Citation Nr: 18160612
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 16-39 903
DATE:	December 27, 2018
ORDER
A reduction in the Veteran's evaluation for limitation of flexion in the right knee from 20 percent to 10 percent, effective April 1, 2015, was not proper.
REMANDED
Entitlement to a rating in excess of 20 percent for limitation of flexion of the right knee under Diagnostic Code 5260 is remanded.
Entitlement to a rating in excess of 10 percent for stability of the right knee under Diagnostic Code 5257 is remanded.
Entitlement to a compensable rating for removal of the meniscus of the right knee under Diagnostic Code 5258 is remanded.
Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.
FINDING OF FACT
The Veteran’s limitation of flexion in the right knee did not demonstrate actual improvement.
CONCLUSION OF LAW
The Veteran’s reduction from 20 to 10 percent for a right knee disability, effective April 1, 2015, was not proper, and the 20 percent rating is restored.  38 U.S.C. § 1155; 38 C.F.R. § 3.344.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from August 1994 to February 1998.
This appeal arose to the Board of Veterans’ Appeals (Board) from a January 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas.
1. Whether a reduction in the Veteran's evaluation for limitation of flexion in the right knee from 20 percent to 10 percent, effective April 1, 2015, was proper
The Veteran contends that a prior 20 percent schedular rating should be restored for his service-connected right knee limitation of flexion.  (He also contends that his disability is more severe than what is reflected by his current evaluations. This issue is addressed in the Remand section below.)  After carefully reviewing the record, the Board finds that a rating reduction was improper, and the Veteran’s prior 20 percent evaluation must be restored.
As an initial matter, the Board notes that VA’s General Counsel has held that the provisions of 38 C.F.R. § 3.105 (e) do not apply where there is no reduction in the amount of compensation payable. VAOPGCPREC 71-91 (Nov. 1991); see also VAOPGCPREC 29-97 (Aug. 1997). It was reasoned that this regulation is only applicable where there is both a reduction in evaluation and a reduction or discontinuance of compensation payable. Here, as the Veteran’s reduction in his disability rating from 20 percent to 10 percent under DC 5260 did not decrease his overall combined disability rating, the provisions of 38 C.F.R. § 3.105 (e) do not apply in this case. 
Notwithstanding, a Veteran’s disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 C.F.R. § 3.344. The United States Court of Appeals for Veterans Claims (Court) has consistently held that when a disability rating is reduced without following the applicable regulations, the reduction is void ab initio. Greyzck v. West, 12 Vet. App. 288, 292 (1999).
Prior to reducing a Veteran’s disability rating, VA is required to comply with several regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13 (2017); Brown v. Brown, 5 Vet. App. 413, 420 (1993). These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of a Veteran’s disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Such review requires VA 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. 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. Faust v. West, 13 Vet. App. 342, 350 (2000).
In certain rating reduction cases, VA benefits recipients are to be afforded greater protections, set forth in 38 C.F.R. § 3.344 (a) and (b). These provisions provide that rating agencies will handle cases affected by change of medical findings so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. 
The provisions of 38 C.F.R. § 3.344 (c) specify that these considerations are required for ratings that have continued for long periods at the same level (five years or more), and that they do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement in these disabilities will warrant a reduction in rating. 
Under 38 C.F.R. § 3.344 (a) and (b), VA must find the following before reducing a rating: (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. Kitchens v. Brown, 7 Vet. App. 320 (1995). A rating that has been in effect for 5 years or more may not be reduced on the basis of only one examination in cases where the disability is the result of a disease subject to periodic or episodic improvement. 38 C.F.R. § 3.344 (a).
The provisions of 38 C.F.R. § 3.344 (a) and (b) provide greater protections to a Veteran in regards to reductions of rating evaluations. As noted above, the regulation is applicable if the evaluation was in effect more than five years; otherwise, 38 C.F.R. § 3.344 (c) is applicable.
Where a rating reduction was made without observance of law, the reduction must be vacated and the prior rating restored. Schafrath, 1 Vet. App. at 595. 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 medical evidence may be considered in the context of considering whether actual improvement was demonstrated). Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). The Veteran need not demonstrate that he is entitled to retain the higher evaluation; rather, it must be shown by a preponderance of the evidence that the AOJ’s reduction was warranted. Kitchens, 7 Vet. App. 320 (1995).
In this case, the Veteran has been in receipt of a 20 percent rating for right knee limitation of flexion under DC 5260, effective January 1, 2009 (he was previously in receipt of several temporary 100 percent ratings based on convalescence following ACL surgery). In a January 2015 rating decision, the RO reduced the rating to 10 percent, effective from April 1, 2015.
Upon careful review of the evidence of record, the Board finds that the reduction in this case was not proper. Because the Veteran’s disability rating was in effect for greater than five years, the increased protections of 38 C.F.R. § 3.344 (a) and (b) apply to this case. The AOJ, however, made no findings with regards to any of the provisions of 38 C.F.R. § 3.344 (a) and (b), including whether there was material improvement and that the material improvement would be maintained in the ordinary conditions of work and life. In the adjudicatory documents in this case, it is clear that the AOJ failed to address the Veteran’s lay statements in which he explained that (a) his disability had worsened to such an extent that his VA doctors told him he was a candidate for a complete right knee replacement (b) he was no longer able to walk as far as he once was, and (c) his knee pained him so much he was forced to quit his job as a chef. 
Accordingly, the Board finds that the Veteran’s limitation of flexion in the right knee rating reduction was not proper because the AOJ did not make the appropriate findings on which a reduction in evaluation could be sustained. Specifically, the AOJ did not find that there was a material improvement of the Veteran’s limitation of flexion of the right knee and that such material improvement would be maintained in the ordinary conditions of work and life, as the rating decision referring to the reduction failed to take into consideration the Veteran’s comments concerning the limitations his right knee disability caused on his work and family life. See 38 C.F.R. § 3.344 (a), (b).
In this case, the objective medical evidence shows that, since at least April 1, 2015, the Veteran has had recurrent right knee pain that has caused the Veteran suffering and limitation in his daily life. Further, this evidence is consistent with the Veteran’s statements to the examiner in April 2015, and fails to disclose that the Veteran’s limitation of flexion in the right knee underwent a material improvement that was reasonably certain to be maintained under the ordinary conditions of life and work. In the absence of evidence of sustained, material improvement, the rating for the Veteran’s right knee disability cannot be reduced. 38 C.F.R. § 3.344 (a).
In conclusion, the Board determines that the reduction of the Veteran’s disability rating for his right knee is void ab initio due to the failure of the AOJ to make the necessary findings. As such, the April 2015 reduction cannot be sustained and the 20 percent rating for the Veteran’s right knee must be restored, effective April 1, 2015.
REASONS FOR REMAND
1. Entitlement to a rating in excess of 20 percent for limitation of flexion of the right knee under Diagnostic Code 5260, entitlement to a rating in excess of 10 percent for stability of the right knee under Diagnostic Code 5257, and entitlement to a compensable rating for removal of the meniscus of the right knee under Diagnostic Code 5258 is remanded.
In multiple lay statements to the Board, the Veteran has maintained that his right knee has worsened to such an extent that his doctors informed him that, but for his young age, he would be a prime candidate for a knee replacement. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination); Caffrey v. Brown, 6 Vet. App. 377, 381(1994) (an examination too remote for rating purposes cannot be considered “contemporaneous”). Additionally, at the Veteran’s last examination in February 2016, despite reporting flare-ups, the examiner failed to address the alleviating and precipitating factors, as well as the functional impairment, concerning the Veteran’s reported flare-ups. Moreover, the examiner did not attempt to estimate range of motion lost during flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017) (the Court held that, pursuant to VA regulations and the VA Clinician’s Guide, when conducting evaluations for musculoskeletal disabilities, VA examiners are obligated to inquire whether there are periods of flare-ups and, if the answer is yes, to state their “severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, ‘per [the] veteran,’ to what extent, if any, they affect functional impairment.”). In light of Sharp and Green, a new examination is necessary.
Furthermore, in an August 2016 statement to the Board, the Veteran explained that his three ACL surgeries caused such trauma in his knee that it shredded and eventually destroyed his meniscus and caused severe buckling, pain, cracking, and decreased mobility. To date, however, the Veteran has not received any compensation under Diagnostic Code 5258. As such, an updated examination is in order to determine the state of the Veteran’s meniscus and to rate him accordingly from the beginning of the appeal period.
Lastly, in that same August 2016 statement to the Board, the Veteran stated that the stability in his knee was so severe that his doctors prescribed him a knee brace so that he was able to attempt to complete his daily activities. In the updated examination, the examiner must listen to the Veteran’s statements concerning his stability and provide an explanation as to the severity of his right knee instability.
2. Entitlement to TDIU is remanded.
In an August 2016 statement to the Board, the Veteran explained that his right knee disability forced him to cease employment as a chef. As such, the Veteran has raised the issue of entitlement to a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). However, as this matter is inextricably intertwined with the remanded claims discussed, this issue must be remanded as well. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim).
The matters are REMANDED for the following action:
1. Schedule the Veteran for an examination to determine the nature and severity of his right knee disability. 

(a) Identify and describe all symptoms and manifestations attributable to the service-connected left and right knee disability.  All necessary diagnostic testing and evaluation should be performed, including range of motion testing for flexion and extension, in both passive and weight-bearing situations.
(b) Determine whether the knees exhibit pain or painful motion, weakened movement, premature or excess fatigability, or incoordination; and, if feasible, these determinations should be expressed in terms of the degree of additional functional loss, including in terms of what effect, if any, this has on the range of motion of the shoulder, including during times when these symptoms are most problematic (“flare ups”) or during prolonged, repetitive, use of the knees.
(c) Inquire whether there are periods of flare-ups and, if the answer is yes, to state their “severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, ‘per [the] veteran,’ to what extent, if any, they affect functional impairment.

(d) Comment on the viability of the Veteran’s meniscus.
(e) Comment on the impact of the knee disabilities on his employability.

(f) Comment specifically on the Veteran’s lay statements concerning his stability, mobility, meniscus, and his doctors’ beliefs that he would be better served by a knee replacement, but for his young age. The examiner is specifically asked to address the Veteran’s statements that he can walk no more than 100 yards; he cannot play with his daughter, and he can no longer accomplish simple activities.
2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues remaining on appeal, to include the issue of entitlement to a TDIU. If the benefits sought are not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. 


 
LESLEY A. REIN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Department of Veterans Affairs 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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