Citation Nr: 1340824 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 13-10 716 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right hip disorder. REPRESENTATION Appellant represented by: Marc Whitehead, Attorney ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from October 1967 to May 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which, in pertinent part, found that new and material evidence had not been received to reopen a claim of service connection for a right hip disorder. In November 2013, the Board requested a medical expert opinion from a member of the Veterans Health Administration (VHA opinion) in accord with VHA Directive 20006-019 (April 3, 2006), 38 U.S.C.A. §§ 5103A, 7109 and 38 C.F.R. § 20.901. The requested opinion was subsequently promulgated later that same month. Inasmuch as the evidence of record, including the VHA opinion, warrants a grant of service connection for a right hip disorder, there is no need to provide the Veteran with 60 days pursuant to 38 C.F.R. § 20.903 in which to send any additional evidence or argument regarding the case. FINDINGS OF FACT 1. Service connection was previously denied for a right hip disability by rating decisions promulgated in September 1968 and September 1983. The Veteran was informed of these decisions, including his right to appeal, and did not appeal. 2. The evidence received since the last prior denial of service connection for a right hip disability was not previously submitted to agency decisionmakers, relates to an unestablished fact necessary to substantiate the claim, is not cumulative nor redundant of the evidence of record at the time of the last prior final denial, and raises a reasonable possibility of substantiating the claim. 3. The evidence clearly and unmistakably reflects the Veteran had a right hip condition that pre-existed service. 4. The evidence does not clearly and unmistakably reflect the Veteran's pre-existing right hip condition was not aggravated by service. CONCLUSIONS OF LAW 1. New and material evidence having been received to reopen the claim of entitlement to service connection for a right hip disorder, the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2002). 2. The criteria for a grant of service connection for a right hip disorder are met. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.306 (2013); VAOPGCPREC 3-2003. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). 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 this case, service connection was previously denied for a right hip disability by rating decisions promulgated in September 1968 and September 1983. The Veteran was informed of these decisions, including his right to appeal, and did not appeal. Therefore, these decisions are final. 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 20.1100, 20.1103. In making this determination, the Board acknowledges that Courts have held that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim. See Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). However, no additional evidence pertinent to the issue was physically associated with the claims folder within one year of the respective rating decisions. Despite the finality of a prior decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Further, the Court has also held that in order to reopen a previously and finally disallowed claim there must be new and material evidence presented since the time that the claim was finally disallowed on any basis, not only since the time that the claim was last disallowed on the merits. Evans v. Brown, 9 Vet. App. 273, 285 (1996) (overruled on other grounds). New evidence means existing evidence not previously submitted to agency decisionmakers. 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 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. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers 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. In this case, the evidence of record at the time of the prior denials included the Veteran's service treatment records and post-service medical records which covered a period through 1983 (by the time of the September 1983 confirmed rating decision). The evidence added to the record since the time of the last prior denial includes statements by and on behalf of the Veteran, as well as additional post-service medical evidence which covers a period through 2013. After a careful and thorough review of the additional evidence, the Board finds that it provides relevant details regarding the nature and history of the Veteran's right hip disorder that was not considered at the time of the prior denials. Further, the evidence received to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been submitted, without regard to other evidence of record. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In view of the foregoing, the Board finds that the evidence received since the last prior denial of service connection for a right hip disability was not previously submitted to agency decisionmakers, relates to an unestablished fact necessary to substantiate the claim, is not cumulative nor redundant of the evidence of record at the time of the last prior final denial, and raises a reasonable possibility of substantiating the claim. Therefore, new and material evidence has been received pursuant to 38 C.F.R. § 3.156(a) and the claim is reopened. Adjudication of the Veteran's appeal does not end with the determination that new and material evidence has been received. The Board must now address the merits of the underlying service connection claim. In the adjudication that follows, the presumption that the evidence received to reopen a claim is presumed to be true without regard to the other evidence of record no longer applies. Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. In this case, the Veteran did indicate on an October 1967 Report of Medical History completed concurrent with his enlistment examination that he had had an operation on his hip 2 years ago (1965). However, he did not specifically indicate any right disability on this Report of Medical History. In short, he reported a prior surgical procedure on the right hip, but not that he currently had any impairment thereof. Moreover, history provided by a veteran of the preservice existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting condition. 38 C.F.R. §§ 3.304(b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). The Board further notes that the October 1967 enlistment examination itself found his lower extremities to be abnormal, but did not specifically indicate the basis for this finding. The only disease or defect specifically noted on the enlistment examination was in regard to the right kidney. As such, even though the Veteran reported prior right hip surgery and was subsequently treated for right hip problems while on active duty, the Board must find that, based upon the enlistment examination itself, that it is speculative as to what abnormality was noted as to the lower extremities. Thus, the Board concludes that a pre-existing right hip disability was not actually noted at the time of the Veteran's enlistment examination. To rebut the presumption of sound condition under section 1111 of the statute for disorders not noted on the entrance or enlistment examination, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than clear and unmistakable evidence). It is an "onerous" evidentiary standard, requiring that the no aggravation result be "undebatable." Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 (1991)) and Vanerson, 12 Vet. App. at 258, 261; id. at 263 (Nebeker, C.J., concurring in part and dissenting in part). Concerning clear and unmistakable evidence that the disease or injury was not aggravated by service, the second step necessary to rebut the presumption of soundness, a lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 U.S.C.A. § 1153. The Veteran does not dispute he had a right hip condition that pre-existed service. Rather, he has consistently reported such a pre-existing condition since his active service. For example, the service treatment records reflect that in March 1968 he reported he had an "infection" of the right hip 4 years ago, necessitating drainage. He also reported that his doctor informed him that he had some bone destroyed in the hip, and now complained of pain in hip and weakness in the right leg. Thereafter, service treatment records dated in April 1968 show a diagnosis of degenerative arthritis, right hip, secondary to old infectious process. It was reiterated that he experienced an infection of the right hip at age 14 requiring surgical drainage, as well as hospitalization for several months. The Veteran also reported that he remained in a spica cast for an additional 2 months following his release from the hospital and was required to be on crutches because of the condition of his right hip for an additional several months. He was purportedly told at the time that he probably would require additional surgical procedures on his right hip during middle-aged life. The hip became relatively "symptomatic" between the ages of 15 and 18, however, upon entering the military he experienced increasing difficulty related to his training exercises which he described as being an aching discomfort associated with the degree of activity and the vigorousness of his training. It was recommended that the Veteran be discharged as unfit for military duty by reason of physical disability and that the physical disability was neither incurred in, nor aggravated by, a period of active military service. Other records on file include a notation to the diagnosis of degenerative arthritis, right hip, secondary to old infectious process, which it existed prior to entry (EPTE). The Veteran's May 1968 discharge examination reflect that his lower extremities were abnormal due to external rotation of (right) hip restricted 50 percent and internal rotation restricted 75 percent when compare with (left side). Post-service medical records continue to show treatment for a right hip disability. In pertinent part, an August 1968 VA medical examination noted a history of old incision and drainage for suppuration of hip, and findings, to include X-rays, consistent with old Legg-Perthes disease of right hip with superimposed infection. An August 1983 private medical statement from a Dr. Proshek noted treating the Veteran with aspiration and injection of the right hip joint in 1964, and that the Veteran was hospitalized from March to May of that year for the right hip. Dr. Proshek also noted recent findings of the right hip from a July 1982 evaluation. Finally, the November 2013 VHA opinion concluded it is likely the Veteran's right hip disability existed prior to service. In support of this opinion, it was noted that the Veteran and treating orthopedic surgeon both reported right hip joint infection prior to enlistment; that an unspecified abnormality of the lower extremities was noted in the enlistment exam and there was no evidence of other lower extremity abnormalities or disabilities; and that March 1968 X-ray findings were consistent with chronic changes consistent with sequelae of right hip infection. In short, the Veteran has consistently reported a history of a right hip condition that pre-existed service, all of the competent medical evidence notes and/or is consistent with such a pre-existing condition, and the November 2013 VHA opinion states it is likely the right hip disability existed prior to service. Simply put, the record is undebatable that there was a pre-existing right hip disability. In other words, the evidence clearly and unmistakably reflects the Veteran had a right hip condition that pre-existed service. Therefore, the presumption of soundness is rebutted in the case. The Board must now address whether the pre-existing right hip condition was aggravated by the Veteran's active service. As already noted, clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306(b). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b). The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, will not be considered service connected unless the disease or injury is otherwise aggravated by service. 38 C.F.R. § 3.306(b)(1). Temporary flare-ups will not be considered to be an increase in severity. Hunt v. Derwinski, 1 Vet. App. 292, 295 (1991). The determination whether a preexisting disability was aggravated by service is a question of fact. Doran v. Brown, 6 Vet. App. 283, 286 (1994). The Board acknowledges that the November 2013 VHA opinion found that the Veteran's right hip pain and disability temporarily increased in response to increased physical demands from service and that it was not likely his hip arthritis and disability were permanently aggravated by service. The Board notes, however, that all of the evidence, including the VHA opinion itself, identifies the pre-service medical treatment of the right hip to be for an infection. Further, arthritis is the type of condition that generally requires specific medical testing, such as X-rays, to diagnose. There was no such evidence until the March 1968 in-service X-rays. Granted, the VHA opinion, as well as other medical records, reflect that the development of arthritis was the natural sequelae of the prior infection. Nevertheless, the fact remains he did not have competent medical evidence of arthritis until after he was on active duty. The finding of arthritis constitute a permanent worsening of the right hip as opposed to a temporary flare-up. The Board also notes that, even assuming for the sake of argument the lower extremity abnormality noted on the October 1967 enlistment examination was the right hip, the fact remains that the Veteran was found to be acceptable for military service at that time. It was only later that he experienced right hip symptomatology that it was recommended he be discharged as unfit for military duty. In view of the foregoing, the Board finds that the record reflects it is debatable whether the pre-existing right hip condition was aggravated by active service. As such, it does not rise to the standard necessary to rebut the presumption of aggravation. Stated another way, the evidence does not clearly and unmistakably reflect the Veteran's pre-existing right hip condition was not aggravated by service. Therefore, service connection is warranted for a right hip disorder. ORDER New and material evidence having been received to reopen the claim of entitlement to service connection for a right hip disorder, the claim is reopened. Service connection for a right hip disorder is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs