Citation Nr: 21064668 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 18-14 323 DATE: October 21, 2021 ORDER Restoration of the 10 percent rating assigned for scars, right knee, from September 1, 2015 to October 22, 2015 is granted. Restoration of the 20 percent rating assigned for traumatic arthritis, right knee, from September 1, 2015 to October 22, 2015 is granted. Restoration of the 20 percent rating assigned for limitation of extension, right knee, from September 1, 2015 to October 22, 2015 is granted. FINDINGS OF FACT 1. A comparison of the evidence upon which a 10 percent disability rating was awarded for scars, right knee, with the evidence concerning the rating reduction to 0 percent does not reflect sustained and material improvement in the Veteran's right knee scars. 2. A comparison of the evidence upon which a 20 percent disability rating was awarded for traumatic arthritis, right knee, with limited flexion, with the evidence concerning the rating reduction to 10 percent does not reflect sustained and material improvement in the Veteran's right knee motion, especially with considering the functional impact on daily life. 3. A comparison of the evidence upon which a 20 percent disability rating was awarded for right knee limitation of extension, with the evidence concerning the rating reduction to 0 percent does not reflect sustained and material improvement in the Veteran's right knee motion, especially with considering the functional impact on daily life. CONCLUSIONS OF LAW 1. The disability rating for scars, right knee, was not properly reduced to 0 percent effective September 1, 2015 to October 22, 2015; consequently, the prior 10 percent rating is reinstated for the period at issue from September 1, 2015 to October 22, 2015. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 4.118, Diagnostic Code (DC) 7804. 2. The disability rating for traumatic arthritis, right knee, with limited flexion was not properly reduced to 10 percent effective September 1, 2015 to October 22, 2015; consequently, the prior 20 percent rating is reinstated for the period at issue from September 1, 2015 to October 22, 2015. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 4.71a, DC 5260. 3. The disability rating for right knee limited extension was not properly reduced to 0 percent effective September 1, 2015 to October 22, 2015; consequently, the prior 20 percent rating is reinstated for the period at issue from September 1, 2015 to October 22, 2015. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 4.71a, DC 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the United States Army from January 1986 to February 1988, and from August 1989 to May 1990. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided hearing testimony before the undersigned in July 2021. A transcript of this hearing is within the record before the Board of Veterans Appeals (Board). The Veteran was originally service connected for the residuals of reconstruction of the anterior cruciate ligament (ACL) in the right knee by way of an April 1988 rating decision. An initial 10 percent rating was assigned, effective February 2, 1988. In September 1993, the RO issued a rating decision increasing the right knee rating to 20 percent, effective May 25, 1993. In September 2000, the RO issued a rating decision continuing the 20 percent rating, and assigning a separate 10 percent rating for traumatic arthritis, right knee, with limitation of motion, effective July 1, 1997. In September 2011, the RO recharacterized the traumatic arthritis rating to be traumatic arthritis with limitation of flexion. The 20 percent rating assigned was now under Diagnostic Code 5010-5260 to recognize the compensable limitation of flexion, effective July 20, 2011. A separate 20 percent rating for limitation of extension was also assigned, effective July 20, 2011. The 20 percent rating for the residuals of the ACL reconstruction was continued. The Veteran's surgical scars were recognized as service connected by way of a December 2011 rating decision, but a noncompensable rating was assigned. In June 2013, the RO issued another rating decision and the Veteran's surgical scars were assigned a 10 percent rating, effective September 26, 2012. The ratings assigned for residuals of ACL reconstruction, limitation of flexion and limitation of extension were all continued as 20 percent. In January 2014, the Veteran reported having a right knee surgery on August 6, 2013. The RO, in July 2014, issued a rating decision and awarded a temporary 100 percent rating, effective August 6, 2013. The matter of the appropriate rating to be assigned afterward was deferred at that time. Following a VA examination in August 2014, the RO issued a September 2014 rating decision and proposed a decrease in the ratings assigned for traumatic arthritis with limitation of flexion, and for limitation of extension. Each rating was proposed to decrease from 20 percent to 10 percent. The Veteran was notified of his right to a predetermination hearing and in October 2014, he requested such a hearing. In January 2015, another rating decision was issued, which noted the rating for right knee residuals of ACL reconstruction was being continued at 20 percent, but proposed a reduction in the right knee limitation of extension from 20 percent to 0 percent, and proposed a reduction for the surgical scars from 10 percent to 0 percent. The Veteran was then afforded his RO predetermination hearing in March 2015. The RO then issued the June 2015 decision on appeal, which reduced the surgical scars from 10 percent to 0 percent; reduced the traumatic arthritis with limitation of flexion from 20 percent to 10 percent; and reduced the limitation of extension from 20 percent to 0 percent. Each of these reductions became effective September 1, 2015. The Veteran has perfected an appeal as he contends none of his right knee symptoms improved at any time. During the course of this appeal, another rating decision was issued in January 2018. The Veteran was awarded a total disability rating based upon individual unemployability (TDIU) effective March 24, 2015. The Veteran was also assigned a temporary total evaluation for his right knee, effective October 22, 2015, the date of the Veteran's total knee arthroplasty. A 30 percent rating was assigned effective December 1, 2016, which combined the previously rated right knee traumatic arthritis with limitation of flexion, extension and instability into a single, post-total knee arthroplasty rating in accordance with 38 C.F.R. § 4.71a, DC 5055. This post-surgical rating is not on appeal. Thus, the matter before the Board is limited to the propriety of the reduction in the right knee ratings prior to October 22, 2015. Again, the reductions were made effective September 1, 2015. The decision below considers the propriety of the reductions for this limited period between September 1, 2015 and October 22, 2015. Pursuant to 38 C.F.R. § 3.105(e), where a reduction in the 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 will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Final rating action will reduce or discontinue the compensation effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e). In this case, the Veteran contends that symptoms associated with his right knee have never improved, and, rather, that his symptoms worsened such that the three reductions in the ratings assigned to the right knee between September 1, 2015 and October 22, 2015 were not warranted. Initially, given the procedural history summarized above, the Board finds that the RO complied with the procedural requirements of 38 C.F.R. § 3.105, in terms of properly advising the Veteran of the intended action before it actually occurred and in giving him the opportunity to contest the reduction before it took effect, to include affording him the requested predetermination hearing. The 20 percent ratings for the right knee limitation of flexion and extension, and the 10 percent rating for the surgical scars, had been in effect since July 2011 and September 2012, respectively. Because the ratings were in effect less than five years, the provisions of 38 C.F.R. § 3.344 (a), (b) pertaining to stabilized ratings are not applicable. See 38 C.F.R. § 3.344(c) (reexaminations disclosing improvement in disabilities that have not become stabilized will warrant reduction in the rating). The Veteran's limited flexion was assigned the 20 percent rating under 38 C.F.R. § 4.71a, DC 5260, which awards a 20 percent rating with flexion limited to 30 degrees. The limited extension was assigned the 20 percent rating under DC 5261, which assigns a 20 percent rating for extension limited to 15 degrees. The Veteran's surgical scars were rated as 10 percent disabling under 38 C.F.R. § 4.118, DC 7804, which allows a 10 percent rating for one or two scars that are unstable or painful. In Brown v. Brown, 5 Vet. App. 413 (1993), the Court of Appeals for Veterans Claims (Court) identified general regulatory requirements applicable to all rating reductions, including those that have been in effect for less than five years. Pursuant to 38 C.F.R. § 4.1, it is essential, both in the examination and evaluation of the disability, that each disability be viewed in relation to its history. Id., at 420. Similarly, 38 C.F.R. § 4.2, establishes that "[i]t is the responsibility of the rating specialist to interpret reports of examination in light of the whole record history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of the disability present." Id. The Court has held that these provisions "impose a clear requirement" that rating reductions be based on the entire history of the veteran's disability. Id. Furthermore, 38 C.F.R. § 4.13 provides that the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. Additionally, in any rating-reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work. See Brown v. Brown, 5 Vet. App. at 420-421; see also 38 C.F.R. §§ 4.2, 4.10. A claim as to whether a rating reduction was proper must be resolved in the Veteran's favor unless VA concludes that a fair preponderance of evidence weighs against the claim. Brown, 5 Vet. App. at 421. The question consequently currently before the Board is whether the Veteran's right knee flexion, extension, and scars demonstrated improvement of this type contemplated at the time of the rating reduction in September 2015. After again reviewing the relevant evidence, the Board finds that the reduction in the ratings was not warranted. The evidence does not establish the required improvement in orthopedic symptoms or the scarring, particularly those symptoms that would impact the ordinary conditions of life and work. The RO's basis for the 20 percent rating for the Veteran's limited extension in 2011 was the September 2011 VA examination report that showed extension limited to 15 degrees. The same examination report was used as the basis for the 20 percent rating for the limited flexion. The 10 percent rating for the surgical scars was based upon an October 2012 VA examination report, which showed the Veteran had one surgical scar that was painful. The RO's basis for its September 2014 proposal to reduce the extension and flexion ratings was the August 2014 VA examination report. The Veteran continued to report the knee pain, but the examination findings did not show the limitation in motion needed for the ratings assigned. The Veteran was then afforded a November 2014 examination, which led to the January 2015 rating decision proposing to reduce the ratings based upon limited motion and also proposed to reduce the rating assigned to the surgical scar. This VA examiner suggested there were no scars associated with the right knee surgery. The Veteran, at the March 2015 predetermination hearing, however, reported that he still experiencing locking in his knees, that he has striking pain whenever he puts weight on his right leg, and he confirmed that not only had his right knee symptoms not improved since 2011, he felt the knee condition had worsened. Nonetheless, the RO followed that hearing by issuing the June 2015 rating decision on appeal. The RO did not discuss any evidence other than the VA examination reports at the time of the reduction; however, the Board has reviewed the contemporaneous lay statements and VA treatment records to determine if there is evidence of improvement. There is no such evidence of improvement, particularly functional improvement involving daily life. The Veteran contended his knee condition was worsening. He made reports indicating he could not bear weight or play any sort of sports or other activities. Further, the evidence shows the Veteran's condition worsened such that he underwent total knee arthroplasty within weeks after the reduction in rating took effect, hence the 100 percent rating assigned effective October 22, 2015. The Board finds it hard to imagine a state of improvement was occurring at the time leading to total knee arthroplasty. At the July 2021 Board hearing, the Veteran made consistent reports of the ongoing nature of his right knee disability. He reported that he had problems with both flexing and straightening his knee prior to the surgery. He reported that his scars have always been itchy and painful. He also indicated he cannot run and that riding a bike and walking are difficult, as well as standing. The Board finds no reason to question the credibility of the Veteran's reported symptoms as he has consistently reported his symptoms over the years. In general, the reduction of a rating must have been supported by the evidence on file at the time of the reduction. However, pertinent post-reduction evidence favorable to restoring the rating also must be considered. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). In this case, the Veteran consistently complained of a worsening, not improving, of his right knee disability during the pendency of this appeal and the later total knee arthroplasty confirmed this. The Board finds that a comparison of the evidence upon which the disability ratings at issue were awarded with the evidence available for review in connection with the rating reductions does not reflect a definite improvement in the Veteran's right knee range of motion or scarring. In consideration of the foregoing, the Board finds that the criteria for a rating reduction are not met because VA did not meet its burden of proof to show sustained and material improvement in the right knee disabilities at issue. The law provides that where a rating reduction was made without observance of law, although a remand for compliance with that law would normally be an adequate remedy, in a rating reduction case the erroneous reduction must be vacated and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Accordingly, restoration of the 20 percent rating for right knee flexion from September 1, 2015 to October 22, 2015 is warranted; restoration of the 20 percent rating for right knee extension from September 1, 2015 to October 22, 2015 is warranted; and restoration of the 10 percent rating for right knee surgical scarring from September 1, 2015 to October 22, 2015 is warranted. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Adamson, 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.