Citation Nr: 1804778 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 12-32 604 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem. North Carolina THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for a left hip disability. 2. Entitlement to service connection for a left hip disability to include as a secondary to a service connected back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S.Wainaina, Associate Counsel INTRODUCTION The Veteran had active service in the United States Marine Corps from May 1980 to August 1986. This matter comes before on appeal before the Board of Veterans' Appeals (Board) from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office in Denver, Colorado. Jurisdiction of the appeal currently lies with the RO in Winston-Salem,. North Carolina. The Veteran testified at a hearing before the undersigned Veterans Law Judge in July 2017. A copy of the transcript has been associated with the claims file. The appeal on the matter of service connection for a hip condition is reopened on basis of new and material evidence. The reopened claim is remanded to the Agency of Original Jurisdiction. VA will notify the appellant if additional action is required on his part. FINDINGS OF FACT 1. In a July 2007 unappealed rating decision, the RO denied service connection for a left hip disability. 2. Evidence submitted subsequent to the July 2007 decision relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim of service connection for a left hip disorder. CONCLUSIONS OF LAW 1. The July 2007 rating decision denying the claim for service connection for a left hip disability is final based on the evidence then of record. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2017). 2. New and material evidence since the July 2007 decision has been submitted to allow the reopening of this claim. 38 U.S.C.A. § 5108 (West 2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Reopening a Claim on the Basis of New and Material Evidence The Board has the jurisdictional responsibility to determine whether new and material evidence has been received to reopen a claim, irrespective of what the RO determined. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c)). If the Board finds that no such evidence has been offered, the analysis must end, and what the RO may have determined in this regard is irrelevant. Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the veteran's previously and finally denied claims). If, however, new and material evidence has been submitted since the prior final denial of the claim, then it must be reopened and the former disposition reconsidered. 38 U.S.C. § 5108 . In considering whether a claim should be reopened, the Board performs a two-step analysis. The first step is to determine whether the evidence secured since the last final disallowance of the claim is "new and material." See 38 U.S.C. § 5108. According to VA regulation, "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 cannot be cumulative or 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). Second, if VA determines the evidence is new and material, it may then proceed to evaluate the merits of the claim on the basis of all the evidence of record, but only after ensuring the duty to assist has been fulfilled. See Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc) (discussing the analysis set forth in Elkins v. West, 12 Vet. App. 209 (1999)), overruled on other grounds sub nom. Winters v. Gober, 219 F.3d 1375, 1378 (Fed. Cir. 2000). This second step becomes applicable only when the preceding step is satisfied. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 325 (1999). "New evidence" means evidence not previously submitted to agency decision makers, and "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. 38 C.F.R. § 3.156(a). In order to qualify as new and material evidence, the new evidence must neither be 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. Id.; see also Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (observing that the requirement of raising a reasonable possibility of substantiating the claim is a "low threshold"). In determining whether evidence is new and material, the credibility of the evidence is generally to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). This presumption only applies when determining whether the evidence is new and material. It does not apply when determining the credibility and weight of the evidence as it relates to the merits of the reopened claim. Essentially, the presumption of credibility "dissolves" once the claim is reopened and decided on the merits. See also Duran v. Brown, 7 Vet. App. 216 (1994) (indicating "Justus does not require the Secretary [of VA] to consider the patently incredible to be credible" or assertions beyond the competence of the person making them). In the present case, a prior rating decision in June 1987 denied service connection for left hip disability and the Veteran did not appeal that decision. The Veteran petitioned to reopen the claim in January 2007. In a July 2007 rating decision the RO denied reopening of the claim. The Veteran did not appeal his decision and it became final. The Veteran filed a petition to reopen the claim in August 2011. In the November 2011 rating decision, the RO denied reopening of the claim. However in a September 2016 Supplemental Statement of the Case (SSOC), the RO found new and material evidence had been received and then denied the claim on its merits. Although the RO did decide to reopen the claim as noted above, the Board must make an independent determination, as to whether the claim can be reopened. Evidence of record prior to the July 2007 rating decision includes service treatment records, post service treatment records and the Veteran's assertions. Most pertinent to the claim is a service treatment record dated in July 1986 which notes that the Veteran had pain radiating down the left buttock, to the left thigh and left knee. Prior to the July 2007 rating decision, a diagnosis of left hip disability was not shown. Evidence of the record subsequent to the July 2007 rating decision includes a VA treatment record dated March 2016 where left hip pain was diagnosed. This evidence is not cumulative of the evidence already in the record. Also this evidence relates to an unestablished fact necessary to substantiate the claim (i.e. the presence of a current hip disability), and raises a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Accordingly new and material evidence has been received and the claim has been reopened. ORDER The petition to reopen the claim of service connection for a left hip disability, to include as secondary to a service-connected disability, is granted. To this extent, the appeal is allowed. REMAND The claim has been reopened and additional development is required. The Board is of the opinion that the Veteran should be afforded a VA examination. In this regard the STRs show an injury during service with pain radiating into the areas near the left hip (i.e. down the left buttock to the lateral thigh and left knee. Also the March 2016 treatment record shows that the Veteran was diagnosed with left hip pain. In addition, the Veteran has asserted continuity of left hip symptomatology since service. However, the evidence of the record is insufficient to decide the claim at this point. Consequently, a VA examination is necessary prior to final adjudication of this claim. 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA and non-VA treatment records. 2. Following completion of the above, the Veteran should be scheduled for a VA medical examination from an examiner of appropriate medical expertise to determine the etiology of his left hip pain/disorder. The claims file should be made available to the examiner for review of the case. The examiner is asked to review pertinent documents in the claims file and note that this case review took place. The examiner should specifically state whether there is a diagnosis of a left hip disorder, separate and apart from the service-connected low back disability, peripheral neuropathy of the left femoral nerve and left sciatic nerve radiculopathy. If there is a separate left hip diagnosis, the examiner should answer the following: (a.) The examiner is asked to provide an opinion as to whether it is at least likely as not (50 percent or greater probability) that the Veteran's left hip disability is of service onset or otherwise related to service. (b.) The examiner is asked to provide an opinion as to whether it is at least as likely than not (50 percent or greater probability) that the Veteran's left hip disability was caused by his service-connected thoracolumbar spine disability, left femoral nerve peripheral neuropathy and/or left sciatic nerve radiculopathy. (c.) The examiner is asked to provide an opinion as to whether it is at least likely than not (50 percent or greater probability) that Veteran's left hip disability has been aggravated (i.e. permanently worsened beyond the natural progress of the disorder) by his service-connected thoracolumbar spine disability, left femoral nerve peripheral neuropathy and/or left sciatic nerve radiculopathy. If aggravation is found, the examiner should address the following medical issues: (i.) the baseline manifestations of the Veteran's left hip disability found prior to the aggravation; and (ii.) the manifestations which, in the examiner's opinion, are proximately due to the aggravation. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence is so evenly divided that in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 3. Then, readjudicate the claim on appeal. If the matter is not resolved to the Veteran's satisfaction, furnish the Veteran and his representative a SSOC and provide an opportunity to respond before the case is returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter 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 (2012). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs