Citation Nr: 18160601
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 15-14 900
DATE:	December 27, 2018
ORDER
Restoration of a 30 percent disability rating for service-connected patella femoral syndrome of the left knee is granted, effective August 22, 2013. 
REMANDED
Entitlement to a disability rating in excess of 30 percent for patella femoral syndrome of the left knee is remanded.
FINDING OF FACT
At the time of the reduction, the evidence failed to show that any material improvement was reasonably certain to be maintained under the ordinary conditions of life. 
CONCLUSION OF LAW
The January 2014 reduction of the disability rating for patella femoral syndrome was not proper; restoration of the 30 percent rating is warranted.  38 U.S.C. §§ 1155, 5112, 7104 (2012); 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.2, 4.10, 4.13 (2018).  
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty with the United States Army from July 1984 to July 2004.
The Veterans Appeals Improvement and Modernization Act of 2017 (VAIMA), P.L. 115-55, 131 Stat. 1105 (Aug. 23, 2017), authorized Veterans Affairs (VA) to establish means by which claimants can receive accelerated review of appeals. VA created the Rapid Appeals Modernization Program (RAMP) under the enabling provisions of the VAIMA.  VA informed the Veteran of the RAMP and in May 2018, she elected to Opt-In.  Under the rules applicable to RAMP, however, the Veteran was not, and is not, eligible to participate in it, as her appeal was certified to the Board in April 2016, and activated for appellate review in July 2016.  The Opt-In must occur before those actions.  Accordingly, the Board reviews her appeal under the existing Legacy Appeals System.
Generally, the propriety of a rating reduction is a separate issue from a claim for an increased evaluation.  See Dofflemeyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992); see also Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991) (“This is a rating reduction case, not a rating increase case.”).  However, in this case, in response to the Veteran’s disagreement with the January 2014 rating decision which reduced her disability rating for patella femoral syndrome, the RO issued an April 2015 Statement of the Case (SOC) and a Supplemental Statements of the Case (SSOC) in January 2016 that adjudicated her claim as if it were one for an increased rating.  By consistently treating a claim as if it is part of a timely filed substantive appeal, VA effectively waives all objections to the procedural adequacy of the appeal with respect to that issue.  See Percy v. Shinseki, 23 Vet. App. 37, 46 (2009).  The Board finds that the RO led the Veteran to believe that the issue of entitlement to an increased rating for disability was on appeal and has therefore taken jurisdiction of that issue, as listed above.
Board decisions must be based on the entire record, with consideration of all the evidence.  38 U.S.C. § 7104.  The law requires only that the Board address its reasons for rejecting evidence favorable to the veteran.  Timberlake v. Gober, 14 Vet. App. 122 (2000).  The Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000).
The Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a “competent” source.  The Board must then determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007).  The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record.
While the Veteran is competent to report (1) symptoms observable to a layperson; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition.  See Davidson v. Shinseki, 581 F.3d 1313 (2009).  Because there is no universal rule as to competence, the Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011).  Contemporaneous records can be more probative than history as reported by a veteran.  See Curry v. Brown, 7 Vet. App. 59, 68 (1994).
Whether the reduction from 30 percent to 10 percent disabling for service-connected patella femoral syndrome of the left knee is proper
When determining whether a reduction was proper, there are two sequential questions that must be addressed.  First, whether the Agency of Original Jurisdiction (AOJ) satisfied the procedural requirements for a reduction, as set forth in 38 C.F.R. § 3.105.  If so, the second question concerns whether the evidence shows an improvement in the severity of the service-connected disability, as defined in 38 C.F.R. § 3.344.
VA is also required to comply with several general 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.  38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; see also 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.  See 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 a Veteran’s ability to function under the ordinary conditions of life and work.  Faust v. West, 13 Vet. App. 342, 350 (2000).
The regulations pertaining to the reduction of disability evaluations contain their own notification and due process requirements.  See 38 C.F.R. § 3.105(e), (i).  For this reason, the notice and assistance provisions of the Veterans Claims Assistance Act of 2000 (VCAA) do not apply to this appeal of a reduced rating.
There are specific procedural requirements for a reduction, as set forth in 38 C.F.R. § 3.105.  Generally, when a reduction in evaluation of a service connected disability is contemplated and the lower evaluation will result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons.  The Veteran must be notified at her latest address of record of the contemplated action and furnished detailed reasons therefore.  The RO must advise the Veteran of the proposed rating and give the Veteran 60 days to present additional evidence showing that compensation should be continued at the present evaluation level, as well as an opportunity to appear at a personal hearing.  38 C.F.R. § 3.105(e).
However, when a rating reduction does not result in any reduction of VA compensation being paid to the Veteran as her overall combined disability rating is not reduced, the procedural protections of 38 C.F.R. § 3.105(e) do not apply. Stelzel v. Mansfield, 508 F.3d 1345, 1349 (Fed. Cir. 2007).  At present, the Veteran’s rating reduction did not result in any reduction of VA compensation.  Her overall combined disability rating was not reduced, as the Veteran’s overall combined disability rating was 80 percent before the reduction and 80 percent after the reduction.  Thus, the procedural protections of 38 C.F.R. § 3.105(e) do not apply.  Stelzel, 508 F.3d at 1349.
Additionally, where a disability rating has been in effect for five years or more, VA benefits recipients are to be afforded certain protections as set forth in 38 C.F.R. § 3.344.  In such cases, where an examination indicates improvement, the rating agency must review the entire record of examinations and the medical-industrial history in order to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history.  Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction.  If doubt remains, 38 C.F.R. § 3.344 (b) provides that after affording due consideration to all the evidence developed, the agency will continue the rating in effect as provided for in that subsection.
Historically, the 30 percent rating for the Veteran’s patella femoral syndrome was effective from April 13, 2010.  This 30 percent rating was first reduced to 10 percent, effective August 22, 2013.  The 30 percent rating was therefore in effect for less than five years.  As a result, the regulations governing stabilization of disability evaluations found in 38 C.F.R. § 3.344(a) and (b) are not applicable. 38 C.F.R. § 3.344(c).  
The Board finds that the procedural requirements for a disability rating reduction have been met.  Accordingly, the remaining question is whether the reduction in the disability rating is warranted based on the medical and lay evidence of record.
The Veteran’s service-connected patella femoral syndrome of the left knee was evaluated under Diagnostic Code 5261.  In accordance with Diagnostic Code 5261, a noncompensable rating will be assigned for limitation of extension of the leg to 5 degrees; a 10 percent rating will be assigned for limitation of extension of the leg to 10 degrees; a 20 percent rating will be assigned for limitation of extension of the leg to 15 degrees; a 30 percent rating will be assigned for limitation of extension of the leg to 20 degrees; a 40 percent rating will be assigned for limitation of extension of the leg to 30 degrees.  38 C.F.R. § 4.71a.
In a January 2014 rating decision, the Veteran’s patella femoral syndrome was reduced based upon results from an August 2013 VA knee and lower leg conditions examination.  The August 2013 examination noted no limitation of left leg extension.  Painful motion of the knee was documented and a 10 percent disability rating was assigned in accordance with the provisions of 38 C.F.R. § 4.59.
The Board notes that the Veteran’s reported absence of limitation of leg extension during the August 2013 examination does not meet the criteria for a disability rating of 30 percent.  However, the Board finds that the January 2014 rating decision to reduce the Veteran’s disability rating did not indicate that the reduction was based upon anything more than the single August 2013 examination results.  The rating decision did not mention or discuss a review of the entire history of a Veteran’s disability, or discuss that the “findings noting sustained improvement” actually reflected an improvement in the Veteran’s ability to function under the ordinary conditions of life and work.  See Schafrath, 1 Vet. App. at 594; see also Faust, 13 Vet. App. at 350.  The rating decision also failed to note a determination that the Veteran’s improvement was reasonably certain to be maintained under the ordinary condition of life.  In fact, both the August 2013 examination and the January 2014 rating decision fail to address the Veteran’s stated contention that the left knee condition had worsened, and now manifested in increased pain in her left knee, and pain in her right knee due to overcompensating for her left knee disability.   
Accordingly, the Board finds that the reduction of the 30 percent disability rating for the Veteran’s patella femoral syndrome was improper.  Restoration of the Veteran’s 30 percent disability rating for patella femoral syndrome, effective August 22, 2013, is warranted.   
REASONS FOR REMAND
Entitlement to a rating in excess of 30 percent for the left knee disability.
Under 38 C.F.R. § 20.1304(c), any pertinent new evidence received by the Board without a waiver must be referred to the RO.  38 C.F.R. § 20.1304(c).  Review of the Veteran’s claims file reveals that additional evidence which may be pertinent to her claims for entitlement to an increased rating for patella femoral syndrome of the left knee has been associated with the claims file and has not been considered by the RO since its January 2016 SSOC.  This evidence consists of a December 2017 VA knee and lower leg conditions examination.
Automatic waiver of Agency of Original Jurisdiction (AOJ) consideration does not apply to evidence that was not submitted by the Veteran, such as a new VA examination.  See 38 U.S.C. § 7105(e).  Accordingly, since the Veteran has not waived AOJ consideration of the VA examination, and because the examination is pertinent to this issue, it would be prejudicial for the Board to address this evidence without a waiver.  Accordingly, remand is required for AOJ consideration of this evidence in the first instance.
The matter is REMANDED for the following action:
(Continued on the next page)
 
The AOJ should then readjudicate the claim, specifically considering all new evidence, including the December 2017 VA knee and lower leg examination.  If the benefits sought on appeal are not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is returned to the Board.
 
T. BERRY
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	B. Riordan, Associate Counsel 

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

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency