Citation Nr: 18152277 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 15-38 889A DATE: November 21, 2018 ORDER The reduction from 10 percent to noncompensable for the service-connected left hip strain was not proper; a 10 percent disability evaluation effective February 19, 2013 is restored. REMANDED Entitlement to service connection for a right hip condition is remanded. Entitlement to total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT 1. In a March 2013 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) reduced the Veteran’s disability rating for a left hip disability, from 10 percent disabling to noncompensable, effective February 19, 2013, based on examination findings showing an improvement in the disability. 2. The evidence of record failed to establish improvement in the Veteran’s left hip disability. CONCLUSION OF LAW The reduction of the disability rating assigned for the Veteran’s left hip disability from 10 percent to noncompensable effective February 19, 2013, was improper and restoration of the 10 percent rating is warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§3.344, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5024-5252 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 2008 to June 2009. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. These matters were previously before the Board, and, in January 2015, the Board remanded these matters for further development. 1. Propriety of reduction for left hip disability The Board finds the reduction of the Veteran’s disability rating for the service-connected left hip from 10 percent disabling to noncompensable was improper, and the 10 percent rating is restored effective February 19,2013. The provisions of 38 C.F.R. § 3.105 (e) allow for the reduction in evaluation of a service-connected disability when warranted by the evidence, but only after following certain procedural guidelines. In this case, the Veteran did not receive the 60-day notice of proposed reduction in the assigned rating for the service-connected left hip strain. However, as noted in the March 2013 rating decision that effectuated the reduction, the Veteran’s combined disability rating did not decrease as a result of this reduction. As such, the regulation governing procedural steps in rating reductions (38 C.F.R. § 3.105 (e)) do not apply. See Stelzel v. Mansfield, 508 F.3d 1345, 1349 (Fed. Cir. 2007) (holding that VA was not obligated to provide a veteran with sixty days’ notice before making a disability ratings decision effective if the decision did not reduce the overall compensation paid to the veteran); see also VAOPGCPREC 71-91 (Nov. 7, 1991) (where the evaluation of a specific disability is reduced, but the amount of compensation is not reduced because of a simultaneous increase in the evaluation of one or more other disabilities, section 3.105(e) does not apply). Notwithstanding the fact the procedural steps of 38 C.F.R. § 3.105 (e) do not apply in this case, a rating reduction is not proper unless the Veteran’s disability shows actual improvement in his or her ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000). Regulations “impose a clear requirement that VA rating reductions...be based upon a review of the entire history of the Veteran’s disability.” Brown v. Brown, 5 Vet. App. 413, 420 (1993); 38 C.F.R. §§ 4.1, 4.2, 4.13. A rating reduction is proper if the evidence reflects an actual change in the disability. The examination reports reflecting such change must be based upon thorough examinations. See Brown, 5 Vet. App. at 421. The evidence must reflect an actual change in the Veteran’s condition and not merely a difference in the thoroughness of the examination or in the use of descriptive terms. 38 C.F.R. § 4.13. It must also be determined that any such improvement also reflects an improvement in the Veteran’s ability to function under ordinary conditions of life and work. 38 C.F.R. §§ 4.2, 4.10; see Brown, supra. Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved. A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating issue. Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). Prior to February 19, 2013, the date of the rating reduction, the Veteran’s left hip disability was rated as 10 percent disabling pursuant to 38 C.F.R. § 4.71a, DCs 5024-5252. DC 5024 provides that tenosynovitis will be rated as degenerative arthritis, which is rated on the basis of limitation of motion. 38 C.F.R. § 4.71a, DC 5003. However, when limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint affected by limitation of motion, to be combined, not added. Id. Moreover, in the selection of code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With injuries and diseases, preference is to be given to the number assigned to the injury or disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27. The hyphenated diagnostic code in this case indicates that tendonitis under DC 5024, is the service-connected disorder, and limitation of motion of the hip, under DC 5252, is a residual condition. DC 5252 provides that a 10 percent rating is warranted when limitation of extension of the thigh is limited to 5 degrees or when flexion of the thigh is limited to 45 degrees. A 20 percent rating is warranted when flexion of the thigh is limited to 30 degrees. 38 C.F.R. § 4.71a, DCs 5024-5252. The 10 percent rating was assigned based upon the findings of the February 2010 VA examination. In the March 2010 rating decision, the RO explained the assignment under DC 5024-5252 was based on limitation of a major joint in consideration of functional loss under 38 C.F.R. §§ 4.40, 4.45, 4.59 with flexion of the thigh beyond 45 degrees. A review of the claims file indicates that the decision to reduce the Veteran’s rating from 10 percent to noncompensable for her left hip was predicated on a February 2013 VA examiner’s finding of full range of motion and no pain with motion and repetitive motion. However, when the limitation of motion of the specific joint or joints involved is non-compensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. 38 C.F.R. § 4.71a, DC 5003. The Veteran was originally assigned the 10 percent evaluation based on a February 2010 VA examination finding of limitation of motion of a major joint in consideration of functional loss. The Veteran also had tenderness to palpation of the left inguinal canal. While the Board notes that the Veteran’s objective symptoms showed improvement during the February 2013 VA examination, a review of the February 2013 VA examination also shows that the examiner also noted localized tenderness or pain to palpation for joints/soft tissue of the bilateral hips. The evidence does not show that there was actual improvement in the Veteran’s left hip under ordinary conditions of life and work. The February 2013 examiner found that the Veteran’s bilateral hip pain impacted occupational activities, to include her ability to do sedentary work, sitting, driving, lifting, bending, stooping, pushing/pulling, carrying, twisting, and squatting. Also, VA treatment records note numerous complaints of hip pain, including an April 2012 VA physical therapy note, where the Veteran complained of left hip pain and the examiner assessed left hip snapping syndrome. Consequently, considering the evidence as a whole, and resolving any reasonable doubt in the Veteran’s favor, actual improvement in the Veteran’s ability to function under the ordinary conditions of life and work is not shown to have improved and thus, the 10 percent rating for the Veteran’s left hip disability must be restored effective February 19, 2013. See Brown, 5 Vet. App. 413, 420-22 (1993); see also 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.13. Continued on Next Page REASONS FOR REMAND 1. Entitlement to service connection for a right hip disability is remanded. The Veteran seeks entitlement to service connection for a right hip disability. The Veteran indicated that her hips began hurting during service as a result of ruck marches and the excess of weight of the gear on her small frame. See March 2012 Statement in Support of Claim. The Veteran was afforded a VA examination in connection with her bilateral hip disorder in February 2010. The Veteran reported bilateral hip discomfort. However, the examiner did not diagnosis a right hip disorder. In February 2013, the Veteran underwent another VA examination in connection with her bilateral hip condition at which time she provided her military history and reported that her bilateral hip condition began in the Army. In the resulting report, the examiner noted a diagnosis of bilateral trochcanteric bursitis. However, the examination report did not contain an opinion as to whether the Veteran had a right hip condition that was related to service. Additionally, the examiner indicated that the Veteran’s right hip disability may be due to her service-connected foot disabilities. However, the examiner did not provide an opinion regarding secondary service connection. The Board finds the February 2013 VA examination inadequate. Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In light of the foregoing, the Veteran should be afforded a VA examination to determine the etiology of all current right hip disorders, and their relationship, if any, to her period of service. Additionally, the Veteran was scheduled for an examination on September 11, 2015, with the Colorado Springs CBOC Medical Center Division but as stated in the September 2015 statement of the case (SOC), the Veteran failed to appear for the examination. However, in an October 2015 VA Form 9, the Veteran indicated that she missed her examination because she was very sick and in the hospital the day before her examination and that her automobile had been stolen the same week. In light of the October 2015 communication from the Veteran, the Board finds good cause for the Veteran’s failure to appear at the examination. As such a remand is necessary to reschedule the examination. As an aside, the Veteran is hereby notified that it is her responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. 2. Entitlement to TDIU is remanded. The claim of entitlement to TDIU is also remanded pending adjudication of the right hip service connection claim on appeal, as it is inextricably intertwined with the outcome of this claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered); Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996) (claims are inextricably intertwined when they have common parameters, such as when the outcome of one may affect the outcome of the other. To avoid piecemeal adjudication of these types of claims, they should be considered together). The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination for an opinion regarding the nature and etiology of the right hip disability. The examiner must opine as to the following: a. Whether it is at least as likely as not (50 percent or greater probability) that she has a right hip disability that had its onset in service or within one year of service discharge or that is otherwise etiologically related to her active service. b. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s right hip disability was proximately due to or the result of her service-connected bilateral foot disorder. 2. The examiner must acknowledge review of the pertinent evidence of record, including the Veteran’s reports of symptom manifestation. All necessary examinations, tests, and studies should be conducted. 3. Rationale for the requested opinion must be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she must provide an explanation stating why this is so. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information or the limits of current medical knowledge with respect to the question. 4. After undertaking any other development deemed appropriate, readjudicate the issues on appeal. If the benefits sought are not granted, the Veteran and her representative should be furnished with a supplemental SOC and afforded an opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112 (2012). K. A. KENNERLY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Grzeczkowicz, Associate Counsel