Veteranclaims’s Blog

March 26, 2013

Single Judge Application; CFR 3.344(a), Brown v. Brown 5 Vet.App. 413, 416-19 (1993); CFR 4.10, CFR 4.2; Rating Reductions

Excerpts from decision below:
“In Brown v. Brown, this Court determined that the provisions of 38 C.F.R. 3.344(a), which establish specific requirements that must be met in order for VA to reduce service-connected disability ratings, apply only where the rating to be reduced has continued for five years or more. 5 Vet.App. 413, 416-19 (1993); see also 38 C.F.R. § 3.344(c) (2012) (restricting the requirements of subsections (a) and (b) of that regulation to “ratings which have continued for long periods at the same level,” defined as “[five] years or more”). Nevertheless, in Brown, the Court noted that 38 C.F.R. § 4.10, which provides 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 § 4.2, which provides that “[e]ach disability must be considered from the point of view of the veteran working or seeking work,” apply generally to all rating reductions. 5 Vet.App. at 421. Accordingly, the Court concluded that “in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work.” Id.
In this case, the Board’s analysis lacks any discussion of whether the condition of the appellant’s left knee disability “actually reflect[ed] an improvement in the veteran’s ability to function under the ordinary conditions of life and work.” See id.”
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 11-3672
JOHN T. THAMES, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before GREENBERG, Judge. MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

GREENBERG, Judge: The appellant, John T. Thames, appeals through counsel a
September 15, 2011, Board of Veterans’ Appeals (Board) decision that (1) determined a rating
reduction for chondromalacia of the patelloformal joint of the left knee from 20% to 10% effective
August 1, 2007, was proper, and (2) denied a disability rating in excess of 10% for chondromalacia
of the patellofemoral joint of the left knee. Record (R.) at 3-30. The appellant argues that (1) 1
reversal of the rating reduction for the left knee is warranted because the Board relied upon an
inadequate December 2006 examination to find the reduction appropriate; (2) the Board failed to
adequately address whether the medical evidence showed that the improvement in the appellant’s
condition reflects an improvement in his ability to function under the ordinary conditions of life and
work; (3) the Board failed to adequately discuss whether the appellant is entitled to a rating under
38 C.F.R. § 4.73 for a related muscle injury, and (4) the Board violated its duty to assist by relying
on an inadequate examination for the increased rating claim. Appellant’s Brief (Br.) at 9-20.
The Board also remanded claims for entitlement to benefits based on service connection for fatigue, generalized 1
muscle/joint pain and gastrointestinal problems, all to include as due to an undiagnosed illness, as well as claims for posttraumatic
stress disorder, an alcohol problem, and entitlement to a total disability rating based on individual
unemployability. These matters are therefore not before the Court. See Hampton v. Gober, 10 Vet.App. 481, 483
(1997).
Alternatively, the appellant argues that the Board failed to provide an adequate statement of
reasons or bases as to whether the duty to assist was satisfied for the increased rating claim.
Appellant’s Br. at 21-22. A single judge may conduct this review. See Frankel v. Derwinski,
1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will vacate the Board’s September
2011 decision, reverse the Board’s finding that determined the rating reduction effective August 1,
2007, was proper, and remand the matter for VA to restore the appellant’s benefits. Because the
appellant’s rating was improperly reduced, the Court will also remand the matter of whether the
appellant is entitled to an increased rating for his chondromalacia of the patelloformal joint of the
left knee for consideration of a disability rating in excess of 20%.
The appellant served on active duty in the U.S. Army from March 1987 to June 1987 and
from January 1988 to April 1992, including service as a combat engineer with the 24th Infantry
Division during Operation Desert Storm in Southwest Asia, where he suffered a left knee injury after
“sustaining repeated blows to the outside of his left knee.” R. at 430, 432, 1951. The appellant filed
for benefits based on a left knee disability and was granted a noncompensable rating in July 1992.
R. at 1966-67. Thames sought an increased rating in 1998 and the regional office (RO) increased
his rating to 10% effective October 18, 1998. R. at 1868-69. Following another request for an
increased rating and a January 2004 VA examination, the appellant’s disability rating for his left knee
condition was increased to 20% in March 2004. R. at 1746-48. Thames continued to seek an
increased rating for his left knee condition.
In December 2006 the appellant was provided another VA examination. R. at 1162. The
examiner concluded that the appellant’s knee disorder “would give him difficulty with squatting,
kneeling, climbing ladders and walking long distances.” R. at 1162. In February 2007, the RO cited
the observations of the December 2006 examiner and found that the evidence “does not show the
necessary symptomatology to justify [the appellant’s] current 20[%] evaluation,” so the RO proposed
a reduction in the disability rating to 10%. R. at 1416-22. In a May 2007 decision, the RO reduced
the appellant’s disability rating to 10%, effective August 1, 2007. R. at 1351-55.
The issue of the propriety of this rating reduction reached the Board, which found in
September 2011 that “[t]he May 2007 reduction of the disability rating for a left knee disorder from
20[%] to 10[%], effective from August 1, 2007, was proper, and restoration of the 20[%] rating is
2
not warranted.” R. at 8.
In Brown v. Brown, this Court determined that the provisions of 38 C.F.R. 3.344(a), which establish specific requirements that must be met in order for VA to reduce service-connected disability ratings, apply only where the rating to be reduced has continued for five years or more. 5 Vet.App. 413, 416-19 (1993); see also 38 C.F.R. § 3.344(c) (2012) (restricting the requirements of subsections (a) and (b) of that regulation to “ratings which have continued for long periods at the same level,” defined as “[five] years or more”). Nevertheless, in Brown, the Court noted that 38 C.F.R. § 4.10, which provides 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 § 4.2, which provides that “[e]ach disability must be considered from the point of view of the veteran working or seeking work,” apply generally
to all rating reductions. 5 Vet.App. at 421. Accordingly, the Court concluded that “in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work.” Id.
In this case, the Board’s analysis lacks any discussion of whether the condition of the appellant’s left knee disability “actually reflect[ed] an improvement in the veteran’s ability to function under the ordinary conditions of life and work.” See id.
The Board merely stated:
[T]he clinical findings shown in December 2006, and in subsequent VA treatment
records, support the reduction to a 10[%] disability rating for the left knee disorder, implemented in the May 2007 rating decision. Specifically, during the January 2004 VA examination, the appellant stated that he experienced popping and swelling and that his knee was unstable, requiring him to wear a knee brace. In December 2006, the objective findings noted that the appellant was in no apparent acute distress, as he demonstrated normal hell-toe [sic] gait mechanics without the aid of an orthopedic device. He also did not endorse the prior DeLuca [v. Brown, 8 Vet.App. 202 (1995),] characteristics that were noted in January 2004. Accordingly, the Board places greater probative weight to the actual clinical evaluations.R. at 24. The failure to discuss the appellant’s left knee improvement in terms of his ability to
function under the conditions of life and work is particularly harmful to the appellant because the Board also noted that the September 2010 examiner reported that “[t]he appellant’s left knee disorder
caused significant effects on his usual occupation, consisting of problems lifting and carrying. As
3
a result, he was assigned different duties and had increased absenteeism.” R. at 23. The Court holds
that the Board’s failure to consider Brown in this case was prejudicial. See Conway v. Principi,
353 F.3d 1369, 1374 (Fed. Cir. 2004); see also 38 U.S.C. § 7261(b)(2) (requiring the Court to “take
due account of the rule of prejudicial error”). The failure of the Board to properly consider whether
the appellant’s left knee actually reflected improvement in light of holding in Brown and the
favorable evidence from the September 2010 examiner that the appellant’s left knee disorder “caused
significant effects on his usual occupation,” results in a failure to correctly apply the law and an
inadequate statement of reasons or bases. Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (the
Board is required to provide a written statement of the reasons or bases for its findings and
conclusions, adequate to enable an appellant to understand the precise basis for the Board’s decision
as well as to facilitate review in this Court); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per
curiam, 78 F.3d 604 (Fed. Cir. 1996) (table) (the Board must analyze the credibility and probative
value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and
provide the reasons for its rejection of any material evidence favorable to the claimant).
While the remedy for the Board’s failure to properly apply the law or provide an adequate
statement of reasons or bases is ordinarily remand, see Tucker v. West, 11 Vet.App. 369, 374 (1998),
when the Board reduces a veteran’s disability rating without regard to the law, the decision is void
ab initio. See Kitchens v. Brown, 7 Vet.App. 320, 325 (1995) (“Where, as here, the Court finds that
the [Board] has reduced a veteran’s rating without observing applicable laws and regulation, such
a rating is void ab initio . . . .”). Thus, “[w]hen the issue raised is a rating reduction and the Court
determines that the reduction was made without observance of law . . . this Court, acting under
38 U.S.C. § 4061(a)(3)(D), [now 38 U.S.C. § 7261(a)(3)(D),] has ordered reinstatement of the prior
rating.” Schafrath v. Derwinski, 1 Vet.App. 589, 595 (1991) (citing Lehman v. Derwinski,
1 Vet.App. 339 (1991)). Accordingly, the Board’s September 2011 determination that reduction of
the appellant’s disability rating for his chondromalacia of the patellofemoral joint of the left knee was
proper is reversed and, on remand, a disability rating of 20% for the appellant’s left knee will be
restored, effective August 1, 2007.
Additionally, because the Board must restore the appellant’s 20% rating for his knee
condition, the Court must also remand the Board’s determination that the appellant was not entitled
4
to an increased rating for his left knee disorder. On remand, the Board should readjudicate the
appellant’s increased rating claim in light of the restoration of the 20% disability rating. Because the
Court is remanding this claim, it will not address the appellant’s arguments regarding this matter
further. See Dunn v. West, 11 Vet.App. 462, 467 (1998) (remand of appellant’s claim under one
theory moots the remaining theories advanced on appeal).
For the foregoing reasons, a review of the entire record, and the arguments and pleadings of
both parties, the Court VACATES the September 2011 Board decision, REVERSES the Board’s
determination that the rating reduction for chondromalacia of the patellofemoral joint was proper,
and REMANDS the matter to the Board to reinstate the appellant’s prior 20% disability rating,
effective August 1, 2007. The matter of whether the appellant is entitled to an increased rating for
chondromalacia of the patelloformal joint of the left knee is also REMANDED for readjudication
consistent with this decision.
DATED: March 25, 2013
Copies to:
Katy S. Clemens, Esq.
VA General Counsel (027)
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