BVA9402799 DOCKET NO. 91-10 385 ) DATE ) ) ) THE ISSUES 1. Entitlement to restoration of a 10 percent rating for osteoarthritis of the right ankle. 2. Entitlement to restoration of a 10 percent rating for osteoarthritis of the left ankle. 3. Entitlement to restoration of a 10 percent rating for osteoarthritis of the right knee. 4. Entitlement to restoration of a 10 percent rating for osteoarthritis of the left knee. 5. Entitlement to restoration of a 10 percent rating for osteoarthritis of the left hip. 6. Entitlement to restoration of a 10 percent rating for osteoarthritis of the right hip. 7. Entitlement to restoration of a 20 percent rating for bilateral high frequency hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Mark D. Hindin, Counsel INTRODUCTION The veteran had active service from August 1944 to September 1949, from September 1950 to August 1951, and from February 1955 to August 1972. This matter arises from a June 1989 rating decision of the Cheyenne, Wyoming, Regional Office (RO) which provided separate noncompensable evaluations for osteoarthritis of the right ankle, left ankle, right knee, left knee, and left hip which had previously been evaluated as multiple joint osteoarthritis, with a 60 percent evaluation; and which reduced the evaluation for bilateral high frequency hearing loss from 20 to 10 percent disabling. The rating action failed to evaluate the previously recognized osteoarthritis of the right hip, evaluated as 10 percent disabling. A notice of disagreement was received in August 1989 and a statement of the case was issued in September 1989. The veteran's substantive appeal was received in October 1989. At his request, a hearing was held before a hearing officer at the RO in November 1990. The hearing officer issued his decision in November 1990. Although the hearing officer's decision of April 1990 adjudicated the issue of entitlement to an evaluation in excess of 10 percent, each, for osteoarthritis of the right and left hands, notice of disagreement has not been provided with such assigned ratings. Inasmuch as these issues have not been developed for appellate consideration, they are not for consideration in this appeal. The case was initially received and docketed at the Board of Veterans' Appeals (the Board) in January 1991. It was then referred to the veteran's representative, Disabled American Veterans, for an opportunity to present written argument on the veteran's behalf. Written argument was received from that organization in March 1991. In a decision dated in June 1991, the Board remanded the case to the RO in order to afford the veteran a VA examination to evaluate the joints affected by arthritis, to include the cervical spine, and to provide him with the specific regulations under which his disabilities were evaluated. According to a report of contact dated in April 1993, the veteran was scheduled for an examination in March 1992 which he canceled. He was scheduled for a fee basis examination in April 1993 but failed to report. The case was again received at the Board of Veterans' Appeals in January 1993 and docketed in February 1993. The veteran's representative offered additional written argument on his behalf later that month. In April 1993, the Board determined that it was unclear from the record whether the veteran had actually reported for his scheduled examinations. In May 1993, the Board received information from the RO reporting that the veteran had indeed failed to report for those examinations. The case was then referred to the veteran's representative for an opportunity to review this development and submit any additional comment. No additional comment was received and the case is again ready for appellate consideration. In its rating decision of August 1980, the RO recognized a 10 percent evaluation for osteoarthritis of the right hip. This disability has been omitted from all subsequent rating decisions, including the June 1989 decision reducing the combined evaluation for multiple joint osteoarthritis. Although the issue of entitlement to restoration of the 10 percent evaluation for that disability has not been developed for appellate consideration, the Board, pursuant to 38 C.F.R. § 19.13(a) (1993), will assume jurisdiction of that issue. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that rating actions which separated the evaluations for multiple joint arthritis previously evaluated at a combined 60 percent were inappropriate, inasmuch as a General Counsel opinion has determined that changes to the Department of Veterans Administration Manual M21-1 which mandated such separate evaluations had not been properly adopted. It is further contended that he continues to experience pain and swelling in the ankles and knees. It is also contended that the rating action which gave the veteran separate evaluations for osteoarthritis of each joint was improper in that sustained improvement in the veteran's disability was not shown as is required under the provisions of 38 C.F.R. § 3.344 (1993). It is further contended that actual improvement in his hearing loss disability has not been demonstrated, that his hearing loss disability meets the criteria for a 20 percent evaluation under the schedular criteria in effect prior to 1987 and that in accordance with the United States Court of Veterans Appeals decision in Fugere v. Derwinski, 972 F.2d 331 (Fed. Cir. 1992) that evaluation should be restored. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. The Board has determined that only those items listed in the "Certified List" attached to this decision and incorporated by reference herein are relevant evidence in the consideration of the veteran's claims. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is in favor of the restoration of a 20 percent evaluation for bilateral hearing loss disability, and a 10 percent evaluation for osteoarthritis of the right hip, but is against restoration of 10 percent evaluations for degenerative arthritis of the left or right ankle, right knee, left knee, or left hip. FINDINGS OF FACT 1. The veteran's hearing loss disability has not improved and constitutes a level D hearing loss disability in both ears. 2. The veteran has X-ray evidence of degenerative arthritis of each ankle with complaints of pain only on prolonged use and no limitation of motion. 3. The veteran has no limitation of motion of the right or left knees, or left hip. 4. There has been no severance of service connection for osteoarthritis of the right hip, and the veteran was given no written notice of a reduction of the evaluation for osteoarthritis of the right hip. CONCLUSIONS OF LAW 1. Restoration of a 20 percent evaluation for bilateral hearing loss disability is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.344, 4.85, 4.87(a), Part 4, Diagnostic Code 6292 (1987); Fugere v. Derwinski, 1 Vet.App. 103 (1990), aff'd, 972 F.2d 331 (Fed. Cir. 1992). 2. Restoration of a 10 percent evaluation, each, for degenerative arthritis of the right or left ankle is not warranted. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.344, Part 4, Codes 5003, 5271 (1993); 57 Federal Register 93-24376, Oct. 5, 1993 (To be codified at 38 C.F.R. § 4.3l). 3. Restoration of a 10 percent evaluation, each, for osteo-arthritis of the right or left knee is not warranted. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.344, Part 4, Diagnostic Codes 5003, 5257 (1993); 57 Federal Register 93-24376, Oct. 5, 1993 (To be codified at 38 C.F.R. § 4.3l). 4. Restoration of a 10 percent evaluation for osteoarthritis of the left hip is not warranted. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.344, Part 4, Diagnostic Codes 5003, 5255 (1993); 57 Federal Register 93-24376, Oct. 5, 1993 (To be codified at 38 C.F.R. § 4.3l). 5. Restoration of a 10 percent evaluation for osteoarthritis of the right hip is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.103(a) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS We note initially our finding that the veteran has presented well- grounded claims within the meaning of 38 U.S.C.A. § 5107, and that the Department of Veterans Affairs (VA) has complied with its obligation to assist him with the development of those claims under that same code provision. I. Restoration of a 20 Percent Evaluation for Bilateral Hearing Loss Disability In Fugere v. Derwinski, 1 Vet.App. 103 (1990), aff'd, 972 F.2d 331 (Fed. Cir. 1992), the United States Court of Veterans Appeals held that applicable VA regulations prohibited reductions in evalua-tions for hearing loss disability which were based solely on the changes in VA rating criteria which became effective November 18, 1987. We note that under the VA Schedule for Rating Disabilities, evaluations of bilateral service-connected hearing loss prior to November 18, 1987, ranged from noncompensable to 80 percent based on organic impairment of hearing acuity within the conversational voice range (500 to 2,000 cycles per second) as measured by the results of controlled speech reception tests or pure tone audiometry reported as a result of VA regional office or authorized audiology clinic examinations. 38 C.F.R. §§ 4.85, 4.87(a) and Part 4, Codes 6277 to 6297, Table VI (literal designation of hearing impairment) and Table VII (ratings for hearing impairment). In the instant case, the veteran underwent a VA audiology exami-nation in June 1987, when he had average pure tone audiometry decibel loss of 48 in both ears for the frequencies of 500, 1,000, and 2,000 hertz. This translated to level C hearing loss under the old rating criteria and was appropriately evaluated by the RO as warranting a 20 percent evaluation under Diagnostic Code 6292. On the VA audiology examination conducted in May 1989, the veteran had average pure tone audiometry decibel loss over the same three frequencies of 61.2 in the right ear and 60 in the left. Clearly, no improvement in hearing loss disability was demonstrated. Under the old rating criteria, this level of disability would translate to level C hearing loss of each ear which, in turn, would have warranted a 20 percent evaluation. The veteran had pure tone averages of 68.75 and 65 in the right and left ears respectively, for the frequencies of 1,000, 2,000, 3,000, and 4,000 hertz, with speech recognition thresholds of 76 percent in each ear. This level of hearing loss disability would translate to level IV hearing loss disability for each ear under the new rating criteria, which, in turn, would warrant a 10 percent evaluation under 38 C.F.R. Part 4, Diagnostic Code 6101 (1993). Thus, it is readily apparent that the veteran's hearing loss disability was reduced solely on the basis of the new rating criteria, and not any demonstrated improvement in the hearing loss disability. The Court's decision in Fugere makes clear that such reduction is not appropriate and accordingly, the 20 percent evaluation should be restored. II. Restoration of a 60 Percent Evaluation for Multiple Joint Arthritis In an August 1980 rating decision, the RO increased the evaluation for multiple joint osteoarthritis from 20 to 60 percent. This latter evaluation was based on combining a 10 percent evaluation, each, for limitation of motion of the neck and back, limitation of motion of the right ankle, limitation of motion of the left ankle, limitation of motion of the right knee, limitation of motion of the left knee, limitation of motion of the right hip and limitation of motion of the left hip. In a June 1989 rating decision, the RO reduced the combined evaluation for the multiple joint arthritis by assigning a zero percent evaluation, each, in pertinent part, for the right and left ankles, right and left knees, and left hip. The veteran has contended that the June 1989 rating decision which gave separate evaluations for osteoarthritis of each joint was inconsistent with a General Counsel opinion which had declared the provisions of the VA's M21-1 requiring such separation invalid. However, this position ignores the fact that the Code of Federal Regulations was amended prior to the effective date of the RO's rating decision to require that separate evaluations be provided for arthritis of each joint. 38 C.F.R. § 4.25(b) (1993). The only remaining question is whether the RO's reductions in evaluations were warranted by the evidence of record and done in accordance with the provisions of 38 C.F.R. § 3.344, concerning the stabilization of disability ratings. This regulatory provision provides that, in general, evaluations will not be reduced on the basis of any one examination where the disability has been evaluated at the same level for a prolonged period of time and that sustained improvement in the disability must be shown. The regulation also provides that ratings will not be reduced on the basis of an examination which is less complete than the one on which the original evaluation was based. In reaching a decision on this question it is necessary to determine the propriety of the reduction in the evaluation for each joint by the RO in its June 1989 rating decision. III. Restoration of a 10 Percent Evaluation, Each, for Osteoarthritis of the Right Ankle and Left Ankle The provisions of 38 C.F.R. Part 4, Diagnostic Code 5271 sets forth a minimum evaluation of 10 percent for moderate limitation of motion of the ankle. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 57 Federal Register 93-24376, Oct. 5, 1993 (To be codified at 38 C.F.R. § 4.31). The RO granted a 10 percent evaluation, based on limitation of motion, each, for osteoarthritis of the left ankle and right ankle in its 1980 rating decision. The July 1980, examination upon which that rating decision was based revealed swelling of the left ankle joint with limitation of motion manifested by dorsiflexion to approximately 10 degrees, and plantar flexion to 30 degrees. The right ankle dorsiflexion was 18 degrees and plantar flexion was 42 degrees. Following X-ray examination, the diagnoses included osteoarthritis involving both ankles. However, no complaints or findings relative to the left ankle were reported on the VA examination in October 1984 or in any of the VA outpatient treatment records subsequent to the 1980 examination. On the VA examination in June 1987, he was found to have a full range of motion in both ankles and there was no tenderness to palpation. On VA examination in May 1989, the veteran complained of ankle pain on prolonged walking. Physical examination revealed motor function of the lower extremities was full and intact, and ankle jerks were equal. Examination of the ankles showed no swelling, and there was full range of motion. Mild tenderness over the joint line was noted. Inasmuch as moderate limitation of motion of either ankle was not demonstrated at the time of the June 1989 rating reduction, restoration of a 10 percent evaluation is not warranted under Diagnostic Code 5271 of either ankle. The veteran was noted to have degenerative changes in each ankle and the veteran complained of pain in the ankles only on prolonged walking. Under the provisions of Diagnostic Code 5003, a 10 percent evaluation is warranted for a major joint where there is X-ray evidence of degenerative arthritis with evidence such as painful motion, or noncompensable limitation of motion. Inasmuch as the veteran's ankle disabilities are shown to be painful only after prolonged use, i.e. walking, and not simply on motion, and no limitation of motion has been demonstrated, restoration of a 10 percent evaluation for either ankle is not warranted under Diagnostic Code 5003. In any event, there is evidence of sustained improvement in each ankle disability, as compared with the reported findings on VA examination in 1980, when considering the negative reports of outpatient treatment and examination over past years, such as would justify a reduction in the evaluations. 38 C.F.R. § 3.344. Accordingly, restoration of a 10 percent evaluation for osteoarthritis of the right or left ankle is not warranted. V. Restoration of 10 Percent Evaluations for Osteoarthritis of the Left and Right Knees In its August 1980 rating decision, the RO granted 10 percent evaluations, each, for the veteran's right and left knee osteo- arthritis under the provisions of Diagnostic Code 5257. That Diagnostic Code provides for a 10 percent evaluation for slight impairment of a knee with recurrent subluxation and lateral instability. Diagnostic Code 5260 provides for a noncompensable evaluation where flexion of a knee is limited to 60 degrees and a 10 percent evaluation where flexion is limited to 45 degrees. Diagnostic Code 5261, provides for a noncompensable evaluation where extension of a knee is limited to 5 degrees and a 10 percent evaluation is provided where extension is limited to 10 degrees. The July 1980 examination upon which those evaluations were based did not include an X-ray examination of the knees, but the examiner did report that the veteran could flex his knees approximately 135 degrees and extend them to 0 degrees. The veteran was reported to have a reduced range of motion in the knees on VA outpatient treatment in April 1986. However, on VA examination in June 1987, he was reported to have a full range of motion in the knees. An X-ray examination was interpreted as showing no remarkable degenerative change of the knees. The May 1989 examination also included an X-ray examination of the knees, which was interpreted as showing no abnormality. On examination, the veteran was found to have a full range of motion in the knees, and Drawer, collateral ligament and McMurray's testing were all negative. Thus, the two most recent VA examinations have failed to demonstrate any limitation of motion or instability, such as is required for a compensable evaluation under the applicable Diagnostic Codes. Inasmuch as recent examinations have failed to show any limitation of motion or instability in the knees, we must conclude that sustained improvement has been amply demonstrated, and was demonstrated at the time of the June 1989 rating decision which reduced the evaluation for each of these joints to noncompensable. 38 C.F.R. § 3.344. VI. Entitlement to Restoration of a 10 Percent Evaluation for Osteoarthritis of the Left Hip. The August 1980 rating decision established a 10 percent evalua-tion for osteoarthritis of the left hip under Diagnostic Code 5255. This code provision provides for a 10 percent evaluation where there is slight knee or hip impairment resulting from malunion of a femur. Diagnostic Code 5251 provides for a 10 percent evaluation where extension of a thigh is limited to 5 degrees. Diagnostic Code 5252 provides for a 10 percent evaluation where flexion of a thigh is limited to 45 degrees, and Diagnostic Code 5253, provides for a 10 percent evaluation where there is limitation of adduction preventing the legs from being crossed or there is limitation of rotation so that the affected leg cannot be turned toe out more than 15 degrees. The July 1980 examination did not include specific X-ray examinations of the hips, although an examination of the pelvis was reported to show no abnormality. However, on physical examination the examiner found the veteran to have "slight" limitation of abduction of the left hip. The veteran could abduct the left hip to 42 degrees, flex it to 120 degrees, and extend it to 0 degrees. No diagnosis referable to the hips was reported. An X-ray examination of the pelvis and hips in April 1986 was interpreted as showing mild hypertrophic changes of both hip joints. On VA examination in June 1987, the veteran reportedly had pain on motion of the hips. He could flex them to 90 degrees, had full extension and adduction, and could abduct them to 45 degrees. However, an X-ray examination of the hips was interpreted as showing no evidence of a pathological process. On the May 1989 examination the veteran had mild tenderness in the hips, but a full range of motion. An X-ray examination of the hips was interpreted as being negative and there were no subsequent findings referable to arthritis of the hips. Given the lack of any limitation of motion on the most recent VA examination, the veteran's left hip osteoarthritis would not meet the criteria for a compensable evaluation under any applicable Diagnostic Code, including Diagnostic Code 5003. The finding on that examination, when considered in the light of findings on the previous VA examinations, and negative VA outpatient treat-ment reports relative to the left hip over the years, does show sustained improvement of the osteoarthritis of the left hip. 38 C.F.R. § 3.344. The United States Court of Veterans Appeals in Brown v. Brown, 5 Vet.App. 413 (1993) has interpreted the provisions of 38 C.F.R. § 4.13 to require that in any rating reduction case, it must be ascertained, 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. Moreover, 38 C.F.R. §§ 4.2 and 4.10 (1993) provide that in any rating-reduction case, not only must it be determined that an improvement in a disability has actually occurred, but also that that improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. As discussed above, we find that these requirements have been met in this case. VII. Restoration of a 10 Percent Evaluation for Osteoarthritis of the Right Hip The RO's rating decisions which omitted the 10 percent evaluation previously assigned for osteoarthritis of the right hip had the effect of reducing the evaluation for that disability. Under the provisions of 38 C.F.R. § 3.103(a) every claimant has the right to written notice of decisions made on their claims. In this case, the veteran was given no notice of the loss of the 10 percent evaluation for his right hip osteoarthritis as is required by the applicable regulations. Where a reduction is undertaken without observance of the proper regulatory requirements, the previous evaluation must be restored. Lehman v. Derwinski, 1 Vet.App. 339 (1991). Accordingly, restoration of a 10 percent evaluation for osteoarthritis of the right hip is granted. ORDER Restoration of a 20 percent evaluation for bilateral hearing loss disability and a 10 percent evaluation for osteoarthritis of the right hip is granted. Restoration of 10 percent evaluations, each, for osteoarthritis of the left and right ankles, left and right knees, and left hip is denied. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 U. R. POWELL PAUL M. SELFON, M.D. (Member temporarily absent) *38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988 (see § 402 of the Veterans' Judicial Review Act (Pub. L. 100-687)). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.