Citation Nr: 18159973 Decision Date: 12/21/18 Archive Date: 12/20/18 DOCKET NO. 16-33 846 DATE: December 21, 2018 ORDER The application to reopen the claim of entitlement to service connection for a right hip disorder as secondary to service-connected pes planus and right knee disability is granted. The application to reopen the claim of entitlement to service connection for a left hip disorder as secondary to service-connected pes planus and left knee disability is granted. REMANDED Service connection for a right hip disorder as secondary to service-connected pes planus and right knee disability is remanded. Service connection for a left hip disorder as secondary to service-connected pes planus and left knee disability is remanded. FINDINGS OF FACT 1. In an unappealed April 2012 rating decision, the RO denied service connection for right and left hip disorders secondary to service-connected bilateral pes planus and knee disability. 2. Evidence received since the April 2012 rating decision is not cumulative and redundant of evidence previously of record and relates to an unestablished fact necessary to substantiate the claim of service connection for right and left hip disorders secondary to service-connected bilateral pes planus and knee disability. CONCLUSIONS OF LAW 1. The April 2012 rating decision denying service connection for right and left hip disorders secondary to service-connected bilateral pes planus and knee disability is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received to reopen the claims of service connection for right and left hip disorders secondary to service-connected bilateral pes planus and knee disability, the claims are reopened. 38 U.S.C. 5108; 38 C.F.R. 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence is defined as 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 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. See 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). 38 C.F.R. § 3.156 (a) creates a low threshold. Shade v. Shinseki, 24 Vet. App 110 (2010). The regulation is designed to be consistent with 38 C.F.R. § 3.159 (c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” See id. The claims for service connection for hip disorder were finally denied in an April 2012 rating decision that found there was sufficient evidence to reopen the claims but that there was no current hip disorder that was related to service or a service-connected disability. He was provided notice that month. No notice of disagreement or new and material evidence was submitted within one year and the decision became final. The Veteran submitted a claim to reopen these claims in July 2013. New and material evidence has been submitted with regard to these claims. Specifically, a December 2016 medical report from A.A., M.D., contains that physician’s opinion that the Veteran’s current bilateral pes planus and knee dysfunction have led to his bilateral hip instability. Here, the low threshold created by 38 C.F.R. § 3.156 (a) has been met, it does not require new and material evidence as to each previously unproven element of a claim. These claims to reopen are granted. REASONS FOR REMAND This claim has been denied previously on the basis that although there is ongoing hip pain, there is no current disability. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has recently found that pain alone, even in the absence of a diagnosis or underlying pathology, can establish a current disability under 38 U.S.C. § 1110 if it results in functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). While Dr. A.’s 2016 opinion suffices to reopen this claim, the Board finds that examination is warranted to determine whether there is actual current bilateral hip disability as specified above. In this regard, the medical record is replete with reference to negative findings as to the hips despite the Veteran’s acknowledged long-standing complaints. Moreover, a VA examination report dated in April 2012 contains the examiner’s opinion that the Veteran’s then-noted hip pain is not a separate condition but rather a manifestation of his low back disorder. Parenthetically, the Board notes that service connection for the low back disorder was granted subsequent to receipt of Dr. A.’s report. The matters are REMANDED for the following action: 1. The Veteran should be scheduled for a VA examination by a physician to ascertain whether the Veteran has had during this appeal any hip disorder or chronic disorder manifested by hip pain and instability related to active service. The examiner is asked to identify the actual nature of any such disorder found, and to describe any functional impairments resulting from the disorder. The claims file must be reviewed. The physician should address the following: Whether any hip disorder or chronic disorder manifested by hip pain and instability shown during this appeal is as likely as not (50 percent or greater probability) related to or proximately due to service-connected pes planus, knee or back disability, or aggravated by such service-connected disability. The physician should specifically address any etiological theories raised by the Veteran, and should address the report of Dr. A. A complete rationale for the medical opinion is required. 2. The issue on appeal should be readjudicated. The presence of a “disability” pursuant to Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) should be considered and discussed. If the claim remains denied, the Veteran and his representative should be provided a supplemental statement of the case and afforded the opportunity to respond. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. RIPPEL