Citation Nr: 1803038	
Decision Date: 01/17/18    Archive Date: 01/29/18

DOCKET NO.  13-33 447	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a urinary condition.

2.  Entitlement to service connection for a urinary condition, other than prostate cancer, to include recurrent urinary tract infections and kidney stones.

3.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right hip condition.

4.  Entitlement to service connection for a right hip condition, to include as secondary to service-connected bilateral pes planus.

5.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for residuals of a groin injury.

6.  Entitlement to service connection for residuals of a groin injury.

7.  Entitlement to service connection for prostate cancer.
REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

R. Kipper, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1971 to August 1974.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas, which found that new and material evidence had not been received to reopen previously denied claims of entitlement to service connection for residuals of a groin injury, a urinary condition, and a right hip condition.  

In November 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge.  A transcript of the hearing has been prepared and associated with the claims file.

The Board notes that a claim of entitlement to service connection for a urinary condition was previously denied in an August 1996 rating decision; a claim of entitlement to service connection for a right hip condition was previously denied in a February 2007 rating decision; and a claim of entitlement to service connection for residuals of a groin injury was previously denied in a December 2008 Board decision.  The Board acknowledges that the RO reopened the Veteran's claims in the November 2013 Statement of the Case and adjudicated them on the merits.  Despite the determination reached by the RO, the Board must make its own determination as to whether new and material evidence has been received to reopen this claim.  See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996).  The issues have been recharacterized accordingly.

Regarding the characterization of the issues on appeal, the Board notes that the Veteran's July 2009/August 2009 claim was for entitlement to service connection for prostate cancer and entitlement to service connection for a urinary condition.  The RO treated this claim as a petition to reopen the previously denied claim of entitlement to service connection for a urinary condition and characterized the issue as entitlement to service connection for "a urinary condition, now claimed as prostate cancer."

When a prior claim for service connection has been denied, and a current claim contains a different diagnosis (even one producing the same symptoms in the same anatomic system), a new decision on the merits is required.  See Ephraim v. Brown, 82 F.3d 399, 402 (Fed. Cir. 1996); but see Ashford v. Brown, 10 Vet. App. 120, 123 (1997) (a new etiological theory does not constitute a new claim).  The Federal Circuit has held that a claim for one diagnosed disease or injury cannot be prejudiced by a prior claim for a different diagnosed disease or injury when it is an independent claim based on distinct factual bases.  The term "factual basis" is defined as the Veteran's underlying disease or injury, rather than as symptoms of that disease or injury.  Boggs v. Peake, 520 F.3d 1330, 1334-35 (Fed. Cir. 2008).  Claims based on distinctly diagnosed diseases or injuries must be considered as separate and distinct claims.  Id. at 1335.  The Court of Appeals for Veterans Claims (Court) has held that the focus of the Board's consideration as to whether a claim was one to reopen should be on whether the evidence truly amounted to a new claim based upon a different diagnosed disease or injury, or whether the evidence substantiated an element of a previously adjudicated matter.  Velez v. Shinseki, 23 Vet. App. 199 (2009).

In the present case, the Veteran continues to seek service connection for various residuals of an in-service groin injury, but he did not previously specify the manifestations of his "urinary condition."  The 1996 claim consisted of a vague assertion that service connection was warranted for a "urinary condition," whereas, in the instant claim, the Veteran has made very specific allegations regarding an in-service injury to the prostate gland.  While the same anatomical region (i.e., the genitourinary system) is affected, the Board finds that the currently claimed disease of prostate cancer is sufficiently distinct from the past disease adjudicated by the RO as a urinary condition so as not to constitute a mere new theory of causation for the same disease that was the subject of a previously denied claim.  Thus, the Board finds that the issue of entitlement to service connection for prostate cancer is a new claim, separate and distinct from the Veteran's April 1996 claim for a urinary condition.  Accordingly, under Boggs, Ephraim, and Velez, new and material evidence is not required regarding the Veteran's claim of entitlement to service connection for prostate cancer.

The issues of entitlement to service connection for a urinary condition, a right hip condition, a groin condition, and prostate cancer are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  In an August 1996 rating decision, the RO denied entitlement to service connection for a urinary condition.  No timely appeal was received by VA, nor was any new and material evidence submitted within the applicable appeal period.

2.  Additional evidence received since the RO's August 1996 rating decision is new to the record and relates to an unestablished fact necessary to substantiate the merits of the claim of entitlement to service connection for a urinary condition and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a urinary condition.

3.  In a February 2007 rating decision, the RO denied entitlement to service connection for a right hip condition.  The Veteran filed a timely notice of disagreement and was issued a Statement of the Case; however, he did not perfect an appeal of that denial.

4.  Additional evidence received since the RO's February 2007 rating decision is new to the record and relates to an unestablished fact necessary to substantiate the merits of the claim of entitlement to service connection for a right hip condition and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a right hip condition.

5.  In a December 2008 decision, the Board denied entitlement to service connection for residuals of a groin injury.

6.  Additional evidence received since the Board's December 2008 decision is new to the record and relates to an unestablished fact necessary to substantiate the merits of the claim of entitlement to service connection for residuals of a groin injury and raises a reasonable possibility of substantiating the claim of entitlement to service connection for residuals of a groin injury.


CONCLUSIONS OF LAW

1.  The August 1996 rating decision is final as to the claim of entitlement to service connection for a urinary condition.  38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.1103 (2017).

2.  New and material evidence has been presented to reopen the claim of entitlement to service connection for a urinary condition.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).

3.  The February 2007 rating decision is final as to the claim of entitlement to service connection for a right hip condition.  38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.1103 (2017).

4.  New and material evidence has been presented to reopen the claim of entitlement to service connection for a right hip condition.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).

5.  The December 2008 Board decision is final as to the claim of entitlement to service connection for residuals of a groin injury.  38 U.S.C. § 7104 (2012); 38 C.F.R. §§ 3.156, 20.1100 (2017).

6.  New and material evidence has been presented to reopen the claim of entitlement to service connection for residuals of a groin injury.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).

As the Board's decision to reopen the claim of entitlement to service connection for a urinary condition, a right hip condition, and residuals of a groin injury is completely favorable, no further action with respect to those issues is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations.  See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49747(1992).



II. New and Material Evidence

In general, unappealed RO rating decisions and unappealed Board decisions are final.  See 38 U.S.C. § 7104(b), 7105(c); 38 C.F.R. § 20.1103.  

If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim.  38 U.S.C. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991).  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).  

VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened.  See Hickson v. West, 12 Vet. App. 247, 251 (1999).  The credibility of the evidence is presumed for the purpose of reopening, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion.  Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992).  The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low."  Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement.  Id. at 118.  With respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the service connection claim.  In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a Veteran's injury or disability, even where it would not be enough to convince the Board to grant a claim.

A. Urinary Condition

The Veteran initially filed a claim of entitlement to service connection for a urinary condition in April 1996.  In an August 1996 rating decision, the RO denied the claim on the basis that the evidence failed to show a currently diagnosed urinary condition and that there was no evidence of an in-service event.  The Veteran was notified of the decision and his appellate rights by a letter dated later that month.  The Veteran did not appeal that decision, nor did he submit any new and material evidence within a year of that rating decision.  The August 1996 rating decision therefore became final.  See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103.

Relevant evidence of record at the time of the RO's August 1996 rating decision included the Veteran's service treatment records and VA treatment records.  Based on this evidence, the RO concluded that the Veteran did not have a currently diagnosed urinary condition that was incurred in or caused by service and denied the Veteran's claim for service connection.

In July 2009, the Veteran requested that his claim of entitlement to service connection for a urinary condition be reopened.  Relevant additional evidence received since the RO's August 1996 rating decision includes additional VA and private treatment records and VA examination reports showing diagnoses and treatment for several urinary conditions, including kidney stones and a right kidney lesion, as well as the Veteran's testimony regarding recurrent urinary tract infections.  

This evidence was not previously on file at the time of the RO's August 1996 decision; thus, it is new.  Furthermore, this evidence is material because it bears directly on the missing element of a current disability, which is one of the reasons that the claim was previously denied.  Specifically, the claim was initially denied because there was no evidence that the Veteran currently had a urinary condition.  The newly received evidence consists of treatment records and VA examination reports showing that the Veteran has been diagnosed with several urinary conditions.  Thus, the new evidence relates to an unestablished fact necessary to substantiate a claim of entitlement to service connection for a urinary condition, and it raises a reasonable possibility of substantiating the claim, particularly when considering the low threshold for reopening a claim set forth in Shade.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).  Accordingly, the claim of entitlement to service connection for a urinary condition is reopened.  See 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a).  The underlying claim is addressed further in the Remand section below.

B. Right Hip Condition

The Veteran initially filed a claim of entitlement to service connection for a right hip condition in October 2006.  In a February 2007 rating decision, the RO denied the claim on the basis that the evidence failed to show that a right hip condition was incurred in service.  The Veteran was notified of the decision and his appellate rights by a letter dated in March 2007.  The Veteran filed a timely notice of disagreement with the decision and was issued a statement of the case in May 2007.  However, the Veteran did not timely perfect his appeal.  Therefore, the February 2007 rating decision became final, and new and material evidence is required to reopen the claim.  See 38 U.S.C. § 7105(c); 38 C.F.R. § § 3.156(a); 20.1103; Shade, 24 Vet. App. 110.

Relevant evidence of record at the time of the RO's February 2007 rating decision included the Veteran's service treatment records and VA and private treatment records.  Based on this evidence, the RO concluded that the Veteran's current right hip condition was not related to service and denied the Veteran's claim for service connection.  

In August 2009, the Veteran requested that his claim of entitlement to service connection for a right hip condition be reopened.  Relevant additional evidence received since the RO's February 2007 rating decision includes additional VA treatment records, VA examination reports, and the Veteran's assertions that his right hip condition is secondary to his service-connected bilateral pes planus.  Specifically, the Veteran contends that his foot condition alters the way he walks which has produced symptoms in his right hip.  The Veteran is competent to report on symptoms, and he is presumed credible for purposes of determining whether new and material evidence has been presented.  

This evidence was not previously on file at the time of the RO's February 2007 decision; thus, it is new.  Furthermore, this evidence is material because it raises an alternative theory of entitlement, i.e., that the Veteran's right hip condition is caused or aggravated by his bilateral pes planus.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).  Accordingly, the claim of entitlement to service connection for a right hip condition is reopened.  See 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a).  The underlying claim is addressed further in the Remand section below.

C. Groin Injury Residuals

Historically, the Veteran's claim of entitlement to service connection for residuals of a groin injury was initially denied in a July 1979 rating decision on the basis that the evidence failed to show a currently diagnosed groin condition.  The Veteran filed a timely notice of disagreement with the decision and was issued a statement of the case in July 1979.  In August 1979, the Veteran filed a timely substantive appeal of the issue; however, he subsequently withdrew the issue on the record at an October 1979 regional office hearing.  Thereafter, in June 2005 rating decision, the RO denied the Veteran's January 2005 petition to reopen his claim of entitlement to service connection for residuals of a groin injury.  The Veteran appealed the June 2005 rating decision to the Board.  In December 2008, the Board reopened the Veteran's claim and denied it on the merits.  The December 2008 Board decision, which was not appealed to the Court or subjected to a Motion for Reconsideration, is final.  38 U.S.C. § 7104 (b); 38 C.F.R. § 20.1100.

Relevant evidence of record at the time of the Board's December 2008 decision included the Veteran's service treatment records and VA and private treatment records.  Based on this evidence, the Board concluded that the Veteran's did not have a groin condition as a result of service and denied the Veteran's claim for service connection.  

In August 2009, the Veteran requested that his claim of entitlement to service connection for groin injury residuals be reopened.  Relevant additional evidence received since the Board's December 2008 decision includes additional VA treatment records, VA examination reports, and the Veteran's assertions that his groin condition is secondary to his service-connected bilateral pes planus.  Specifically, the Veteran contends that his foot condition alters the way he walks which has produced symptoms in his groin.  The Veteran is competent to report on symptoms, and he is presumed credible for purposes of determining whether new and material evidence has been presented.  

This evidence was not previously on file at the time of the Board's December 2008 decision; thus, it is new.  Furthermore, this evidence is material because it raises an alternative theory of entitlement.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).  Accordingly, the claim of entitlement to service connection for groin injury residuals is reopened.  See 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a).  The underlying claim is addressed further in the Remand section below.


ORDER

As new and material evidence has been received, the Veteran's claim of entitlement to service connection for a urinary condition is reopened; the appeal is granted to this extent only. 

As new and material evidence has been received, the Veteran's claim of entitlement to service connection for a right hip condition is reopened; the appeal is granted to this extent only. 

As new and material evidence has been received, the Veteran's claim of entitlement to service connection for groin injury residuals is reopened; the appeal is granted to this extent only. 


REMAND

After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the remaining issues on appeal.

Outstanding Records

The record indicates that there may be Social Security Administration (SSA) records not associated with the claims file.  In this regard, the claims file contains a March 2010 SSA inquiry indicating that the Veteran had a denied disability claim and a July 2010 SSA inquiry showing that the Veteran was in receipt of SSA disability benefits.  Additionally, a September 2010 VA treatment record reflects that the Veteran reported being on SSI.  There is no indication in the claims file that SSA records have been requested or obtained. 

When VA has actual notice of the existence of relevant SSA records, the duty to assist includes requesting those records from the SSA.  See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (finding that VA must seek to obtain relevant records under 38 U.S.C. § 5103A when "there exists a reasonable possibility that the records could help the veteran substantiate his claim for benefits").  This duty extends to obtaining a copy of the SSA decision awarding or denying benefits.  Murincsak v. Derwinski, 2 Vet. App. 363, 371 (1992); Baker v. West, 11 Vet. App. 163, 169 (1998); Hayes v. Brown, 9 Vet. App. 67, 73-74 (1996).  Because SSA records are potentially relevant to the Board's determination in this case, VA must attempt to obtain and consider those records.  Therefore, on remand, the Veteran's complete SSA records should be obtained.

Additionally, as the record reflects that the Veteran receives ongoing VA and private treatment, updated treatment records should be obtained on remand. 




Service Connection

The Veteran contends that service connection is warranted for a urinary condition, prostate cancer, a right hip condition, and a groin condition because they are all residuals of an in-service groin injury.  See November 2013 Statement in Support of Claim; August 2010 Statement in Support of Claim; August 2009 Statement in Support of Claim.  The Veteran also asserts that a right hip condition and a groin condition are secondary to his service connected bilateral pes planus, to include gait changes as a result of bilateral pes planus.  See April 2015 Statement in Support of Claim; February 2011 Notice of Disagreement.

A May 1974 service treatment record shows that the Veteran reported right groin pain after lifting heavy equipment.  He also reported right testicular pain and tenderness.  He was diagnosed with epididymitis and given a two week profile for "groin injury."  In June 1974, the Veteran reported groin pain and a pulling sensation in the right testes since pulling a locker two weeks previously.  The impression was "pain from trauma," and his profile was extended for a week.  The Veteran was discharged from service in August 1974.

Post-service VA treatment records show that the Veteran reported hip and groin pain in 1979, and he was diagnosed with non-specific adenitis of the left inguinal lymph nodes after a June 1979 VA examination.  

The Veteran was afforded a VA genitourinary examination in January 2006.  The Veteran reported that his right groin area and right side were thrown against a radiator in May 1974 and that he has had "off and on" testicular pain since that time.  The examiner diagnosed the Veteran with history of traumatic right groin injury and recurrent right testicular pain.  The examiner opined that the Veteran's "epididymitis is not caused as a result of his traumatic groin injury."  There was no rationale given for that opinion.

More recent VA and private treatment records show that the Veteran has been diagnosed with several genitourinary conditions, including kidney stones, a right kidney lesion, and prostate cancer.  Additionally, during the November 2016 Board hearing, the Veteran testified that he experienced recurrent urinary tract infections.  

In light of the service treatment records showing treatment for groin injury and recent treatment records showing genitourinary diagnoses, as well as the Veteran's statements regarding recurrent symptoms since service, the Veteran should be afforded a new VA examination to determine the nature and etiology of any currently diagnosed genitourinary conditions.  McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence...is essential for a proper appellate decision").

Regarding a right hip condition and/or a musculoskeletal groin condition, the Veteran was afforded a VA hip and thigh examination in June 2013.  The Veteran was diagnosed with degenerative arthritis of the hips.  The examiner opined that the Veteran's hip arthritis was less likely as not related to his flat feet because the "Veteran does not have an antalgic gait."  The Veteran was afforded another VA hip and thigh examination in October 2014 in connection for a claim of entitlement to service connection for a left hip condition.  The Veteran reported that both hips started bothering him in the 1970s during PT training activities.  He also indicated that he "was thrown across room following explosion," and that he has had progressive hip pain over the years.  The examiner opined that it was less likely as not that the Veteran's hip condition was caused by his service-connected foot condition because "[h]is foot condition is not of a degree to cause additional stresses on [the] hips."  

To date, no opinion regarding direct service-connection has been proffered with regard to a right hip condition and/or a musculoskeletal groin condition.  In light of the Veteran's statements regarding injuries and symptoms in service and since service, as well as the current right hip diagnoses, the Veteran should be afforded a new VA examination to determine the nature and etiology of any currently diagnosed right hip and/or musculoskeletal groin conditions.  McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006).  Additionally, neither VA hip examiner provided an opinion regarding the aggravation aspect of secondary service connection.  The Court has made it clear than an opinion will be considered inadequate unless it addresses both the "caused by" and "aggravation" avenues for secondary service-connection.  El-Amin v. Shinseki, 26 Vet. App. 136 (2013).  Accordingly, an opinion should also be obtained regarding whether right hip condition and/or a musculoskeletal groin condition was at least as likely as not caused by or aggravated by the Veteran's service-connected bilateral foot disability.  

Accordingly, the case is REMANDED for the following action:

1. Obtain and associate with the Veteran's claims file all outstanding VA treatment records dated from August 2014 to the present.  The Veteran should also be afforded the opportunity to identify and/or submit any outstanding private records pertinent to his appeal.

2. Request from SSA complete copies of any determination on a claim for disability benefits from that agency, together with the medical records that served as the basis for any such determination.  All attempts to fulfill this development should be documented in the claims file.  If the search for these records is negative, that should be documented in the claims file, and the Veteran must be informed of this in writing in accordance with 38 C.F.R. § 3.159(e).

3. After all available records have been associated with the claims file, afford the Veteran an appropriate VA examination to determine the nature, onset, and likely etiology of any genitourinary conditions.  

The claims file and a copy of this REMAND must be made available to the examiner and the examiner shall indicate in the report that the claims file was reviewed.  Any tests or studies deemed necessary should be conducted, and the results should be reported in detail.

After examining the Veteran and reviewing the claims file, the examiner should render an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that any currently diagnosed genitourinary condition, to include kidney stones, kidney lesion, prostate cancer, and urinary tract infections, had its onset in service or is related to any in-service disease, event, or injury, to include the in-service groin injury.  In so opining, the examiner should address the likelihood that in-service injuries such as the ones described by the Veteran could have caused the Veteran's currently genitourinary conditions.

The examiner's report must reflect consideration of the Veteran's entire documented medical history and assertions and all lay evidence.  If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered.  The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions.

4. After all available records have been associated with the claims file, afford the Veteran an appropriate VA examination to determine the nature, onset, and likely etiology of any right hip and/or musculoskeletal groin conditions.  

The claims file and a copy of this REMAND must be made available to the examiner and the examiner shall indicate in the report that the claims file was reviewed.  Any tests or studies deemed necessary should be conducted, and the results should be reported in detail.

After examining the Veteran and reviewing the claims file, the examiner should identify all right hip and musculoskeletal groin conditions diagnosed during the pendency of this appeal (i.e., since August 2009).  

Then, for EACH such condition, the examiner should render an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that it had its onset in service or is related to any in-service disease, event, or injury, to include the in-service groin injury.  In so opining, the examiner should address the likelihood that in-service injuries such as the ones described by the Veteran could have caused the Veteran's currently diagnosed right hip and musculoskeletal groin conditions.

Additionally, in light of the Veteran's contention that gait alterations due to his service-connected bilateral foot disability led to his current right hip and musculoskeletal groin conditions, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that any currently diagnosed right hip and/or musculoskeletal groin condition, was (1) caused by OR (2) aggravated by the Veteran's bilateral pes planus, to include as due to any gait changes caused by the bilateral pes planus disability.  If such aggravation is found, the examiner should determine: (a) the baseline manifestations of the Veteran's right hip and/or musculoskeletal groin condition absent the effect of aggravation, and (b) the increased manifestations that are proximately due to the bilateral foot disability.

The examiner's report must reflect consideration of the Veteran's entire documented medical history and assertions and all lay evidence, to include the Veteran's contentions that gait alterations due to his service-connected bilateral foot disability led to his current right hip and/or musculoskeletal groin condition.  If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered.  The examiner must provide a thorough rationale for each opinion given.

5. After the above development has been completed, review the file and ensure that all development sought in this REMAND is completed.  Arrange for any further development indicated by the results of the development requested above, and then re-adjudicate the claims.  If benefits sought on appeal remain denied, supply the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response.  Thereafter, the case should be returned to the Board for further appellate review, if otherwise in order.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (West 2014).



______________________________________________
TANYA SMITH
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs