Citation Nr: 21000984 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 16-33 595 DATE: January 6, 2021 ORDER Entitlement to a restoration of the 20 percent evaluation for degenerative arthritis, residual of fracture, iliac bone, right hip (“right hip degenerative arthritis”) is denied. FINDINGS OF FACT 1. The 20 percent rating for the Veteran’s right hip disability was in effect for fewer than five years at the time of the reduction. 2. Because a June 2015 VA rating examination found that the Veteran’s right hip Abduction was limited to 45 degrees the reduction of the 20 percent rating to a 10 percent disability rating was correct and restoration of a 20 percent rating is not proper. CONCLUSION OF LAW The rating reduction for a right hip disability, from 20 percent to 10 percent, was proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.105(e), 3.344, 4.71a, DC 5253. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1974 to September 1978 This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in November 2019. The claim was remanded for the RO to obtain Social Security Administration (SSA) records. In July 2020, SSA records were added to the file. Thus, the Board finds that the AOJ substantially complied with the November 2019 Board remand directive and that the matter has been properly returned to the Board for appellate consideration. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes in April 2015 the Veteran filed a claim for an increased rating for the right hip. At the time of this filing he was rated at 20 percent for his right hip degenerative arthritis. The Veteran’s November 2015 notice of disagreement (NOD) expressed disagreement with the reduction of the rating but did not explicitly express disagreement with the RO’s denial of his increased rating claim. As such, the July 2016 statement of the case (SOC) did not address the appeal as an increased rating appeal. The Board will only address the reduction issue. In this case the Veteran is seeking restoration of the 20 percent evaluation for his right hip degenerative arthritis. Prior to reducing a disability rating, VA is required to comply with several regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. See 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13 (2017); see Brown v. Brown, 5 Vet. App. 413, 420 (1993). If a reduction in a service-connected disability rating is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, the RO must issue a rating proposing the reduction and setting forth all material facts and reasons. 38 C.F.R. § 3.105 (e). A period of 60 days is allowed for response. Id. Furthermore, the effective date of the reduction will be the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105 (e), (i). VA rating reductions must be based upon review of the entire history of the 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 the improvement reflects an improvement in the ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 350 (2000). The provisions of paragraphs 3.344(a) and 3.344(b) apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. The rating at issue had been in effect for less than 5 years at the time of the reduction. See Brown, 5 Vet. App. at 418 (1993). Thus, 38 C.F.R. § 3.344(a) and (b) are not for application. When a disability has not become stable and is likely to improve, and the disability rating has not continued at the same level for at least five years, a reexamination disclosing improvement in that disability will warrant a reduction in its rating. 38 C.F.R. § 3.344(c). In a January 1980 rating decision VA granted service connection for residuals fracture, iliac bone, right hip and assigned a noncompensable rating under DC 5299, effective September 20, 1978. In a November 2012 rating decision, VA increased the rating for the right hip to 20 percent, under DC 5253, effective August 27, 2012, the date of receipt for the supplemental claim. In June 2015, the RO issued the Veteran a rating action proposing the reduction and setting forth all material facts and reasons for the reductions. In the notice letter accompanying the rating action, the RO informed the Veteran that he had 60 days to submit additional evidence showing that his compensation payments should be continued at their present level, and 30 days from the date of the notice letter to request a predetermination hearing. The Veteran did not request a hearing; however, he expressed disagreement and requested a new VA examination. He was given a new VA examination on August 25, 2015. In an October 2015 rating decision, the RO effectuated the reductions. The effective date of the reductions was January 1, 2016, which was after the last day of the month in which the 60-day period from the rating action ended. See 38 C.F.R. § 3.105(e). Here, the RO appropriately determined that the reduction would reduce the combined rating and provided a proposal to reduce the rating. The RO properly complied with the response period and effective date provisions. Accordingly, there was no deficiency in the RO’s compliance with 38 C.F.R. § 3.105 (e). The Veteran’s right hip condition is rated under DC 5253. Under DC 5253, where there is limitation of rotation of the thigh to the point that the claimant cannot toe-out more than 15 degrees, a 10 percent evaluation is assigned. A 10 percent rating is also assigned where there is limitation of abduction to the point at which the claimant cannot cross his legs. A 20 percent rating is assigned where there is limitation of abduction of the thigh, motion lost beyond 10 degrees. 38 C.F.R. § 4.71a, DC 5253. Normal range of motion (ROM) of the hip is 0 to 125 degrees of flexion and 0 to 45 degrees of abduction. 38 C.F.R. § 4.71a, Plate II. Turning to the medical evidence, a June 2015 VA examination report indicated review of the Veteran’s claims file, recounted the Veteran’s history, and recited his complaints. He was diagnosed with right iliac fracture of the right hip. He reported no flare-ups, however there is functional loss when increasing rotation in the right hip. The flexion was limited to 110 degrees with pain. Extension was limited to 20 degrees. Abduction was limited to 45 degrees. Adduction was limited to 20 degrees with pain. The external and internal rotation were limited to 30 degrees with pain. The Veteran was capable of repetitive use with no additional loss in range of motion. Muscle strength was normal with no muscle atrophy and no ankylosis. An August 2015 VA examination report indicated review of the Veteran’s claims file, recounted the Veteran’s history, and recited his complaints. The initial range of motion for the right hip was abnormal. The flexion was limited to 95 degrees with pain. The extension was limited to 10 degrees with pain. The abduction was limited to 25 degrees with pain and the adduction was limited to 25 degrees with pain. Adduction was not limited such that the Veteran cannot cross his legs. The external rotation was limited to 50 degrees and the internal rotation was limited to 30 degrees. There was objective evidence of pain with weight bearing, localized tenderness, and evidence of crepitus. Muscle strength was normal. There was no evidence of muscle atrophy or ankylosis of the right hip. The examiner noted degenerative arthritis of the right hip. In January 2016 VA treatment records the Veteran presented for an initial evaluation of the right hip. It was determined a hip replacement was not warranted at that time and the Veteran elected to continue with injections to alleviate pain. In August 2016, SSA records indicate the Veteran’s right hip osteoarthritis has slowly progressed, however there was no severe limp described. It was noted the Veteran’s osteoarthritis of both knees and the hips “appears to be slowly progressive in nature but has not modified his functional capacity significantly over the time in question.” There were no range of motion testing or physical examinations for the right hip included in the SSA records. During the March 2019 Board hearing, the Veteran’s representative argued his condition is worse since the July 2016 SOC was issued. The Veteran testified to having problems with simple task such as putting on shoes and socks because of his condition. He reported prolonged standing and stairs have become a problem. The representative noted the Veteran has discussed hip replacement with his doctors after he loses weight. A May 2019 VA examination report indicated review of the Veteran’s claims file, recounted the Veteran’s history, and recited his complaints. The initial range of motion for the right hip was abnormal. The Veteran denied flare-ups. The flexion was limited to 115 degrees with pain. The extension was limited to 15 degrees with pain. The abduction was limited to 45 degrees with pain and the adduction was limited to 25 degrees with pain. Adduction was not limited such that the Veteran cannot cross his legs. The external rotation was limited to 60 degrees and the internal rotation was limited to 40 degrees. There was objective evidence of pain with weight bearing and localized tenderness, however, there was no evidence of crepitus. Muscle strength was normal. There was no evidence of muscle atrophy or ankylosis of the right hip. The examiner noted degenerative arthritis of the right hip. The Veteran does not use an assistive device. The examiner noted there is a functional impact as the Veteran has an impairment with sitting, standing, walking, and going up and down stairs all day long to the point that he became unable to perform a job that required doing these kinds of things on a fulltime basis. After a review of all of the evidence, the Board finds that, at the time the Veteran’s disability rating for the right hip disability was reduced from 20 percent to 10 percent, the evidence demonstrated that there had been an improvement in the disability and that the improvement reflected an improvement in the ability to function under the ordinary conditions of life and work. Initially, the Board notes the Veteran is also service connected for limitation of extension and flexion for the right thigh associated with the right hip disability at noncompensable ratings. The original right hip grant was based on a February 1979 VA examination where the examiner found the Veteran suffered from right hip fracture residuals after a motor vehicle accident. A noncompensable rating was assigned at that point. A November 2012 rating decision increased the hip condition based on limitation of abduction of the thigh, motion lost beyond 10 degrees as an October 2012 VA examination reflected such loss. The Board finds the June 2015 and August 2015 VA examination reports adequate and probative in this case. The examiners addressed range of motion, specifically to include abduction, consistent with the October 2012 VA examination, and found the abduction was normal during the June 2015 examination and adduction was not limited such that the Veteran cannot cross his legs during the August 2015 VA examination. The Board acknowledges the August 2015 VA examination reflected abduction limited to 25 degrees with pain, however, the examiner found adduction was not limited such that the Veteran cannot cross his legs. As the Veteran’s condition did not meet the severity level available for a 10 percent evaluation, the Board finds this is evidence in support of a reduction of the 20 percent evaluation. Additionally, the treatment records during this time period supports the reduction. In January 2016 it was determined a hip replacement was not warranted at that time and the Veteran elected to continue with injections to alleviate pain. In August 2016, SSA records indicated the Veteran’s right hip osteoarthritis appears to be slowly progressive in nature but has not modified his functional capacity significantly. Furthermore, in as recent as May 2019, a VA examination reflected abduction limited to 45 degrees. This improvement demonstrates the right hip disability is not stable and subject to improvement. Thus, the 20 percent disability rating was properly reduced to a 10 percent rating and restoration of that rating is not warranted. See 38 C.F.R. § 3.105(e). JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jackman, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.