BVA9503876 DOCKET NO. 92-04 114 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to restoration of a 30 percent evaluation for a right knee disorder. 2. Entitlement to an increased evaluation for right anterior cruciate ligament injury with instability, evaluated as 30 percent disabling (prior to the reduction). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The veteran served on active duty from August 1985 to December 1985. This matter came before the Board of Veterans' Appeals (Board) on appeal from a December 1991 rating decision from the Louisville, Kentucky, Regional Office (RO). The Board remanded the case, and the claim was returned for further appellate consideration. The Board remanded the case, in part, so as to allow for adjudication of the implied issue of entitlement to a total rating on the basis of individual unemployability. As noted by the representative, such issue was not the subject of an appeal by the veteran. Accordingly, the issue is not before the Board. CONTENTIONS OF APPELLANT ON APPEAL It is contended that the veteran's right knee disorder is more severe than currently evaluated. It is maintained that the examination used to reduce the evaluation was inadequate. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the criteria for restoration of a 30 percent evaluation for right anterior cruciate ligament injury with instability are met. The preponderance of the evidence is against the claim for an increased evaluation for right anterior cruciate ligament injury with instability. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. In an April 1989 rating decision, a 30 percent evaluation was granted for right anterior cruciate ligament injury with instability. The evidence associated with the claims file since that determination does not reflect a material change in the condition. 3. The veteran's service connected disability does not result in ankylosis or significant limitation of motion or the functional equivalent of such. 4. The case does not present an exception or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the regular schedular standards. CONCLUSIONS OF LAW 1. The criteria for restoration of a 30 percent evaluation for are met. 38 U.S.C.A. § 5107 (West 991); 38 C.F.R. §§ 3.344(c), 4.10, 4.13 (1993). 2. Right anterior cruciate ligament injury with instability is no more than 30 percent disabling. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.7, 4.40, 4.59, Part 4, Code 5257 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim for an increased rating and restoration of an evaluation is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). We find that he has presented a claim that is plausible. We are satisfied that all relevant facts have been properly developed. There is no indication of outstanding additional evidence. No further assistance to the veteran is required to comply with the duty to assist the veteran mandated by 38 U.S.C.A. § 5107. Although the contended that the 1991 VA examination was inadequate, it is clear that the report was comprehensive. Regardless, additional evidence, including the veteran's testimony and private medical records, was associated with the file rendering the contention moot. Disability evaluations are based upon the average impairment of earning capacity as contemplated by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1993). Although the VA must consider the entire record, the most pertinent evidence is those documents created in proximity to the recent claim. 38 U.S.C.A. § 5110 (West 1991); 38 C.F.R. § 4.1 (1993). In this case, the veteran appealed the reduction of the evaluation from to 10 percent and implied that his 30 percent evaluation was inadequate. I. Restoration There is no question that a disability rating may be reduced; however, the circumstances under which rating reductions can occur are specifically limited and carefully circumscribed by regulations promulgated by the Secretary. Dofflemyer v. Derwinski, 2 Vet.App. 277, 280 (1992). Material improvement cannot be shown without a comparison of the previous and current physical and mental conditions. In addition, once material improvement is found, the VA must further consider the circumstances under which the improvement occurred.... Tucker v. Derwinski, 2 Vet.App. 201, 203 (1992). The United States Court of Veterans Appeals (Court), in Brown v. Brown, 5 Vet. App. 413 (1993), has interpreted the provisions of 38 C.F.R. § 4.13 (1993) to require that in any rating reduction case, it must be ascertained, based upon a 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. Moreover, 38 C.F.R. §§ 4.2 and 4.10 (1993) provide 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 in a disability actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. The 1988 examination that resulted in a 30 percent evaluation reflected that there was "some" rotary instability of the knee, and that the veteran had residuals of injury and tear of the anterior cruciate ligament. The frequency of the occurrences was not described, there was no enlargement or effusion, and no limitation of motion. The evidence associated with the file in conjunction with the intent to reduce reflects that there has been no significant change in the veteran's condition. The veteran continues to wear a brace, he continues to have instability, and there is evidence of joint line laxity. Unlike the 1988 examination, the veteran has presented evidence of tenderness and subpatellar effusion. Whether the current findings would warrant a 30 percent if this were an original claim is not germane to the appeal. The issue is whether there has been improvement. The rating panel, in April 1989, conceded that the findings of record warranted a 30 percent evaluation. The evidence associated with the file since the initial rating decision is not significantly dissimilar so as to support a rating reduction. We also note that neither the rating proposal to reduce nor the rating reducing the evaluation address whether there was improvement, just whether the veteran met the criteria for a 30 percent evaluation. In essence, the rating board failed to consider the appropriate regulatory requirements, thus rendering the rating decision defective. Dofflemyer v. Derwinski, 2 Vet.App. 277, 280 (1992). Based upon the decisions of the United States Court of Veterans Appeals; the 30 percent evaluation must be restored. II. Increased Evaluation Although the veteran's claim for an increased evaluation is well grounded, the Board finds no merits to the claim. The veteran is at the maximum schedular evaluation based upon instability or subluxation. 38 C.F.R. Part 4, Code 5257 (1993). Although other diagnostic criteria may be considered, there is not the slightest indication that the knee is ankylosed or that there is any significant limitation of motion. 38 C.F.R. Part 4, Code 5256, 5260, 5261 (1993). Furthermore, the Board has not been presented with evidence of the functional equivalent of ankylosis or limitation of motion that would warrant any consideration of an increased evaluation. 38 C.F.R. §§ 4.7, 4.40, 4.59 (1993). Although the veteran may have been instructed to avoid certain occupations, the record does not reflect that the disability has resulted in frequent periods of hospitalization or that the disability has resulted in marked interference with employment. 38 C.F.R. § 3.321 (1993). When all the evidence is assembled, the Secretary, is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). The Board concludes that the clinical findings from the VA and private sources are more probative of the degree of impairment than the veteran's testimony and the lay statements submitted in support of the claim. Although we do not doubt that the veteran has some impairment, the actual findings on repeated examinations reflect a degree of disability significantly less than would be necessary for an evaluation in excess of the 30 percent evaluation. In regard to the veteran's testimony, much seems to be consistent with the medical evidence. The veteran has been issued a brace, walks with a limp, probably takes medication at times, and the knee may give out at times. Such testimony and evidence does not support an evaluation in excess of 30 percent. There is no doubt to be resolved and an increased evaluation is not warranted. ORDER Restoration of a 30 percent evaluation for right anterior cruciate ligament injury with instability is granted, subject to the controlling regulations applicable to the payment of monetary benefits. An evaluation in excess of 30 percent is denied. (CONTINUED ON NEXT PAGE) H. N. SCHWARTZ Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.