Citation Nr: 1807932 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 13-09 486A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 50 percent for post-traumatic stress disorder (PTSD). 2. Whether new and material evidence has been received to reopen the issue of entitlement to service connection for a bilateral hip disability, to include as secondary to service-connected chondromalacia of the right knee and residuals of a gunshot wound to the left knee with chondromalacia. 3. Entitlement to service connection for a bilateral hip disability, to include as secondary to service-connected chondromalacia of the right knee and residuals of a gunshot wound to the left knee with chondromalacia. 4. Entitlement to a total disability evaluation based on individual employability due to a service connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Arnold, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1972 to May 1979. This matter came before the Board of Veterans Appeals (Board) on appeal from August 2010 and June 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In April 2017, the Board remanded this matter to provide the Veteran with a Video Conference hearing. The Veteran testified before the undersigned Veteran's Law Judge during an October 2017 Video Conference hearing. The transcript of the hearing is of record. The issues of an increased rating for PTSD and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. An April 2003 Board decision denied service connection for a bilateral hip disability. 2. The evidence associated with the claim file subsequent to the April 2003 rating decision is probative and relevant concerning the issue of service connection for a bilateral hip disability. CONCLUSIONS OF LAW 1. The April 2003 Board decision, which denied service connection for a bilateral hip disability, is final. 38 U.S.C. § 7104 (2012). 2. New and material evidence sufficient to reopen the claim of service connection for a bilateral hip disability has been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's issues on appeal, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Generally, a Board decision is final unless the Chairman of the Board orders reconsideration. See 38 U.S.C.A. §§ 7103 (a), 7104(a); 38 C.F.R. § 20.1100 (a). An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence means evidence not previously submitted to agency decision makers. 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 prior final denial of the issue on appeal, and must raise a reasonable possibility of substantiating the claim. New and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). In determining whether the evidence is new and material the specified basis for the last final disallowance must be considered. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Mere offering of an alternative theory of entitlement does not constitute new and material evidence sufficient to reopen the claim. Roebuck v. Nicholson, 20 Vet. App. 307 (2006); Bingham v. Principi, 18 Vet. App. 470 (2004), aff'd 421 F.3d 1346 (Fed. Cir. 2005). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim in order to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). The Veteran was denied service connection for a bilateral hip disability in an April 2003 Board decision. The decision is final. 38 U.S.C. § 7104. The Veteran's hip diagnoses at the time of the prior decision were acetabular cyst of the right hip and ischiopubic osteochondroma of the left hip. The basis of the decision was that there was no evidence of hip complaints in service and no medical evidence relating those diagnoses to the Veteran's service-connected knee disabilities. The evidence previously considered that pertains to the issue on appeal includes the Veteran's service treatment records (STRs), a May 1998 VA examination report, and VA treatment records, including June 1989 CT results and July 1998 VA MRI results. The STRS include a February 1978 reference to an assessment for arthritis. The additional evidence added since the April 2003 decision includes October 2017 hearing testimony, medical records provided by the Social Security Administration, additional VA treatment records from Biloxi VA Medical Center (VAMC), private medical records of total right hip arthroplasty and a June 2010 VA examination. VAMC records from February 2009 include results from radiographs of the left hip showing significant degenerative changes and concluding that the right hip had end stage arthritis with large osteophytes. VAMC records also include May 2009 diagnoses of osteoarthritis in both hips and hip arthralgia. At his October 2017 hearing, the Veteran submitted testimony that his treating physicians have advised him that his hip disabilities were caused by his knee disabilities. The credibility of his testimony is presumed for the purposes of establishing whether new and material evidence has been submitted. Justus, 3 Vet. App. at 513. He also testified that his knees cause him to have an altered gait. While the credibility of this testimony is presumed, the Board also notes that VAMC records from February 2009 document that the Veteran walks with an antalgic gait favoring the right lower extremity. The Board finds that this evidence pertains to the unestablished fact of whether the Veteran's bilateral hip disability was caused by or related to the Veteran's service or to his service-connected knee disability. Indeed, the Veteran has submitted hearing testimony regarding the causal relationship between his hip disabilities and his service-connected knee disabilities, and the credibility of that testimony is presumed. This cures an evidentiary defect which existed at the time of the prior denial, namely, the lack of a nexus to service. Therefore, reopening the claim for service connection for a bilateral hip disability is warranted. The Board notes that the record shows the Veteran has now been diagnosed with osteoarthritis of the bilateral hips. The Board acknowledges that this new diagnosis can be considered a new claim rather than part of the request to reopen the previously denied claim of service connection for a bilateral hip disability. See Boggs v. Peake, 520 F.3d 1330 (2008). However, as the request to reopen is being granted herein and the issue of service connection for a bilateral hip disability will be addressed on the merits, under the holding in Clemmons v. West, 206 F.3d 1401, 1403 (Fed. Cir. 2000), the issue is expanded to include all currently diagnosed bilateral hip disabilities and, therefore, there is no new distinct claim to be addressed. ORDER The request to reopen the claim for service connection for a bilateral hip disability is granted and, to this extent only, the appeal is granted. REMAND The Board finds that additional development is necessary prior to adjudicating the issues on appeal. The Veteran testified at his October 2017 hearing that there are outstanding private treatment records that have not yet been associated with the claim file, particularly those from a private medical provider that treats him for his hip disability. The Veteran testified that he has a new provider who he sees through the Choice program. Therefore, efforts should be made on remand to obtain a complete copy of those records, as well as any other outstanding private treatment records. The Veteran has also submitted multiple statements referencing the fact that his STRs are missing. The Board notes that the August 2010 rating decision references STRS dating from August 1972 through August 1979. The Board's review of the record, however, indicates that while there are some STRs associated with the file, they date solely from the period 1978 through 1979. There are currently no STRs from 1972 through 1977 associated with the claim file, but there is no formal finding that the Veteran's STRs from that period are missing or otherwise unavailable. The Board therefore finds that to fulfill the duty to assist, upon remand the RO must make as many requests as necessary to obtain the Veteran's outstanding STRs until the RO determines that either the records do not exist or that further efforts to obtain those efforts would be futile. See 38 C.F.R. § 3.159 (2017). The Veteran testified at his October 2017 hearing that his PTSD has increased in severity since the most recent VA examination in June 2011. Specifically, the Veteran contends that his anger and difficulty sleeping have worsened since the prior examination and that he experiences significant issues with the side effects of his medication. The Board therefore finds that the Veteran should be afforded a new examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997). The Veteran was provided a VA examination in June 2010 for the purpose of determining whether his hip disability was caused or aggravated by his service connected knee disabilities. The examiner noted the Veteran's diagnosis of bilateral hip osteoarthritis and the Veteran's report of onset of bilateral hip pain in service in 1975, though the Veteran did not claim to have sustained a hip injury in service. The examiner stated that the evidence did not support a conclusion that the Veteran's hip disability was caused by his service or his service connected knee chondromalacia, but did not provide a rationale for that opinion. The examiner stated that there was no preponderance of evidence or rationale to support chondromalacia as a proximate cause or aggravant of the Veteran's hip condition, but did not explain why the evidence did not support such a conclusion. A medical examination report, as this one, that fails to provide a reasoned medical explanation for its conclusions is inadequate. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). A new examination must therefore be provided upon remand. Moreover, the Board notes that the examiner failed to provide any rationale regarding direct service connection, despite noting the Veteran's reports of the onset of hip pain in service. The Veteran has also testified that his hip disability is a significant factor in his inability to work. For this reason, consideration of whether the Veteran is entitled to TDIU must be deferred pending resolution of the issue of service connection for the bilateral hip disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when the adjudication of one issue could have "significant impact" on the other issue). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide a completed release form authorizing VA to request copies of any treatment records from any private medical providers who have treated him for a hip disability or PTSD. All identified records should be obtained and any efforts to obtain the records must be clearly documented in the claim file. 2. Request the Veteran's outstanding service treatment records, specifically those for the period of time from 1972 to 1977. All attempts to obtain such records should be clearly documented in the claim file. If it is determined that those records do not exist or are otherwise unavailable, a formal finding of unavailability should be made and associated with the claim file. 3. After the development above has been completed to the extent possible, schedule the Veteran for an appropriate VA examination to determine the current level of severity of his PTSD. The examiner should review the file and provide a complete rationale for all opinions expressed. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran's statements regarding his symptoms 4. After the development in (1) and (2) above, schedule the Veteran for an appropriate VA examination, to determine the etiology of his bilateral hip disability. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current hip disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran's active service or whether it was caused by or aggravated by the service-connected knee disability. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran's statements regarding the onset and persistence of his symptoms. 5. The examination reports must be reviewed to ensure they are in complete compliance with the directives of this remand. If a report is deficient in any manner, the AOJ must implement corrective procedures. 6. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This matter must be afforded expeditious treatment. The law requires that all issues that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012) only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017). Department of Veterans Affairs