Citation Nr: 22013337 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 19-29 095 DATE: March 9, 2022 ORDER Restoration of a 40 percent disability rating from December 30, 2016, for right hip degenerative joints disease status post arthroscopic surgery, is granted. REMANDED Entitlement to an increased disability rating higher than 40 percent for right hip degenerative joints disease status post arthroscopic surgery, is remanded. FINDINGS OF FACT 1. A February 2017 rating decision reduced the rating for the service-connected right hip degenerative joints disease status post arthroscopic surgery from 40 percent to 10 percent, effective December 30, 2016; the rating decision did not reduce the overall disability rating. 2. As of December 30, 2016, the 40 percent rating for the service-connected right hip degenerative joints disease status post arthroscopic surgery, had been in effect for more than five years. 3. At the time the reduction was effectuated, the service-connected right hip degenerative joints disease status post arthroscopic surgery, had not undergone sustained improvement. CONCLUSION OF LAW The reduction of the disability rating for the service-connected right hip degenerative joints disease status post arthroscopic surgery, from 40 percent to 10 percent was not proper; the criteria for restoration of the 40 percent disability rating from December 30, 2016 are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.27, 4.71a, Diagnostic Code (DC) 5252. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from September 1999 to September 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the Veteran appeared and testified before the undersigned Veterans Law Judge in a Virtual Hearing. A transcript of this hearing has been reviewed and associated with the Veteran's claims file. Restoration of a 20 percent disability rating from December 30, 2016, for right hip degenerative joints disease status post arthroscopic surgery In February 2017, the RO reduced the 40 percent rating for the service-connected right hip disability to 10 percent, effective December 30, 2016. At the outset, the Board notes that the RO based its rating reduction on failure of the Veteran to attend his schedule VA examination. Because the reduction accomplished in the February 2017 rating decision did not affect the Veteran's overall disability rating due to increased ratings for other service-connected disabilities, the due process protections of 38 C.F.R. § 3.105 (e) do not apply. VAOPGCPREC 71-91; Stelzel v. Mansfield, 508 F.3d 1345, 1347-49 (Fed. Cir. 2007). The Board will now consider the propriety of the rating reduction. At the time the reduction became effective, on December 30, 2016, the 40 percent rating for the right hip disability had been continuously in effect for more than five years. As such, the provisions of 38 C.F.R. § 3.344 (a) and (b) are applicable. A rating reduction is not proper unless the disability shows actual improvement in the Veteran's ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000). 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 considering whether actual improvement was demonstrated). Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). The veteran need not demonstrate that retention of the higher rating is warranted; rather, it must be shown by a preponderance of the evidence that the reduction was warranted. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). The question of whether a disability has improved involves consideration of the applicable rating criteria. At the time of the rating reduction, the right hip disability had been rated under the criteria found at 38 C.F.R. § 4.71a, DC 5252. Under DC 5252 limitation of thigh flexion to 45 degrees warrants a 10 percent evaluation. Limitation to thigh flexion limited to 30 degrees warrants a 20 percent evaluation; and limitation to thigh flexion to 20 degrees warrants a 30 percent evaluation. A maximum rating of 40 percent is reserved for when flexion is limited to 10 degrees. 38 C.F.R. § 4.71a. In this case, the Board finds that the evidence does not show sustained improvement of the right hip disability, including under the ordinary conditions of life and work, at the time of the reduction; therefore, the criteria for restoration of a 40 percent rating for the right hip disability, effective from December 30, 2016, are met. Historically, in the September 2010 rating decision, the RO granted increased the Veteran's service-connected right hip disability to 40 percent rating effective from November 1, 2009. The RO found that the symptoms and impairment associated with the disability approximated a 0-10 degrees of flexion of the right hip, so that a 40 percent schedular rating was warranted. In an October 2010 Nursing Outpatient Note, the Veteran complained of right hip pain that occurs mainly at night with a pain scale of 6 out of 10 (10 being the highest). The Veteran reported that he was taking Vicodin, Tramadol & Ibuprofen without relief. See CAPRI. In a September 2014 Outpatient Individual note, the Veteran reported that "my hip is killing me." It was noted that he has osteoarthritis, has been following up medically, and takes pain medications to alleviate his pain. The Veteran stated that he might eventually need a hip replacement. See CAPRI. At the November 2014 Hip and Thighs VA examination, the Veteran reported that his right hip was getting worse; that the pain level was constantly a 9 out of 10 (on a pain scale of 10), but that with medication, pain decreases to 7 out of 10; that cold weather, standing and prolonged sitting makes pain worse; and that if he walked "too much, the next day he can't get out of bed." The Veteran stated that he saw the orthopedic doctors at Brooklyn VA, and a hip replacement was recommended. On examination, the Veteran's range of motion for flexion was 100 degrees. Pain was noted on examination and caused functional loss. Pain was noted on weight-bearing and there was increased pain with walking. The Veteran reported flare-ups, but the examiner was unable to say whether pain, weakness, fatigability, or incoordination significantly limit functional ability of the right hip, with flare-ups without resorting to speculation. Muscle strength was normal for flexion but reduced to 4/5 for extension and 4/5 for abduction. There was no evidence of ankylosis. The examiner opined that the right hip disability will impact the Veteran's ability to perform any type of occupational task. See November 2014 C&P Examination. A March 2015 Primary Care Note indicated that the Veteran would need to be seen by an orthopedic and prefers to be seen by an outside clinical orthopedic doctor. The Veteran reported that his right hip pain was like a "grinding sensation" which had become constant and worse with overuse and better with resting. See CAPRI. In a June 2016 orthopedic surgery outpatient consult, the Veteran reported painful motion. Degenerative changes to the right acetabulum were noted. The Veteran was advised to return in three weeks if pain got worse. See CAPRI. The record contains a November 2017 VA examinations which the Veteran has contended were never performed. The Veteran has contended that he did not receive notice of this examination. The records contain evidence showing that the Veteran was not examined in the purported November 2017 examinations on file. An October 2019 Neurology Outpatient Consult Note reveals that the Veteran had persistent constant right hip and bilateral knee pain and a limp placing less weight on the right hip and leg since his accident. It was noted that the Veteran was under the care of VA Orthopedic Surgery for his right hip and bilateral knee pain; that ever since his injury he has experienced persistent, constant aching and sharp pain, variable in intensity, in the low back with intermittent radiation down both the entire right and left legs but more so on the right; and that the pain has been getting worse over the years. See CAPRI. Throughout his VA medical treatment records, the Veteran has complained of continued pain in his right hip with a pain scale of 9 out of 10 pain intensity during flare-ups. The Veteran has also reported that his hip pain has worsened since his last examination and that he has difficulty performing prolonged weight bearing type activities. See CAPRI. Based on all the record, the evidence does not demonstrate a sustained improvement of the right hip disability under the ordinary conditions of life and work at the time of the February 2017 rating reduction decision. Rather, it suggests a possibly worsened right hip disability symptoms. VA may not reduce the rating because the Veteran does not meet the schedular criteria, unless the underlying disorder has shown improvement, or unless clear and unmistakable error is shown in the determination to assign the disability rating. Because the burden of proof is on VA to establish that a reduction is warranted by the weight of the evidence, and the evidence of record in this case does not show sustained improvement of the service-connected right hip disability at the time of the February 2017 rating reduction, the Board finds that the reduction of the 40 percent rating to 10 percent rating effective from December 30, 2016 was not proper. Accordingly, restoration of a 40 percent disability rating under DC 5252, for the Veteran's service-connected right hip disability is granted. REASONS FOR REMAND Entitlement to an increased disability rating higher than 40 percent for right hip disability is remanded. During the Board hearing, the Veteran testified that his right hip disability has worsened. The Veteran stated that he was having trouble walking, sitting, and standing for prolonged periods of time. See October 2021 Hearing Transcript. Additionally, the Board notes that the VA rating code has been changed, effective February 7, 2021, with new criteria for various musculoskeletal disabilities, to include the hip. Since the Veteran is rate at 40 percent disabling, which is the highest rating under DC 5252, remand is required for an examination to ascertain whether an increased evaluation would be in order under other relevant diagnostic codes for the right hip disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997) (noting that a veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination). The matters are REMANDED for the following action: 1. Obtain all outstanding private and VA medical records pertinent to the issue and associate them with the claims file. 2. Schedule the Veteran for a VA examination to determine the current severity of his service-connected right hip disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's right hip disability under the relevant rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of all symptoms. A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the matter and may also result in a clarification being requested). After completing the above and any other development deemed necessary, adjudicate the issue of increased rating for a right hip disability, based on the entirety of the evidence. If the benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be provided with a supplemental statement of the case (SSOC) and an appropriate period of time to respond. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. M. Rogers, 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.