Citation Nr: 22018552 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 19-27 887 DATE: March 29, 2022 ORDER The reduction of the rating for bilateral hearing loss from 40 percent to 0 percent effective August 1, 2016, was not proper, and the 40 percent rating is restored. The reduction of the rating for right knee instability from 10 percent to 0 percent effective August 1, 2016, was not proper, and the 10 percent rating is restored. The issue of the reduction of the Veteran's painful left calf scar rating from 10 percent to 0 percent effective August 1, 2016, is dismissed. FINDINGS OF FACT 1. At the time of the rating reduction, the evidence did not show material improvement in the Veteran's bilateral hearing loss, including under the ordinary conditions of work and life. 2. At the time of the rating reduction, the evidence did not show material improvement in the Veteran's right knee instability, including under the ordinary conditions of work and life. 3. The May 2016 rating decision never actually reduced the 10 percent rating for the Veteran's painful left calf scar; it instead assigned a separate/additional noncompensable rating for the left calf scar. CONCLUSIONS OF LAW 1. The decision to reduce the rating for the Veteran's bilateral hearing loss from 40 percent to 0 percent was not proper, and the 40 percent rating is restored effective August 1, 2016. U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.7, 4.71a, Diagnostic Code 6100. 2. The rating reduction from 10 percent to a noncompensable rating for a right knee instability disability, effective August 1, 2016, was improper and the criteria for restoration of a 10 percent rating have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.124a, Diagnostic Codes 5257. 3. The criteria for dismissal of the propriety of reducing the Veteran's painful left calf scar rating from 10 percent to 0 percent, have been met. 38 U.S.C. § 7104. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1967 until April 1989. These matters come to the Board of Veterans' Appeals (Board) on appeal from a May 2016 Department of Veterans Affairs (VA) regional office (RO) rating decision. The Veteran testified before the undersigned in May 2021; a transcript is associated with the claims file. Rating Reduction The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in evaluation of a service-connected disability when warranted by the evidence, but only after following certain procedural guidelines. The RO must issue a rating action proposing the reduction and setting forth all material facts and reasons for the reduction. The veteran must then be given 60 days to submit additional evidence and to request a predetermination hearing. Then a rating action will be taken to effectuate the reduction. 38 C.F.R. § 3.105(e). The effective date of the reduction will be the last day of the month in which a 60-day period from the date of notice to the veteran of the final action expires. 38 C.F.R. § 3.105(e), (i)(2)(i). Here, the Board observes that the RO complied with § 3.105(e) in that the Veteran was informed of the proposed reduction in a December 2015 rating decision and advised of the opportunity to present additional evidence within a 60-day period as well as a right to request a personal hearing. Thereafter, the reduction was effectuated in the May 2016 rating decision on appeal, which reduced the rating assigned for his bilateral hearing loss and right knee instability to noncompensable ratings. Substantively, a rating cannot be reduced unless improvement is shown to have occurred. 38 U.S.C. § 1155. For ratings that have been in effect for five years or more, reduction is warranted when reexamination discloses sustained material improvement. VA must find the following: (1) based on a review of the entire record, the examination forming the basis for the reduction is full and complete, and at least as full and complete as the examination upon which the rating was originally based; (2) the record clearly reflects a finding of material improvement; and (3) it is reasonably certain that the material improvement found will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a); Kitchens v. Brown, 7 Vet. App. 320 (1995). If doubt remains, after according due consideration to all the evidence, the rating agency will continue the rating in effect. 38 C.F.R. § 3.344(b). The Court in Brown further noted that there are several general VA regulations that apply to all rating reductions regardless of whether the rating has been in effect for five years or more. Id. at 420-421. Specifically, 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history. Furthermore, 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. Additionally, in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work. Brown, 5 Vet. App. at 420-21; see 38 C.F.R. §§ 4.2, 4.10. 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. In considering 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 medical evidence may be considered in the context of evaluating whether the condition had demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). 1. Propriety of a rating reduction of 40 percent to 0 percent for bilateral hearing loss, effective August 1, 2016 Here, the Veteran's rating for his bilateral hearing loss has been in effect for five years or more as he was assigned a 40 percent rating from November 25, 2008 to August 1, 2016. As such, the regulations governing stabilization of disability evaluations found in 38 C.F.R. § 3.344(a) and (b) are applicable. 38 C.F.R. § 3.344. The RO relied on the results of a November 2015 VA audiological examination, which indicated that the Veteran's hearing loss no longer met the criteria for 40 percent, to reduce the disability rating. The Board finds the reliance on that examination misplaced. The November 2015 VA examiner noted that the Veteran reported difficulty hearing and understanding conversation when in noise or when visual cues are limited. The Veteran had similar complaints at the time of his August 2014 VA examination, where he indicated that he is "always asking people to repeat and it is worse if there is any noise around at all." Notably, the 40 percent rating was based on the results of the August 2014 VA examination. Reliance on the results of audiometric testing to reduce the disability rating is misplaced where, as here, there is no evidence that the Veteran's ability to function under the ordinary conditions of work and life actually improved. Additionally, the post-reduction evidence shows that the Veteran's bilateral hearing loss did not actually improve. Post-reduction medical evidence may be considered in the context of evaluating whether the condition demonstrated actual improvement. Dofflemyer, 2 Vet. App. at 281-82. A December 2016 private audiometric examination shows significantly lower word recognition and speech discrimination scores, although it is unclear which word list was used. The Veteran also testified at his May 2021 hearing that his bilateral hearing loss had not improved, but was getting worse. The Veteran's wife added that the Veteran watches TV "cranked up about as high as you can get," and has "a lot of difficulty catching all the conversation." While there may be some degree of fluctuation in the Veteran's hearing disability from examination to examination, the benefit of the doubt must be resolved in his favor. Here, although the audiological findings dated after the August 2014 VA examination support fluctuation in the Veteran's hearing loss disability, the lay evidence supports a finding that there was no material improvement in the Veteran's ability to function under the ordinary conditions at the time of the reduction. Given the foregoing, the Board finds that the evidence of record was insufficient for the RO to reduce the Veteran's disability rating, and thus, the reduction was improper. The law is clear that certain procedures must be followed when a disability rating is reduced. Where a rating reduction was made without observance of law, the erroneous reduction must be vacated, and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). That action is required in the instant case. Accordingly, the 40 percent rating for the Veteran's hearing loss is restored as of the date of reduction on August 1, 2016. 2. Propriety of a rating reduction of 10 percent to 0 percent for right knee instability, effective August 1, 2016 Here, the Veteran's rating for his right knee instability has been in effect for five years or more as he was assigned a 10 percent rating from October 23, 2009 to August 1, 2016. As such, the regulations governing stabilization of disability evaluations found in 38 C.F.R. § 3.344(a) and (b) are applicable. 38 C.F.R. § 3.344. The RO based the reduction for this disability on the December 2015 VA examiner's finding that the Veteran's right knee did not result in recurrent subluxation or lateral instability. However, after further review of the examination, the examiner contrarily and specifically reported that the Veteran has right knee instability in the diagnosis section of the examination. As such, the Board finds the December 2015 VA examination inconsistent and concludes that it should not have been used as a basis of reduction. Moreover, the Board finds that the record does not clearly reflect a finding of material improvement in the Veteran's right knee disability and that such material improvement will be maintained under the ordinary conditions of life. Under Diagnostic Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount. "Moderate" means limited in scope or effect. "Severe" means very painful or harmful or of a great degree. Objective medical evidence is not required to establish lateral knee instability under Diagnostic Code 5257, so objective medical evidence cannot be categorically found more probative than lay evidence with respect to this Diagnostic Code. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). Upon review of the evidence, the Board finds the reduction in rating for a right knee instability disability was improper. At his May 2021 hearing, the Veteran testified that his right knee will give out if he does not wear his braces and does not leave his house without them. Furthermore, the Veteran identified that on the December 2015 VA examination, his right knee instability was "not stable enough to get in and out of the truck, which led him to retire." Based on the foregoing evidence, the Board concludes that, while the December 2015 VA examination showed normal joint stability testing, it contrarily found that the Veteran exhibited right knee instability. As such, the December 2015 VA examination is inconsistent and therefore inadequate to use as the basis of a reduction. Moreover, the December 2015 VA examiner opined that the Veteran's knees "were not stable enough to get in and out of the truck, which led him to retire." Further, although the Veteran's testimony was not associated with the claims file at the time of the rating decision, it clearly shows that his right knee instability has not actually improved. This evidence, taken together, does not clearly demonstrate that his right knee instability had improved or that any finding regarding material improvement will be maintained under the ordinary conditions of life. With regards to the May 2016 rating decision which reduced the Veteran's right knee instability, the Board finds that the RO did not address whether there was actual improvement in his ability to function under the ordinary conditions of life and work. 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 a right knee instability disability was not proper and a restoration of the 10 percent rating, effective August 1, 2016, is warranted. 3. Propriety of reducing the Veteran's painful left calf scar rating from 10 percent to 0 percent effective August 1, 2016 In a May 2016 rating decision, the RO purported to reduce the Veteran's rating for his painful left calf scar from 10 percent to 0 percent. However, after reviewing the rating documentation issued by the RO in May 2016, the Board is left to conclude that instead of reducing the 10 percent rating for the Veteran's painful left calf scar, the RO instead assigned a separate 0 percent disability rating under Diagnostic Code 7805 for a left calf scar effective August 1, 2016. In other words, although a separate, noncompensable rating was assigned for a left calf scar as of August 1, 2016, his 10 percent rating under Diagnostic Code 5311-7804 effective October 19, 2009, for his painful left calf scar was never actually reduced by the RO. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7104. In the present case, there remain no allegations of errors of fact or law for appellate consideration as the Veteran's 10 percent rating under Diagnostic Code 5311-7804 for his painful left calf scar effective October 19, 2009, was never reduced. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Finelli, 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.