Citation Nr: 18147315 Decision Date: 11/06/18 Archive Date: 11/02/18 DOCKET NO. 15-19 918 DATE: November 6, 2018 ORDER The petition to reopen the claim of entitlement to service connection for a right hip injury is granted. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a bilateral nerve condition of the lower extremities is remanded. FINDINGS OF FACT 1. The Veteran’s claim for service connection for a right hip injury was denied by an unappealed October 1991 rating decision. 2. Since the October 1991 rating decision, the Veteran has submitted new evidence that relates to a previously unestablished element of the claim of service connection for a right hip injury, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The October 1991 rating decision that denied the Veteran’s claim for service connection for a right hip injury is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104 (a), 20.302, 20.1103 (2017). 2. The evidence received since the October 1991 rating decision is new and material, and the claim for service connection for a right hip injury is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1963 to August 1968. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a right hip injury Generally, a claim that has been denied by an unappealed RO decision or an unappealed Board decision may not thereafter be reopened. 38 U.S.C. §§ 7104 (b), 7105(c). An exception to this rule exists for cases in which new and material evidence is presented or secured with respect to a claim that has been disallowed, in which case the claim must be reopened and the former disposition reviewed. 38 U.S.C. § 5108. “New” evidence means evidence not previously submitted to agency decision makers, and “material” evidence means 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 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). This is a “low threshold” in which the phrase “raises a reasonable possibility” should be interpreted as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). The credibility of the newly-submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). The Veteran’s filed a claim for service connection for a right hip injury in June 1991. Service connection for a right hip injury was denied in an October 1991 rating decision. The RO stated that the claimed right hip injury was not shown by the evidence of record. It was noted that review of the service medical records revealed no evidence of the claimed injury to the right hip in service on any basis and the musculoskeletal system was found normal upon separation in July 1971. The Veteran did not appeal this rating decision and it became final. 38 U.S.C. § 7105. Since the October 1991 rating decision, additional evidence has been associated with the claims file. In July 2018, the Veteran provided testimony regarding sustaining an injury to his right hip when he nearly fell to the hanger floor on his aircraft in October 1970. He reported that he hurt his back and right hip in the incident and that he continued to have problems after the event, which resulted in his duties being changed for the remainder of his period of service. The Veteran’s treatment records from the Sierra Nevada Health Care System also provided a current diagnosis of arthritis of the right hip. This evidence is new, as it was not part of the record at the time of the prior denial of the claim. It is also material, as it indicates a diagnosis of a right hip disability and provides a report of an in-service injury to his right hip. When viewed with the previous evidence of record, this evidence is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the Veteran’s claim. As such, new and material evidence has been received, and reopening the claim is warranted. REASONS FOR REMAND Entitlement to service connection for a low back disability, a left hip disability, a right hip disability, a left knee disability, and a bilateral nerve condition of the lower extremities are remanded. First, the Board notes that relevant outstanding records have been identified and appropriate attempts should be made to obtain them. The Veteran’s claims file indicates that he applied for disability benefits from the Social Security Administration (SSA). While SSA records are not controlling for VA determinations, they may be “pertinent” to VA claims. When VA is put on notice of the existence of SSA records, as here, it must seek to obtain those records before proceeding with the appeal. Thus, the Board finds that the AOJ must obtain and associate with the claims file copies of any SSA disability determinations and all medical records underlying any such determinations, following the current procedures prescribed in 38 C.F.R. § 3.159 (c) with respect to requesting records from Federal facilities. The Veteran also stated during his July 2018 hearing that there were outstanding treatment records from a private physician, Dr. S. Accordingly, the Board finds that appropriate attempts should be made to obtain any pertinent, outstanding private treatment records that have been identified by the Veteran. Finally, the Veteran’s treatment records from the Sierra Nevada Health Care System note a current diagnosis of degenerative joint disease of the left knee (12/2014), degenerative disc disease of the lumbar spine (2/2016), and right hip degenerative arthritis (1/2017). The Veteran has reported that he hurt his back and right hip during an in-service event in October 2017. The Veteran’s treatment records from July 1989 note that the Veteran recalled falling 30 to 40 feet and complaining of intermittent right hip pain since that time with exacerbations. While the Veteran’s service treatment records do not report an injury to his back and right hip at that time, they do report that the Veteran sought treatment for his nerves on October 13, 1970 after he “had a near accident with elevator number 4.” He asked for a tranquilizer and requested to be removed from flight deck. The Veteran also sought treatment for low back pain that had persisted for three weeks in February 1970. White blood cells testing at that time was 4-6. Treatment records also report complaints of left knee pain on April 16, 1968 and again on April 23, 1968. While the evidence indicates that the Veteran’s degenerative joint disease of the left knee, degenerative disc disease of the lumbar spine, and right hip degenerative arthritis were not diagnosed during his service, the Board finds that the evidence of record is sufficient to trigger VA’s obligation to afford the claimant a VA medical examination regarding his claims. 38 U.S.C. § 5103A (d); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, remand is required to obtain a VA medical opinion regarding the etiology of his current back disability, right hip disability, and left knee disability. The matters are REMANDED for the following action: 1. AOJ should obtain all records from the Social Security Administration to include all determinations of disability benefits and any underlying records used in reaching the determination. The records should be associated with the claims folder. All efforts to obtain SSA records should be fully documented, and a negative response must be provided if records are not available. 2. The AOJ should obtain copies of all pertinent VA treatment records since October 2017, and any outstanding private treatment records indicated by the Veteran or his representative. 3. Schedule the Veteran for an examination with an appropriate examiner to determine the etiology of his current back, right hip, and left knee disabilities. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner is asked to provide the following opinions: a) Whether it is at least as likely as not (a 50 percent probability) that the Veteran’s current lumbar disability is due to, or the result of, any incident of his period of active service. Please discuss the Veteran’s reports of back pain in February 1970 and his October 1970 accident. b) Whether it is at least as likely as not (a 50 percent probability) that the Veteran’s current right hip disability is due to, or the result of, any incident of his period of active service. Please discuss the Veteran’s October 1970 accident and his July 20, 1989 VA medical treatment. c) Whether it is at least as likely as not (a 50 percent probability) that the Veteran’s current left knee disability is due to, or the result of, any incident of his period of active service. Please discuss the Veteran’s reports of knee pain in April 1968 and his October 1970 accident. A complete rationale for all opinions must be provided. In providing the requested opinions, the examiner must address the Veteran’s lay assertions. The Veteran’s lay statements cannot be disregarded solely due to lack of contemporaneous medical evidence. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 4. After completing the above, and any other development deemed necessary, readjudicate the Veteran’s claims based on the entirety of the evidence. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P.M. Johnson, Counsel