Citation Nr: 1334273 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 10-17 229 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Whether new and material evidence has been received to reopen a claim of service connection for osteomyelitis of the left hip with arthritic changes. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from January 1975 to January 1978. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the St. Louis, Missouri Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. A December 1979 Board decision denied the Veteran's claim of service connection for osteomyelitis of the left hip with arthritic changes, based essentially, on findings that a hip disability was not incurred in or aggravated by service, and that there was evidence to rebut the presumption of service incurrence for arthritis diagnosed within the first post-service year. 2. Subsequent unappealed rating decisions in September 1993 and September 2003 declined to reopen the claim. 3. Evidence received since the September 2003 rating decision does not tend to show that the Veteran's left hip condition was manifest in/or is related to his service; does not related to the unestablished fact necessary to substantiate the claim of service connection for osteomyelitis of the left hip with arthritic changes; and does not raise a reasonable possibility of substantiating such claim. CONCLUSION OF LAW New and material evidence has not been received, and the claim of service connection for osteomyelitis of the left hip with arthritic changes may not be reopened. 38 U.S.C.A. §§ 5108, 7104, 7105 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The 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. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (Court) held that in a claim to reopen a previously finally denied claim, VCAA notice must notify the claimant of the meaning of new and material evidence and of what evidence and information (1) is necessary to reopen the claim; (2) is necessary to substantiate each element of the underlying service connection claim; and (3) is specifically required to substantiate the element or elements needed for service connection that were found insufficient in the prior final denial on the merits. The appellant was advised of VA's duties to notify and assist in the development of the claim prior to the initial adjudication of his claim. An October 2009 letter provided notice in accordance with Kent, and also explained the evidence VA was responsible for providing and the evidence he was responsible for providing. The appellant has had ample opportunity to respond/supplement the record, and has not alleged that notice was less than adequate. Recent VA treatment records have been secured. The duty to assist by arranging for a VA examination or obtaining a medical opinion does not attach until a previously denied claim is reopened. 38 C.F.R. § 3.159 (c)(4)(iii). The appellant has not identified any evidence that remains outstanding. VA's duty to assist is also met. Legal Criteria, Factual Background, and Analysis Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. §§ 7104, 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). The United States Court of Appeals for Veterans Claims (Court) has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold. Specifically, 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." See Shade v. Shinseki, 24 Vet. App. 110 (2010). Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disability, there must be evidence of a present disability; evidence of an in-service incurrence or aggravation of a disease or injury; and evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Historically, the Veteran filed a claim of service connection for a left hip disability in July 1978. The claim was denied by the RO, and he appealed the denial to the Board. A December 1979 Board decision denied the appeal, finding that a hip disability was not incurred in or aggravated by service. Although there was a diagnosis of arthritis within the first post-service year, the Board also found that there was evidence to rebut the presumption of service incurrence given that the septic arthritis was affirmatively shown to be related to the post-service osteomyelitis. The Board found that the Veteran's hip disability was the result of an injury following separation from service. Following the December 1979 Board decision, the Veteran attempted to reopen his claim on a number of occasions. In September 1993 and September 2003, the RO denied reopening of the claim, finding that the Veteran had not furnished new factual evidence that would establish a basis for granting service connection for a left hip disability. He did not appeal any of these decisions, or submit additional evidence within the year following, and they became final (most recently in September 2003). 38 U.S.C.A. § 7105. The pertinent evidence of record at the time of the September 2003 rating decision included the Veteran's service treatment records, which included a 1978 profile for limited duty for Achilles tendinitis; post-service treatment and hospitalization records, showing treatment for left hip pain; a November 1978 VA examination which diagnosed acute osteomyelitis of the left hip joint of indeterminate etiology; VA treatment records from April 1978 to June 1993, and from June 2003; a February 1979 hearing transcript; and multiple statements provided by the Veteran relating his left hip disability to his service. In August 2009, the Veteran again filed a claim to reopen his claim of service connection for osteomyelitis of the left hip with arthritic changes. Evidence received and considered since the September 2003 rating decision includes: internet research submitted by the Veteran; statements of the Veteran relating his left hip disability to his service; VA treatment records from October 2007 to December 2007, showing chronic hip pain; respite care treatment records, filed in connection with a claim for non-service connected pension, and showing hip pain; a Social Security Physical Medical Source Statement, finding the Veteran cannot work due to pain; a January VA examination, filed in connection with a claim for non-service connected pension, and showing aseptic necrosis and advance osteoarthritis of the left hip; VA treatment records from February 2002 to September 2009 and December 2009, showing chronic hip pain; and an October 2009 statement of the Veteran's ex-wife. Because the Veteran's claim of service connection for osteomyelitis of the left hip with arthritic changes was previously denied on the basis that such disability was not manifested in, or shown to be related to his service, for evidence to be new and material, it would have to tend to show that the Veteran's current left hip disability is related to service. While the reports of post service VA treatment are new evidence (in that they were not previously associated with the record), they are not material evidence, as they do not tend to show that any current left hip disability is/may be related to the Veteran's service. Significantly, the treatment records do not address the matter of a nexus between the Veteran's current left hip disability and his service; they merely show current disability and its treatment. Therefore, the current treatment records do not address the unestablished fact necessary to substantiate the claim of service connection for a left hip disability; and while new, are not material. Additionally, the Veteran has submitted numerous statements in which he continues to assert that his left hip disability is related to his service; however, this is the same opinion he has asserted since initially filing his claim in 1978. His opinion in this matter is not new. The Veteran asserts that the October 2009 statement of his ex-wife should be sufficient to reopen his claim. However, this evidence is not new. Even though this is the first statement received from the Veteran's ex-wife, in the statement, she identifies an incident in service when the Veteran fell, and as a result of the fall, was placed on a profile for light duty. This evidence is cumulative of evidence already associated with the file, specifically the Veteran's service treatment records that show the Veteran was treated for a left ankle injury following a fall in January 1978, and was put on a limited profile. This evidence was of record and considered in the December 1979 Board decision. Therefore, it is not new evidence. In any event, the statements of the Veteran and his ex-wife would not be material evidence. A lay person is competent to testify to the symptoms he experienced, or observed, but he is not competent to, by his own opinion, provide a medical nexus which relates the observable symptoms to a medical diagnosis. As a lay person, the Veteran (and his ex-wife) lack the training/expertise to opine competently on a medical question, such as the one presented in the instant case (i.e., whether the Veteran's current hip disability was caused or otherwise related to his service, or if it was caused or otherwise related to his post-service injury). See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). . In summary, no additional evidence received since the September 2003 rating decision is new evidence that tends to prove that the Veteran's osteomyelitis of the left hip with arthritic changes began in, or is etiologically related to, his service. Therefore, the additional evidence received since September 2003 does not address the unestablished fact necessary to substantiate the claim of service connection for a left hip disability; does not raise a reasonable possibility of substantiating such claim; and is not new and material. Accordingly, even the low threshold standard for reopening endorsed by the Court in Shade, 24 Vet. App. 10 (2010) is not met, and the claim of service connection for osteomyelitis of the left hip with arthritic changes may not be reopened. ORDER The appeal to reopen a claim of service connection for steomyelitis of the left hip with arthritic changes is denied. ____________________________________________ M. C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs