Citation Nr: 1423915 Decision Date: 05/28/14 Archive Date: 06/06/14 DOCKET NO. 10-14 299 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a bilateral hip disability. 2. Entitlement to service connection for a bilateral hip disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD A.M.Clark, Counsel INTRODUCTION The Veteran served on active duty from November 1971 to May 1996. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified before the undersigned in March 2014. A copy of the transcript is of record. The Board has not only reviewed the Veteran's physical claims file, but also the Veteran's file on the 'Virtual VA' system to insure a total review of the evidence. FINDINGS OF FACT 1. In a rating decision issued in February 2006, the RO denied service connection for a bilateral hip disability essentially on the finding that the medical evidence did not demonstrate a bilateral hip disability was incurred in or aggravated by service; the Veteran did not appeal the February 2006 decision within one year of being notified. 2. The evidence received since the February 2006 RO decision is new and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a bilateral hip disability. 3. The evidence is at least in equipoise as to whether the Veteran's diagnosed bilateral hip disability had its onset in service or is otherwise etiologically related to his active service. CONCLUSIONS OF LAW 1. The February 2006 rating decision that denied service connection for a bilateral hip disability is final. 38 U.S.C.A. § 7105 (West 2002), 38 C.F.R. §§ 3.160(d), 20.201, 20.302, 20.1103 (2013). 2. New and material evidence has been received since the February 2006 denial of service connection for a bilateral hip disability, and that claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 3. A bilateral hip disability was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence Service connection for a bilateral hip disability was denied in a February 2006 rating decision on the basis that the evidence of record had not established that the Veteran's bilateral hip disability had been caused by or incurred in service. Reference was made to the lack of documentation of an in-service disease or injury. The Veteran did not appeal this decision. Additionally, no evidence was received within one year of the RO decision and no new service records have been submitted. Therefore, the prior decision is final. 38 C.F.R. § 3.156(b) and 3.156 (c) (2013). The evidence received since the February 2006 rating decision includes two opinions from the Veteran's private physician relating his current bilateral hip disability to his service. These opinions are both new and material and raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). The claim is thereby reopened. II. Service Connection for Bilateral Hip Disability Turning to a consideration of the claim on its merits, under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Generally, the evidence 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, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Finally, 38 U.S.C.A. § 1154(a) requires that VA give 'due consideration' to 'all pertinent medical and lay evidence' in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, '[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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.' Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In-service treatment records do not note treatment for the Veteran's bilateral hips. Post-service records reflect that the Veteran has been diagnosed with bilateral osteoarthritis of the hips. He underwent a total hip arthroplasty of the right hip in November 2003 and a total left hip arthroplasty in November 2004. The record also includes opinions from Dr. C. H. (April 2010 and March 2011) who states that it is as likely as not that the Veteran's bilateral hip disability, which ultimately led the Veteran to undergo bilateral total hip replacements, is a result of his service. The record also includes a negative VA examination/opinion. The Veteran served on active duty from November 1971 to May 1996, a significant amount of time that must be considered by VA. In this regard, both medical opinions have been reviewed in detailed. In this regard, the Board finds that no one opinion is any more probative than the other. The opinions are in relative equipoise. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990) (held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail.). Therefore, resolving all doubt in favor to the Veteran, the Board finds that the evidence supports a nexus between the Veteran's current bilateral hip disability and his military service. As all elements of service connection have been satisfied, service connection for a bilateral hip disability is granted. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(d) (2013). ORDER The claim for service connection for a bilateral hip disability is reopened. Entitlement to service connection for a bilateral hip disability is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs