Citation Nr: 21028867 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 17-40 672 DATE: May 12, 2021 ORDER The reduction in rating from 20 percent to 0 percent for recurrent subluxation of the right knee was improper, and the appeal to restore the 20 percent rating is granted. FINDING OF FACT The reduction in rating from 20 percent to 0 percent for recurrent subluxation of the right knee was predicated on an inadequate June 2016 VA examination that did not show improvement. CONCLUSION OF LAW The reduction in rating from 20 percent to 0 percent for recurrent subluxation of the right knee was improper. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.105(e), (i), 3.344(c), 4.1, 4.71a, Diagnostic Code 5257 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 2007 to August 2008 and from December 2009 to July 2010. This appeal is before the Board of Veterans' Appeals (Board) from a November 2016 rating decision of Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge via videoconference. A transcript is included in the claims file. Whether a reduction in rating from 20 percent to 0 percent for recurrent subluxation of the right knee was proper The Veteran seeks restoration of her 20 percent rating for recurrent subluxation of the right knee. Generally, a disability rating will not be reduced unless an improvement in the disability is shown to have occurred. See 38 U.S.C. § 1155. When an RO makes a rating reduction without following the applicable regulations, the reduction is void ab initio. Greyzck v. West, 12 Vet. App. 288, 292 (1999). For ratings in effect for less than five years, adequate reexamination that discloses improvement in the disability warrants reduction in rating. See 38 C.F.R. § 3.344(c). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated, although post-reduction evidence may be considered to determine whether the condition had demonstrated actual improvement. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. Because the Board's analysis is focused on the propriety of a reduction, the rating criteria described below do not reflect these amendments. Rather, the Board must determine whether the evidence established improvement in the disability under the criteria in effect at the time of the November 2016 rating decision effectuating the reduction. In June 2016, the Veteran underwent a periodic VA examination to assess the current severity of her right knee disability. Based on this examination, a reduction from 20 percent to 0 percent for recurrent subluxation was proposed in July 2016. The Veteran was notified that she had 60 days to submit additional evidence and 30 days to request a predetermination hearing. The Veteran did not request a hearing but submitted evidence, including a September 2016 statement and private treatment records. In a November 2016 rating decision, the RO effectuated the reduction from 20 percent to 0 percent. The effective date of the reduction was February 1, 2017, which was after the last day of the month in which the 60-day period from the November 10, 2016 notice of the rating action ended. See 38 C.F.R. § 3.105(e). The Veteran's subluxation of the right knee is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under this code, recurrent subluxation or lateral instability is rated at 10 percent for slight subluxation, 20 percent for moderate subluxation, and 30 percent for severe subluxation. The Veteran is also in receipt of a 10 percent rating for limitation of flexion of the right knee under 38 C.F.R. § 4.71a, Diagnostic Code 5260, as well as a 20 percent rating for right knee scars under 38 C.F.R. § 4.118, Diagnostic Code 7804. As neither of these ratings was reduced or otherwise addressed in the November 2016 rating decision and the Veteran has not pursued a claim or appeal for increased ratings, these evaluations are beyond the scope of this decision. The 20 percent rating for patellar subluxation was granted in an August 2013 rating decision based on a July 2013 VA examination in which the examiner diagnosed moderate recurrent patellar subluxation. At that examination, instability testing was unable to be conducted, presumably due to pain, though the examiner did not specify. The Veteran underwent an additional VA examination in July 2014. Stability tests were negative, and no history of subluxation or instability was noted. The Veteran underwent a periodic VA examination in June 2016. All stability tests were negative. The examiner explicitly stated that there was no history of recurrent subluxation or lateral instability. This VA examination was the basis of the November 2016 rating decision effectuating the reduction. The Board finds that the reduction in the Veteran's rating was improper because it was based on an inadequate VA examination that did not show improvement. Joint stability tests were negative at the June 2016 VA examination, but there was no prior VA examination that showed positive stability tests. Rather, the 20 percent rating was based on the July 2013 VA examiner's diagnosis of moderate recurrent subluxation. There is nothing in the June 2016 VA examination report that shows improvement of this diagnosis. The June 2016 examiner did not remark upon anything that had changed since the July 2013 VA examination; indeed, the examiner appeared unaware of any history of subluxation to be improved upon. This apparent failure to review the prior VA examination report renders the June 2016 VA examination inadequate. As such, there was no adequate showing of improvement to the Veteran's recurrent subluxation in November 2016. The reduction in rating was therefore improper, and the Veteran's 20 percent rating is restored. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Gallagher, 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.