Citation Nr: 21077370 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 18-00 150A DATE: December 29, 2021 ORDER The rating reduction of the rating for right knee patellofemoral syndrome from a 40 percent rating to a noncompensable rating effective December 7, 2016 was not proper, and restoration of the 40 percent rating is granted. REMANDED Entitlement to an increased disability rating in excess of 40 percent for right knee patellofemoral syndrome is remanded. FINDING OF FACT A January 2017 rating decision reduced the disability rating for right knee patellofemoral syndrome from a 40 percent rating to a noncompensable rating, effective December 7, 2016; however, procedural notice requirements have not been satisfied. CONCLUSION OF LAW The reduction of the disability rating for right knee patellofemoral syndrome from a 40 percent rating to a noncompensable rating, effective December 7, 2016 was improper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), 3.344, 4.71a. REASONS AND BASES FOR FINDING AND CONCLUSION Rating Reduction The Veteran filed an intent to file and a claim for an increased rating for service-connected right knee patellofemoral syndrome in December 2015 and November 2016, respectively. Thereafter, the agency of original jurisdiction (AOJ) issued a January 2017 rating decision reducing the Veteran's rating for right knee patellofemoral syndrome from a 40 percent rating to a noncompensable rating. The Veteran seeks restoration of his original 40 percent rating. The Board finds that procedural notice requirements for a rating reduction have not been satisfied in accordance with 38 C.F.R. § 3.105(e). Where the reduction in evaluation of a service-connected disability or employability status 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. Id. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Id. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued 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. Id. Here, the reduction from a 40 percent rating to a noncompensable rating for the right knee disability resulted in a decrease of compensation payments currently being made to the Veteran. Specifically, the Veteran's combined rating decreased from 80 percent to 60 percent as a result of the rating reduction. As such, a rating proposing the reduction should have been prepared setting forth all material facts and reasons. The AOJ failed to issue a rating proposal in this case. Rather, the January 2017 rating decision was a final rating action implementing the reduction. Additionally, the Veteran was not notified of the reduction or that he had 60 days to present additional evidence. For these reasons, the Board finds that procedural notice requirements have not been satisfied and the reduction is improper. Restoration of the 40 percent rating for right knee patellofemoral syndrome effective December 7, 2016 is granted. REASONS FOR REMAND Having reviewed the record, the Board finds remand is warranted for an examination to assess the current severity of the Veteran's right knee patellofemoral syndrome. During the August 2021 hearing, the Veteran reported difficulty with repetitive kneeling and squatting, flare-ups, and potentially shin splints. The Board notes that the most recent September 2018 VA examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). In light of the above, remand is warranted for an examination to assess the current severity of the Veteran's right knee patellofemoral syndrome. Any outstanding VA treatment records from September 2018 to present should be obtained and associated with the claims file. The matter is REMANDED for the following actions: 1. Obtain the Veteran's VA treatment records for the period from September 2018 to present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right knee patellofemoral syndrome. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Vang, 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.