Citation Nr: 1325853	
Decision Date: 08/15/13    Archive Date: 08/26/13

DOCKET NO.  11-18 480	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Hartford, Connecticut


THE ISSUES

1.  Whether new and material evidence has been presented to reopen a service connection claim for degenerative joint disease (DJD) of the right hip, and if so, whether service connection may be granted.

2.  Whether new and material evidence has been presented to reopen a service connection claim for DJD of the left hip, and if so, whether service connection may be granted.


REPRESENTATION

Veteran represented by:	Allen Gumpenberger, Agent


ATTORNEY FOR THE BOARD

Laura E. Collins, Associate Counsel

INTRODUCTION

The Veteran served on active duty from August 1989 to December 1991, including service in Southwest Asia from November 1990 to April 1991.

This matter comes before the Board of Veterans' Appeals (Board) from an April 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that reopened and denied the Veteran's claim for service connection for bilateral hip conditions.

During the appeal period, the Veteran requested a hearing.  However, in a June 2011 submission he indicated that he no longer wished to have a hearing.  As such, his hearing request is deemed withdrawn.

The Board notes that the RO reopened the Veteran's claim of entitlement to service connection for bilateral hip conditions and denied it on the merits in the April 2010 rating decision on appeal.  Despite the determination reached by the RO, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim.  See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996).


FINDINGS OF FACT

1.  A Board decision issued in September 2005 denied service connection for osteoarthritis of the hips.  

2.  The evidence received since the September 2005 Board decision is not duplicative or cumulative of evidence previously of record and raises a reasonable possibility of substantiating the Veteran's claims.

3.  The Veteran's DJD of the right hip had its onset in service.  

4.  The Veteran's DJD of the left hip had its onset in service.  

CONCLUSIONS OF LAW

1.  The September 2005 Board decision that denied service connection for osteoarthritis of the hips is final.  38 U.S.C.A. §§ 7103 (West 2002); 38 C.F.R. § 20.1100 (2012).

2.  New and material evidence has been received to reopen a claim of entitlement to service connection for DJD of the right hip.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012).

3.  New and material evidence has been received to reopen a claim of entitlement to service connection for DJD of the left hip.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012).

4.  Degenerative joint disease of the right hip was incurred in service.  38 U.S.C.A. §§ 1110, 1112, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012).

5.  Degenerative joint disease of the left hip was incurred in service.  38 U.S.C.A. §§ 1110, 1112, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In light of the fully favorable determination in this case, no further discussion of compliance with VA's duty to notify and assist is necessary.

I.  Reopened Claim

The Veteran seeks to reopen his previously denied claim of service connection for DJD of the bilateral hips.

A Board decision issued in September 2005 denied entitlement to service connection for osteoarthritis of the hips on the basis that there was evidence of neither an-service injury nor a link between current disability and service.  The September 2005 decision became final.  38 U.S.C.A. § 7103 (West 2002); 38 C.F.R. § 20.1100 (2012).  

Where, as here, a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim.  38 U.S.C.A. § 5108 (West 2002).  Moreover, where, as here, the prior final decision was an unappealed Board rating decision the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim.  Barnett.  Thus, the Board must now consider whether new and material evidence has been submitted to reopen the previously denied claim. 

In making this determination, the Board must review all of the evidence submitted since the last final decision.  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.  38 C.F.R. § 3.156(a).

In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the Court stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim.  Id.  Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decision makers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim.  Id. 

The Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as enabling rather than precluding reopening.  The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which does not require new and material evidence as to each previously unproven element of a claim.  Shade; see also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim; rather it need only be probative in regard to each element that was a specified basis for the last disallowance).  Newly submitted evidence is presumed to be credible for the purpose of determining whether evidence is sufficiently new and material.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992).

The evidence considered in the final September 2005 denial consisted of the service treatment records (STRs) and private treatment records from three physicians dated prior to September 2005.  The basis of the final denial was that there was evidence of neither an-service injury nor a link between current disability and service. 

Since the September 2005 Board decision, relevant new evidence added to the record consists of several private nexus opinions from various physicians dated after 2005; VA joints examination reports dated March 2010 and March 2011; a VA general medical examination report dated October 2010; and lay statements from the Veteran, his mother, and a buddy.  All of this evidence is new because it was not previously considered by agency decision makers.  The new evidence includes both VA and private medical opinions that the Veteran's DJD of the right and left hips is related to service, and lay statements reporting that his hip symptoms began after service.  

The absence of evidence that his current disability is related to service was an element of service connection upon which the prior denial was based.  As such, the new evidence relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the Veteran's claim.  It is therefore material and sufficient to reopen the previously-denied claim.  Shade.  The Board reopens the Veteran's claims of entitlement to service connection for DJD of the right and left hips for de novo review on the merits.  38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156.

II.  Service Connection

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995).  

Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.  38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a).

Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including arthritis, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. § 1112, 1131; 38 C.F.R. §§ 3.307, 3.309 (2012).

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  See id. at 303-04.  

The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The Veteran contends that his currently diagnosed DJD of the right and left hips is related to service.

The evidence of record shows that the Veteran has a current diagnosis of DJD of the right and left hips.  Specifically, the March 2011 VA examiner diagnosed these conditions, noting that DJD of the right hip resulted in a right total hip replacement (THR) in September 2003.  Private treatment records also show these diagnoses and an August 2012 letter from private physician Dr. E states that the "bone changes in the left hip were severe enough to require a left THR" in July 2012.  The Board thus finds that the Veteran has a current disability of DJD of the right and left hips.

STRs are silent for complaints, treatment or diagnoses relating to the hips.  However, the Veteran does not contend that he sustained direct injury to the hips in service.  Rather, he asserts indirect injury during his deployment to Saudi Arabia.  His duties included repetitive tasks such as carrying heavy equipment (up to 50 pounds) in the sand, mounting/dismounting four-foot-high vehicles, bending/stooping in his duties as a mechanic, and digging foxholes.  Personnel records confirm his military occupational specialty of mechanic and deployment to Southwest Asia.  He states, and the lay statement from his mother corroborates, that his arthritis symptoms began after he returned from deployment.

After a thorough record review and physical examination, the March 2011 VA examiner opined that "it is at least as likely as not that his service contributed to DJD of the hips."  The examiner provided a rationale for his opinion, noting that the Veteran's right THR occurred at the age of 32 with reports of pain since 1998 at the age of 27.  "This is certainly a younger than usual age to have a THR and evidence of DJD and no reports of any congenital defects or avascular necrosis."

The record also contains an October 2010 letter from private treating chiropractor Dr. H:

[s]uch pronounced degenerative changes in someone so young is generally the result of macro and/or microtrauma to the...joints.  The patient has no such history of trauma other than that of his duties in the military....  Those duties included much heavy lifting and marching through sand.  Therefore the most likely cause of his pronounced DJD is the duties related to his time in the military.

A November 2010 medical opinion from a Dr. C, who first evaluated the Veteran in 1994, echoes the rationale of Dr. H:

This type of arthritis is a slow moving chronic disease that is caused by wear and tear of his body, specifically the repetitive daily acute micro and macro traumas done to his body...working in the extreme desert environment.  [The Veteran] was an artillery mechanic which involved lifting...and running with heavy loads and heavy equipment and jumping down from military vehicles carrying tools and heavy parts.  It was these repetitive macro and micro traumas [that] caused the post traumatic arthritis of [the Veteran's] hips.  [His] condition is not age related but is consistent with someone that has done his level of work in the combat conditions of Desert Storm, causing post traumatic arthritis of his...hips.

Similarly, a July 2010 letter from private physician Dr. M, who had treated the Veteran's arthritis for two years, stated, "[L]ikely bone changes were aggravated during his time of duty in the military due to heavy lifting and walking in sandy conditions.  The extent of his injuries in someone so young is consistent with the level of work in combat conditions."

Each of these positive nexus opinions is supported by a clear rationale that cites to supporting facts in the record.  Stefl; Nieves-Rodriguez.  The Board therefore finds them probative.

The March 2010 VA examiner stated that he was unable to link the Veteran's DJD of the hips to service without resorting to speculation.  A medical opinion that is equivocal in nature does not provide the degree of certainty required for medical nexus evidence.  McLendon.  Thus the Board attributes this opinion no weight.


ORDER

New and material evidence has been received to reopen the claim of entitlement to service connection for DJD of the right hip; to this extent, the appeal is granted.

Service connection for DJD of the right hip is granted.

New and material evidence has been received to reopen the claim of entitlement to service connection for DJD of the left hip; to this extent, the appeal is granted.

Service connection for DJD of the left hip is granted.


____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs