Citation Nr: 21066716 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 16-53 222 DATE: November 2, 2021 ORDER New and material evidence having been received, entitlement to service connection for a bilateral hip disability, including avascular necrosis, is reopened. REMANDED Entitlement to service connection for a bilateral hip disability, including avascular necrosis, (bilateral hip disability) claimed as direct and secondary to service-connected disabilities is remanded. FINDING OF FACT Evidence received since the January 2004 rating decision is new and material regarding the issues of service connection for a bilateral hip disability, as it contains evidence not previously considered that has some tendency to help link the Veteran's current disabilities to his active military service. CONCLUSION OF LAW The criteria for reopening the Veteran's previously denied claims of service connection for a bilateral hip disability have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1979 to August 1982. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision by the Department of Veterans Affairs (VA). In July 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A copy of the transcript has been associated with the electronic claims file. During the Board hearing the Veteran raised a theory that his bilateral hip disability is a result of VA surgery, implying a claim for benefits under 38 U.S.C. § 1151. A claim for compensation benefits pursuant to 38 U.S.C. § 1151, while raising an alternative means of potentially obtaining VA compensation, is not a claim for service connection. Thus, a claim for compensation under 38 U.S.C. § 1151 is separate and distinct from a claim for compensation under the laws and regulations governing service connection claims. See Anderson v. Principi, 18 Vet. App. 371, 377 (2004) (a claim for compensation under section 1151 constitutes a separate and distinct claim for VA benefits.). See also Prickett v. Nicholson, 20 Vet. App. 370, 377 (2006) ("[T]he VA adjudicatory system is designed to afford both the claimant and the Government every opportunity to resolve a disagreement between the parties before resorting to a Substantive Appeal and Board adjudication"). As such, the Veteran is invited to submit a claim for benefits under 38 U.S.C. § 1151. 1. New and Material Evidence. The Veteran contends the currently diagnosed bilateral hip disability was directly incurred during service, is secondary to service-connected disabilities, or in the alternative, was caused by the care provided by the VA. The claim was denied in a January 1999 rating decision which the Veteran did not appeal. Generally, a claim which has been denied in a final unappealed rating decision, or a rating decision that was appealed but was not perfected, may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c), (d)(3); 38 C.F.R. § 20.1103. If "new and material" evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). "[N]ew evidence" means evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial. 38 C.F.R. § 3.156(a). Materiality has two components, first, that the new evidence pertains to the reason for the prior final denial, and second, that the new evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When making a determination whether the submitted evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim, applying concepts derived from the duty to assist. Id. at 118. The Veteran seeks to reopen the previously denied claims for service connection for a bilateral hip disability. The claims were initially considered and denied by the RO in a January 1999 rating decision. The Veteran did not initiate an appeal of the decision denying service connection for the bilateral hip disability, nor did he submit any new and material evidence, including medical evidence, within the applicable one-year period. See 38 C.F.R. § 3.156(b); Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007). As such, the decision became final as to the evidence of record then and is not subject to revision on the same factual basis. 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Subsequently, the Veteran filed to reopen the claims in June 2003. The claims was considered and denied in a January 2004 rating decision. The Veteran did not initiate an appeal of the decisions denying service connection for the bilateral hip disability, nor did he not submit any new and material evidence, including medical evidence, within the applicable one-year period. See 38 C.F.R. § 3.156(b); Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007). As such, the decisions became final as to the evidence of record then and are not subject to revision on the same factual basis. 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In September 2014, the Veteran filed to reopen the claim and it was considered and denied in an April 2015 rating decision. The Veteran filed a timely notice of disagreement with the rating decision and this appeal followed. Since the March 2007 rating decision, additional evidence has been received in the form of VA treatment records and lay evidence from the Veteran. The VA treatment records and testimony from the Veteran are new because they have not been previously submitted. This evidence is also material because it pertains to the basis for the prior denial, that is, a basis to relate the current bilateral hip disability to the Veteran's period of active service, secondary to service-connected disabilities, or the result of treatment at a VA healthcare facility, and raise a reasonable possibility of substantiating the claims. Specifically, the Veteran has testified to in-service pain injuries that he contends resulted in the current bilateral hip disability. Therefore, the Board finds that new and material evidence has been received to reopen the claims for service connection for a bilateral hip disability. See 38 C.F.R. § 3.156(a). When making determinations as to whether new and material evidence has been presented, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Duran v. Brown, 7 Vet. App. 216 (1995). This new evidence raises a reasonable possibility of substantiating the claim; thus, this evidence is new and material and the requirements to reopen the claim under 38 C.F.R. § 3.156(a) have been satisfied. Accordingly, the Board has determined that new and material evidence has been received to reopen the claim for service connection for a bilateral hip disability. REASONS FOR REMAND 1. Service Connection for a Bilateral Hip Disability is Remanded. The Veteran contends that service connection is warranted for a bilateral hip disability. After review of the evidence, both lay and medical, the Board finds that a remand is necessary to allow the Board to make a fully informed decision. During the July 2021 Board hearing, the Veteran provided different theories of entitlement to service connection for a bilateral hip disability. First, the Veteran indicated that hip pain began in-service and has continued since, including him receiving treatment within 90 days of separation from service. Next, he contends that the current hip disabilities are caused or aggravated by his service-connected disabilities, including a right-side hernia repair. To date, the Veteran has not been provided an examination to determine the nature and etiology of any bilateral hip disabilities, as such, a remand is necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The matters are REMANDED for the following action: 1. Contact the Veteran and his representative and ask them to provide sufficient information and necessary authorization in order to obtain copies of any outstanding records of treatment by non-VA health care providers for the bilateral hip disabilities. The letter should invite the Veteran and his representative to submit any pertinent medical evidence in support of his claim. If the Veteran or his representative provides the necessary information and authorizations, obtain any outstanding clinical records and incorporate them into the electronic claims file. 2. Associate all outstanding VA treatment records with the claims file. Particular effort must be made to obtain any records from the West Palm Beach VAMC beginning in 1982. All attempts to obtain these records must be documented in the claims file. 3. After completing the above requested development, schedule the Veteran for an examination by a Medical Doctor to determine the nature and etiology of any current bilateral hip disabilities, and whether the VA procedure conducted in resulted in any additional disability of the bilateral hips. The clinician should review the virtual file, including a copy of this Remand. The clinician is to address the following: (a) Identify all of the Veteran's current bilateral hip disabilities. (b) Whether it is at least as likely as not (50 percent or greater probability) that any current bilateral hip disability manifested during. is otherwise related to the Veteran's periods of active service, or had its onset within one year of separation from service? b) Is it at least as likely as not (50 percent probability or greater) that the current bilateral hip disabilities are caused by the Veteran's service-connected disabilities, including a right-side hernia repair? c) If not caused by the service-connected disabilities, is it at least as likely as not (50 percent probability or greater) that any bilateral hip disabilities are aggravated (worsened in severity beyond the natural progression of the disease) by the Veteran's service-connected disabilities, including a right-side hernia repair? If the VA examiner opines that the bilateral hip disabilities are aggravated by the service-connected disabilities, he/she should indicate the degree of disability before aggravation and the current degree of disability. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). The VA examiner must comment on the Veteran's in-service reports of hip pain. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Teague, 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.