Citation Nr: 21028862 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 18-26 926 DATE: May 12, 2021 ORDER The rating reduction of the Veteran's left knee meniscal tear with osteoarthritis (left knee disability) from 20 percent to 10 percent, representing limitation of extension, effective October 1, 2017, was improper; the 20 percent rating is restored. REMANDED Entitlement to a disability rating in excess of 20 percent for the Veteran's left knee disability is remanded. FINDING OF FACT The evidence did not establish sustained improvement in the Veteran's left knee disability which resulted in an improvement in his ability to function under the ordinary conditions of life and work. CONCLUSION OF LAW Restoration of a 20 percent evaluation for a left knee disability effective from October 1, 2017 is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.105, 3.344, 3.500, 4.71a, Diagnostic Code 5261. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 2000 to August 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in March 2019. A transcript of the hearing is of record. The Veteran's Contentions The Veteran contends that his left knee disability is a degenerative condition that has not improved and was improperly reduced. The rating reduction of the Veteran's left knee disability from 20 percent to 10 percent, effective October 1, 2017, was improper 38 C.F.R. § 3.105(e) applies to the assignment of a lower disability rating that results in a reduction of the Veteran's compensation payments. In order to reduce the rating for a service-connected disability, VA must notify a beneficiary at his or her last address or record of the contemplated action and give the individual 60 days to present evidence to show that compensation should be continued at its present level. See 38 C.F.R. § 3.105(e). The beneficiary is also entitled to notification that he or she will have an opportunity for a pre-determination hearing. 38 C.F.R. § 3.105(i). 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. 38 C.F.R. §§ 3.105(e), 3.500(r). 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). The burden is on VA to justify by a preponderance of the evidence that a reduction is warranted, with application of the benefit-of-the-doubt doctrine under 38 U.S.C. § 5107(b) required. See Brown v. Brown, 5 Vet. App. 413, 420 (1993). Generally, to warrant a reduction, it must be determined not only that an improvement in the disability level has actually occurred, but also that such improvement actually reflects an improvement in the ability to function under the ordinary conditions of life and work. See Stern v. McDonough, 2021 US App. Vet. Claims LEXIS 677 (Apr. 20, 2021); Faust v. West, 13 Vet. App. 342, 350 (2000); Brown, 5 Vet. App. at 420-21 (1993) (citing 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13). VA rating reduction must be based upon review of the entire history of the veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The Court of Appeals for Veterans Claims (CAVC) has held that although a rating reduction may have been supported by the evidence on file at the time of the reduction, the Board must consider pertinent post-reduction evidence favorable to restoring the rating. See Dofflemeyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). Where a rating reduction was made without observance of law, the erroneous reduction must be vacated, and the prior rating restored. See Schafrath, 1 Vet. App. at 594. By way of background, the RO granted service connection for a left knee disability in an October 2013 rating decision and assigned a 10 percent rating effective February 22, 2012 pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5260. In an August 2015 rating decision, the RO increased the rating for the Veteran's left knee disability to 20 percent, effective April 8, 2015, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5261. In a September 2016 rating decision, the RO proposed that the rating be decreased based on the results of range of motion testing in a July 2016 VA examination. The Veteran was notified of the proposed reduction and advised him of his ability to have a personal hearing in a September 2016 letter. A July 2017 rating decision decreased the rating for the Veteran's left knee disability from 20 percent to 10 percent, effective October 1, 2017. The Veteran does not raise any due process complaints and the record reveals that the RO complied with the procedural requirements for reduction. 38 C.F.R. § 3.105(e), (i). Therefore, the remaining question is whether the rating reduction was proper. As noted, the RO based the reduction on the results of the July 2016 VA examination. The Veteran reported to the VA examiner that he experienced constant pain in his left knee and was limited in walking for 15 minutes and standing for 20 minutes. The Veteran also reported that he could only lift, carry, push or pull 30 pounds. Range of motion testing revealed flexion to 110 degrees and full extension with evidence of pain on weight bearing, flexion and extension. The examiner noted that additional contributing factors of the Veteran's disability included disturbance of locomotion and interference with sitting and standing. VA treatment records from the relevant timeframe reflect that that Veteran continued to experience severe left knee pain. A December 2016 VA treatment note documented the Veteran's severe knee pain, difficulty working and trouble lifting, walking and standing. An MRI of the Veteran's left knee was performed in January 2017 based on his report of chronic pain, and revealed trace effusion, mild signal alterations in the medial femoral compartment and mild chondromalacia. The Veteran submitted a May 2017 letter from his VA treating physician opposing the proposed reduction. The treating physician noted that the Veteran had long-term sequelae, including needing to sit for 5 to 6 hours during his 10-hour shift. According to the treating physician, the Veteran would not be able to work without the accommodation. The physician also noted that the Veteran's condition had worsened in function and pain. The Veteran also submitted a May 2018 letter from a treating VA physician's assistant, who noted that the Veteran had a degenerative knee condition that would continue over time with no expectation that it would heal or resolve. Based on the foregoing, the Board finds that the record is insufficient to support a finding that the Veteran's left knee disability actually improved, resulting in an improvement in his ability to function under ordinary conditions of life and work. Rather, the evidence reflects that the Veteran had a degenerative condition that continued to cause severe, chronic pain and continued to interfere with his ability to work and to walk, stand or sit for prolonged periods. While the July 2016 VA examination revealed an improvement in range of motion testing for the left knee, the RO did not address whether there was actual improvement in the Veteran's ability to function under the ordinary conditions of life and work. Stern, LEXIS 677, at *20-21; Brown, 5 Vet. App. at 421. Where the RO fails to demonstrate such improvement, and impermissibly places the burden of proof on the Veteran to show his disability has worsened, the RO has not complied with 38 C.F.R. § 3.344. Therefore, in considering the entire record and viewing the evidence in a light most favorable to the Veteran, the reduction of the disability rating for the left knee disability was not proper, and a restoration of the 20 percent rating, effective October 1, 2017, is warranted. REASONS FOR REMAND Entitlement to a disability rating in excess of 20 percent for the Veteran's left knee disability is remanded. The Veteran testified at the March 2019 Board hearing that his left knee condition has worsened since the most recent VA examination in July 2016. Accordingly, remand is warranted for a VA examination to address the current nature and severity of the Veteran's left knee disability. The matter is REMANDED for the following action: 1. Obtain pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Following the development in item 1, schedule the Veteran for a VA examination with an appropriate clinician to assess the current nature and severity of his service-connected left knee disability. The examiner must be provided with and review the entire claims file, to include a copy of this remand. All appropriate tests and studies should be conducted. Range of motion should be reported, including whether and the extent to which such motion is affected by pain, weakness, fatigue, lack of endurance, incoordination or other symptoms resulting functional loss. (a.) Based upon a review of the medical records, lay statements submitted in support of the claim, and/or statements elicited from the Veteran during the examination, state whether the Veteran experiences flare ups of his service-connected knee disability, and how he characterizes additional functional loss during a flare up. The examiner should note that the Veteran testified that he experiences flare ups at the March 2019 Board hearing. (b.) If the Veteran describes experiencing flare ups, identify the: a. Frequency; b. Duration; c. Precipitating factors; and d. Alleviating factors. (c.) Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (50 percent probability or greater) that during a flare up range of motion is additionally limited to 20 degrees extension (the measurement required for the next higher rating). Please explain why or why not. (d.) Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (50 percent probability or greater) that repetitive use over time additionally limits motion to 45 degrees or less (for flexion) or 20 degrees or more (for extension). Please explain why or why not. (e.) Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (50 percent probability or greater) that during a flare up the disability is manifested by effusion and/or locking. If the examiner cannot provide the requested opinions without resorting speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required) the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide and opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Snyder, 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.