Citation Nr: 21063268 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 16-26 918 DATE: October 13, 2021 ORDER The request to reopen the claim of entitlement to service connection for a left hip disorder is granted. REMANDED Entitlement to service connection for a left hip disorder is remanded. Entitlement to service connection for a psychiatric disorder to include posttraumatic stress disorder (PTSD) and depression to include as secondary to left hip disorder is remanded. FINDINGS OF FACT 1. In an unappealed May 2011 rating decision, the Regional Office (RO) denied service connection for a left hip disorder. 2. In a June 2013 rating decision, the RO found that new and material evidence had not been received sufficient to reopen the previously denied claim of service connection for left hip pain; the Veteran submitted a timely notice of disagreement (NOD), but did not timely perfect an appeal to the Board following a November 2013 statement of the case (SOC). 3. New evidence was received after the June 2013 rating decision denial that is material to the service connection claim for a left hip disorder. CONCLUSIONS OF LAW 1. The May 2011 and June 2013 rating decisions are final. 38 U.S.C. § 7105; 38 C.F.R. § 19.32, 19.52, 20.1103. 2. The criteria for reopening the claim of entitlement to service connection for a left hip disorder are met. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1972 to January 1974. This case is before the Board of Veterans' Appeals (Board) on appeal from a June 2015 Regional Office (RO) rating decision. In that rating decision, the RO denied service connection for depression and continued the denial of service connection for left hip pain. The Veteran's notice of disagreement (NOD) was received in August 2015. The RO issued a statement of the case (SOC) in May 2016. The Veteran's VA Form 9, substantive appeal to the Board, was received in June 2016. In July 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of the testimony is associated with the claims file. Whether new and material evidence has been received sufficient to reopen the previously denied claim of service connection for a left hip disorder. The Veteran originally filed a service connection claim for a left hip disorder in January 2011. A May 2011 rating decision denied the Veteran's service connection claim for left hip pain on the basis that the evidence of records does not show this condition either occurred, or was caused by permanently or was aggravated by military service. The evidence of record at the time of that denial consisted of service treatment records and VA treatment records from January 2011 through March 2011. Although notified of the denial in a May 2011 letter at his then current address of record, the Veteran did not initiate an appeal with the rating decision. Accordingly, the May 2011 rating decision is final. See 38 C.F.R. § 20.1103. The Veteran filed another service connection claim for a left hip disorder in August 2012. In a June 2013 rating decision, the RO continued the denial of service connection for left hip pain as the evidence submitted with the current claim did not constitute new and material evidence as it does not show that the condition, which existed prior to service, permanently worsened as a result of service. The Veteran filed a notice of disagreement with the June 2013 rating decision in July 2013. The RO issued a statement of the case in November 2013; however, the Veteran did not submit a substantive appeal in response to the November 2013 statement of the case. Moreover, no additional, relevant service records, warranting reconsideration of the claim, were received at any time thereafter. See 38 C.F.R. § 3.156(b), (c). Accordingly, the June 2013 rating decision is final. See 38 C.F.R. § 20.1103. A finally decided service connection claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(c). VA regulation defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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). In determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new. This analysis is undertaken by comparing the newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). 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, 117 (2010). 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 Id. at 118, 124 (Lance, J. concurring). The questions in this case are whether evidence was associated with the claims file after the prior final denial of the Veteran's service connection claim for a left hip disorder, and if so, whether the evidence is new and material to his claim. In January 2015, the RO received the Veteran's service connection claim for left hip pain due to aggravation from active duty. Additional evidence of record received since the final June 2013 rating decision includes private treatment records, VA treatment records from April 2011 to August 2016, a June 2015 VA examination, and a July 2021 Board hearing transcript. The private treatment records, VA treatment records, June 2015 VA examination, and July 2021 Board hearing transcript are new in that they were not of record at the time of the June 2013 rating decision. The July 2021 Board hearing transcript is also material, because the Veteran provided lay statements that after the pins were taken out of his left hip prior to service, he did not have pain or other issues with his left hip until he injured when a locker fell on his left side during active duty. This lay statement indicates that the injury in service by have caused or aggravated his current left hip disorder. Accordingly, the additional evidence is both new and material and, therefore, the requirements for reopening the previously denied service connection claim for a left hip disorder are met. REASONS FOR REMAND 1. Entitlement to service connection for a left hip disorder. The Veteran underwent a VA examination in June 2015. The VA examiner provided the opinion that the claimed condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury, or illness. As part of his rationale, the examiner noted that the Veteran had bilateral surgeries to his hips at age 15. His left hip was diagnosed with a strain in November 1972 after a normal x-ray was noted. There were no other complaints or treatment until 2011. The Veteran contends that his left hip disorder was aggravated by active service. Veterans are presumed sound except as to conditions noted at entry into service. 38 U.S.C. § 1111. Furthermore, when an entrance examination has been conducted and is unavailable, the Veteran is presumed sound. See Quirin v. Shinseki, 22 Vet. App. 390, n.5 (2009) (citing Lee v. Brown, 10 Vet. App. 336, 339 (1997) (holding that the presumption of soundness applies even when the record of a veteran's entrance examination has been lost or destroyed while in VA custody)). A July 1972 entrance examination shows that the Veteran's clinical evaluation of the spine, other musculoskeletal and lower extremities were evaluated as clinically normal. A report of medical history dated in July 1972 reveals that the Veteran reported that he had surgery at the age of 15 "to put hip bone back in place." The physician noted that the hip was asymptomatic. Accordingly, a left hip disorder was not noted at entrance into service as the examination report indicated that his left hip was clinically normal. Thus, the presumption of soundness applies in this case. In order to rebut the presumption of soundness, there must be clear and unmistakable evidence that the Veteran's left hip disorder existed prior to service and clear and unmistakable evidence that it was not aggravated by service to rebut the presumption of soundness. See VAOPGCPREC 3-2003; Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). If VA is unable to rebut the presumption of soundness; then the claim becomes one for service connection based on incurrence of disability in service. The claims file contains a December 1972 Medical Board examination that documents X-ray of the hips revealed bilateral nail tracts extending from the inter-trochanteric areas to both femoral heads. The Veteran's service treatment records do not show that the Veteran's bilateral hips were pinned during service and this medical evidence supports the Veteran's lay statements that prior to service the Veteran underwent bilateral nailing for slipped capital femoral epiphyses. Thus, there is clear and unmistakable evidence that the Veteran had a left hip disorder prior to service. However, the June 2015 VA examiner's opinion is unclear with respect to whether he determined that there was clear and unmistakable evidence (obvious, manifest, or undebatable) that the Veteran's left hip disorder was not aggravated by active service. Furthermore, the examiner did not accurately describe the evidence in the Veteran's medical record as the examiner only discussed a November 1972 service treatment record and stated that there were no other complaints or treatment for his hips until 2011. The examiner did not address the service treatment records dated in February 1973, April 1973, July 1973, August 1973, September 1973, October 1973 that document complaints of a hip pain, and the December 1973 Medical Board examination. It is also not clear if the examiner was aware that the Veteran was discharged from active duty due to a bilateral hip disorder. Thus, a new medical opinion must be obtained prior to adjudicating this claim. 2. Entitlement to service connection for a psychiatric disorder to include posttraumatic stress disorder (PTSD) and depression to include as secondary to left hip disorder. The Veteran contends that he has a psychiatric disorder to include PTSD and depression related to an incident where his hip pain prevented him from being able to walk while in the field during training and he was left behind by himself in the snow. He thought he was left there to die, but about two hours later a helicopter arrived that took him to Fort Drum. A July 1973 service treatment record documents that in February 1973 the Veteran was admitted at the military hospital at Camp Drum, NY. The nature and extent of injury was that while the Veteran was in field, he developed a severe spasm on the hip muscles and was unable to walk. The medical opinion was that the Veteran was not under the influence of alcohol or drugs and he was mentally sound. The injury was incurred in the line of duty and not likely to result in Government claim. This documentation in the service treatment records supports the Veteran's lay statements of his in-service stressor. VA treatment records dated in February 2016 show that the Veteran had symptoms of depression and he was diagnosed with PTSD. The Veteran underwent a VA examination in June 2015 and the examiner diagnosed the Veteran with a mood disorder due to general medical complaints (hip replacement and pain). The examiner did not provide any rationale for his opinion and the examiner did not address the diagnosis of PTSD. Thus, a remand is necessary to obtain a new VA examination and medical opinion regarding the Veteran's service connection claim for a psychiatric disorder. The matters are REMANDED for the following action: 1. Obtain a VA medical opinion by an appropriate medical specialist, preferably an orthopedist, if possible, with respect to the Veteran's service connection claim for a left hip disorder. Only provide an examination if one is deemed necessary by the medical specialist. The contents of the entire, electronic claims file to include a complete copy of this REMAND, must be made available to the medical specialist, and the medical opinion should reflect full consideration of the Veteran's documented medical history and lay assertions. Based on consideration of all pertinent medical and lay evidence of record, the medical specialist should provide an opinion with respect to the following questions: 1) Whether it is obvious, manifest, or undebatable that the pre-existing left hip disorder was not aggravated (i.e. there was no increase in severity during service; or, any increase in severity was not beyond natural progress of the disease or injury) by service. 2) If it is not obvious, manifest or undebatable that the pre-existing left hip disorder was not aggravated during service, then what is the likelihood that there was an increase in severity during service, beyond the natural progression of the disease or injury. The medical specialist must explain the reasoning for his or her opinions including a description of the evidence relied upon and rejected in reaching such opinions. In addressing the above, the medical specialist must consider and discuss all pertinent medical evidence to include the Veteran's July 1972 entrance examination, service treatment records dated in November 1972, February 1973, April 1973, July 1973, August 1973, September 1973, and October 1973, and the December Medical Board report and examination. The medical specialist must also consider all lay assertions, to include the Veteran's assertion that his left hip disorder was asymptomatic after the pins were removed prior to service and he injured his left hip during active service with recurrent symptoms to the present. If lay assertions in any regard are discounted, the medical specialist should clearly so state, and explain why. The medical specialist may not dismiss the Veteran's complaints of post-service symptoms solely because they are not documented in medical treatment records. 2. Arrange for the Veteran to undergo a VA examination with a psychiatrist or psychologist to determine whether any current psychiatric disorder is related to active military service. The electronic claims file, including a copy of this remand, must be made available to the examiner for review, and the examiner should indicate that the claims folder was reviewed. All indicated evaluations, studies, and tests deemed necessary should be accomplished and all findings reported in detail. Following review of the claims file and examination of the Veteran, the examiner must identify all psychiatric disorders found at any time during the relevant appeal period (even if currently resolved), to include PTSD and a mood disorder. The examiner must specifically address the noted diagnoses of PTSD and mood disorder noted in the Veteran's VA treatment records and diagnosed in the June 2015 VA examination. If the examiner finds that the Veteran has not met the criteria for a diagnosis of PTSD and/or mood disorder at any time during the course of the relevant appeal period, the examiner must explain why the diagnoses of record during the relevant appeal period are not valid. If the Veteran is shown to have PTSD at any point during the appeal period, the examiner should specifically address the stressor(s) from which that diagnosis stems. For each psychiatric disorder found other than PTSD, to include a mood disorder, the examiner should provide an opinion regarding whether each disorder at least as likely as not (50 percent or greater probability) began in or is otherwise related to active service to include the incident of being left behind during field training. In rendering the above opinions, the examiner should specifically discuss the Veteran's service treatment records, post-service mental health treatment records, as well as, the June 2015 VA mental health examination. The examiner is asked to address the lay statements as to the onset of his psychiatric symptoms. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Berry, 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.