Citation Nr: 21064687 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 18-54 255 DATE: October 21, 2021 ORDER From the date of reduction, restoration of the 10 percent rating for avascular necrosis of the left hip based on limitation of extension is granted. From the date of reduction, restoration of the 10 percent rating for avascular necrosis of the left hip based on limitation of flexion is granted. From the date of reduction, restoration of the 20 percent rating for avascular necrosis of the left hip based on limitation of abduction is granted. FINDINGS OF FACT 1. The reduction in rating for limitation of left hip extension from 10 percent to 0 percent resulted in a reduction in compensation payments, and the Veteran was not provided a rating decision proposing a reduction in rating prior to implementing the reduction. 2. The reduction in rating for limitation of left hip flexion from 10 percent to 0 was not based on thorough examinations, and the probative evidence of record does not show actual improvement in the Veteran's ability to function under the ordinary conditions of life and work. 3. The reduction in rating for limitation of left hip abduction from 20 percent to 10 was not based on thorough examinations, and the probative evidence of record does not show actual improvement in the Veteran's ability to function under the ordinary conditions of life and work. CONCLUSIONS OF LAW 1. The criteria for restoration of the 10 percent rating for avascular necrosis of the left hip based on limitation of extension have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.105 (2020). 2. The criteria for restoration of the 10 percent rating for avascular necrosis of the left hip based on limitation of flexion have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.105 (2020). 3. The criteria for restoration of the 20 percent rating for avascular necrosis of the left hip based on limitation of abduction have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.105 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1964 to June 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Rating Reductions Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When reduction in the evaluation of a service-connected disability is contemplated, and the lower evaluation would 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 beneficiary must be notified at his latest address of record of the contemplated action and furnished detailed reasons therefor. The beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. If additional evidence is not received within that period, a final rating action will be taken, and the award will be reduced effective 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). The procedural framework and safeguards set forth in 38 C.F.R. § 3.105 governing rating reductions must be followed by VA before it issues any final rating reduction. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). In any rating reduction case, VA must determine (1) whether the evidence reflects an actual change in the disability based upon review of the entire recorded history of the condition; (2) whether the examination reports reflecting such change are based upon thorough examinations; and (3) whether any improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. Murphy v. Shinseki, 26 Vet. App. 510, 516-17 (2014) citing Brown v. Brown, 5 Vet. App. 413, 421 (1993); see also Faust v. West, 13 Vet. App. 342, 349 (2000) (summarizing the requirements that VA must follow all reduction cases, "regardless of the rating level or the length of time that the rating has been in effect"). In determining whether a reduction was proper, the Board must focus upon 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 actually improved. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). In July 2014, the Veteran filed a claim for an increased rating for his service-connected avascular necrosis of the left hip. In a February 2015 rating decision, a 10 percent rating was assigned for limitation of left hip extension; a 10 percent rating was assigned for limitation of left hip flexion; and a 0 percent rating was assigned for limitation of left hip adduction/abduction, effective May 29, 2014. In July 2015, the Veteran filed a claim for a higher rating for his left hip disability. In a January 2016 rating decision, the 10 percent ratings assigned for limitation of left hip extension and flexion were continued, and a 20 percent rating was assigned for limitation of left hip adduction, effective July 10, 2015. The Veteran's combined disability rating at that time was 40 percent. After the Veteran underwent another VA examination, an August 2016 rating decision continued the 10 percent rating assigned for limitation of extension and proposed to reduce the rating assigned for limitation of flexion from 10 percent to 0 percent and the rating assigned for limitation of abduction from 20 percent to 0 percent. In the June 2017 rating decision on appeal, the ratings assigned for limitation of extension and flexion were reduced from 10 percent to 0 percent, effective October 1, 2017, and the rating assigned for limitation of abduction was reduced from 20 percent to 10 percent, effective October 1, 2017. After those reductions, the Veteran's combined disability rating was 20 percent. In a November 2017 rating decision, the RO changed the effective date for the reduction in ratings to September 1, 2017. Thereafter, the Veteran appealed the reductions in ratings. 1. Propriety of the reduction in rating for avascular necrosis of the left hip based on limitation of extension from 10 percent to 0 percent, effective September 1, 2017 Upon review of the record, the Board finds that restoration of 10 percent rating for limitation of left hip extension is warranted. The August 2016 rating decision proposing the reductions in ratings did not propose to reduce the rating assigned for limitation of left hip extension. Indeed, it indicated that the 10 percent rating assigned for limitation of extension was continued. Thereafter, a June 2017 rating decision reduced the rating assigned for limitation of left hip extension to 0 percent without any prior notice to the Veteran. As previously noted, when the reduction in rating was effectuated, the Veteran's combined disability rating was reduced from 40 percent to 20 percent. Had the 10 percent rating for limitation of left hip extension remained in effect, the Veteran's combined disability rating would have been 30 percent. See 38 C.F.R. § 4.25. Because that reduction in the 10 percent rating for limitation of left hip extension resulted in a reduction in compensation payments, the RO was required to issue a rating decision proposing the reduction in rating setting forth all the material facts and reasons for the reduction. See 38 C.F.R. § 3.105(e); see also Brown, 5 Vet. App. at 418. As no such rating decision was issued prior to the reduction in rating, the 10 percent rating for limitation of left hip extension is restored. 2. Propriety of the reduction in rating for avascular necrosis of the left hip based on limitation of flexion from 10 percent to 0 percent, effective September 1, 2017 Prior to the reduction in rating, the Veteran was in receipt of a 10 percent for limitation of left hip flexion based on the criteria set forth in 38 C.F.R. § 4.71a, Diagnostic Code 5251. Under Diagnostic Code 5252, a 10 percent rating is assigned for hip flexion limited to 45 degrees; a 20 percent rating is assigned for hip flexion limited to 30 degrees; a 30 percent rating is assigned for hip flexion limited to 20 degrees; and a maximum 40 percent rating is assigned for hip flexion limited to 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5252. Full hip flexion is to 125 degrees. 38 C.F.R. § 4.71a, Plate II. Upon review of the record, the Board finds that restoration of 10 percent rating for limitation of left hip flexion is warranted. The Veteran initially underwent VA examinations in February 2015, May 2015, and December 2015, during which he reported left hip pain, particularly with prolonged walking and climbing stairs. Range of motion testing performed during the February 2015 VA examination revealed left hip flexion to 45 degrees and to 40 degrees upon repetition. During the May 2015 VA examination, left hip flexion was limited 45 degrees and to 35 degrees upon repetition. During the December 2015 VA examination, left hip flexion was limited to 45 degrees and to 40 degrees upon repetition. The Veteran underwent another VA examination in July 2016, during which he reported worsening left hip pain, particularly with prolonged walking. Range of motion testing revealed left hip flexion to 90 degrees and to 75 degrees upon repetition. There was evidence of pain with weight bearing; however, range of motion testing was not conducted in weight bearing. See Correia v. McDonald, 28 Vet. App. 158, 170 (2016) (holding that 38 C.F.R. § 4.59 requires VA examinations to include range of motion testing with both active and passive motion and weight bearing and non-weight bearing). Additionally, the Veteran reported flare-ups, which were described as "severe limitations secondary to pain," and the examiner indicated that pain, weakness, fatigability, or incoordination significantly limited functional ability during flare-ups. However, the examiner did not provide an estimate of additional limitation of motion during flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26, 35-36 (2017) (holding that a VA examiner must estimate additional limitation of motion during flare-ups or provide an explanation as to why such an estimate cannot be provided, and it is insufficient for an examiner to state that he or she is unable to offer such an opinion without resorting to speculation based solely on the fact that the examination was not performed during a flare-up). The Veteran underwent another VA examination June 2017, during which he reported worsening left hip pain and flare-ups of more severe pain with prolonged walking and sitting and walking uphill. He also reported that his left hip locked when climbing stairs, which required him to stop and readjust his hip. Range of motion testing revealed left hip flexion to 120 degrees and to 60 degrees upon repetition. The examiner indicated that the examination was neither medically consistent nor inconsistent with Veteran's statements describing functional loss during flare-ups; however, no estimate of additional limitation of motion during flare-ups was provided. See Sharp, 29 Vet. App. at 35-36. After the reduction in rating, the Veteran underwent another VA examination in May 2021, during which he reported left hip pain with walking, particularly uphill, and left hip locking when climbing stairs. He stated that he had to stop and rest his hip at least three times when walking to his mailbox, which is about 300 feet from his house. Range of motion testing revealed left hip flexion to 55 degrees and to 50 degrees upon repetition. The examiner estimated that the left hip would exhibit 45 degrees of flexion during flare-ups and with repeated use over time. In a May 2021 rating decision, a 10 percent rating was again granted for limitation of left hip flexion, effective February 2, 2021. Although the May 2021 VA examination was conducted after the reduction in rating, the Board finds that such evidence supports a finding that the Veteran's left hip limitation of flexion did not actually improve. See Cf. Dofflemyer, 2 Vet. App. at 281-282. Additionally, the Veteran testified during the July 2021 Board hearing that he has not experienced any improvement in left hip motion. Based on the foregoing, the Board finds that the reduction in rating for limitation of left hip flexion was not based on thorough examinations that complied with the holdings in Correia v. McDonald, 28 Vet. App. 158, 170 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017), and the probative evidence of record does not show actual improvement in the Veteran's ability to function under the ordinary conditions of life and work. Accordingly, the 10 percent rating for limitation of left hip flexion is restored. 3. Propriety of the reduction in rating for avascular necrosis of the left hip based on limitation of abduction from 20 percent to 10 percent, effective September 1, 2017 Prior to the reduction in rating, the Veteran was in receipt of a 20 percent rating for limitation of abduction based on the criteria set forth in 38 C.F.R. § 4.71a, Diagnostic Code 5253. Under Diagnostic Code 5253 a 10 percent rating is assigned for limitation of hip rotation (cannot toe-out more than 15 degrees for the affected leg), or for limitation of hip adduction (cannot cross legs); and a 20 percent rating for limitation of hip abduction when motion is lost beyond 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5253. Full hip abduction is to 45 degrees. 38 C.F.R. § 4.71a, Plate II. Upon review of the record, the Board finds that restoration of 20 percent rating for limitation of left hip abduction is warranted. As previously noted, the Veteran initially underwent VA examinations in February 2015, May 2015, and December 2015, during which he reported left hip pain, particularly with prolonged walking and climbing stairs. Range of motion testing performed during the December 2015 VA examination revealed left hip abduction to 5 degrees. The Veteran underwent another VA examination in July 2016, during which he reported worsening left hip pain, particularly with prolonged walking. Range of motion testing revealed left hip abduction to 30 degrees and to 25 degrees upon repetition. There was evidence of pain with weight bearing; however, range of motion testing was not conducted in weight bearing. See Correia, 28 Vet. App. at 170. Additionally, the Veteran reported flare-ups, which were described as "severe limitations secondary to pain," and the examiner indicated that pain, weakness, fatigability, or incoordination significantly limited functional ability during flare-ups. However, the examiner did not provide an estimate of additional limitation of motion during flare-ups. See Sharp, 29 Vet. App. 35-36. The Veteran underwent another VA examination June 2017, during which he reported worsening left hip pain and flare-ups of more severe pain with prolonged walking and sitting and walking uphill. He also reported that his left hip locked when climbing stairs, which required him to stop and readjust his hip. Range of motion testing revealed left hip abduction to 45 degrees and to 20 degrees upon repetition. The examiner indicated that the examination was neither medically consistent nor inconsistent with Veteran's statements describing functional loss during flare-ups; however, no estimate of additional limitation of motion during flare-ups was provided. See Sharp, 29 Vet. App. 35-36. After the reduction in rating, the Veteran underwent another VA examination in May 2021, during which he reported left hip pain with walking, particularly uphill, and left hip locking when climbing stairs. He stated that he had to stop and rest his hip at least three times when walking to his mailbox, which is about 300 feet from his house. Range of motion testing revealed left hip abduction to 25 degrees and to 20 degrees upon repetition. The examiner estimated that the left hip would exhibit 20 degrees of abduction during flare-ups and with repeated use over time. Additionally, the Veteran testified during the July 2021 Board hearing that he has not experienced any improvement in left hip motion. Based on the foregoing, the Board finds that the reduction in rating for limitation of left hip abduction was not based on thorough examinations that complied with the holdings in Correia v. McDonald, 28 Vet. App. 158, 170 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017), and the probative evidence of record does not show actual improvement in the Veteran's ability to function under the ordinary conditions of life and work. Accordingly, the 20 percent rating for limitation of left hip abduction is restored. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Banister, 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.