the Veteran contends that the reduction from 30 percent to 10 percent for his service-connected left knee instability was not warranted. He argues that the evaluation should be restored. See, e.g., the notice of disagreement (NOD) dated November 2018. As an initial matter, the Board finds that the evidence does not indicate, and the Veteran does not contend, that the relevant notice requirements in effectuating the reduction have not been met. The procedural requirements set forth in 38 C.F.R. § 3.105(e) regarding reduction in benefits (i.e. the issuance of a rating decision proposing the reduction or discontinuance and setting out all material facts and reasons underlying the proposal; notification to the Veteran; and providing the Veteran 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level) apply in this case as its reduction affected his overall combined evaluation or monthly monetary amount. See 38 C.F.R. § 3.105(e). To this end, the Board finds that the RO satisfied the due process notification requirements under 38 C.F.R. § 3.105(e). Specifically, the Board notes that the Veteran underwent a VA examination in March 2018. In an April 2018 rating decision, the 30 percent evaluation for his service-connected left knee instability was proposed to be reduced to 10 percent on the basis of that examination. The Veteran was informed of his rights, including to a predetermination hearing and to submit additional evidence, in an April 2018 letter. The AOJ finalized the discontinuance of the Veteran’s 30 percent evaluation in an October 2018 rating decision and reduced the assigned rating to 10 percent, effective January 1, 2019. The effective date of the reduction, January 1, 2019, was effective 60 days from the date of notice of the October 2018 final rating action, as set forth in the applicable VA regulation. In light of these facts, the Board finds that the particularized procedure for the reduction of the Veteran’s 30 percent rating for left knee instability to 10 percent was appropriately and adequately completed in this case. See 38 C.F.R. § 3.105(e). The question that remains is the substantive question of whether the reduction was proper. In a December 2008 rating decision, the RO granted service connection for left knee strain; a noncompensable (zero percent) rating was assigned from August 8, 2008. In a September 2009 rating decision, the assigned rating was increased to 10 percent, effective from March 6, 2009. In a November 2011 rating decision, the RO granted a separate rating for left knee instability and assigned a 30 percent rating from March 30, 2011. As indicated above, in the October 2018 rating decision, the Veteran’s rating for left knee instability was reduced to 10 percent from January 1, 2019. Accordingly, the 30 percent rating for left knee instability was in effect for more than five years; therefore, the provisions of 38 C.F.R. § 3.344(c) apply. In March 2018, the Veteran was afforded a VA examination to address the severity of his left knee disability. He reported that he must be careful with his left knee when running, exercising, and doing karate. The Veteran described a dull pain if he jars his left knee when doing karate. He stated that there is no locking of the left knee, but that he has flare-ups causing increased pain, which are usually induced by exercise. The Veteran described a popping sound in his left knee, which occurs during flare-ups. He stated that his left knee hurts with bending and walking during periods of flare-up. The Veteran reported flare-ups that occur monthly with a severity of 6/10; the duration of flare-ups varies. The Veteran reported that he is unable to run long distances over two miles due to left knee swelling. Range of motion testing revealed flexion to 140 degrees and extension to zero degrees. There was no additional limitation of motion on repetitive use testing. Muscle strength was intact. During left knee joint stability testing, the Veteran was observed to have normal anterior, posterior and medial stability; however, there was lateral instability at 1+ (from zero to five millimeters). The Veteran endorsed the occasional use of a knee brace for stability. The VA examiner did not provide an estimated assessment of additional functional loss and/or impairment caused by flare-ups of the left knee. VA medical records dated in June 2018 note that magnetic resonance imaging (MRI) showed meniscal tears. The Veteran complained of knee pain but reported no locking of the knees. In October 2018, the RO reduced the Veteran’s disability rating from 30 percent to 10 percent based on a finding that the record shows recurrent subluxation or lateral instability of the knee, which is slight. The RO indicated that there was no evidence of moderate subluxation or lateral instability of the left knee as is required for a 30 percent rating under Diagnostic Code 5257. As indicated above, pursuant to the Court’s holdings in Faust and Brown, 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. See Faust, 13 Vet. App. at 350; see also Brown, 5 Vet. App. at 421. Although the March 2018 examination findings indicated that the evidence demonstrated that the instability of the Veteran’s left knee was no more than slight, the rating decision did not address the Veteran’s report of considerable functional impairment manifested by stiffness, popping, and instability during flare-ups that worsens with physical activity. The RO also failed to consider the objective evidence of lateral instability in the Veteran’s left knee, as well as the Veteran’s use of a left knee brace to manage instability symptoms. As such, the Board cannot conclude that there had been improvement over the disability previously characterized by the 30 percent rating. Moreover, in reducing the Veteran’s rating, the RO neither cited to nor discussed 38 C.F.R. § 3.344, the pertinent regulation in effect at that time governing the reduction of a disability rating of a disability that was in effect for five or more years. See Kitchens v. Brown, 7 Vet. App. 320 at 325 (1995) (“Where, as here, the Court finds that VA has reduced a veteran’s rating without observing applicable laws and regulation, such a rating is void ab initio and the Court will set it aside as not in accordance with the law”). Consequently, the Board concludes that the record did not reflect an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. The previously assigned 30 percent rating for the service-connected left knee instability is therefore restored. The appeal is allowed to that extent. See 38 C.F.R. § 3.344. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Miller, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.