[DECISION ASSESSMENT DOCUMENT]{.underline}

[DOCKET NO.]{.underline}: 91-771 [ACTIVITY:]{.underline} RATING

[NAME:]{.underline} Smith v. Brown

[ISSUE(S)]{.underline}: Sustained material improvement

[ACTION BY COURT]{.underline}: Remand [DECISION DATE]{.underline}:
7/6/93

[Significant Point(s)]{.underline}: The provisions of 38 CFR 3.344 do
not apply to an evaluation of a service-connected disability which has
been in effect for less than 5 years.

[Facts]{.underline}: The VA granted service connection for postoperative
residuals of a left medial meniscectomy with degenerative joint disease,
0% disabling from 3/1/75. The evaluation was increased to 10% from
9/22/83. The evaluation was increased again to 20% effective 8/9/84. In
1/86, BVA denied an earlier effective date and a higher evaluation. In
2/88, the veteran submitted a claim for service connection for right leg
instability as secondary to his service-connected leg knee condition. He
submitted a claim for an increased evaluation for his left knee. After
reviewing private medical records and a VA examination report, the
regional office decreased the evaluation for the left knee to 10% under
the provisions of 38 CFR. 3.105(e) and denied service connection for the
right leg condition. After testimony at a personal hearing, the veteran
had another VA examination in 12/89. Although asked to express an
opinion as to whether the right knee condition was secondary to the
service-connected left knee, the examiner failed to respond. BVA upheld
the denial of an evaluation in excess of 10% because the schedular
criteria had not been met. The denial of secondary service connection
was upheld as the right knee disability was not proximately due to or
the result of the left knee condition.

[Court Analysis]{.underline}: 38 CFR 3.344 prohibits the reduction of
ratings which have continued for long periods at the same level (5 years
or more) on the basis of a single examination which demonstrated
material improvement in the service connected condition. In [Lehman v
Derwinski]{.underline}, 1 Vet. App. 339 (1991), the Court construed the
five-year time frame to be a guideline, rather than a mandate
establishing an inflexible minimum time interval. In this case the 20%
rating was in effect for four years, ten months and 22 days when it was
reduced to 10%. For the Court to interpret 38 CFR 3.344 to construe this
time period as equivalent to \"5 years or more\" would be too much of a
stretch. A rating which has been in effect for a period of four years,
ten months and 22 days is not commensurate to a rating which has been in
effect for \"5 years or more.\"

[SERVICE ANALYSIS]{.underline}: The C&P Staff has been emphasizing that
reductions in the evaluation of a service connected disability cannot
occur unless all the evidence clearly demonstrates
[sustained]{.underline} material improvement without regard to the
length of time an evaluation has been in effect. This position was based
on the language in [Lehman]{.underline} and other Court cases which did
not appear to limit the requirement for a finding of sustained
improvement before a reduction could take place. In this case, the Court
indicates that the sustained improvement requirement found in the
provisions of 38 CFR 3.344 involves evaluations that have been in effect
for 5 or more years. This decision would allow a reduction in any case
where the evaluation has been in effect for less than 5 years. The
method of computing the 5-year time period is the subject of a currently
pending case.

In summary, if the only available medical evidence is one VA examination
which meets the requirements of 38 CFR 4.1 and 4.2 [and]{.underline} the
evaluation has been in effect for less than 5 years, a reduction may be
made when improvement is shown.

[RECOMMENDED VBA ACTION(S)]{.underline}: In addition to providing a copy
of this assessment to the regional offices, this case should be
discussed on the next Judicial Review Conference Call. No changes to
manual provisions are required.

[ACTION BY DIRECTOR, C&P SERVICE]{.underline}:

[Approved]{.underline}?

[X]{.underline} [/s/]{.underline} [8/4/93]{.underline}

Yes No J. Gary Hickman Date