Citation Nr: 21040826 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 17-09 170 DATE: July 7, 2021 ORDER Restoration of a 20 percent disability rating for the service-connected right knee degenerative joint disease (DJD) is granted, effective June 11, 2015. Restoration of the 20 percent disability rating for the service-connected left knee DJD is granted, effective June 11, 2015. FINDINGS OF FACT 1. The procedural requirements for notification of the proposed reduction of the disability rating for the service-connected right knee DJD from 20 percent to 10 percent were not satisfied. 2. The procedural requirements for notification of the proposed reduction of the disability rating for the service-connected left knee DJD from 20 percent to 10 percent were not satisfied. CONCLUSIONS OF LAW 1. The reduction of the disability rating for the Veteran's service-connected right knee DJD from 20 percent to 10 percent was not proper and the criteria for restoration of a 20 percent disability rating have been met from June 11, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344. 2. The reduction of the disability rating for the Veteran's service-connected left knee DJD from 20 percent ot 10 percent was not proper and the criteria for restoration of the 20 percent disability rating have been met from June 11, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1988 to January 1992. This case is before the Board of Veterans' Appeals (Board) on appeal from a September 2015 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that decision, the RO denied reduced the disability rating for the service-connected right knee DJD from 20 percent to 10 percent, effective from June 11, 2015, and the disability rating for the service-connected left knee DJD from 20 percent to 10 percent, effective from June 11, 2015. In September 2016, VA received the Veteran's Notice of Disagreement (NOD). In January 2017, the RO issued a Statement of the Case (SOC). In February 2017, VA received the Veteran's VA Form 9 appeal to the Board. In April 2021, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of that testimony is of record. At the outset, the reductions at issue stem from a June 2015 VA knee examination provided by the RO in the course of the Veteran's claim for increased rating for fibromyalgia. The Veteran has not filed a claim for increased rating for the service-connected right and left knee DJD and has appealed no issues other than the propriety of the reductions of the ratings for his right and left knee DJD. Therefore, this decision is restricted solely to the issue of the propriety of the reductions and does not address the Veteran's assertions with regard to whether separate ratings are warranted for bilateral meniscal conditions and knee scars. See April 2021 Board hearing transcript at 4; February 2017 VA Form 9. Rating Reduction 1. The propriety of the rating reduction for the service-connected right knee DJD from 20 percent to 10 percent. 2. The propriety of the rating reduction for the service-connected left knee DJD from 20 percent to 10 percent. The Veteran contends that the rating reductions for the service-connected right and left knee DJD from 20 percent to 10 percent for each knee were improper. Specifically, he contends that there has been no material improvement of his right and left knee DJD sufficient to warrant the rating reductions. In general, prior to reducing a veteran's disability rating, VA is required to comply with pertinent VA regulations applicable to all rating reduction cases, regardless of the rating level or the length of time that the rating has been in effect. When reduction in the rating of a service-connected disability is contemplated and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating decision proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified at his or her latest address of record of the contemplated action and furnished detailed reasons thereof. The beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e). In the advance written notice, the beneficiary will be informed of his or her right for a pre-determination hearing, and if a timely request for such a hearing is received (i.e., within 30 days), benefit payments shall be continued at the previously established level pending a final determination. 38 C.F.R. § 3.105(i)(1). In certain rating reduction cases, VA benefits recipients are to be afforded greater protections, set forth in 38 C.F.R. § 3.344. Rating agencies will handle cases affected by change of medical findings or diagnosis, to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. These considerations apply to ratings that have continued for long periods at the same level (five years or more), and not to DJD that have not become stabilized and are likely to improve. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). Notably, 38 C.F.R. § 3.344(a) requires that the disability in question has materially improved, and that it is reasonably certain that such improvement will be maintained under the ordinary conditions of life. Nonetheless, for both reductions of disability ratings in place for less than 5 years and 5 years or more and irrespective of § 3.344(a), Brown requires that the disability in question reflects: (1) actual improvement in the disability and (2) that improvement reflects improvement in the ability to function under the ordinary conditions of life and work. See id. at 421; see also Stern v. McDonough, 2021 U.S. App. Vet. Claims LEXIS 677 (Apr. 20, 2021). VA regulation 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history. 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 recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present." These provisions impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon review of the entire history of the veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Furthermore, VA regulation 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. Pursuant to these provisions, the RO and Board are required in any rating reduction case to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. See Schafrath, 1 Vet. App. at 594 ("these requirements for evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based on a single, incomplete or inaccurate report and to enable VA to make a more precise evaluation of the level of disability and of any changes in the condition."). Finally, 38 C.F.R. § 4.10 establishes that "[t]he basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment" and 38 C.F.R. § 4.2 directs that "[e]ach disability must be considered from the point of view of the veteran working or seeking work." Thus, in any rating reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. See Brown, 5 Vet. App. at 421. A claim as to whether a rating reduction was proper must be resolved in the Veteran's favor unless the Board concludes that a fair preponderance of evidence weighs against the claim. Id. When a reduction is effectuated without following the applicable regulations, to include procedural and substantive provisions, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999). In this case, the rating reductions for the service-connected right and left knee DJD resulted in a decrease in the Veteran's overall compensation from 60 percent to 50 percent. However, the RO did not issue a rating decision proposing to reduce the Veteran's disability ratings for the right and left knee DJD prior to issuance the September 2015 rating decision that reduced the ratings. At no point prior to the September 2015 rating decision did the Veteran receive any notification of a proposed reduction of the disability ratings for his right and left knee DJD, nor was the Veteran advised of his right to submit additional evidence and to request a predetermination hearing. Rather, the Veteran was notified just the opposite. Notably, the narrative portion of the September 2015 rating decision specifically indicated that there would be no reduction in the overall combined disability rating as a result of the knee rating reductions, presumably because that same rating decision also granted an increased rating from 10 percent to 40 percent for service-connected fibromyalgia, effective from January 29, 2015. According to the code sheet portion of the rating decision, however, the overall combined disability rating was, in fact, reduced from 60 percent to 50 percent, effective from June 11, 2015, despite the increased rating for fibromyalgia. As such, the Veteran was notified that his combined rating would remain the same, yet, the combined rating was reduced. Such reduction is reflected on the code sheet accompanying the September 2015 rating decision narrative report. In light of the above, the procedural requirements for reduction of the ratings for the service-connected right and left knee DJD have not been met. 38 C.F.R. § 3.105(e), (i)(1), However, even assuming arguendo that the procedural requirements for the rating reductions had been satisfied, the reductions would still be void ab initio because the September 2015 rating decision did not apply the provisions of 38 C.F.R. § 3.344. In this regard, the Veteran's 20 percent disability ratings for the right and left knee DJD were effective from February 27, 1996, which is more than 5 years prior to the June 11, 2015 effective date for the reductions, the provisions of 38 C.F.R. § 3.344 would apply. As such, it must be shown that the Veteran's service-connected right and left knee DJD had materially improved such that it is reasonably certain that such improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). (Continued on the next page) However, the September 2015 rating decision that reduced the ratings for the right and left knee DJD indicated that there was sustained improvement in the Veteran's right and left knee DJD but did not address whether the right and left knee DJD had materially improved such that the improvement would be maintained under the ordinary conditions of life, as required under 38 C.F.R. § 3.344(a). No decision by the RO during the period on appeal has made this finding. Accordingly, even if the procedural requirements under 38 C.F.R. § 3.105 had been, the RO's failure to properly consider the provisions of 38 C.F.R. § 3.344 renders the September 2015 rating decision void ab initio. In conclusion, as the RO did not satisfy the procedural requirements described in 38 C.F.R. § 3.305 or the provisions of 38 C.F.R. § 3.344, the reductions in this case are void ab initio and restoration of the 20 percent ratings for the service-connected right and left knee DJD, effective from June 11, 2015, is warranted. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Small, Attorney Advisor 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.