Citation Nr: 18160730 Decision Date: 12/27/18 Archive Date: 12/27/18 DOCKET NO. 17-04 959 DATE: December 27, 2018 ORDER New and material evidence having been received, the petition to reopen the claims for service connection for a left hip disorder, right hip disorder, left knee disorder, right knee disorder, and low back disorder is granted. REMANDED Entitlement to service connection for a left hip disorder is remanded. Entitlement to service connection for a right hip disorder is remanded. Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a low back disorder is remanded. FINDINGS OF FACT 1. In a January 2012 rating decision, the Regional Office (RO) denied service connection for a left hip disorder, right hip disorder, left knee disorder, right knee disorder, and low back disorder. The Veteran did not appeal that decision or submit new and material evidence within one year thereafter. 2. The evidence received since the January 2012 rating decision, by itself or in conjunction with previously considered evidence, is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The January 2012 rating decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). 2. The evidence received since the January 2012 rating decision is new and material as to the claims for service connection for a left hip disorder, right hip disorder, left knee disorder, right knee disorder, and low back disorder, and the claims are reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1968 to September 1971. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in White River Junction, Vermont. In order to reopen a claim which has been denied by a final decision, a claimant must present new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); 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 the Secretary’s duty to assist. Id. at 118. The RO previously considered and denied claims for service connection for a left hip disorder, right hip disorder, left knee disorder, right knee disorder, and low back disorder in a January 2012 rating decision. The RO found that there was no evidence connecting the Veteran’s alleged disabilities to military service. The Veteran was notified of that decision and of his appellate rights, but he did not appeal that determination or submit new and material evidence within one year thereafter. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.1103. Therefore, the January 2012 rating decision is final. At the time of the January 2012 rating decision, the evidence of record included the Veteran’s service treatment records, post-service medical records, a December 2009 medical opinion letter from Dr. J.M., and lay statements from the Veteran. The evidence received since the January 2012 rating decision includes additional lay statements from the Veteran; a lay statement from his sister, S.M.; and, a June 2013 medical opinion letter from Dr. H.A., in which he states that the Veteran’s osteoarthritis in his left hip was most likely aggravated by an in-service injury. Dr. H.A. explained that the in-service femoral fracture of the left leg resulted in changes in the alignment of the left leg compared to the right leg and altered the mechanics of the hip joint with weight-bearing. Dr. H.A. also noted that the left leg is fixed in an externally rotated position, which could have contributed to the apparent leg length discrepancy of approximately 2 centimeters. See Dr. H.A.’s June 2013 medical opinion letter. In a January 2017 lay statement, the Veteran’s sister, S.M., states that after the in-service accident, the Veteran walked with a noticeable limp and favored the left leg. The Veteran has alleged that the femoral fracture of his left leg healed improperly, resulting in an altered gait. See October 2014 Notice of Disagreement. This evidence was not previously considered by the RO, relates to an unestablished fact necessary to substantiate the claims, and could reasonably substantiate the claims. Moreover, 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). Thus, the Board finds that this evidence is both new and material, and the claims for service connection are reopened. However, as will be explained below, the Board is of the opinion that further development is necessary before the substantive merits of the Veteran’s claims can be meaningfully addressed. REASONS FOR REMAND The Veteran’s service treatment records document a June 1970 motor vehicle accident in Seoul, South Korea, in which he fractured his left femur. He was thrown from the Jeep which then rolled over onto him. He complained of left hip pain and was diagnosed with an intertrochanteric fracture, comminuted. He was transferred to Madigan General Hospital in Washington state where he was placed in traction for two and one-half months, followed by a spica cast for three months. X-rays of the left hip in March 1971 showed no significant abnormalities. In April 1971, he complained of a dull ache in the area of the fracture with prolonged standing, but x-rays of the left hip and femur were negative. The July 1971 separation examination noted a history of a left hip fracture in June 1970 but the physical examination was normal. He was diagnosed with an old healed fracture of the left hip. No other disabilities or diseases were noted on the separation examination. The Veteran reported he was in good health and it was noted that he runs and jogs occasionally. X-rays of the hips in September 2004 showed minimal degenerative changes bilaterally. X-rays of the knees showed slight right medial compartment degenerative changes. The Veteran had a post-service motor vehicle accident in September 2007 in which he reportedly injured his back. An MRI of the back in September 2008 revealed a congenitally small central canal with superimposed spondylosis and facet arthrosis of the lumbar spine. A medical opinion letter from his treating physician, Dr. J.M., in December 2009 noted that his left leg was found to be 2 centimeters shorter than his right leg. Dr. J.M. opined that his leg length discrepancy and complaints of knee and hip pain were consistent with his history of a motor vehicle accident in 1970, in which he fractured his left femur. See December 2009 medical opinion letter from Dr. J.M. Subsequent x-rays of the hips in July 2010 showed bilateral osteoarthritis, worse on the left side. An OASIS assessment in August 2010 noted a history of longstanding hip and knee pain. The Veteran reported left hip pain and other lower extremity pain following the 1970 Jeep accident. He also complained of severe back pain following the 2007 motor vehicle accident. It was observed that he limps on the left leg due to a leg length discrepancy. He had tried a shoe lift without improvement in the pain. Radiographic studies demonstrated osteoarthritis of the bilateral hips and bilateral knees. It was recommended that the Veteran’s primary care doctor refer him to a physiatrist to complete a detailed physical assessment for purposes of applying for VA disability benefits; however, this detailed physical assessment was not completed. See August 2010 OASIS records. The OASIS report did not provide a nexus opinion and apparently the specialty examination was cancelled. See February 2011 Report of General Information; February 2011 Statement of the Case (SOC). The Veteran submitted a June 2013 medical opinion letter from Dr. H.A., a physical medicine and rehabilitation specialist. Dr. H.A. noted an apparent leg length discrepancy of approximately 2 centimeters, left shorter than the right; however, imaging studies showed relative varus alignment of the left leg compared to the right, but the measured leg length discrepancy was only 0.4 centimeters. According to Dr. H.A., the Veteran probably would have developed osteoarthritis in the left hip and right knee absent any injury. He explained that osteoarthritis is much more likely to occur when an injury involves articular surfaces, which was not the case with the Veteran’s injury. However, Dr. H.A. theorized that “it is possible” that a femoral facture could contribute to the development of osteoarthritis even absent articular involvement. See June 2013 medical opinion letter from Dr. H.A. Dr. H.A. stated that the most relevant factor is that the Veteran likely has some changes in the alignment of the left leg as a residual consequence of the fracture and that has altered the mechanics of the hip joint with weight-bearing. Id. Dr. H.A. opined that the Veteran’s left hip osteoarthritis “does not arise from” the femoral fracture, but the in-service injury and secondary effects have most likely contributed to more rapid acceleration of his osteoarthritis than otherwise would have been the case. Id. Dr. H.A. opined that his right knee osteoarthritis is less likely than not caused by the femoral fracture. He also found that the Veteran’s mechanical low back pain is less likely than not caused by, or exacerbated by, the left femoral fracture. Id. Notably, Dr. H.A. did not directly address the Veteran’s contention that the June 1970 left femoral fracture healed improperly, resulting in a leg length discrepancy and altered gait, which then caused his bilateral knee, right hip and low back disabilities. The RO determined that the Veteran failed to report for a scheduled VA examination. See November 2016 SOC. However, the Veteran contends that any appointments for examinations were made by him, on referrals from OASIS and his primary care physician, and that he was never notified of any VA examination. See January 2017 correspondence. Indeed, the Veteran made several requests for a VA examination, and offered to attend an examination in either Canada, where he resides, or in Washington state. See September 2013 correspondence; October 2014 NOD; January 2017 correspondence. There is nothing in the record to suggest that the Veteran was notified of a VA examination and then failed to appear. Therefore, the Board finds that a VA examination and medical opinion are needed to determine the nature and etiology of any current low back, bilateral knee, and bilateral hip disorders. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The matters are REMANDED for the following action: 1. The AOJ should request the Veteran provide the names and addresses of any and all healthcare providers who have provided treatment for his left knee, right knee, left hip, right hip, and low back disorders. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding VA treatment records. 2. After completing the preceding development, the Veteran should be afforded a VA examination to determine the nature and etiology of any left knee, right knee, left hip, right hip, and low back disorders that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The Veteran has contended that his current disabilities were caused by residuals of a June 1970 left femoral fracture in-service, specifically improper healing which resulted in a leg length discrepancy and altered gait. The examiner should note that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. (a.) The examiner should identify all current hip, knee and low back disorders. (b.) For each diagnosis identified, the examiner should state whether it is at least as likely as not that the disorder manifested in or is otherwise related to the Veteran’s military service, including any symptomatology, injury, motor vehicle accident, or duties therein. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) (c.) If the examiner finds a current left hip disorder is etiologically related to the Veteran’s military service, then the examiner should also provide opinions as to whether the remaining claims (right hip, bilateral knee, and low back disorders) are due to or aggravated by the left hip disorder. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history[,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. The AOJ should review the examination report to ensure that it is in compliance with this remand. If the report is deficient in any manner, the AOJ should implement corrective procedures. 4. After completing the above actions and any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs, the case should be reviewed by the AOJ on the basis of additional evidence. T. BERRY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D.S. Chilcote, Associate Counsel