Citation Nr: 19154232 Decision Date: 07/12/19 Archive Date: 07/12/19 DOCKET NO. 16-37 548 DATE: July 12, 2019 ORDER New and material evidence having been submitted, the claim of entitlement to service connection for a right hip disability is reopened. Entitlement to service connection for a right hip disability is granted. FINDINGS OF FACT 1. In an August 2010 rating decision, the Regional Office denied the Veteran’s claim for service connection for right hip disability. The Veteran did not appeal this decision, nor was new and material evidence submitted within a year of that decision. 2. Evidence received since the August 2010 rating decision is neither cumulative nor redundant of the prior evidence, and it shows a reasonable possibility of substantiating the Veteran’s claim for service connection. 3. The record evidence is at least in relative equipoise as to whether the Veteran’s right hip disability is secondary to his service connected right knee disability. CONCLUSIONS OF LAW 1. The August 2010 rating decision that denied service connection for the Veteran’s right hip disability is final. 38 U.S.C. § 7105. 2. The criteria for reopening the previously denied claim for service connection of the right hip has been met. 38 C.F.R. § 3.156. 3. The criteria for entitlement to secondary service connection for a right hip disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310, 4.3. DC 5255. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the United States Marine Corps from January 1959 through January 1963. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran has separately perfected an appeal as to the issues of limited motion for the right knee and instability of the right knee. Those issued have not been certified to the Board, therefore the Board declines jurisdiction over them at this time. They will be the subject of a future Board decision at a later date if the benefits sought are not granted. In April 2019, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. New and Material Evidence 1. New and material evidence having been submitted, the claim of entitlement to service connection for a right hip disability is reopened. Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. 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). In this case, the Veteran’s previous claim for entitlement to service connection for right hip disability was denied in an August 2010 rating decision on the basis that the evidence of record did not indicate that the Veteran’s right hip disability was related to his already service connected right knee disability. The rating decision also stated there was no evidence the Veteran’s right hip disability occurred in or caused by service. The Veteran did not initiate an appeal as to this decision, nor was new and material evidence submitted within a year of that decision. The August 2010 decision is thus final. Accordingly, in order to reopen this claim, the Veteran must submit new and material evidence. The Veteran sought to reopen the claim in August 2012 wherein the denial was confirmed and continued in a June 2013 rating decision. He has submitted additional VA treatment records and a nexus opinion. Considering that this evidence is discussed in much greater detail below, the Board shall not belabor the point. New and material evidence has been received, and this claim is reopened. Service Connection 2. Entitlement to service connection for a right hip disability is granted. The Veteran contends his right hip disability is related to his service-connected right knee disability. The Veteran contends his right hip disability should be service-connected because his service-connected knee disability lead to the pain in his right hip and altered gait. Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). As the Veteran does not contend that his current disability is directly related to service, the Board shall concentrate its analysis on his contention. Generally, a claimant has the responsibility to present and support a claim for benefits. All information, lay evidence and medical evidence, in a case is to be considered by the Board in deciding the claim. The competence, credibility, and probative weight of evidence must be assessed. When there is an approximate balance of positive and negative evidence regarding any material issue, the claimant is to be given the benefit of the doubt. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In July 2010, the Veteran underwent a VA examination for his right hip disability. The VA examiner concluded the Veteran’s right hip disability is less likely than not related to his service-connected right knee disability. The Veteran had x-ray imaging performed in July 2010. The examiner stated he came to this conclusion based on the fact the Veteran did not have an altered gait as it related to his right knee disability. The examiner stated he did not see how the right hip condition would result if the Veteran’s gait was not altered. Finally, the examiner stated there was no connection between the two joints even though both are on the right side. The Veteran provided two private medical opinions. The first medical opinion came from Dr. J. C. in July 2012. The private doctor stated the Veteran’s right knee issue affects his right hip, significantly impairing the Veteran’s ability to function. This private medical opinion did not provide a rationale. However, the Veteran also submitted a private opinion from his VA doctor, Dr. D. S. in April 2019. Dr. D. S. stated he had been treating the Veteran for five years and he reviewed all available service treatment records and medical records for the Veteran since he left service. Dr. D.S. stated it is his professional medical opinion that the Veteran’s condition of right hip and right knee pain are more likely than not related to the trauma the Veteran experienced in his military service. The examiner stated the Veteran’s disability is related to residuals of his knee disability, both the knee and hip are at the same site of injury from when the Veteran was in-service. Dr. D. S. further provided a rationale for his conclusion, stating that the Veteran’s limitation in ambulation, lifting, stability, and stopping are due to the Veteran’s service-connected right knee disability. Dr. D. S. stated the Veteran’s right hip disability was caused by the Veteran’s service-connected knee injury. In cases where there are two different medical opinions, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value. Furthermore, the VA has a duty to uphold the benefit of the doubt rule, and in cases where the evidence is in relative equipoise, service connection must be granted. In weighing the VA opinion against the private medical opinions, the Board determines that the evidence for and against the medical nexus question is in relative equipoise. Although the July 2010 VA examination provided negative nexus opinions, the Board finds that the April 2019 positive private nexus opinion is sufficient to establish secondary service connection in this case. Giving the benefit of the doubt to the Veteran, the Board must resolve reasonable doubt in favor of the Veteran. In summary, the Board finds that the evidence is (at the least) in relative equipoise as to whether the Veteran’s right hip disability is related to his service connected right knee disability. Accordingly, resolving doubt in favor of the Veteran, the Board finds that the criteria for service connection have been met. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Mouzakis, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.