Citation Nr: 18146980 Decision Date: 11/05/18 Archive Date: 11/02/18 DOCKET NO. 16-33 884 DATE: November 5, 2018 ORDER New and material evidence having been received, reopening of the claim of entitlement to service connection for a left hip disability is granted. New and material evidence having been received, reopening of the claim of entitlement to service connection for a right hip disability is granted. REMANDED Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a right hip disability is remanded. FINDINGS OF FACT 1. In an unappealed March 2004 rating decision, the Regional Office (RO) denied entitlement to service connection for a right hip condition and a left hip condition. 2. The evidence associated with the record subsequent to the March 2004 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claims and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a left hip disability and a right hip disability. CONCLUSIONS OF LAW 1. New and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a left hip disability. 38 U.S.C. §§ 5108, 7104, 7105 (2012); 38 C.F.R. § 3.156 (2018). 2. New and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a left right disability. 38 U.S.C. §§ 5108, 7104, 7105 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active naval service from August 1981 to September 2002. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines. Claims to Reopen – Right and Left Hip Disabilities In a March 2004 rating decision, the Veteran was denied entitlement to service connection for right and left hip conditions based on a finding that there was no evidence of current diagnoses. The Veteran attempted to appeal that decision, however in June 2005 correspondence, the Veteran withdrew his notice of disagreement to the March 2004 rating decision. Subsequently, the Veteran attempted to submit an additional notice of disagreement. However, in an August 2008 Board decision, the Board found that the Veteran did not timely appeal the March 2004 rating decision with his second notice of disagreement. Thus, the March 2004 rating decision is final. The pertinent evidence received since the March 2004 rating decision includes medical evidence indicating that the Veteran has current diagnoses of right and left hip disabilities that may be etiologically related to his active service. That evidence is new and material. In this regard, it has not been previously considered by VA and it raises a reasonable possibility of substantiating the claims of entitlement to service connection for right and left hip disabilities. Accordingly, reopening of the claims of entitlement to service connection for right and left hip disabilities is warranted. REASONS FOR REMAND Service Connection Claims – Right and Left Hip Disabilities The Board notes that the Veteran has consistently asserted that he has right and left hip disabilities as a result of his active service. Specifically, he asserts that physical exertion during active service aggravated his pre-existing right and left hip disabilities. A review of the record shows the Veteran is treated for his bilateral hip disabilities at VA medical centers. An April 2009 VA treatment record shows the treatment provider indicated that the degenerative changes involved in the joints are associated with aging, obesity, previous trauma, childhood abnormality and surgery, and daily activities. A June 2016 VA treatment record indicates that the Veteran’s left hip pain is secondary to osteoarthritis. A review of the record shows the Veteran was afforded a VA examination in February 2015. At that time, the examiner opined that the Veteran’s multiple joint pain is most likely due to degenerative joint disease documented on the knees and hips, and that the present degenerative joint disease is at least as likely as not related to polyarthralgia found in service. Then, the examiner opined that the Veteran’s bilateral hip disabilities were less likely related to rheumatoid arthritis which is autoimmune in nature, and not related to the degenerative arthritis previously seen as polyarthralgia during service. Later in April 2015, a clarification letter opined that the Veteran’s bilateral hip degenerative joint disease occurred within the time frame that osteoarthritis is noted to be prevalent in patients, with the Veteran’s pre-existing childhood hip disability. Thus, it was less likely than not that the Veteran’s hip condition was aggravated beyond its natural progression by his military service. The Board finds the February 2015 VA examination and April 2015 clarification letter inadequate to decide the claims. In this regard, the VA medical opinion provided is internally inconsistent. Specifically, the VA examiner opined that the Veteran’s bilateral hip disabilities are related to polyarthralgia found in service and not related to polyarthralgia found in service. Moreover, the April 2015 clarification letter fails to adequately provide an opinion as to direct service connection for the Veteran’s right and left hip disabilities. Therefore, the Board finds that the Veteran should be afforded a new VA examination to determine the nature and etiology of any right and left hip disabilities. Additionally, current treatment records should be identified and obtained before a decision is made in this case. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any currently present right and left hip disabilities. The claims file must be made available to, and reviewed by the examiner. Any indicated studies must be performed. Based on the examination results and review of the record, the examiner should first identify all hip disabilities present during the pendency of the claim, and proximate thereto. Once all hip disabilities have been identified, the examiner should provide the following findings: Does the Veteran have a hip disability that clearly and unmistakably existed prior to his active service and if so, was that disability clearly and unmistakably NOT aggravated by service? In forming the opinion, the examiner must note that the Veteran’s lay statements alone are not a sufficient basis with which to support a finding that a disability clearly and unmistakably existed prior to service. With regard to any currently present hip disability determined to NOT clearly and unmistakably exist prior to the Veteran’s active service, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that such disability is etiologically related to the Veteran’s active service. In forming the opinion, the examiner must address the Veteran’s lay statements regarding the onset and continuity of his symptoms. The rationale for all opinions expressed must be provided. 3. Confirm that the VA examination report and all opinions provided comport with this remand, and undertake any other development found to be warranted. 4. Then, readjudicate the issues on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mariah N. Sim, Associate Counsel