Citation Nr: 21003375 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 12-28 963 DATE: January 21, 2021 ORDER New and material evidence having been received; the claim of entitlement to service connection for right hip disorder is reopened. REMANDED Entitlement to service connection for right hip disorder is remanded. FINDINGS OF FACT 1. The claim for service connection for right hip condition was denied in an unappealed February 1993 rating decision. 2. Evidence submitted since the February 1993 rating decision includes information that was not previously considered by VA and that establishes a fact necessary to substantiate the claim for service connection for right hip condition, and therefore creates a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The February 1993 rating decision that denied entitlement to service connection for right hip condition is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302(a), 20.1103. 2. New and material evidence has been received since the February 1993 rating decision and the requirements to reopen the claim of entitlement to service connection for right hip condition have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1989 to September 1992. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision by a Department of Veterans Affairs Regional Office (RO). This case was previously remanded in December 2013 to obtain an addendum medical opinion and to schedule the Veteran for a Board hearing. In June 2017, this case was remanded in order to schedule the Veteran for a Board hearing. In September 2020, the Veteran testified at a Board videoconference hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. The Board held the record open for 30 days for the Veteran to submit additional relevant evidence. New and Material The Veteran’s claim for service connection for right hip condition was originally denied in a February 1993 rating decision. However, as the Veteran did not file a notice of disagreement with that decision and new and material evidence was not received within one year of notice of that decision, it is final. 38 U.S.C. § 7105(a); 38 C.F.R. §§ 3.104(a), 20.302(a), 20.1103. The Agency of Original Jurisdiction (AOJ) denied the claim on the basis that the Veteran’s July 1992 separation examination noted no residual disabilities. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of an appellant. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New evidence is evidence not previously submitted to agency decision makers. Material evidence is 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 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 threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). Evidence added to the claims file includes a May 1994 quadrennial examination noting normal lower extremities and the Veteran denied any swollen or painful joints. See STRs received March 1999. He did report a hip injury in 1992 and the clinician noted some mild discomfort. Thereafter, in July 2008, a private treatment record shows the Veteran was assessed with a tender right hip joint with rotation pain. The Veteran was referred for an X-ray study. An August 2008 right hip X-ray study was normal. See STRs received May 2010 and Private Medical Records received June 2011. The Veteran also underwent VA examinations in September 2010 and August 2012, both of which noted no currently diagnosed right hip condition due to negative X-ray studies. Most recently, a March 2019 VA medical record shows that an MRI study revealed a diagnosis for superior anterior right labral tear and mild right gluteus medius tendinopathy. The Board finds this evidence raises a reasonable possibility of substantiating the claim of entitlement to service connection for right hip condition. Specifically, the evidence shows that the Veteran complained of a right hip condition shortly after separation from service, and he has a current diagnosed right hip condition. Accordingly, the petition to reopen that claim is granted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see Shade, 24 Vet. App. 110. REASONS FOR REMAND 1. Right Hip As noted above, a recent March 2019 VA MRI study revealed a superior anterior right labral tear and mild right gluteus medius tendinopathy. As further noted above, the Veteran underwent two VA examinations in September 2010 and August 2012, both of which determined, based in part on X-ray studies, that the Veteran did not have a current diagnosed right hip condition. An addendum opinion was further obtained in July 2015 following the Board’s December 2013 Remand. The examiner was specifically asked to provide an opinion as to the etiology of the Veteran’s right hip symptoms. After a review of records, the examiner opined that it was “less likely than not (less than 50% probability)” that the Veteran’s right hip condition was etiologically related to service. However, the examiner also stated that he was unable to determine the nature and etiology of the Veteran’s right hip symptoms without resorting to mere speculation. In this regard, the examiner noted that the Veteran had two separate orthopedic evaluation in 2010 and 2012, neither of which was able to determine a cause for the Veteran’s right hip pain. The examiner did state that it was less likely than not that the 1992 right hip injury was the cause of the Veteran’s current right hip pain. In support of this finding, the examiner stated that there was no record of medical treatment for 16 years following separation from service, and that one would expect such care if there had been ongoing symptoms or if the condition had progressively worsened. The examiner further stated that one would expect there to be definitive findings on imaging or physical examination of the right hip area if the condition had worsened, but that no such examination occurred for 20 years after separation from service. After a review of the evidence of record, the Board finds that a remand is necessary to obtain another VA examination. In this regard, in light of the March 2019 MRI study revealing a diagnosed right hip condition, the prior September 2010, August 2012 and July 2015 VA examination reports are inadequate to adjudicate the issue on appeal. Specifically, both the September 2010 and August 2012 VA examiners determined that the Veteran did not have a diagnosed condition. Additionally, both the August 2012 and July 2015 VA examiners based their negative etiological findings, in part, on a finding that the Veteran had not complained of a right hip condition for approximately 16 to 17 years following separation from service. However, a review of the Veteran’s July 1993 separation examination shows he reported having swollen or painful joints and a hip injury at age 20. Within a year following separation from service, a May 1994 quadrennial examination also shows that the Veteran reported injuring his hip in 1992 and the clinician noted some mild discomfort. Accordingly, a Remand is necessary to determine the nature and etiology of the Veteran’s diagnosed right hip condition. Additionally, in October 2020, the Veteran requested additional time to submit evidence. As this matter is being remanded, he will have an additional opportunity to submit such evidence. The matter is REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from the Veteran’s VA treatment facilities, and all private treatment records from the Veteran not already associated with the file. 2. Then, schedule the Veteran for an examination by an appropriate examiner to determine the nature and etiology of his diagnosed right hip disorder (or telehealth interview, review of the record, etc., if an in-person examination is not feasible or determined necessary). The examiner should provide the following opinions: Is it at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed right hip disorder is etiologically related to his period of service? The examiner should review pertinent documents in the Veteran’s claims file in connection with the examination. The examiner is asked to consider the Veteran’s STRs noting a 1992 hip injury and assessments of a muscle strain and ligamentous tear, May 1994 quadrennial examination noting a 1992 hip injury and current symptoms, more recent private and VA medical records dating from July 2008 noting reports of an in-service right hip injury and symptoms of chronic pain, as well as a March 2019 VA MRI study revealing superior anterior right labral tear and mild right gluteus medius tendinopathy. (Continued on the next page)   All indicated studies should be completed. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lamb, 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.