Citation Nr: 1417499 Decision Date: 04/18/14 Archive Date: 05/02/14 DOCKET NO. 12-08 293 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for a bilateral hip 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 Appellant ATTORNEY FOR THE BOARD Kimberly A. Mitchell, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1998 to July 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In October 2013, the Veteran testified before the undersigned Veterans Law Judge at a video conference hearing. A transcript of that hearing is of record. FINDINGS OF FACT 1. The Veteran did not appeal a March 2006 rating decision that denied service connection for a bilateral hip disability. 2. Evidence received since the March 2006 rating decision denial of service connection for a bilateral hip disability is new and material. 3. The medical evidence of record shows that the Veteran has a diagnosis of a left hip disability which is related to service. CONCLUSIONS OF LAW 1. The March 2006 rating decision which denied service connection for a bilateral hip disability is final. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. § 3.104 (2013). 2. New and material evidence to reopen a claim of service connection for a bilateral hip disability has been received. 38 U.S.C.A. §§1110, 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2013). 3. The criteria for service connection for a bilateral hip disability have been met. 38 U.S.C.A. §§ 1101, 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 4.71a, Diagnostic Code 5252 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence The Veteran initially submitted a claim of entitlement to service connection for bilateral hip popping in September 2005. A March 2006 rating decision denied service connection for hip popping on the basis that it was not a disability. The Veteran did not timely appeal the March 2006 rating decision, and no new evidence was received within one year. Therefore that decision became final. 38 C.F.R. § 20.1103 (2013). Service connection for a bilateral hip disability may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claims and adjudicate the claims de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no new and material evidence has been offered, that is where the analysis must end. Butler v. Brown, 9 Vet. App. 167 (1996). Evidence is considered new if it was not of record at the time of the last final disallowance of the claim. 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. Finally, 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) (2013). In determining whether new evidence is material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). Evidence received since the final prior denial consists of an October 2013 statement from a private physician, which provides a diagnosis of iliopsoas syndrome. That statement is new in that it was not of record at the time of the previous denial. It is material in that it suggests the presence of a current bilateral hip disability, which was not established at the time of the prior final denial. Therefore, the new evidence is material and the claim is reopened. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013). To establish service connection for a disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). An October 2001 in-service medical note shows that the Veteran complained of left hip popping that had persisted for several months and had increased in severity. He reported his hip popped every time he raised his left knee above the hip. He was diagnosed with ileotibial band syndrome. A March 2005 treatment note shows that the Veteran reported bilateral hip popping that was intermittent, occurred when exercising, and had increased in frequency. X-rays were unremarkable. After separation from service, a December 2005 VA general medical examination report found that, on physical examination, the Veteran had bilateral flexion to 120 degrees, internal rotation of 20 degrees, external rotation of 35 degrees, adduction of 15 degrees, and abduction of 35 degrees. The Veteran reported that he felt popping with most range of motion maneuvers. That was not audible. There was a noticeable decrease in flexibility of his hip girdle muscles. November 2005 x-rays of the right hip were negative. The left hip showed minimal left hip narrowing. No diagnosis was provided. The examiner opined that it was less likely than not that the Veteran's hip disability was related to service. An August 2011 VA examination report shows the Veteran reported his hips started popping in service when he did sit-ups. He stated it wasn't painful, but there was some discomfort. The popping was also noticeable with extreme flexion of the hip. The Veteran stated that hip popping had continued since service. He stated he did not experience pain, limitation, or flare-ups. He reported problems with bending and squatting, particularly on the left side, when he flexed to a 90 degree angle. On physical examination of the right hip, there was a palpable pop in the anterior right hip joint region when the hip flexed to 90 degrees and then extended fully. Range of motion testing found flexion to 125 degrees, extension to 30 degrees, adduction to 25 degrees, abduction to 45 degrees, external rotation to 60 degrees, and internal rotation to 40 degrees. There was no evidence of pain, painful motion, or abnormal weightbearing. Examination of the left hip revealed a distinct palpable and audible pop when fully extended and flexed. Range of motion testing found flexion to 125 degrees, extension to 30 degrees, adduction to 25 degrees, abduction to 45 degrees, external rotation to 60 degrees, and internal rotation to 40 degrees. There was no evidence of pain, painful motion, or abnormal weight bearing. X-rays of the right hip found no significant joint space narrowing with minimal sclerosis in the superior lateral margin of the acetabulum. No significant change was noted from the 2005 x-ray. X-rays of the left hip revealed mild bony prominent/irregularity along the superolateral femoral head/neck junction, otherwise negative. The examiner stated there was no diagnosis because although the Veteran had symptoms, there was no clinical objective evidence of diagnosable disease. The examiner further stated that no opinion was provided because hip popping was a symptom and not a diagnosis. In March 2012, a private treatment record from Allina Hospitals and Clinics shows that the Veteran complained of bilateral hip pain. He was directed to take anti-inflammatories and to ice for 20 minutes a couple of times daily. The diagnosis was snapping hip syndrome, iliopsoas. At an October 2013 hearing, the Veteran testified that his hip disability was a result of physical fitness and repetitive motion during service. He stated that he was prescribed anti-inflammatories and referred to physical therapy which didn't resolve the issue. He reported that he received treatment for his hip disability from private physicians and those records were in the claims file. The Veteran also reported that his hip disability affected his employment. He worked for an energy service company and due to his disability he had moved out of the field and into an office position. Additionally, his disability prevented him from doing a lot of physical activity, to include squatting and reaching down. He stated that when his disability began it was more frequent with use. Currently, his hips popped on any bending motion. He stated it worsened with range of motion changes, such as going up and down stairs. Additionally, the Veteran's hips fall asleep with prolonged sitting. The Veteran reported that standing was more comfortable than sitting because when sitting his hips were at a 90 degree angle. When he rose to a standing position, his hips caught and caused a jerking sensation. In October 2013, the Veteran submitted a statement from Dr. Sedo at the Center for Family Medicine. Dr. Sedo provided a statement that the Veteran had a diagnosis of bilateral hip snapping pain or iliopsoas syndrome. The Board finds that the medical evidence of record shows that the Veteran has a bilateral hip disability, diagnosed as iliopsoas syndrome. The service medical records show that the Veteran sought treatment at the onset of the disability, and subsequent in-service treatment is documented. He has consistently reported symptoms and treatment associated with his disability since service. Since separation from service, more than 10 years ago, the Veteran's disability has been characterized by chronic or recurrent symptoms. His disability has gradually worsened, causing pain and limitation of motion. Furthermore, the Board finds the diagnosis of Dr. Sedo to be equally probative than the negative VA opinions which found no diagnosis was warranted for the hip pain and popping complaints. Dr. Sedo provided a diagnosis for the Veteran's disability, whereas the VA examiner's did not provide opinions because there was no diagnosis. Resolving reasonable doubt in favor of the Veteran, the Board finds that a diagnosis of iliopsoas syndrome is warranted. Accordingly, the Board finds that the Veteran's current bilateral hip disability was incurred during active service. Additionally, the evidence of record shows that since service, the Veteran's disability has been characterized by chronic or recurrent symptoms. Therefore, service connection for a bilateral hip disability is granted. Reasonable doubt has been resolved in favor of the Veteran in making this decision. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence has been submitted to reopen the claim of entitlement to service connection for a bilateral hip disability. Service connection for iliopsoas syndrome is granted. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs