Citation Nr: 18156927 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 17-18 068 DATE: December 11, 2018 ORDER The previously denied claim for service connection for a left hip disorder is reopened; to this limited extent, the appeal is granted. REMANDED Entitlement to service connection for a left hip disorder is remanded. FINDINGS OF FACT 1. By a decision entered in January 2013, the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina denied the Veteran’s claim for service connection for a left hip disorder; she was advised of the RO’s decision and of her appellate rights. 2. The Veteran did not initiate an appeal of the RO’s January 2013 decision during the one-year period following the mailing of notice of that decision; nor was any new and material evidence received within a year. 3. New evidence received since the time of the RO’s January 2013 decision, when considered with the evidence previously of record, relates to an unestablished fact necessary to substantiate the Veteran’s claim for service connection for a left hip disorder and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The January 2013 rating decision denying service connection for a left hip disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). 2. New and material evidence has been received to reopen the Veteran’s claim for service connection for a left hip disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Army Reserve, to include on periods of active duty for training from June 2000 to November 2000 and March 2002 to July 2002. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision issued by the RO in Winston-Salem, North Carolina. By way of procedural background, the Veteran also applied for service connection for a right knee disorder. The RO initially denied the claim. The Veteran submitted a timely notice of disagreement and perfected an appeal of the matter. See March 2017 VA Form 9. Subsequently, however, the RO granted service connection for patellofemoral syndrome of the right knee in a July 2017 rating decision. As the benefit sought has been granted, that issue is no longer in appellate status. The Board notes that new evidence has been associated with the claims file since issuance of the most recent supplemental statement of the case (SSOC) in September 2017. However, as the Veteran’s claim is being remanded for consideration on the merits, there is no risk of prejudice in proceeding with consideration of her application to reopen. Whether new and material evidence has been received to reopen a claim for service connection for a left hip disorder. In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a) (2017); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (regardless of action taken by RO, Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial). New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For the purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, “credibility” of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The United States Court of Appeals for Veterans Claims (Court) has held that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See 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, to include by triggering VA’s duty to assist. Id. at 118. The RO previously considered and denied a claim for service connection for a left hip disorder in a January 2013 rating decision. In that decision, the RO determined that the Veteran did not have a current diagnosis and there was no chronic disability shown in service. The Veteran was notified of that decision and of her appellate rights, but she did not appeal the determination. There was also no new and material evidence received within one year of the issuance of the decision. Therefore, the January 2013 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.302, 20.1103. At the time of the January 2013 rating decision, the evidence of record included the Veteran’s service treatment records and post-service medical records. Some of the Veteran’s service treatment records were unavailable for review. See February 2012 memorandum. The evidence received since the January 2013 rating decision includes VA treatment records, private treatment records, and VA medical examinations, including of the lower extremities. The Board also notes that it appears that additional service personnel records have been associated with the claims file since the January 2013 rating decision. In this regard, 38 C.F.R. § 3.156(c) provides that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). Here, however, the new service personnel records are not relevant to the instant claim as they do not address any in-service complaints, treatment, or diagnosis of a left hip disorder. Accordingly, reconsideration of the Veteran’s claim under 38 C.F.R. § 3.156(c) is not warranted. The Veteran reported in April 2017 that her left hip pain began during active service and has continued since that time. See April 2017 VA examination report. See also June 2015 Notice of Disagreement (alleging that her hip problems started in 2002 during advanced individual training and have persisted). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). This evidence was not previously considered by the RO, relates to an unestablished fact necessary to substantiate the claim, and could reasonably substantiate the claim were it to be reopened by triggering VA’s duty to assist. See Shade, 24 Vet. App. at 117-18. Thus, the Board finds that this evidence is both new and material, and the claim for service connection for a left hip disorder is reopened. However, as will be explained below, further development is necessary before the merits of the Veteran’s claim can be addressed. REASONS FOR REMAND Entitlement to service connection for a left hip disorder is remanded. The Veteran’s service treatment records document complaints of left hip pain and a diagnosis of a strained left hip. X-rays in February 2007 were negative for an acute fracture, dislocation, or arthropathy, but noted that the findings were suspicious for symphysis pubis osteitis (non-infectious inflammation). Imaging studies in November 2012 found no osseous abnormality. The Veteran had a VA examination in April 2017 in connection with her claim for myalgias caused by muscle pain in the legs and hips during service. The Veteran reported left hip pain with flare-ups, described as sharp pain in the hip and thigh that radiates down the left side, left leg weakness, and left side tingling. The Veteran reported being unable to walk for extended periods. See April 2017 VA examination report. Range of motion testing of the left hip was normal, and no pain was noted on examination. There was no evidence of crepitus, and no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. Muscle strength testing was 5/5, with no muscle atrophy or ankylosis. The examination was not conducted during a flare-up; however, the examiner found that functional ability was not significantly limited by pain, weakness, fatigability, or incoordination during flare-ups. Id. The examiner did not review any imaging studies and there were no other significant diagnostic test findings. The examiner concluded that there was no pathology to render a diagnosis. Id.; see also July 2017 SSOC (physical examination of the left hip was normal and there is no diagnosis of a chronic left hip disorder). Notably, the April 2017 VA examination was performed in connection with the Veteran’s March 2017 claim for service connection for myalgias, not specifically for her claimed left hip disability. At any rate, the Board finds the examination to be inadequate. First, no imaging studies were conducted. As such, it cannot be said with certainty that objective pathology has been ruled out. Second, the examiner documented that there was no pain noted on examination and functional ability was not significantly limited by pain, weakness, fatigability or incoordination during flare-ups. However, the Veteran reported sharp pain in the left hip and thigh during flare-ups that limited her ability to walk. There does not appear to have been a complete history of subjective symptoms elicited from the Veteran to include documentation of the frequency and severity of her symptoms. The United States Court of Appeals for the Federal Circuit recently found that the term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability.” Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Board finds that, considering Saunders, a new examination and opinion are needed. This matter is REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issue on appeal. If she provides the necessary release(s), assist her in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and her representative should be notified. 2. Obtain copies of records pertaining to any relevant VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for a VA examination of her left hip. The examiner should review the record. All indicated tests should be conducted (to include X-rays of the left hip, if warranted) and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran has a disability (i.e., functional impairment of earning capacity) of the left hip and, if so, whether the disability had its onset in, or is otherwise attributable to, the Veteran’s service. A complete medical rationale for all opinions expressed must be provided. If the examiner cannot provide an opinion without resort to speculation, he or she must provide an explanation as why that is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of the need for additional information, or whether he or she has exhausted the limits of current medical knowledge in providing an answer. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claim should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and her representative should be issued an SSOC. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D.S. Chilcote, Associate Counsel