Citation Nr: 21002083 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 14-32 361A DATE: January 12, 2021 ORDER The application to reopen a claim of service connection for bilateral hip disability is granted. Entitlement to service connection for bilateral total hip replacements is granted. FINDINGS OF FACT 1. The Veteran’s claim of service connection for bilateral hip disability was originally denied in a September 2009 rating decision on the basis that the disability was not incurred in or caused by service and was not related to service-connected back disability; the Veteran did not appeal this decision within one year of its issuance and new and material evidence was not received within that year. 2. Evidence received since the September 2009 agency of original jurisdiction (AOJ) decision includes information that was not previously considered and which relates to an unestablished fact necessary to substantiate the claim of service connection for bilateral hip disability, the absence of which was the basis of the previous denial. 3. The Veteran’s bilateral total hip replacements are related to service. CONCLUSIONS OF LAW 1. The AOJ’s September 2009 rating decision which denied the claim of service connection for bilateral hip disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 19.20, 19.32, 19.52, 20.1103. 2. The evidence received since the September 2009 AOJ decision is new and material and reopening of the claim of service connection for bilateral hip disability is therefore warranted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. The criteria for service connection for bilateral total hip replacements are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1970 to March 1995. His awards include the Bronze Star Medal and Army Commendation Medal. These matters come before the Board of Veterans’ Appeals (Board) from an October 2012 rating decision. The Veteran testified before a Veterans Law Judge (VLJ) at a June 2019 hearing. The Board subsequently sent the Veteran a letter in August 2019 which informed him that the Board was unable to produce a written transcript of the June 2019 hearing and asked him to indicate whether he wanted to attend a new hearing. The Veteran responded later in August 2019 that he wished to attend a new Board hearing. He subsequently testified before the undersigned VLJ at a January 2021 hearing. A transcript of the hearing has not yet been associated with the claims file. However, in light of the fact that the Board is granting the Veteran’s application to reopen the claim of service connection for bilateral hip disability and is awarding service connection for bilateral total hip replacements, and the fact that there is no information in the hearing transcript that will affect the decision herein, the transcript is not necessary at this time. I. Application to Reopen Generally, an AOJ decision denying a claim which has become final may not thereafter be readjudicated or allowed. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 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. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as 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). The newly presented evidence is presumed to be credible for purposes of determining whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of determining whether new and material evidence has been presented to reopen a claim, the evidence for consideration is that which has been presented or secured since the last time the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The application to reopen a claim of service connection for bilateral hip disability The Veteran’s claim of service connection for bilateral hip disability was originally denied in a September 2009 rating decision on the basis that the disability was not incurred in or caused by service and was not related to service-connected back disability. The Veteran was notified of the AOJ’s September 2009 decision, he did not appeal the decision within one year of its issuance, and new and material evidence was not received within that year. Therefore, the September 2009 decision became final. See 38 U.S.C. § 7105 (c); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 19.52(a), 20.1103. The pertinent new evidence received since the September 2009 denial of service connection for bilateral hip disability includes statements from T.M. Kleuser, M.D. and Dr. W. Chambers dated in October 2011 and a June 2019 statement from Dr. Chambers. This additional evidence includes medical opinions that the Veteran’s claimed bilateral hip disability is likely related to service. Therefore, the additional evidence pertains to an element of the claim of service connection for bilateral hip disability that was previously found to be lacking and raises a reasonable possibility of substantiating the claim by indicating that the Veteran’s claimed bilateral hip disability is related to service. The evidence is, therefore, new and material, and the claim of service connection for bilateral hip disability is reopened. II. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a) (e.g., arthritis). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, such chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). Although entitlement to service connection on any of the presumptive bases noted above may not be established, the Veteran is not precluded from establishing service connection on a direct basis. See 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). Entitlement to service connection for bilateral total hip replacements The Veteran contends that he has current bilateral hip disability which had its onset in service. The Board finds, for the following reasons, that the Veteran has a current diagnosis of bilateral total hip replacements and that this disability is related to service. Medical records, including the June 2019 statement from Dr. Chambers, shows the Veteran has a current diagnosis of bilateral total hip replacements. There is also evidence of hip symptoms during service. In this regard, service treatment records reflect that in March 1973 the Veteran was treated for aching right hip pain which had been present since a motorcycle accident in October/November 1972. Examinations revealed tenderness behind the greater trochanter and the Veteran was diagnosed as having posttraumatic arthritis and possible trochanteric bursitis. He continued to receive treatment for chronic right hip pain and tenderness on various occasions from April 1978 to September 1985 and was diagnosed as having trochanter bursitis, gluteal strain, and congenital degenerative joint disease. He was also treated for bilateral hip pain in January 1981. Therefore, current bilateral hip disability and in-service bilateral hip symptoms have been demonstrated. As for whether the Veteran’s current bilateral hip disability is related to service, there are conflicting medical opinions. The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the Veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). The Board may favor one medical opinion over another, provided an adequate statement of reasons or bases is provided. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). In August 2009, the VA physician who conducted a July 2009 VA examination reviewed the Veteran’s claims file and explained that the Veteran was treated for right hip pain in 1973, 1979, and 1981. He was basically diagnosed with trochanteric bursitis and x-rays of the hips conducted in 1973, 1979, and 1981 were negative. He developed degenerative arthritis of the hips and hip replacements were performed in 2008 and 2009. This was twenty-five years after the onset of hip pain and appeared to be degenerative joint disease due to wear and tear and aging. Therefore, it was not likely (“less likely than not”) that the Veteran’s current hip replacements were related to service. In his October 2011 statement, Dr. Chambers noted that he reviewed the Veteran’s treatment records, including his service treatment records. Dr. Chambers explained, in pertinent part, that the Veteran was evaluated for hip and lower back pain in January 1981 and was diagnosed with right hip bursitis. In September 1985, he was diagnosed as having degenerative joint disease. These diagnoses were more likely a direct result of his military duties, including daily physical fitness training, rigorous physical duties, and flying helicopters that were not ergonomically well designed. In March 1979, the Veteran was treated for low back pain and hip pain at the same time. This most likely, and with a high degree of probability, represented the initial onset of his degenerative processes and this process continued to the present time. In March and June 1973, he was treated for right hip pain and was diagnosed as having trochanteric bursitis. He sought treatment from Dr. Chambers in August 2008, at which time he reported persistent pain in both hips. He was referred to Dr. Kleuser and both hips were replaced. Overall, a clear path of deterioration was documented in the Veteran’s medical and military records. Dr. Chambers further explained that back and hip problems are comorbidities and are very much attributable to each other. As the hips begin to develop degenerative arthritis and degeneration of the capsule and surrounding tissues, then with compensation of the low back the Veteran then developed degenerative arthritis. This disease process occurred while he was flying and performing his physical training. This process is well documented in the medical sciences, and the Veteran’s military service was responsible for hip degeneration. The process of degenerative arthritis occurs over years of continued stress on the joints, ligaments, cartilage, and supporting structures. In many cases, even after fifteen or twenty years of stress on the joints, and even with discontinuation of the aggravating process/aggravating physical activity, the process of degeneration continues. In his October 2011 statement, Dr. Kleuser explained, in pertinent part, that he reviewed the Veteran’s service treatment records and that numerous episodes of hip pain were noted, beginning with a motorcycle accident in October 1972 and continuing until September 1985. Dr. Kleuser began to treat the Veteran in September 2008, at which time he reported that he had been experiencing bilateral hip pain for several years and that he had been diagnosed as having degenerative arthritis of the hips in 1995. His hip pain increased over the years and left and right total hip replacements were performed in October 2008 and January 2009, respectively. Degenerative arthritis of the hips is a progressive condition and the Veteran’s disability did progress to the point that hip replacements were necessary. Although there was no specific cause, the Veteran’s work activities and military activities certainly contributed to the aggravation of his degenerative arthritis of the hips. At age 57, he was on the younger end of the spectrum for having such severe degeneration that total hip replacement was necessary. He had not related any other history that could be cited as the cause of his hip condition. Overall, Dr. Kleuser concluded that, after a careful review of the Veteran’s military and civilian medical records, his hip problems were caused by/the result of “numerous conditions evidenced by his military treatment records and caused by his years of military service.” In August 2012, a VA physician reviewed the Veteran’s claims file and opined that it was not likely (“less likely as not”) that the Veteran’s bilateral degenerative joint disease of the hips was caused by or the result of service. The physician reasoned that the Veteran was treated for trochanteric bursitis while in service, not for degenerative joint disease of the hips. Trochanteric bursitis is a soft tissue condition, and there was no known medical authority or peer reviewed medical literature which supported the contention that bursitis is causative to the development of degenerative joint disease of the hips. The first evidence of degenerative disease of the hips was in 2008, over 10 years after the Veteran’s separation from service. Although Dr. Kleuser speculated that some combination of the Veteran’s activities in service were causative to the development of the degenerative joint disease of his hips in 2008, x-rays in service did not support a diagnosis of degenerative joint disease of the hips. In his June 2019 statement, Dr. Chambers explained, in pertinent part, that the Veteran was healthy when he entered service and that he had no major medical complaints or conditions. He was active in sports in high school and participated in multiple disciplines for which he never had any injuries. During service, the Veteran was required to participate in physical training, including five miles of running each day and other rigorous exercises. During the 1980s, he experienced various hip pains and had regular visits to physicians. For example, he was treated for a 6-year history of intermittent right hip pain in September 1985 and x-rays clearly demonstrated degenerative joint disease. His subjective symptoms were hip pain in the groin with activity, and he was noted to have decreased internal and external rotation of the hip. These signs are consistent with the degeneration of the articular cartilage surfaces. A bone scan was ordered, and the Veteran was prescribed an NSAID medication. The degenerative joint disease of the hip as diagnosed by x-rays in 1985 is progressive and continuous in nature, and it only worsens over time. The condition is a product of overuse, and it was worsened by the high-level physical demands placed upon the Veteran during service. Moreover, Dr. Chambers explained that the Veteran’s osteoarthritis was directly related to the overuse of his skeletal system during service. The resulting osteoarthritis was diagnosed in service in 1986 and it was likely (“much more likely than not”) a result of his military service. During his years in service, he completed his physical training and received maximum scores and a high level of performance. The degree of his physical training in service shortened the integrity of the cartilage of the acetabulum and femoral head, “used up” the life span of the joint, and necessitated total hip replacement. During service, the Veteran complained of hip pain, bursitis, and muscle pains, and the incidental diagnosis of trochanteric bursitis was directly related to the diagnosis of osteoarthritis. This process of osteoarthritis takes years to fully manifest and, by 1985, the diagnosis was correctly made. The disease process progressed over the years and total hip replacement was needed in 2008 and 2009. This was completely congruent with the diagnosis made in 1985. The Veteran suffered with daily pain and a degree of dysfunction “that was initiated by the physical training required of him by the Army.” The August 2009 and August 2012 opinions are of little, if any, probative value because they are based upon an inaccurate history. Specifically, these opinions are essentially partially based on a finding that there was no evidence of any hip problems for many years following service and that the first evidence of degenerative joint disease of the hips was not until 2008. However, there is evidence of occasional hip pain following service as early as October 1995 (see the report of an October 1995 VA examination) and degenerative joint disease of the hips is noted in treatment records dated in August 2003 from the University of North Texas Health Science Center. Therefore, the August 2009 and August 2012 opinions are at least partially based on an inaccurate history and are of little probative value. Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (“If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely”) (citing Reonal v. Brown, 5 Vet. App. 458, 461 (1993)). The October 2011 and June 2019 opinions by Dr. Chambers and Dr. Kleuser, by contrast, are based upon their treatment of the Veteran and a review of his treatment records and reported history, and they are accompanied by specific rationales that are consistent with the evidence of record. Therefore, the October 2011 and June 2019 opinions are adequate and entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). (CONTINUED ON NEXT PAGE) In sum, the above medical opinions support the conclusion that the Veteran has current bilateral total hip replacements which are related to his activities and hip problems in service. There is no adequate medical opinion contrary to this conclusion. Accordingly, service connection for bilateral total hip replacements is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 3.303. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Elwood, 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.