Citation Nr: 18154680 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 15-38 852 DATE: November 30, 2018 ORDER Entitlement to service connection for a left hip disorder is denied. The petition to reopen the claim of service connection for a right hip disorder is denied. The petition to reopen the claim of service connection for a dental disorder is denied. Entitlement to a total disability rating due to individual unemployability (TDIU) is dismissed. Restoration of a 20 percent rating for lumbar strain from March 10, 2015 to September 9, 2015 is granted. REMANDED Entitlement to service connection for a right shoulder disorder is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a left hip disorder. 2. In an unappealed October 2006 decision, the RO denied the Veteran’s claim of service connection for a right hip disorder. 3. Evidence received since the October 2006 decision does not raise a reasonable possibility of substantiating the claim of service connection for a right hip disorder. 4. In an unappealed January 2014 decision, the RO denied the Veteran’s claim of service connection for a dental disorder. 5. Evidence received since the January 2014 decision does not raise a reasonable possibility of substantiating the claim of service connection for a dental disorder. 6. The Veteran has been in receipt of a total schedular rating throughout the appeal period. 7. The evidence at the time of the rating reduction for the service-connected lumbar strain did not demonstrate sustained improvement. CONCLUSIONS OF LAW 1. The criteria for service connection for a left hip disorder are not met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). 2. The October 2006 rating decision denying service connection for a right hip disorder is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 20.1103. 3. New and material evidence was not received, and the claim of service connection for a right hip disorder is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 4. The January 2014 rating decision denying service connection for a dental disorder is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 20.1103. 5. New and material evidence was not received, and the claim of service connection for a dental disorder is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 6. The criteria for dismissal of the TDIU appeal have been met. 38 U.S.C. § 7105. 7. The reduction of the rating for lumbar strain from 20 percent to 10 percent from March 10, 2015 to September 9, 2015 was improper. 38 U.S.C. § 5112; 38 C.F.R. §§ 3.105(e), 3.344. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor his 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). 1. Entitlement to service connection for a left hip disorder. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a disability requires evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Veteran asserts that he has a left hip disorder related to service. He underwent a VA examination in July 2015. Based on the record, the Veteran’s lay history, and the results of physical examination, the examiner was unable to diagnose any current left hip disorder. The examiner acknowledged the Veteran’s complaints of left hip pain, but noted that the left hip was radiographically normal and that the reported pain was more likely due to the Veteran’s service-connected back disability. Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C. § 1131; Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In the absence of proof of a present disability, there can be no valid claim for service connection. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if the disability resolves prior to the adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). There is no competent evidence of a current left hip disorder. The medical evidence of record, including the July 2015 VA examination report, is negative with respect to any left hip disorder. The Veteran has not submitted any medical evidence showing a diagnosis of a left hip disorder. His lay assertion of a left hip disorder is outweighed by the medical evidence showing otherwise. In the absence of evidence of current disability, the Veteran’s claim for a left hip disorder must be denied. 2. Whether new and material evidence has been received to reopen claims of service connection for right hip and dental disorders. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). October 2006 and January 2014 rating decisions denied service connection for right hip and dental disorders, respectively, due to the absence of evidence of current disabilities. Specifically, the Veteran complained of right hip pain but had no diagnosis of a current right hip disability, while his replaceable missing or carious teeth did not constitute disabilities for VA compensation purposes. The Veteran did not appeal the October 2006 and January 2014 decisions. There is also no indication that he sought reconsideration. The decisions therefore became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In May 2015, the Veteran filed a petition to reopen the preceding claims. The evidence added to the record since the October 2006 and January 2014 decisions includes VA treatment records showing complaints of right hip pain and continuing treatment for replaceable missing and carious teeth, a July 2015 VA hip examination report showing no diagnosis of a current right hip disorder, and lay statements asserting entitlement to service connection. Although the aforementioned evidence is new, it fails to show evidence of current disabilities. The VA treatment records showing continued dental treatment, the Veteran’s complaints of right hip pain, and the lay statements are essentially identical to evidence previously considered regarding the Veteran’s claims. The July 2015 VA examination report confirms the absence of a current disability and, as negative evidence, cannot serve as the basis to reopen the right hip claim. Given the absence of evidence of current right hip or dental disabilities, there is no indication that the newly obtained evidence could, if the claims were reopened, reasonably result in substantiation of the service connection claims. The claims are not reopened. 3. Entitlement to TDIU. The Veteran filed his claim for TDIU in March 2015. During the pendency of the appeal, a September 2015 rating decision granted a total rating for depression effective August 11, 2012. The Veteran did not file a notice of disagreement with that decision. As such, the Veteran has been in receipt of a total schedular rating throughout the appeal period. The TDIU claim is therefore moot and must be dismissed. 4. Whether the reduction of the rating for service-connected lumbar strain from 20 percent to 10 percent from March 10, 2015 to September 9, 2015 was proper. The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in evaluation of a service-connected disability when warranted by the evidence, but only after following certain procedural guidelines. The RO must issue a rating action proposing the reduction and setting forth all material facts and reasons for the reduction. The Veteran must then be given 60 days to submit additional evidence and to request a predetermination hearing. Then a rating action will be taken to effectuate the reduction. 38 C.F.R. § 3.105(e). 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 Veteran of the final action expires. 38 C.F.R. § 3.105(e), (i)(2)(i). A veteran’s disability rating may not be reduced unless the evidence demonstrates that an improvement in the disability has occurred. 38 U.S.C. § 1155. Additionally, in certain rating reduction cases, the recipients of VA benefits are to be afforded greater protections. These additional protections apply in cases involving ratings that have continued for long periods of time at the same level (that is, five years or more); for ratings in effect for fewer than five years, reduction is warranted if the evidence shows improvement of the condition. 38 C.F.R. § 3.344. In a March 12, 2015 rating decision, the RO proposed reduction of the rating for lumbar strain from 20 percent to 10 percent. The Veteran was notified of the proposed reduction on March 14, 2015. On April 22, 2015, the RO issued a rating decision making the reduction effective from March 10, 2015 and notified the Veteran on April 23, 2015. Although fewer than 60 days elapsed between the proposed reduction and its implementation, the reduction did not result in a decrease or discontinuance of benefits, as the Veteran was in receipt of a total schedular rating for depression during this period. Therefore, the proper procedural guidelines were followed. The Board notes that the Veteran’s lumbar strain has been service connected for more than five years (since 2006) and is therefore entitled to additional rating protection under 38 C.F.R. § 3.344. The RO reduced the Veteran’s rating solely based on the results of the March 2015 VA examination showing improvement in thoracolumbar range of motion. Because the Veteran’s back disability is subject to temporary improvement, a reduction should not be based on a single examination except where all the evidence demonstrates substantial improvement. See 38 C.F.R. § 3.344(a). The evidence of record at the time of the reduction did not demonstrate sustained improvement in range of motion, particularly given the Veteran’s April 2015 statement that the March 2015 examination results were not representative of his true level of disability and that he experienced continuous pain and limited range of motion. Therefore, the reduction of the rating for lumbar strain was improper. REASONS FOR REMAND 5. Entitlement to service connection for a right shoulder disorder is remanded. The Veteran asserts that he has a right shoulder disorder related to service. VA treatment records reflect complaints of right shoulder pain. The Veteran contends that his right shoulder pain was caused by a documented fall from a truck. See May 2006 STR. He contends that he has had ongoing pain since service. See July 2015 NOD. As there is evidence of current right shoulder symptomology, an in-service event, and an indication that the two may be linked, the Veteran should be afforded a VA examination. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination to determine the nature and etiology of his right shoulder pain. The examiner must acknowledge review of the pertinent evidence of record, including the Veteran’s reports of symptom manifestation. All necessary examinations, tests, and studies should be conducted. The examiner should address the following: Identify/diagnose any right shoulder disorder that presently exists or has existed at any time during the appeal period. For each diagnosed right shoulder disorder, is it at least as likely as not (50 percent probability or greater) that the disorder had its onset in service or is otherwise etiologically related to active service, including the in-service fall from a truck? (Continued on the next page)   Rationale for the requested opinion shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, provide an explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or the limits of current medical knowledge with respect to the question. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Alhinnawi, Associate Counsel