Citation Nr: 21031054 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 16-08 540 DATE: May 20, 2021 ORDER A rating of 20 percent for left hip strain with osteoarthritis, limited flexion, prior to April 20, 2015, is granted. A rating of 10 percent for left hip strain with osteoarthritis, limited extension, prior to April 20, 2015 is granted. A rating in excess of 10 percent for right hip strain with osteoarthritis, limited flexion, prior to April 20, 2015 is denied. A rating of 10 percent for right hip strain with osteoarthritis, limited extension, prior to April 20, 2015 is granted. Restoration of a 20 percent evaluation for status post right ankle reconstruction with residual scar is granted, effective February 21, 2014. Restoration of a 10 percent evaluation for lateral collateral ligament instability, left knee is granted, effective February 21, 2014. REMANDED Entitlement to service connection for a left shoulder disorder. Entitlement to service connection for a right shoulder disorder. Entitlement to a rating in excess of 20 percent for status post right ankle reconstruction with residual scar. Entitlement to a rating in excess of 10 percent for lateral collateral ligament instability, left knee. FINDINGS OF FACT 1. During the period on appeal, the probative evidence is against finding that the Veteran's left hip disability produced flexion limited to 20 degrees, limitation of rotation of the left thigh with the inability to toe-out more than 15 degrees, limitation of adduction resulting in the inability to cross legs, or limitation of the left thigh abduction with motion lost beyond 10 degrees. 2. During the period on appeal, the probative evidence is against finding that the Veteran's right hip disability produced flexion limited to 30 degrees, limitation of rotation of the right thigh with the inability to toe-out more than 15 degrees, limitation of adduction resulting in the inability to cross legs, or limitation of the right thigh abduction with motion lost beyond 10 degrees. 3. The April 2014 RO decision did not demonstrate that any improvement purportedly shown for the Veteran's left knee instability and right ankle on the February 2014 VA examination reflected improvement in the Veteran's ability to function under ordinary conditions of life and work. CONCLUSIONS OF LAW 1. The criteria for a rating of 20 percent for left hip strain with osteoarthritis, limited flexion, prior to April 20, 2015, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.71a, DC 5010-5252 (2020). 2. The criteria for a rating of 10 percent for left hip strain with osteoarthritis, limited extension, prior to April 20, 2015, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.71a, DC 5010-5251 (2020). 3. The criteria for a rating in excess of 10 percent for right hip strain with osteoarthritis, limited flexion, prior to April 20, 2015, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.71a, DC 5010-5252 (2020). 4. The criteria for a rating of 10 percent for right hip strain with osteoarthritis, limited extension, prior to April 20, 2015, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.71a, DC 5010-5252 (2020). 5. The reduction of the disability rating for the Veteran's service-connected status post right ankle reconstruction with residual scar was not proper, and the 20 percent disability evaluation is restored, effective February 21, 2014. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.3, 4.7, 4.21 (2020). 6. The reduction of the disability rating for the Veteran's service-connected lateral collateral ligament instability, left knee was not proper, and the 10 percent disability evaluation is restored, effective February 21, 2014. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.3, 4.7, 4.21 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1979 to June 1999. This matter comes before the Board of Veterans Appeals (Board) on appeal from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In correspondence received in October 2019 the Veteran withdrew his request of a Board hearing scheduled for October 2019. He also essentially waived initial RO consideration of evidence added to the file subsequent to the last AOJ adjudication. Duties to Notify and Assist Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board should consider only those factors contained in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38C.F.R. §§4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). The Mitchell Court explained that pursuant to 38C.F.R. §§4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38C.F.R. §§4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38C.F.R. §4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Moreover, the United States Court of Appeals for Veterans Claims (Court) in Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016) held that the provisions of 38C.F.R. §4.59, which relate to painful motion, are not limited to the evaluation of musculoskeletal disabilities under Diagnostic Codes predicated on range of motion measurements. VA amended portions of the criteria for rating Musculoskeletal System and Muscle Injuries effective from February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). In light of the procedural stance of the issues addressed herein, the Board will apply the prior versions of the applicable regulations. 1. Entitlement to a rating in excess of 10 percent for left hip strain with osteoarthritis, limited flexion, prior to April 20, 2015. 2. Entitlement to a compensable rating for left hip strain with osteoarthritis, limited extension, prior to April 20, 2015. 3. Entitlement to a rating in excess of 10 percent for right hip strain with osteoarthritis, limited flexion, prior to April 20, 2015. 4. Entitlement to a compensable rating for right hip strain with osteoarthritis, limited extension, prior to April 20, 2015. Analysis The appeal period for the increased rating claims before the Board begins on April 15, 2012, one year prior to the date VA received the claim for the increased ratings. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). An August 2012 rating decision granted service connection for left and right hip strain with osteoarthritis, limited flexion, and assigned a disability rating of 10 percent, effective November 28, 2011, under DC 5003-5252. The August 2012 rating decision also granted the Veteran service connection for left and right hip strain with osteoarthritis, limited extension, and assigned noncompensable ratings, effective November 28, 2011, under DC 5003-5251. A May 2015 rating decision granted service connection for status post total left and right hip replacement and assigned a temporary evaluation of 100 percent, effective April 20, 2015. An evaluation of 30 percent for the left and right hip was assigned from June 1, 2016. The RO has construed (as noted in the February 2016 SOC) the Veteran's November 2014 notice of disagreement as expressing agreement and satisfaction (and neither the Veteran nor the representative has disputed the assessment) with the ratings for the hips assigned from June 1, 2016, and this decision deals with only the rating period prior to April 20, 2015. Standard motion of the hip joint is from 0 degrees extension to 125 degrees flexion and 0 degrees adduction to 45 degrees abduction. 38 C.F.R. § 4.71, Plate II. Under DC 5251, a 10 percent rating is assigned for thigh extension limited to five degrees. 38 C.F.R. § 4.71a. Under DC 5252, a 10 percent rating is warranted where thigh flexion is limited to 45 degrees; a 20 percent rating is warranted for flexion limited to 30 degrees; a 30 percent rating is warranted where flexion is limited to 20 degrees; and a 40 percent rating is warranted for flexion limited to 10 degrees. Under DC 5253, a 10 percent rating is assigned for limitation of rotation of the thigh with the inability to toe-out more than 15 degrees, or limitation of adduction resulting in the inability to cross legs. Limitation of thigh abduction with motion lost beyond 10 degrees warrants a 20 percent rating. The Veteran is assigned a 10 percent rating for his left hip limitation of flexion and right hip limitation of flexion. To warrant a higher 20 percent rating under DC 5252, the evidence must show flexion limited to 30 degrees. Regarding the left hip, the Veteran has reported daily flare-ups of left hip pain, and the August 2012 VA examination noted painful left hip flexion at 30 degrees. These findings approximate a 20 percent rating under DC 5252, especially when also considering DeLuca v. Brown, 8 Vet. App. 202 (1995). Regarding the right hip, as VA examinations show right hip flexion in excess of 30 degrees, even considering pain, a rating in excess of 10 percent for right hip flexion is not warranted. The Veteran is assigned noncompensable ratings for both his left and right hip limitation of extension. To warrant a compensable rating under DC 5251, the evidence must show thigh extension limited to five degrees. Left hip and right hip extension has been limited to 5 degrees upon examination; thus, ratings of 10 percent for left hip and right hip limitation of extension are warranted. This is the maximum rating available under DC 5251. The Board considered the evidence showing the Veteran's bilateral hip disabilities limited his ability to walk. This physical restriction pertains to functional limitations that are contemplated by the governing diagnostic code criteria and corresponding regulations. The inability to accomplish a task is not a symptom set forth in any portion of the Rating Schedule, yet a result of the symptoms of pain and limitation of motion. Thus, it is a result contemplated by the rating criteria as it is based on the same symptomatology. In sum, this decision grants a rating of 20 percent for left hip limited flexion, a rating of 10 percent for left hip limited extension, and a rating of 10 percent for right hip strain limited extension. These ratings are assigned for the entire period on appeal. A rating in excess of 10 percent for right hip limited flexion is denied. The Board has been mindful of the "benefit-of-the-doubt" rule, but, in this case, there is not such an approximate balance of the positive evidence and the negative evidence to permit even more favorable determinations. Neither the Veteran nor the representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Rating Reductions In rating reduction cases dealing with ratings in effect for 5 years or more, VA benefits recipients are to be afforded greater protections, set forth in 38 C.F.R. § 3.344. Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. These considerations apply to ratings that have continued for long periods at the same level (five years or more), and not to disabilities that have not become stabilized and are likely to improve. In this case, the disability ratings for the right ankle reconstruction and left knee instability had not been in effect more than five years before the reduction took effect. The various provisions of 38 C.F.R. § 3.344, pertaining to stabilization of disability ratings, do not apply. There are also several general VA regulations that apply to all rating reductions regardless of whether the rating has been in effect for five years or more. Brown v. Brown, 5 Vet. App. 413, 420-21 (1993). Specifically, 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history. Furthermore, 38 C.F.R. § 4.13 provides that the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. Additionally, in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work. VA must comply with procedural and substantive provisions in order to sustain a rating reduction. As this decision grants the appeal, a discussion of the procedural provisions is not necessary. 5. Entitlement to restoration of a 20 percent evaluation for status post right ankle reconstruction with residual scar. 6. Entitlement to restoration of a 10 percent evaluation for lateral collateral ligament instability, left knee. Analysis A May 2009 rating decision granted the Veteran service connection for left knee lateral collateral ligament instability and assigned a disability rating of 20 percent, effective February 24, 2009. In a November 2011 RO decision the Veteran was awarded a 100 percent disability rating for the period from February 18, 2011 until March 31, 2011 under 38 C.F.R. § 4.30. After this period was completed, the Veteran was awarded a 10 percent rating from April 1, 2011 until the rating was reduced by an April 2014 rating decision to noncompensable, effective February 21, 2014. In reducing the Veteran's left knee instability disability in the April 2014 rating decision, the RO relied on the findings of a February 2014 VA examination that stated that the Veteran had no left knee joint instability. A September 2001 rating decision granted the Veteran service connection for right ankle reconstruction and assigned a disability rating of 10 percent, effective July 1, 1999. A June 2011 RO decision increased the rating for right ankle reconstruction to 20 percent disabling, effective August 20, 2010. The rating was reduced by an April 2014 rating decision to noncompensable, effective February 21, 2014. In reducing the Veteran's right ankle reconstruction disability in the April 2014 rating decision, the RO relied on the findings of a February 2014 VA examination that stated that the Veteran had full range of right ankle motion. A review of the April 2014 RO decision reveals that the left knee instability and right ankle reconstruction issues were essentially treated as increased rating claims, and not as part of a rating reduction matter. The Board can find no discussion determining that any purported improvement shown in the February 2014 VA examination in the left knee instability and right ankle reconstruction reflected improvement in the Veteran's ability to function under ordinary conditions of life and work. In this regard, the Board notes that the February 2014 VA examiner found that the Veteran necessitated the occasional wearing of a left knee brace (ostensible due to instability), and the Veteran reported that he had right ankle flare-ups that posed problems when walking on irregular surfaces. The April 2014 RO decision did not view the Veteran's left knee instability and right ankle reconstruction in relation to its history. More significantly, the April 2014 RO decision provided no evidence that any improvement purportedly shown on the February 2014 VA examination reflected improvement in the Veteran's ability to function under ordinary conditions of life and work. For example, the Veteran's ability to walk, a component of his employment, does not appear to have shown any demonstrable improvement. In a ratings reduction case it is not enough to merely show improvement in the objectively determined examination findings. There must also be an explicit determination demonstrating that there was an improvement in the Veteran's ability to function under the ordinary conditions of life and work. Stern v. McDonough, No. 18-4425, 2021 U.S. App. Vet. Claims LEXIS 677 (April 20, 2021). Such was not shown in this case. Based on the foregoing, the Board finds that the reductions in the evaluation for service-connected left knee instability and right knee reconstruction were improper. Accordingly, the 10 percent disability evaluation for left knee instability is restored, effective February 21, 2014. The 20 percent disability evaluation for right ankle reconstruction is restored, effective February 21, 2014. REASONS FOR REMAND 7. Entitlement to service connection for a left shoulder disorder. 8. Entitlement to service connection for a right shoulder disorder. As for the issues of entitlement to service connection for left and right shoulder disorders, remand is required as VA has not met its duty to assist because it has not yet provided Veteran with an examination regarding these claims. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159(c)(4). An examination is necessary in a service connection claim where the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains: (1) competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including credible lay evidence of continuity of symptomatology). Here, there are current diagnoses of left and right shoulder disorders, including mild degenerative changes as noted on private June 2011 and February 2013 X-rays. The Veteran claims that he fell during service due to ankle problems which resulted in the shoulder conditions. A service comrade has indicated (October 2014 correspondence) that he was present when the Veteran injured his shoulders. Accordingly, remand is warranted for an examination and medical opinion. 9. Entitlement to a rating in excess of 20 percent for status post right ankle reconstruction with residual scar. 10. Entitlement to a rating in excess of 10 percent for lateral collateral ligament instability, left knee. The Veteran last underwent a VA examination for these disabilities in February 2014. While the mere passage of time is not a basis for requiring a new examination, the Board finds that the medical evidence of record is insufficient to decide the claims and a contemporaneous examination is warranted. Further, VA and private treatment records reflect that the Veteran continued to seek treatment for his right ankle and left knee conditions subsequent to February 2014, which arguable constitutes a worsening of his conditions. Finally, the Board notes that the most recent VA medical treatment records of record are dated in May 2017. On remand, the RO should attempt to obtain any outstanding, relevant VA and non-VA medical treatment records. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all relevant outstanding records of treatment on and after May 20, 2017. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant non-VA medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran. 3. After any additional records are associated with the claims file, provide the Veteran with the appropriate examination to determine etiology of the left and right shoulder disorders. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater) that any left or right shoulder disorder had its onset in service or manifested to a compensable degree within one year of service discharge, or is etiologically related to the Veteran's active service. 4. Schedule the Veteran for an examination to determine the current severity of his service-connected left knee instability and right ankle disabilities. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must utilize the appropriate Disability Benefits Questionnaire. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David Nelson 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.