Citation Nr: 1329712 Decision Date: 09/17/13 Archive Date: 09/25/13 DOCKET NO. 10-34 059 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for a right hip disability. 2. Entitlement to service connection for a right hip disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant & Spouse ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1996 to June 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in a video conference hearing in August 2011. FINDINGS OF FACT 1. An unappealed August 2001 rating decision denied the Veteran service connection for a right hip disability, based essentially on findings that it was not shown he had a permanent or chronic disability. 2. Evidence received since the August 2001 rating decision denying service connection for a right hip disability, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim for a right hip disability, and raises a reasonable possibility of substantiating the claim. 3. The Veteran's right hip disability had its onset in service. CONCLUSIONS OF LAW 1. The August 2001 rating decision denying the claim for service connection for a right hip disability is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.104 (2013). 2. New and material evidence has been received to reopen the claim of service connection for a right hip disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a). 3. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for a right hip disability, right hip iliotibial band syndrome with tendonitis, degenerative changes and bursitis, are met. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. In this decision, the Board reopens and grants service connection for a right hip disability, which represents a complete grant of the benefit sought on appeal. As such, no discussion of VA's duty to notify or assist is necessary. New and Material Evidence If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition. 38 U.S.C.A. § 5108. "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(a). In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273 (1996). 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 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead one should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. By way of background, the Board observes that the RO denied entitlement to service connection for a right hip disability in an August 2001 rating decision on the basis that there was no evidence of a permanent or chronic disability. He did not appeal this decision and, as such, it became final. 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). The Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no evidence pertaining to the Veteran's claim for service connection for a right hip disability was received prior to the expiration of the appeal period stemming from the August 2001 rating decision. See Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). The evidence added to the record since the August 2001 rating decision includes VA treatment records, a December 2008 VA examination report, and private treatment records from the Shands Clinic. This evidence documents the Veteran's complaints of right hip pain since service. It also documents right hip x-rays showing mild degenerative changes. An August 2009 MRI of the right hip revealed superior labral tear, likely degenerative, bilateral greater trochanteric bursitis, and iliotibial band syndrome. The record also includes the Veteran's testimony that he has had right hip pain since service. When considered together, the VA treatment records, private treatment records and his testimony relate to an unestablished fact necessary to substantiate the claim, and are neither cumulative nor redundant. As the Board finds that the additional medical records, and the Veteran's testimony are new and material, there is no need to discuss whether any other evidence is likewise new and material as the claim will be reopened solely on the basis of this evidence. Accordingly, the claim of service connection for a right hip disability is reopened. 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), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). 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). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki¸581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and address the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995); Dalton v. Nicholson, 21 Vet. App. 23, 28 (2007). The Veteran's service treatment records include a June 1997 report noting his complaint of right hip pain; he denied any specific injury. The diagnosis was tendonitis. A July 1998 report noted his complaint of right hip pain for four days. It was indicated that over one year ago, the Veteran had the same symptoms of iliotibial band syndrome. The diagnosis was bursitis and proximal iliotibial band syndrome. An August 1998 report noted his complaint of left hip pain. [At the August 2011 hearing, the Veteran testified that such reference to his left hip was erroneous, and that he actually complained of right hip pain. After a review of the service treatment records, the Board agrees that the reference to the left hip appears to have been in error, and accordingly, acknowledges that the complaint in the August 1998 service treatment record was for the right hip.] It was noted he had a tight iliotibial band. A diagnosis of hip strain was provided. On October 1999 service separation report of medical examination, the lower extremities were normal on clinical evaluation. The Veteran filed his original claim seeking service connection for a right hip disability in May 2001. VA treatment records included a March 2001 report noting the Veteran's complaint of tightness of the right iliotibial band. On physical examination, there was tightness at the right iliotibial band. In an August 2001 rating decision, service connection for a right hip disability was denied. The instant claim for service connection for a right hip disability was filed in May 2008. VA treatment records include a May 2005 report noting the Veteran's complaint of occasional hip pain. It was indicated he had a history of iliotibial band syndrome. A May 2008 report noted his complaint of right hip pain on rotation. The assessment was tendonitis. December 2008 right hip x-rays revealed mild degenerative changes. On December 2008 VA joint examination, it was noted that the Veteran developed right hip iliotibial band syndrome/tendonitis during U.S. Navy SEAL training, and the problem disappeared with rest and stopping the vigorous exercise. On physical examination, it was noted that there was no hip pain and x-rays were normal. The diagnosis was normal hips, iliotibial band syndrome resolved. The examiner noted that there was no current hip problem. In his January 2009 notice of disagreement, the Veteran stated that his current problem is the same one that he had in service. He also stated that the December 2008 VA examination report was factually inaccurate because the report indicated he had no flare-ups when he in fact did have flare-ups. He also stated he has right hip stiffness, weakness, incoordination, and pain with instability contrary to the examination report. Private treatment records from the Shands Clinic include an August 2009 MRI of the right hip that revealed a superior labral tear, likely degenerative, bilateral greater trochanteric bursitis, and iliotibial band syndrome. The Veteran also complained of right hip pain since service. On March 2010 VA joint examination, the Veteran reported he has had right hip pain since U.S. Navy SEAL training. He complained of right hip pain, giving way, instability, stiffness, weakness, and incoordination. He also indicated he has flare-ups three to four times per week, lasting an hour in duration. The examiner noted that the Veteran was seen in June 1997 for hip pain and tendonitis, and that the October 1999 separation examination report was normal. On physical examination, there was diffuse tenderness of the right hip. X-rays revealed mild degenerative changes. The diagnosis was degenerative joint disease and tendonitis of the right hip. The examiner opined that the Veteran's right hip disability was less likely as not caused by or a result of his service as his separation examination was negative and there was no mention of a right hip disability by the Veteran on separation. At the August 2011 video conference hearing, the Veteran testified that his pain started with U.S. Navy SEAL training, and that he was only given Motrin or an anti-inflammatory to treat his symptoms. He also testified that he has had pain since service. In this case, the Board finds that the Veteran has presented credible lay evidence that he has experienced right hip pain since service due to the activities and duties required with U.S. Navy SEAL training. In addition, service treatment records include his report of right hip pain and diagnoses of iliotibial band syndrome, tendonitis, and bursitis. Furthermore, post-service treatment records show ongoing complaints of right hip pain and a current diagnosis of iliotibial band syndrome, tendonitis, and bursitis. While the VA examiners found that the Veteran either had no current right hip disability or that such was not due to his service, the Board finds that the evidence of record shows that he does in fact have a disability, and that the March 2010 VA examination was performed without a review of the claims file. In this regard, the Board finds significant that the March 2010 examiner did not mention the July 1998 service treatment record noting the Veteran's complaint of right hip pain and diagnoses of bursitis and proximal iliotibial band syndrome. An opinion based on an inaccurate factual history is of diminished probative value, if any. See Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (citing Reonal v. Brown, 5 Vet. App. 458, 461 (1993) and Swann v. Brown, 5 Vet. App. 229 (1993) (stating that the Board is not bound to accept medical opinions that are based upon an inaccurate factual background)); see also Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board has authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence). Based on the remaining evidence of record, resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's right hip disability likely had its onset during his active duty. Accordingly, entitlement to service connection for a right hip disability is warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER New and material evidence having been presented, the Veteran's claim of service connection for a right hip disability is reopened. Service connection for a right hip iliotibial band syndrome with tendonitis, degenerative changes and bursitis is granted. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs