Citation Nr: 18132277 Decision Date: 09/06/18 Archive Date: 09/06/18 DOCKET NO. 15-46 648 DATE: September 6, 2018 ORDER Restoration of the 10 percent rating for left knee reduced extension is granted. Restoration of the 20 percent rating for right knee reduced extension is granted. FINDING OF FACT The evidence of record fails to establish objective improvement in overall functional impairment or frequency and severity of symptomatology of either knee. CONCLUSIONS OF LAW 1. The criteria for restoration of the 10 percent rating for left knee reduced extension have been met. 38 U.S.C. §§ 1155, 5107, 5112 (West 2012); 38 C.F.R. §§ 4.7, 4.10, 4.71a, DC 5010 (2017). 2. The criteria for restoration of the 20 percent rating for right knee reduced extension have been met. 38 U.S.C. §§ 1155, 5107, 5112 (West 2012); 38 C.F.R. §§ 4.7, 4.10, 4.71a, DC 5010 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had qualifying service from June 1990 to June 2010. Restoration of Ratings To reduce a rating, the fact-finder must determine not only that an improvement in the disability level has occurred, but also that such improvement actually reflects an improvement in the ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420-21 (1993) (citing 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13). The reduction of a rating generally must have been supported by the evidence on file at the time of the reduction, but pertinent post-reduction evidence favorable to restoring the rating must also be considered. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). The fact-finder must issue a rating decision proposing to reduce the evaluation and notice of the 60-day period for evidence submission and the right to request a predetermination hearing within 30 days. The May 2013 Rating Decision proposed to reduce the ratings for left and right knee reduced extension. The May 2013 Notification Letter explained the 60-day period for evidence submission and the right to request a predetermination hearing within 30 days. The February 2014 Rating Decision implemented the reductions. As proper notice was provided in the May 2013 Notification Letter, the Board’s analysis focuses on whether any improvement in the bilateral knees actually reflected improvement in functioning under ordinary conditions of life and work. 1. RESORATION OF THE 10 PERCENT RATING FOR LEFT KNEE REDUCED EXTENSION The evidence of record fails to establish objective improvement in overall functional impairment under ordinary conditions of life and work or in frequency and severity of the symptomatology associated with either knee. Specifically, the Board highlights: (a) the Veteran’s consistent and credible reports of bilateral pain, stiffness, swelling, locking, catching, and flare-ups that cause limitation of extension and difficulty standing and walking (see October 2012 VA examination report; March 2014 VAMC treatment record and associated addendum from Las Vegas HCS; April 2014 VAMC treatment record from Southern Nevada HCS; December 2014 Notice of Disagreement; September 2015 VA examination report); (b) the March 2014 opinion from Dr. RRB, emphasizing that the knee conditions have not improved in appearance or function since separation from service, that the problems will continue to worsen with time, and that improvement is “certainly” not expected in the future (see March 2014 VAMC treatment record and associated addendum from Las Vegas HCS); and (c) the September 2015 findings by examiner CJW, noting that the Veteran was not being examined during a flare-up, but that, when they occur, the Veteran experiences increased bilateral pain, difficulty bending the bilateral knees due to swelling, and difficulty standing and walking (see September 2015 VA examination report). Accordingly, the reductions were improper and restoration is warranted for the bilateral knees. 2. RESORATION OF THE 20 PERCENT RATING FOR RIGHT KNEE REDUCED EXTENSION The claim for restoration of the 20 percent rating for right knee reduced extension is granted for the same reasons and bases discussed above for restoration of the 10 percent rating for left knee reduced extension. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Daus, Associate Counsel
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