Citation Nr: 20021280 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 16-61 309 DATE: March 25, 2020 ORDER The 20 percent rating for right knee anterior cruciate ligament tear with surgical reconstruction is restored, effective November 1, 2015. REMANDED A rating greater than 20 percent for right knee anterior cruciate ligament tear with surgical reconstruction is remanded. FINDING OF FACT The Regional Office’s decision to reduce the disability evaluation assigned to the Veteran’s service-connected right knee disability from 20 to 10 was not made in accordance to the provisions of 38 C.F.R. § 3.344. CONCLUSION OF LAW The reduction of the disability evaluation for the Veteran’s service-connected right knee anterior cruciate ligament tear with surgical reconstruction from 20 percent to 10 percent was not proper; the rating is void ab initio, and the 20 percent evaluation is restored from November 1, 2015. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.71a, DC 5257. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from April 1980 to August 1992 and February 2003 to May 2003, including over 6 years of foreign service. For his meritorious service, the Veteran was awarded (among other decorations) the Army Achievement Medal. The Veteran offered testimony during a February 2020 videoconference hearing. A transcript of this proceeding has been associated with the record. Importantly, the rating reduction at issue was initiated by the Veteran’s claim for an increased rating for his right knee disability. As such, the Board finds that the increased rating claim is also for consideration at this time. See Dofflemeyer v. Derwinski, 2 Vet. App. 277, 279-280 (1992). Rating Reduction The Veteran contends that the RO improperly reduced the disability evaluation assigned to his service-connected right knee disability. In certain rating reduction cases, VA benefits recipients are to be afforded greater protections, set forth in 38 C.F.R. § 3.344(a), (b). Those sections provide that rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. However, the provisions of 38 C.F.R. § 3.344(c) specify that those considerations are required for ratings which have continued for long periods at the same level (five years or more), and that they do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant a reduction in rating. When a veteran’s disability rating is reduced without following the applicable regulation, the reduction is void ab initio. See Greyzk v. West, 12 Vet. App. 288, 292 (1999). Thus, to remedy such cases, the decision must be reversed as unlawful. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). Historically and in pertinent part, the Veteran was awarded a 20 percent rating for his right knee disability, effective September 8, 2008. His evaluation was subsequently reduced to 10 percent, effective November 1, 2015. Therefore, the reduced 20 percent rating had been in effect for more than five years, and the provisions of 38 C.F.R. § 3.344 apply to this case. See Brown v. Brown, 5 Vet. App. 413, 418 (1993) (noting that the duration of a rating must be measured from the effective date assigned that rating until the effective date of the actual reduction). Under 38 C.F.R. § 3.344(a), (b) the RO must find the following: (1) Based on a review of the entire record, the examination forming the basis for the reduction is full and complete, and at least as full and complete as the examination upon which the rating was originally based; (2) the record clearly reflects a finding of material improvement; and (3) it is reasonably certain that the material improvement found will be maintained under the ordinary conditions of life. Kitchens v. Brown, 7 Vet. App. 320 (1995); Brown, supra. In general, when there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. However, the United States Court of Appeals for Veterans Claims (Court) has specified a different burden of proof with respect to ratings reductions claims. Because the issue in this case is whether the RO was justified in reducing the Veteran’s 20 percent rating, rather than whether the Veteran was entitled to “reinstatement” of the 20 percent rating, the Board is required to establish, by a preponderance of evidence and in compliance with 38 C.F.R. § 3.344(a), that the rating reduction was warranted. See Brown, 5 Vet. App. at 420; see also Kitchens, 7 Vet. App. at 325. Upon review of the record, the reduction is found to be void because the provisions of 38 C.F.R. § 3.344 were not met. Specifically, the enacting August 2015 rating decision does not reflect any consideration of 38 C.F.R. § 3.344. Thus, the decision to reduce the Veteran’s rating was not made in accordance with the law, as the RO did not make a finding that the January 2013 VA compensation examination used as a basis for the reduction was as full and complete as the examination on which the 20 percent rating was established. Further, this rating decision did not contain any findings or discussion of whether there was a material improvement to the Veteran’s disability, and there were no findings that it was reasonably certain that the material improvement found would be maintained under the ordinary conditions of life. See 38 C.F.R. § 3.344(a). Moreover, the record does not clearly reflect material improvement to the Veteran’s right knee disability. Admittedly, June 2016 and January 2017 VA examinations report no history of subluxation or dislocation in the Veteran, as per the criteria of DC 5257. However, during the February 2020 hearing, the Veteran reported that his disability was of such severity that he was unable to walk, stand, or sit without significant difficulty. Chronic pain was also described, such that the Veteran required the assistance of a brace for ambulation and shots for pain management. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Thus, in considering his disability picture as a whole, it is not clear that the Veteran demonstrated such material improvement to his condition that the reduction was warranted. Therefore, the RO erred in its August 2015 rating action by reducing the evaluation for the Veteran’s right knee disability from 20 to 10 percent, effective November 1, 2015, and the previously assigned 20 percent evaluation is restored. REASONS FOR REMAND Although the Board sincerely regrets the additional delay this will cause, further development is necessary prior to the adjudication of the increased rating appeal. During the February 2020 hearing, the Veteran reported a worsening of his right knee disability since the previous January 2017 examination, to include the need for periodic shots for pain management. A new examination is now warranted such that the current severity of the Veteran’s disability may be assessed. Also during the February 2020 hearing, the Veteran reported significant ongoing VA treatment for his right knee disability. Thus, on remand, the RO should also associate ongoing pertinent VA treatment reports with the record before the Board. The matter is REMANDED for the following actions: 1. Obtain and associate with the record all VA treatment records for the Veteran dated from September 2016 to the present. 2. Schedule the Veteran for a VA examination to assess the current severity of his service-connected right knee disability. The claims folder must be provided to the examiner in conjunction with the examination. All necessary tests and studies should be conducted. The examiner should offer an assessment of all pertinent symptomatology and findings, to be reported in detail in accordance with the applicable Diagnostic Codes. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kovarovic, 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.