Citation Nr: 1306707 Decision Date: 02/27/13 Archive Date: 03/01/13 DOCKET NO. 10-45 444 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a back disability. 2. Entitlement to service connection for a bilateral hip disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T. Sherrard, Counsel INTRODUCTION The Veteran, who is the Appellant in this case, had active service from January 1975 to May 1977. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a May 2010 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at an October 2011 Travel Board hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is associated with the claims folder. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. On his October 2010 VA Form 9, the Veteran wrote that he was unemployable and that no one would hire him due to his service-connected left knee disability. At the October 2011 Board hearing, he confirmed that he wished to file a claim of entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). The issue of entitlement to TDIU has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. A June 2008 rating decision denied service connection for a back disability, finding no evidence that demonstrated a nexus between the back disability and either active service or a service-connected disability; the Veteran did not file a timely notice of disagreement. 2. The evidence associated with the claims file subsequent to the June 2008 rating decision does not relate to an unestablished fact necessary to establish the claim, so does not raise a reasonable possibility of substantiating a claim for service connection for a back disability. 3. The Veteran's does not have a current bilateral hip disability, at this time, based on the best evidence. 4. The Veteran's claimed bilateral hip disability, assuming it does exist, is not causally related to or permanently worsened by the service-connected left knee disability. CONCLUSIONS OF LAW 1. The June 2008 rating decision, which denied service connection for a back disability, became final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.302, 20.1103 (2012). 2. The evidence received subsequent to the June 2008 rating decision is not new and material to reopen the claim of entitlement to service connection for a back disability. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156 (2012). 3. The criteria for service connection for a bilateral hip disability have not been met. 38 U.S.C.A. §§ 101, 1101, 1110, 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Whether Reopening the Back Disability Claim In December 2007, the Veteran filed an initial claim for service connection for a back disability. The claim was denied in a June 2008 rating decision, which found that there was no evidence of a nexus between the back disability and either active service or a service-connected disability. The Veteran did not file a timely notice of disagreement (NOD); consequently, the June 2008 rating decision became final. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103. In September 2009, the Veteran filed a request to reopen the claim of entitlement to service connection for a back disability. In the May 2010 rating decision that is the subject of the instant appeal, the RO found that new and material evidence had been received and reopened the claim, but denied the claim on the merits due to a lack of evidence demonstrating a nexus between the back disability and either active service or a service-connected disability. Based on the procedural history outlined above, the issue for consideration with respect to the Veteran's claim is whether new and material evidence has been received to reopen the claim of entitlement to service connection for a back disability. The Board must make an independent determination in this regard. As noted above, in the May 2010 rating decision on appeal, the RO found that new and material evidence had been received and reopened the claim, but then denied the claim on the merits. Notwithstanding the fact that the RO denied reopening of the claims, the preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. Barnett v. Brown, 8 Vet. App. 1, 4, (1995), aff'd, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). "New" evidence is defined as evidence not previously received by 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(a) (2012). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been received, the claim must be reopened. The VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for his claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999), but see 38 U.S.C.A. § 5103A (eliminating the previous requirement of a well-grounded claim). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The evidence received to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence of record at the time of the last final June 2008 rating decision denying service connection for a back disability included service treatment records and post-service VA and private treatment records. The service treatment records were negative for any history, complaints, symptoms, findings, treatment, or diagnosis of a back problem. Although the post-service treatment records showed complaints of back pain in 1995, none of the records showed a relationship between the back disability and either active service or a service-connected disability. Based on this evidence, the RO denied service connection for a back disability, finding no evidence of a nexus between the back disability and either active service or a service-connected disability. Evidence added to the record since the time of the last final denial in June 2008 includes additional post-service treatment records, a VA opinion, and statements of the Veteran. The Board acknowledges a June 2009 VA treatment note in which the clinician notes pain from a pelvic malalignment and a leg length discrepancy, which, the clinician opined, would definitely worsen the Veteran's back pain. While this treatment note lends support to the contention that his leg length discrepancy has worsen his back problem, he is not service connected for a leg length discrepancy. In other words, the medical opinion associates one nonservice connected disability to another nonservice connected problem - the opinion is not material to this claim that the knee has caused a back problem. There is nothing in the record that indicates the knee problem has caused or worsened a leg length discrepancy which, in turn, has worsened a back problem. Indeed, the March 2010 VA examiner opined that the left length discrepancy was not due to the service-connected left knee disability, but rather, to developmental growth variants in the femurs and tibias. Thus, the June 2009 VA treatment note does not establish a nexus between the back disability and any service-connected disability. The evidence added to the record since the previous June 2008 denial does not constitute new and material evidence. Although the evidence is new, in that it was not associated with the claims file prior to the last final denial in June 2008, it is not material because it does not relate to an unestablished fact necessary to substantiate the claim - that the Veteran has a current back disability that was caused or aggravated by a service-connected disability - and does not raise a reasonable possibility of substantiating the claim for service connection for a back disability. Therefore, the Board finds that the new and material criteria under 38 C.F.R. §§ 3.156(a) have not been satisfied, and the claim for service connection for a back disability cannot be reopened. Service Connection for Bilateral Hip Disability 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.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The United States Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). "Aggravation" is defined for this purpose as a chronic, permanent worsening of the underlying condition, beyond its natural progression, versus a temporary flare-up of symptoms. Id. To prevail on the theory of secondary service causation, generally, the record must show (1) medical evidence of a current disability, (2) a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Effective from October 10, 2006, 38 C.F.R. § 3.310 was amended. See 71 Fed. Reg. 52,744 (2006). The new regulation appears to place additional evidentiary burdens on claimants seeking service connection based on aggravation, specifically in terms of requiring the establishment of a baseline level of disability for the non-service-connected condition prior to the claimed aggravation. Regardless of whether the case is considered under the old or new regulation, based upon the facts in this case, neither version is more favorable, and the regulatory change does not affect the outcome herein. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." See Layno, 6 Vet. App. at 469; 38 C.F.R. § 3.159(a)(2). The Court has emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of a veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran contends that he has a current bilateral hip disability that is related to his service-connected left knee disability. Specifically, he avers that his left knee disability caused a leg length discrepancy, and that this, in turn, caused a malalignment of his hips. This claim appears to be for secondary service connection. However, the Board has also considered whether the bilateral hip disability is directly related to active service, and finds that the weight of the evidence demonstrates no such relationship. The Veteran has not contended that his bilateral hip disability was caused or incurred as a result of active service. Moreover, the service treatment records are negative for any history, complaints, findings, or diagnosis of a bilateral hip problem, and the first post-service documentation of hip complaints is in 1995, many years after service separation. Thus, the lay and medical evidence does not support a finding of a direct relationship between the current hip disability and active service. Next, to prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin, 11 Vet. App. at 512; Reiber, 7 Vet. App. at 16-17. Service connection has been granted for residuals of a left knee meniscectomy from May 1977, essential hypertension from May 1977, and residuals of a right ankle fracture from December 2007. The Board first finds that the weight of the evidence demonstrates no current disability of the bilateral hips. An October 1995 x-ray study demonstrated pelvic unleveling, located low on the left side. A November 2002 x-ray study revealed minimal degenerative change at the left hip (apparently located at the left sacroiliac joint). In addition, in June 2009, a VA clinician assessed pelvic malalignment, and a July 2009 VA treatment note indicates that the right pelvic crest was slightly lower than the left on standing. However, at the March 2010 VA examination, the VA examiner found no current disability of the hips. On physical examination, left hip flexion and abduction produced pain to the back and posterior buttock, while right hip flexion produced pain in the back. Range of motion of the hips was normal without evidence of objective pain on active motion. An x-ray study of the hips was normal, with no evidence of osteophyte formation, fracture, dislocation, or other significant osseous abnormality, and the joint spaces and articular surfaces were normal. The VA examiner assessed normal hips, also noting that the Veteran had difficulty discriminating between low back and perceived hip pain. The Board finds that this medical opinion must be provided higher probative value than the records above indicating a disability. Based on the foregoing, the Board finds that the weight of the evidence is against a finding that the Veteran has a current bilateral hip disability. In this regard, the Board notes that VA does not generally grant service connection for symptoms alone (such as pain), without an identified basis for those symptoms. The VA needs to identify a disability, not symptoms of a disability. Accordingly, service connection cannot be granted for symptoms of a disability. In this case, the most recent x-ray study and physical examination of the bilateral hips was normal, showing no evidence of an underlying disability producing the Veteran's pain. In any event, even if the Board were to find that there was a current bilateral hip disability, the weight of the evidence demonstrates that there is no relationship, of either causation or aggravation, between the current hip problem and a service-connected disability. The March 2010 VA examiner opined that the Veteran's hip pain and/or malalignment was less likely as not caused by, a result of, or secondary to the service-connected left knee disability, reasoning that the leg length discrepancy, even if related to the left knee disability, was not clinically significant so as to cause degenerative disease of the hips. The VA examiner further noted that this opinion was supported by the lack of degenerative changes of either hip on current radiographs. Moreover, the VA examiner opined that the leg length discrepancy was not due to the left knee disability, but was rather a developmental growth variant of the femurs and tibias. The 2010 VA opinion is competent and probative medical evidence because it is factually accurate, and is supported by an adequate rationale. The VA examiner was informed of the pertinent evidence, reviewed the claims file, interviewed and examined the Veteran, and fully articulated the opinion. The Board acknowledges the June and July 2009 VA treatment notes in which the VA clinicians assessed hip malalignment. However, no physician has indicated that either the hip malalignment or leg length discrepancy is related to the service-connected left knee disability. Thus, the probative March 2010 VA nexus opinion on file weighs against the claim, and there are no favorable nexus opinions of record showing that the Veteran's claimed bilateral hip disability is caused or aggravated by his service-connected left knee disability. Regarding the Veteran's statements as to the cause of his bilateral hip disability, the Board recognizes that lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson, 581 F.3d at 1316 (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau, 492 F.3d 1372). However, in this case, the cause of the Veteran's bilateral hip disability involves a complex medical etiological question because it deals with the origin and progression of the Veteran's musculoskeletal system and disorder of such internal and complex disease process is diagnosed primarily on clinical findings and physiological testing. The Veteran is competent to relate symptoms of a bilateral hip disability that he experienced at any time, but is not competent to opine on whether there is a link between the currently diagnosed bilateral hip disability and a service-connected disability, including the left knee disability, because such diagnosis requires specific medical knowledge and training. See Rucker, 10 Vet. App. at 74 (stating that a lay person is not competent to diagnose or make a competent nexus opinion about a disorder as complex as cancer). For these reasons, the Board finds that weight of the lay and medical evidence that is of record outweighs the Veteran's more recent contentions regarding the relationship between his bilateral hip disability and service-connected left knee disability. Based on the foregoing, the Board finds that the weight of the evidence is against a finding that the Veteran's bilateral hip disability was caused or aggravated by any service-connected disability. For these reasons, service connection for the bilateral hip disability must be denied. As the preponderance of the evidence weighs against the Veteran's claim for service connection for a bilateral hip disability, the benefit of the doubt doctrine is not applicable, and the claim for service connection must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353 -356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The notice included provisions for disability ratings and for the effective date of the claim. In a timely October 2009 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, what information and evidence must be submitted by the Veteran, and what information or evidence VA will attempt to obtain. In addition, the Veteran was informed of the basis for the previous denial of the back disability claim and advised that new and material evidence would be necessary to reopen the back disability claim. The letter also described how VA determines disability ratings and effective dates. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA and private treatment records, a VA opinion, and the Veteran's statements, including his testimony at the October 2011 Board hearing. A VA examination and opinion was obtained in March 2010 with regard to the question of whether the Veteran's back and hip disabilities were caused or aggravated by either active service or by service-connected left knee disability. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the March 2010 VA opinion obtained in this case is adequate as to the question of whether the Veteran's back and hip disabilities were caused or aggravated by active service or a service-connected disability. The opinion was predicated on a full reading of the private and VA medical records in the Veteran's claims file, as well as an interview and physical examination of the Veteran. The VA nexus opinion considered all of the pertinent evidence of record, to include VA treatment records, comprehensive physical examinations, and the statements of the Veteran, and provides a complete rationale for the opinion stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the back and hip claims has been met. 38 C.F.R. § 3.159(c)(4). The Board acknowledges the Veteran's contention in his May 2010 notice of disagreement that the VA examiner incorrectly stated that his left leg was longer than his right leg, and that VA treatment records reflect the opposite. However, the Board finds that any such error does not render the VA examination inadequate, as the VA examiner considered leg length discrepancy as a potential etiology for the Veteran's hip and back disabilities and provided rationale for his opinion that would be applicable regardless of which leg was longer. Further, the critical issue is whether a service connected disability has caused the Veteran's back disability, not the nonservice connected leg length discrepancy. Notably, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER New and material evidence not having been received, the appeal to reopen the claim of entitlement to service connection for a back disability is denied. Service connection for a bilateral hip disability is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs