Citation Nr: A21016295 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 200515-84870 DATE: October 4, 2021 ORDER New and relevant evidence having been received, readjudication of the previously denied claim of entitlement to service connection for left hip total hip replacement is warranted. New and relevant evidence having been received, readjudication of the previously denied claim of entitlement to service connection for right hip total hip replacement is warranted. REMANDED Entitlement to service connection for left hip total hip replacement is remanded. Entitlement to service connection for right hip total hip replacement is remanded. FINDINGS OF FACT 1. A September 2017 rating decision denied the Veteran's initial claims for entitlement to service connection for left hip and right hip total hip replacement because the conditions were neither occurred in nor caused by service. The Veteran did not appeal this decision and did not submit new and material evidence within the one-year appeal period. 2. A March 2019 rating decision confirmed the previous denials of service connection for left hip and right hip total hip replacement, as new and relevant evidence had not been received. The Veteran timely filed a Decision Review Request: Higher-Level Review (VA Form 20-0996) in October 2019. In February 2020, the Agency of Original Jurisdiction (AOJ) confirmed and continued the previous denials of the Veteran's claims because the evidence submitted was not new and relevant. The Veteran timely filed a Decision Review Request: Board Appeal (Notice of Disagreement) (VA Form 10182) in May 2020. 3. Subsequent evidence associated with the record relates to unestablished facts and raises a reasonable possibility of substantiating the claims of entitlement to service connection for a left total hip replacement and a right total hip replacement. CONCLUSIONS OF LAW 1. New and relevant evidence has been received to readjudicate the claim of entitlement to service connection for left hip total hip replacement. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.156, 3.2501 (2020). 2. New and relevant evidence has been received to readjudicate the claim of entitlement to service connection for right hip total hip replacement. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.156, 3.2501 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from September 2002 to November 2006. The issues are on appeal under the Appeals Modernization Act (AMA) from a rating decision issued in February 2020. The Veteran submitted a VA Form 10182 in May 2020 electing the direct review docket. The Board notes that the AOJ had previously requested the Veteran submit any relevant private treatment records or submit information with which VA can assist the Veteran in obtaining private treatment records. The duty to assist is not a one-way street. If a Veteran desires help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). New and Relevant Evidence In this case, a September 2017 legacy rating decision denied the Veteran's initial claims for entitlement to service connection for left hip and right hip total hip replacement because the conditions were neither occurred in nor caused by service. The Veteran did not appeal this decision and did not submit new and material evidence within the one-year appeal period. The rating decision is final because it was not appealed within one year and new and material evidence was not received within one year of notification of the decision. 38 U.S.C. § 7105; 38 C.F.R. § 3.156(a). A March 2019 rating decision confirmed the previous denials of service connection for left hip and right hip total hip replacement, as new and relevant evidence had not been received. The Veteran timely filed a VA Form 20-0996 in October 2019. In February 2020, the AOJ confirmed and continued the previous denials of the Veteran's claims because the evidence submitted was not new and relevant. To readjudicate a claim which has been denied by a final decision, the claimant must present new and relevant evidence. 38 U.S.C. § § 5108. New evidence means existing evidence not previously part of the record before agency adjudicators. Relevant evidence is information that tends to prove or disprove a matter at issue in a claim. Relevant evidence includes evidence that raises a theory of entitlement that was not previously addressed. 38 C.F.R. § 3.2501(a)(1). In the present matter, the Board finds that new and relevant evidence has been submitted. The Veteran now asserts that his hip disabilities are secondary to his service-connected posttraumatic stress disorder, and submitted a medical article in December 2019 which discusses the relationship between alcohol abuse and bone necrosis. In addition to being new, this evidence is relevant to the Veteran's claim for entitlement to service connection for left hip total hip replacement and right hip total hip replacement. As this evidence is new and relevant, readjudication of the Veteran's claims are warranted. REASONS FOR REMAND Entitlement to service connection for left hip total hip replacement Entitlement to service connection for right hip total hip replacement Remand is needed to correct a pre-decisional duty to assist error. The January 2020 VA opinions (Hip and Thigh and PTSD) indicated that the Veteran's avascular necrosis was less likely than not the result of his service-connected PTSD and alcoholism disorder. However, the examiners did not consider aggravation under 38 C.F.R. § 3.310(b). The January 2020 VA medical opinions are therefore inadequate as to secondary service connection and a remand is warranted to correct this pre-decisional duty to assist error by obtaining an adequate medical opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide an examination or obtain a medical opinion, it must ensure that the examination or opinion is adequate). The matters are REMANDED for the following action: Obtain a medical opinion regarding the nature and etiology of the Veteran's hip disabilities. The electronic claims file, including a copy of this remand, must be made available to, and reviewed by the medical professional providing the opinion. Following a complete review of the evidence of record and with consideration of the Veteran's lay statements, assuming the statements are credible for the limited purpose of the request herein, the medical professional is requested to provide the following opinions: a) Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's left hip total hip replacement and right hip total hip replacement were caused by the Veteran's service-connected PTSD with alcoholism disorder? b) Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's left hip total hip replacement and right hip total hip replacement were aggravated by the Veteran's service-connected PTSD with alcoholism disorder? For the purposes of secondary service connection, the examiner is advised that aggravation is defined as "any increase in disability." A complete rationale must be provided for all opinions offered. If any opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what, if any, additional evidence would potentially allow for a more definitive opinion. If an additional examination is required for the examiner to sufficiently address the above questions, then a new examination should be afforded. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bonnie Yoon, 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.