Citation Nr: 18157933 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 16-53 328 DATE: December 13, 2018 ORDER New and material evidence having been submitted, the claim for service connection for fracture, right femoral neck with internal fixation and residual deformity, claimed as right hip condition, is reopened. REMANDED Service connection for fracture, right femoral neck with internal fixation and residual deformity, claimed as right hip condition, is remanded. FINDING OF FACT In a September 1981 rating decision, service connection for the Veteran’s right hip condition was denied. He did not appeal or submit new evidence within one year, and the decision became final. The Veteran filed to reopen his claim in December 2015, after which new and material evidence has been received. CONCLUSION OF LAW New and material evidence has been received sufficient to reopen the claim for service connection for right hip condition. 38 U.S.C. 5108; 38 C.F.R. § 3.102, 3.156(a), 3.159. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from July 1972 to August 1972. Service Connection New and material evidence has been received sufficient to reopen the claim for service connection for fracture, right femoral neck with internal fixation and residual deformity, claimed as right hip Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. §§ 7104, 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as 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). 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. In determining whether evidence is new and material, the credibility of the new evidence must be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 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 received 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 VA’s duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118 (2010). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512 (1992). Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513. As noted above, in a September 1981 rating decision, service connection for the Veteran’s right hip condition was denied. He did not appeal or submit new evidence within one year, and the decision became final. The Veteran filed to reopen his claim in December 2015. In connection with his claim, the Veteran was afforded a VA examination in February 2016. In addition, the Veteran has submitted lay evidence in his Notice of Disagreement and his Substantive Appeal regarding the aggravation of his right hip condition while in service. The evidence received since the September 1981 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. This evidence was not before adjudicators when the Veteran’s claim was denied in September 1981, and it is not cumulative or redundant of the evidence of record at the time of that decision. It also relates to unestablished facts necessary to substantiate his claim and raises a reasonable possibility of substantiating the claims. Accordingly, the Veteran’s claim is reopened. REASONS FOR REMAND Service connection for fracture, right femoral neck with internal fixation and residual deformity, claimed as right hip is remanded. In this case, the Veteran filed his claim for service connection for his right hip condition using a VA Form 21-526EZ for fully developed claims. Under the framework for a fully developed claim (FDC), a claim is submitted in a “fully developed” status, limiting the need for further development of the claim by VA. When filing a fully developed claim, a veteran submits all evidence relevant and pertinent to his or her claim other than service treatment records and treatment records from VA medical centers, which will be obtained by VA. Under certain circumstances, additional development, including obtaining additional records and providing the veteran with a VA medical examination, may still be required prior to the adjudication of the claim. See VA Form 21-526EZ. VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of “relevant” records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be “necessary” to decide the claim. 38 C.F.R. § 3.159(c)(4). Although the Veteran has not submitted evidence indicative of a current medical diagnoses of the above conditions, in light of the February 2016 VA examination, it appears that the Veteran sought treatment from a VA Medical Center or has relevant private treatment records. The Board observes that no effort was made to obtain any relevant records in the possession of a Federal agency. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board notes that the use of the Fully Developed Claim process does not diminish the duty to assist the Veteran. VA records are considered to be constructively of record and VA is charged with knowledge of their contents, the records must be obtained. Bell v. Derwinski, 2 Vet. App. 611 (1992). Of note in this case, the Veteran’s preexisting right hip condition of acquired deformity of the right hip with fracture, femoral neck, and internal fixation, is not in contention. The Veteran has admitted to lying at his entrance physical examination and concealing that the surgical scar noted on his physical examination was for an open reduction and internal fixation procedure performed on his right hip. Thus, the presumption of soundness does not apply in this case. Although there is no presumption of soundness that attaches to this claim, the Board requires a medical opinion as to whether the Veteran’s hip was clearly and unmistakably not aggravated by service. The Board observes that the Veteran wrote in his Notice of Disagreement that, “I had a medical condition before entering service I do not deny that. I had surgical screws placed in the right hip when I was younger about thirteen years old. I did not have any problems as a young man doing activities or sports. I believed I was healed and fit for service and hardly remembered the injury. While in service, I went on sick call because of severe pain in the hip and lower back, x-rays were performed. Therefore, the pre-existing condition was made worse by military service…” Finally, the Board observes that the February 2016 VA examiner concluded, “It is likely the physical strain [of military service] did cause irritation, but the lack of medical records immediately after service showing ongoing progressively worsening right hip problems make stating the veteran’s military service did anything other cause short term irritation with no residuals difficult.” As there are no medical records in the file whatsoever, the lack of medical records is not dispositive, and the examiner’s reliance on such renders his opinion inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). Furthermore, the Board requires a medical opinion as to how irritation does not show aggravation. The matters are REMANDED for the following action: 1. Ask the Veteran to identify and complete a VA Form 21-4142 for any private physicians or facilities that have provided treatment for his right hip since he left the service. The VA examiner reported that the Veteran had the screws in his right hip removed when he was 24, and subsequent total hip replacements. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. Obtain and associate with the record any copies of the Veteran’s VA treatment records. 2. Then, schedule the Veteran for an examination by an appropriate clinician for the Veteran’s right hip condition. After a thorough review of the Veteran’s file, the examiner must opine whether the Veteran’s right hip condition was clearly and unmistakably not aggravated by service. The examiner must address the February 2016 examiner’s finding of the Veteran’s right hip having shown irritation in service, and how that is, or is not, aggravation. (Continued on the next page)   3. Then, the record should again be reviewed. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Nelson, Associate Counsel