Citation Nr: 1808890	
Decision Date: 02/12/18    Archive Date: 02/23/18

DOCKET NO.  16-08 352	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left hip disability.

2.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left leg disability, claimed as a leg length discrepancy.

3.  Entitlement to service connection for a left hip disability.

4.  Entitlement to service connection for a left leg disability, claimed as a leg length discrepancy.

5.  Entitlement to service connection for a low back disability.


(The claim of entitlement to an annual clothing allowance will be the subject of a separate Board decision.)


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Elizabeth Jalley, Counsel


INTRODUCTION

The Veteran served on active duty from May 1957 to November 1958.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.

A notice of disagreement was received in October 2014, a statement of the case was issued in December 2015, and a substantive appeal was received in February 2016.

In November 2017, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge.  A transcript of this hearing was prepared and associated with the claims file.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).

The issues of entitlement to service connection for a low back disability, a left hip disability, and a left leg disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The claims of entitlement to service connection for disabilities of the left hip and the left leg were denied in a June 2009 rating decision; this decision was not appealed and is final.

2.  When considered by itself or in connection with the evidence previously assembled, the evidence received since the June 2009 rating decision relates to an unestablished fact necessary to substantiate the claims, and raises a reasonable possibility of substantiating the claims of entitlement to service connection for disabilities of the left hip and the left leg.


CONCLUSION OF LAW

New and material evidence has been added to the record since the June 2009 rating decision; thus, the claims of entitlement to service connection for disabilities of the left hip and the left leg are reopened.  38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.156, 20.1103 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of decision.  38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017).  If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim.  38 U.S.C. § 5108 (2012); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991).

New evidence means existing 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.  38 C.F.R. § 3.156(a) (2017).

In the case at hand, the issue of entitlement to service connection for a left hip disability was denied by the RO in a June 2009 rating decision.  This decision was based in part on the rationale that no current left hip disability had been diagnosed, and in part on the rationale that there was no evidence of an in-service left hip injury.  

The issue of entitlement to service connection for a left leg disability was denied by the RO in a June 2009 rating decision.  This decision was based on the rationale that there was no evidence of a relationship between the left leg disability and service.

A March 2016 VA x-ray report reflects that the Veteran has now been diagnosed with mild arthritis of the left hip.  Furthermore, at his November 2017 Board hearing, the Veteran testified that he injured his left hip while playing football in service and that he sought treatment for this injury shortly following separation.  This statement is presumed credible for purposes of reopening the claim.

At his November 2017 Board hearing, the Veteran testified that he sought treatment for his left leg shortly following his separation from service and that the leg length discrepancy was discovered at that time.  

This evidence is new in that it was not of record at the time of the June 2009 denial.  It is material with respect to the left hip claim in that it contains a current diagnosis of a left hip disability.  It is material to both claims in that it contains competent testimony of an in-service injury and of treatment for such disabilities shortly following separation from service.  Therefore, new and material evidence has been received, and the claims of entitlement to service connection for disabilities of the left hip and left leg are reopened.


ORDER

New and material evidence having been received, the claim of entitlement to service connection for a left hip disability is reopened; to this extent, the benefit is granted.

New and material evidence having been received, the claim of entitlement to service connection for a left leg disability is reopened; to this extent, the benefit is granted.


REMAND

At his November 2017 Board hearing, the Veteran testified that the in-service football injury either caused or led to the discovery of the three disabilities for which he is seeking service connection.  He contends that, when he landed after being hit during the football game, it injured his back and his left hip.  He also contends that these injuries may have led to a leg length discrepancy.

At his hearing, the Veteran testified that he sought treatment at the Veterans Hospital in Memphis shortly following his separation from service.  (See Board hearing transcript, page 4.)  He testified that it was at that time that his leg length discrepancy was discovered.  (See Board hearing transcript, pages 4-5.)  He also testified that he had an operation shortly following his separation from service due to the back pain.  He also testified that he suffered bone disease of the left hip shortly following the football injury.  (See Board hearing transcript, page 6.)

The Board notes that the Veteran's service treatment records have been determined to be unavailable and that the claims file documents extensive efforts to obtain them.  The claims file does not reflect, however, that the AOJ had been made aware of the Veteran's having first sought treatment at a Veterans Hospital in Memphis shortly following his separation from service.  The Veteran testified that he has been treated at that hospital for 55 years.  The claims file contains records from as early as 1986.  The Board finds it appropriate to remand this case to attempt to obtain earlier records from the VA Medical Center in Memphis.  

While on remand, the AOJ should also obtain any treatment records that have been created since VA records were last obtained in October 2017.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Take appropriate measures to obtain any outstanding treatment records from the VA Medical Center (VAMC) in Memphis, Tennessee.  These efforts should expressly include attempts to obtain non-computerized records that were created shortly following the Veteran's November 1958 separation from service and prior to the 1986 records, which are the earliest records that are in the claims file.  In addition, obtain any records that have been created since the Veteran's records were last obtained by the AOJ in October 2017.

2.  Following completion of the above, and following the completion of any additional developed deemed appropriate, readjudicate the issues on appeal.  If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto.  Thereafter, the case should be returned to the Board, if in order.

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 claim must be afforded expeditious treatment.  The law requires that all claims 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).




______________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs