KNEE IMPAIRMENT OF

Summary

The veteran, who served in the Air Force from August 2009 to May 2013, appealed the March 2021 reduction of her disability ratings for bilateral knee chondromalacia from 20 percent to 10 percent. The veteran contended that the reductions were improper because her symptoms had worsened since service connection was established, leading to instability and increased pain with activity. The Board reviewed the case under the modernized review system, considering evidence of record up to the March 2021 rating decision and evidence submitted at the subsequent Board hearing. The Board found that the VA had not met its burden to show improvement in the veteran's bilateral knee conditions. Specifically, the 2020 VA examination noted a progression of the condition with pain and functional impairment, and the 2017 examination also reported pain worsening with activity. The veteran's competent and credible testimony further supported the lack of improvement. Given that the 20 percent rating had been in effect for more than five years, the stabilization regulations under 38 C.F.R. § 3.344 were applicable. As the evidence did not demonstrate actual improvement in the severity of the disability or the veteran's ability to function, the Board concluded the reduction was not proper. Consequently, the Board ordered the restoration of the 20 percent disability ratings for both the left and right knee chondromalacia.

Rationale

VA failed to show actual improvement in disability.; 2020 VA exam noted progression, pain, and functional impairment.; Veteran's competent and credible testimony supported lack of improvement.

Full Decision Text

Citation Nr: A26027159
Decision Date: 03/25/26	Archive Date: 03/25/26

DOCKET NO. 210503-156854
DATE: March 25, 2026

ORDER

The March 2021 reduction of the Veteran's disability rating for left knee chondromalacia, effective June 1, 2021, was not proper and the rating is restored.

The March 2021 reduction of the Veteran's disability rating for right knee chondromalacia, effective June 1, 2021, was not proper and the rating is restored.

FINDINGS OF FACT

1. At the time of the reduction, the evidence failed to show that any material improvement of the Veteran's left knee chondromalacia was reasonably certain to be maintained under the ordinary conditions of life.

2. At the time of the reduction, the evidence failed to show that any material improvement of the Veteran's right knee chondromalacia was reasonably certain to be maintained under the ordinary conditions of life.

CONCLUSIONS OF LAW

1. The June 1, 2021, reduction of the disability rating for chondromalacia of the left knee was not proper; restoration of the 20 percent rating is warranted. 38 U.S.C. §§ 1155, 5112, 7104; 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.2, 4.10, 4.13.

2. The June 1, 2021, reduction of the disability rating for chondromalacia of the left knee was not proper; restoration of the 20 percent rating is warranted. 38 U.S.C. §§ 1155, 5112, 7104; 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.2, 4.10, 4.13.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty with the United States Air Force from August 2009 to May 2013. 

The rating decision on appeal was issued in March 2021 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.  In the May 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on October 18, 2024.

Therefore, the Board may only consider the evidence of record at the time of the March 2021 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran, or her representative, at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. 

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.

Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist that occurred prior to the rating decision on appeal.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in
, 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.

Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist that occurred prior to the rating decision on appeal.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

Restoration of Disability Ratings

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). 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 for the proposed reduction. The AOJ 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). In the present case, the reduction of the Veteran's disability rating from 20 percent to 10 percent for bilateral knees chondromalacia did result in a reduction of the Veteran's overall combined disability rating. 

The VA informed the Veteran of the potential rating reduction in October 2020. The rating decision applying the reduction was not issued until March 31, 2021. Thus, 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.

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 aff
 lay evidence of record.

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.

1. Reduction of disability rating for left knee chondromalacia, from 20 percent to 10 percent, effective June 1, 2021

2. Reduction of disability rating for right knee chondromalacia, from 20 percent to 10 percent, effective June 1, 2021

The Veteran asserts at her Board hearing that the reductions in her bilateral knee ratings were improper because the symptoms only worsened since service connection was established and she was unable to sit or stand for extended periods of time, has instability, and generally her pain level has worsened over time at work.

Historically, the 20 percent rating for the Veteran's bilateral knees chondromalacia was effective since June 1, 2013.  The 20 percent rating was therefore in effect for more 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 applicable. 38 C.F.R. § 3.344 (c).

The Veteran's chondromalacia of the bilateral knees was evaluated in accordance with Diagnostic Code 5260. Under Diagnostic Code 5260, limitation of flexion of the leg, a noncompensable evaluation is warranted when flexion is limited to 60 degrees. A 10 percent evaluation is warranted when flexion of the leg is limited to 45 degrees. A 20 percent evaluation is warranted when flexion is limited to 30 degrees. 38 C.F.R. § 4.71a. Normal flexion is 140 degrees. 38 C.F.R. § 4.71a, Plate II.

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011).  A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran.  38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997).

The Board finds that the substantive requirements for a reduction were not satisfied. Any reexamination that would have resulted in a reduction in rating needed to show actual improvement in the disability such that the Veteran's ability to function under the ordinary conditions of life and work were improved. In the 2020 examination, the Veteran was noted to have a progression in her condition since it began, with aching or sharp pain that was worse with walking, standing, or climbing and locking of the knees with flare-ups of pain and functional impairment that prevented her from climbing. The examiner also concluded that there was a worsening of symptoms and did not explain why range of motion testing findings were evaluated as normal. The 2017 VA examination of record also reports full range of motion with knee pain that worsened over time and that increased with walking, standing, and climbing stairs that impacted running and resulted in severe pain with weight bearing. Additionally, the Veteran's competent and credible testimony provide additional support for the lack of improvement in the Veteran's ability to function under the ordinary conditions of life and work.

VA has not met its burden to show improvement in the Veteran's bilateral knee conditions.  See Brown, 5 Vet. App. at 421; see also 38 C.F.R. § 3.344.  Accordingly, restoration of her 20 percent disability rating for chondromalacia of the bilateral knees, is warranted.

 

 

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