Citation Nr: 21028796 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-31 574 DATE: May 12, 2021 ORDER Restoration of the prior 20 percent for chondromalacia of the right knee, effective July 1, 2015, is granted. FINDINGS OF FACT 1. In a June 2015 rating decision, the RO reduced the Veteran's rating for chondromalacia, right knee from 20 percent to a noncompensable rating, effective July 1, 2015, on the basis that the Veteran failed to report to the required reexamination. 2. The RO did not fully comply with the due process requirements in implementing the June 2015 reduction of the 20 percent rating for the Veteran's right knee disability. CONCLUSION OF LAW The reduction of the rating for chondromalacia of the right knee, from 20 percent to 0 percent, effective July 1, 2015, was improper and restoration of the prior 20 percent disability rating for chondromalacia, right knee, effective July 1, 2015, is warranted. 38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 3.105, 3.344, 4.71a, Diagnostic Code (DC) 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from July 1977 to October 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision letter issued by the Department of Veterans Affairs (VA) RO. Restoration of the prior 20 percent for chondromalacia of the right knee, effective July 1, 2015, is granted. The Board summarily notes that a 20 percent evaluation for the right knee disability had been in effect since November 1, 1997, a period of more than five years, prior to a June 2015 rating decision in which the RO reduced the Veteran's disability rating to zero percent, effective July 1, 2015, due to an April 2015 missed periodic examination. However, the Board notes that there is question as to whether the Veteran was provided proper and timely notice of the VA examination and subsequent pretermination notice due to him moving. Propriety of Rating Reduction In rating reductions, when VA contemplates reducing an evaluation for a veteran's service-connected disability or disabilities, it must follow specific procedural steps prior to such discontinuance. 38 C.F.R. § 3.105(e). As enumerated in 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. In addition, the beneficiary will be notified at his 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. Id. The beneficiary also will receive notification that he will have an opportunity for a pre-determination hearing, 38 C.F.R. § 3.105(i), and thereafter, a 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. See 38 C.F.R. §§ 3.105(e); 3.500(r). In addition to satisfying the procedures outlined above, the RO must gather evidence to establish that a rating reduction is proper. Pertinent to the instant case, 38 C.F.R. § 3.344(a) applies to disability ratings which have continued at the same level for 5 years or more. See 38 C.F.R. § 3.344(c). 38 C.F.R. § 3.44(a) states that examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction and though material improvement in the physical or mental condition is clearly reflected the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. In addition, as applicable to this case, when entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, action shall be taken in accordance with paragraph (c) of 38 C.F.R. § 3.655. Examples of good cause include, but are not limited to, the illness of the claimant. 38 C.F.R. § 3.655(a). When a claimant fails to report for a reexamination and the issue is continuing entitlement, VA shall issue a pretermination notice advising the payee that payment for the disability for which the reexamination was scheduled will be discontinued or, if a minimal evaluation is established, reduced to the lower evaluation. Such notice shall also include the prospective date of discontinuance or reduction, the reason therefor, and a statement of the claimant's procedural and appellate rights. The claimant shall be allowed 60 days to indicate his or her willingness to report for a reexamination or to present evidence that payment for the disability for which the reexamination was scheduled should not be discontinued or reduced. 38 C.F.R. § 3.655(c)(1). If notice is received that the claimant is willing to report for a reexamination before payment has been discontinued to reduced, action to adjust payment shall be deferred. The reexamination shall be rescheduled, and the claimant notified that failure to report for the rescheduled examination shall be cause for immediate discontinuance or reduction of payment. When a claimant fails to report for such rescheduled examination, payment shall be reduced or discontinued as of the date of last payment and shall not be further adjusted until a VA examination has been conducted and the report reviewed. 38 C.F.R. § 3.655(c)(3). As such, the Board highlights that the initial inquiry in the propriety of a rating reduction case is of a procedural matter in determining whether the reduction was proper under the requirements of 38 C.F.R. § 3.105(e). In this case, for the reduction to have been proper, the Veteran must have first been properly notified of the scheduled VA examination. By way of history, the Board notes that the Veteran was initially awarded service connection for right knee chondromalacia in a January 1998 rating decision, that assigned a 20 percent rating, under 38 C.F.R. § 4.71a DC 5299-5258, cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint, effective November 1, 1997. The rating decision noted that since there was a likelihood of improvement the assigned evaluation was not considered permanent and was subject to a periodic examination. In December 2014, the RO initiated a routine, reevaluation of the disability. The Veteran was then scheduled for a VA examination in April 2015; the record reflects that the examination was scheduled at a VA examination location near his address of Ellensburg, Washington. The Veteran failed to report to the examination. Based on his failure to make that examination, the RO proposed to reduce the evaluation to a noncompensable rating for the right knee disability, and provided the Veteran notice of the proposed reduction in an April 2015 rating decision. Additionally in April 2015, a notification letter was provided to the Veteran and his representative notifying him of the proposed reduction, the amount proposed to be reduced, why the decision was made due to the failure to report to examination, what he could do if he was ready to report for examination, what evidence he could submit showing that the proposed action should not be taken, how to obtain a personal hearing and how to obtain representation. The record does not reflect that further notification from the VA was provided prior to the reduction, nor was evidence received from the Veteran, nor a request for a hearing made within 60 and 30 days of the letter. Then, in a June 2015 rating decision, the RO reduced the Veteran's right knee disability rating to a 0 percent evaluation, effective July 1, 2015. This resulted in a reduction of compensation payments, reducing the Veteran's combined rating from 40 percent to 30 percent. A June 2015 notification letter informed the Veteran of the reduction and that he may file a Notice of Disagreement (NOD) with the decision, to which the Veteran filed a statement and NOD in December 2015. In the December 2015 statement, the Veteran stated he did not receive notice of the correspondence regarding the evaluation of his rating because he was residing in the state of Ohio and not the state of Washington. Although he stated that he currently resided in Olympia, Washington, he received treatment at the VA medical center (VAMC) in Columbus, Ohio from October 2014 to August 2015. He further stated that he was not contacted by telephone or e-mail and was not aware of the scheduled April 2015 examination until November 2015. He also stated that while attending numerous visits at the Columbus VAMC, he was never made aware of the April 2015 examination. The Veteran essentially seeks a restoration of the 20 percent rating assigned for his right knee disability. In this case, the Veteran's 20 percent rating was in effect from November 1, 1997, more than five years at the time of the April 2015 proposed reduction. Thus, the procedural safeguards for rating in effective for more than five years, as outlined in 38 C.F.R. § 3.105(e), are applicable in this case. See Stelzel v. Mansfield, 508 F.3d 1345, 1347-49 (Fed. Cir. 2007). In a rating reduction case where the rating has been in effect for more than five years, three questions must be addressed. 38 C.F.R. § 3.344(a); Brown v. Brown, 5 Vet. App. 413, 420-22 (1993); see also Brown, 5 Vet. App. at 417 (holding that the five-year period in § 3.344(c) is to be measured from the effective date of rating not from date of RO decision assigning that rating). First, a rating reduction must be based upon a review of the entire recorded history of the condition, to ascertain whether the evidence reflects an actual change in the disability. Brown, 5 Vet. App. at 420-22 (quoting § 3.344(a)). Second, whether the examination report reflecting such changes are based upon thorough examinations. Id. Third, it must be determined whether the improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. Id. Additionally, in cases in effect for longer than five years, ratings on account of diseases subject to temporary and episodic improvement will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Id. In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time that it effectuated the reduction, although the Board may consider post-reduction medical evidence in the context of evaluating whether the condition had demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). The Board notes that the RO based the Veteran's reduction on his failure to report for a scheduled VA examination under 38 C.F.R. § 3.655(c), however as noted above, there is some question as to whether the Veteran was provided proper notice of the VA examination and subsequent pretermination notice, as he was living in a different state. Although the record does not reflect that the Veteran submitted a change of address at this time, there is some question to whether the Veteran timely received notice of both the scheduled VA examination and proposed rating reduction due to correspondence possibly being sent to an outdated address in Ellensburg, Washington. The record reflects that a March 2015 notification letter informing the Veteran that he would be scheduled for a VA examination was provided at an address in Ellensburg, Washington. To this, the Veteran explained the reason for the missed examination as noted above. In his December 2015 statement, he even referenced notification of only the April 13, 2015 letter and June 2015 rating decision. Hence, even arguendo the Veteran still resided at the previous address at Ellensburg, Washington at the time of the examination, there is still no documented evidence that he was provided notification of the April 4, 2015 examination. The Board highlights that the March 2015 notification letter does not provide a date and location for a VA examination and the record is otherwise absent of a memorialized scheduled VA examination notification letter having been provided to the Veteran at the Ellensburg, Washington address associated with the claims file during this time. Moreover, the record reflects that from October 2014 to September 2015, the Veteran received treatment at the VAMC in Columbus, Ohio, during the time of the scheduled April 2015 VA examination. Hence, the record is void of reflecting a memorialized time, place and date notification letter being provided to the Veteran for the April 2015 VA examination even at the Ellensburg, Washington address. Thus, the Board finds that giving the Veteran the benefit of the doubt, the RO failed to meet the procedural requirements under 38 C.F.R. § 3.105(e) and 3.655(c) relating to reduction of the Veteran's rating. The RO failed to consider and apply the provisions of 38 C.F.R. §§ 3.655, 3.344, and such action renders the rating reduction decision void ab initio, such an omission is in error, and is not in accordance with the law. See Greyzck V. West, 12 Vet. App. 288, 292 (1999) (The Court of Appeals for Veterans Claims has consistently held that where a RO reduces a veteran's disability rating without following the applicable VA regulations, the reduction is void ab initio.); see also Hayes v. Brown, 9 Vet. App. 67, 73 (1996) (holding where VA reduces the appellant's rating without observing applicable laws and regulations, the rating is void ab initio and the Court will set aside the decision as not in accordance with the law) (quoting Kitchens v. Brown, 7 Vet. App. 320, 325 (1995). As such the Board finds that the reduction is not supported by the preponderance of the evidence and a restoration of the prior 20 percent rating is warranted. 38 U.S.C. § 5107(a); see also Brown, 5 Vet. App. at 421. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Alli, 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.