Citation Nr: 20009980 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 17-21 307 DATE: February 6, 2020 ORDER The reduction in rating for instability of the right knee was not proper; restoration of the 30 percent rating is granted effective November 1, 2015. FINDINGS OF FACT 1. An August 2015 rating decision reduced the disability rating for the Veteran’s service-connected right knee instability from 30 percent to 0 percent, effective November 1, 2015, after meeting all due process requirements in executing such a reduction. 2. The Veteran’s 30 percent disability rating for instability of the right knee had been in effect for more than 5 years. 3. The Veteran’s right knee instability disability did not show actual improvement under the normal circumstances of life and work. CONCLUSION OF LAW The reduction from 30 percent to 0 percent for instability of the right knee effective November 1, 2015, was improper and the 30 percent rating is restored. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1971 to February 1979. This matter is before the Board of Veterans’ Appeals (Board) on appeal of an August 2015 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in December 2019. A transcript of the hearing has been associated with the claims file. Propriety of Rating Reduction—Laws and Analysis The provisions of 38 C.F.R. § 3.105 (e) allow for the reduction in evaluation of a service-connected disability when warranted by the evidence, but only after following certain procedural guidelines. The RO must issue a rating action proposing the reduction and setting forth all material facts and reasons for the reduction. The 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 implement the reduction. 38 C.F.R. § 3.105 (e). 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. 38 C.F.R. § 3.105 (e), (i)(2)(i). In this case, the Board finds that all notification and due process requirements provided under 38 C.F.R. § 3.105 (e) have been met. See March 2015 rating action proposing the reduction and letter notifying the Veteran of the proposed reduction. Regulations “impose a clear requirement that VA rating reductions...be based upon a review of the entire history of the Veteran’s disability.” Brown v. Brown, 5 Vet. App. 413, 420 (1993); 38 C.F.R. §§ 4.1, 4.2, 4.13. A rating reduction is proper if the evidence reflects an actual change in the disability. The examination reports reflecting such change must be based upon thorough examinations. Brown, 5 Vet. App. at 421. The evidence must reflect an actual change in the Veteran’s condition and not merely a difference in the thoroughness of the examination or in the use of descriptive terms. 38 C.F.R. § 4.13. It must also be determined that any such improvement also reflects an improvement in the veteran’s ability to function under ordinary conditions of life and work. 38 C.F.R. §§ 4.2, 4.10; Brown, supra. Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved. A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating issue. 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 implemented, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). The Board notes that the 30 percent rating for right knee instability had been in effect since 2005; a period of more than 5 years. Consequently, this rating could not be reduced without compliance with the provisions of 38 C.F.R. §§ 3.344 (a) and (b) regarding stabilization of ratings. See 38 C.F.R. § 3.344 (c); Peyton v. Derwinski, 1 Vet. App. 282, 286-87 (1992). The provisions of 38 C.F.R. § 3.344 (a) require a review of the entire record of examinations and the medical-industrial history to ascertain whether the recent examination was full and complete. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings will not be reduced on any one examination, except where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated, and it is reasonably certain that any material improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344. If doubt remains, after according due consideration to all the evidence developed by the several items discussed in 38 C.F.R. § 3.344 (a), the rating agency will continue the rating in effect, citing the former diagnosis with the new diagnosis in parentheses. 38 C.F.R. § 3.344 (b). In this case, the reduction was proposed based on November 2012 and March 2015 VA examination reports. The November 2012 VA examiner indicated that stability testing of the right knee was normal. Notably, this examination was provided in response to the Veteran’s claim for service connection for a left knee disorder, as secondary to the service-connected right knee disability. As such, the Veteran’s medical history and symptoms were mostly focused on the left knee. In a following March 11, 2015 VA examination report, the Veteran stated that his right knee had worsened since his last examination in 2012. The Veteran reported decreased range of motion secondary to increased pain. Joint stability testing was normal. In a Subsequent March 20, 2015 VA examination, the Veteran specifically reported that his knee “will give way at times due to pain.” It was further indicated that the Veteran used a cane on a regular basis and a walker occasionally. Upon examination, the examiner indicated that the Veteran ambulated in the hallway with an antalgic gait favoring his right knee. The examiner further noted that an MCL tear could often heal and return to a stable ligament. However, it was specifically noted that the Veteran did have some “occasional giving way which is due to pain and not ligamentous instability.” During the December 2019 Board hearing, the Veteran testified that his right knee instability had worsened since his 2015 VA examination. The Veteran further stated that he was now wheelchair bound, in part, due to instability in his right knee. The Veteran’s right knee instability is currently rated under Diagnostic Code 5257 which contemplates “other impairment” of the knee including recurrent subluxation or lateral instability. Under Diagnostic Code 5257, where impairment is severe, moderate or slight, disability evaluations of 30, 20, and 10 percent are assigned, respectively. Here, the VA examinations discussed above show that the Veteran has continued to have pain in the knee, some giving way of the knee, and uses a cane and walker to assist with ambulation. Moreover, the Veteran’s lay statements during the December 2019 Board hearing demonstrate that his disability causes severe limitations in walking and standing, in addition to now requiring the use of a wheelchair. Therefore, his disability has resulted in functional impairment (difficulty walking, standing, etc.). As such, the Board finds that the evidence shows that it is not reasonably certain that the improvement shown would be maintained under the ordinary conditions of life. Moreover, although the VA examinations discussed above do not reflect objective evidence of lateral instability or recurrent subluxation, in English v. Wilkie, 30 Vet. App. 347, 349 (2018), the Court held that DC 5257 did not require medical evidence of lateral instability for a rating to be assigned. Instead, the Board had to address any relevant lay evidence and compare it to the medical evidence to determine which was more probative, keeping in mind that objective medical evidence was not automatically more probative than lay evidence. Here, the Board accepts the Veteran’s lay reports of his right knee feeling unstable and having to use a cane, walker, or wheelchair credible. For these reasons, the Board finds that the preponderance of the evidence shows that the reduction was not proper, and that restoration of the prior 30 percent rating is warranted effective November 1, 2015. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Casadei, 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.