Citation Nr: 21069769 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 19-22 678 DATE: November 19, 2021 ORDER The claim for entitlement to service connection for right hip condition, to include as secondary to service-connected disabilities, is reopened. REMANDED Entitlement to service connection for right hip condition, to include as secondary to service-connected disabilities, is remanded. FINDINGS OF FACT 1. A November 2013 rating decision denied the claim for service connection for right hip condition. The Veteran disagreed with but did not perfect an appeal of the November 2013 rating decision, and new and material evidence was not submitted within the appeal period. 2. Evidence added to the record since the November 2013 rating decision is not cumulative or redundant of the evidence of record at the time of that decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for right hip condition. CONCLUSIONS OF LAW 1. The November 2013 decision denying service connection for right hip condition is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence having been received, the criteria for reopening the claim for 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 in the United States Army from March 1968 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony in November 2021 before the undersigned. A copy of the transcript is associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Requests to Reopen Previously Denied Claims for Service Connection Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). 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. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). 1. The claim for entitlement to service connection for right hip condition, to include as secondary to service-connected disabilities, is reopened. The Veteran contends that his right hip condition was aggravated by his left knee and right ankle conditions. The Veteran's claim for service connection for right hip condition was initially denied in a November 2013 rating decision. The RO determined that the right hip condition was not caused by the left knee condition and found no medical link between the claimed right hip condition and service. At the time of that decision, the evidence of record included service treatment records, VA and/or private treatment records, and a VA examination with negative nexus opinion. The Veteran disagreed with rating decision but did not perfect an appeal to the Board by filing a VA Form 9 to an April 2016 statement of the case, nor did he submit relevant evidence within one year of that decision; therefore, the decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. The new evidence includes an October 2018 VA examination and negative nexus opinion. Additionally, the Veteran submitted a positive private opinion linking his right hip condition to his left knee and right ankle conditions. He also submitted a statement clarifying that his right hip condition started in August 2013, following flare ups of his left knee and right ankle. This constitutes new and material evidence presenting a reasonable possibility of substantiating the claim on the merits. Hence, reopening of the claim for service connection for right hip condition is warranted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). REASONS FOR REMAND 1. Entitlement to service connection for right hip condition, to include as secondary to service-connected disabilities, is remanded. The Veteran contends that his right hip condition was aggravated by his left knee and right ankle conditions. A September 2013 VA examination demonstrated a diagnosis for degenerative joint disease. A negative nexus opinion was provided. The examiner concluded the Veteran's mild arthritis is less likely than not due to or proximately caused by his service-connected conditions and likely age related. An October 2018 VA examination was obtained. The examiner provided a negative nexus opinion and concluded the Veteran's right hip condition is less likely due to the left knee and right ankle. The examiner reasoned that evidence did not support a link between his right hip and service-connected conditions, and that that Veteran reported his left knee and right ankle disabilities began around the same time his right hip disability during service. Furthermore, the examiner reasoned that knee and contralateral ankle degenerative joint disease are not well recognized causes of bilateral hip symmetrical degenerative joint disease and that normal age progression is probably the cause of the hip condition at 73 years of age. In January 2019, a private opinion from Dr. B.A. was submitted by the Veteran. Dr. B.A. opined that the right hip is at least as likely as not caused by the left knee, right ankle, and scoliosis of the back. The Board finds the September 2013 and October 2018 VA opinions are inadequate as they did not provide an aggravation opinion for secondary service condition nor did they address direct service connection for that matter. The Board also finds the January 2019 private positive opinion is conclusory and not supported by a sufficient rationale. As such, an addendum opinion is warranted to adequately address the nature and etiology of the claim right hip condition. The matter is REMANDED for the following actions: 1. With any necessary assistance from the Veteran, obtain any outstanding VA and/or private treatment records. All efforts to obtain such records should be documented in the claims file. 2. Obtain an addendum opinion from the October 2018 examiner, or another qualified clinician. The examiner providing the report must be provided access to the electronic claims file and indicate review of the file in the examination report. The claims folder and a copy of this remand in its entirety must be provided to the examiner in conjunction with the addendum opinion. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements; the examiner must indicate on the examination report that such review was undertaken. If examination of the Veteran is necessary, such should be arranged. The examiner is asked to determine the following: a) Is it as least as likely as not (50 percent probability or greater) that the right hip condition began during active service, or is otherwise related to service? b) Is it at least as likely as not (50 percent probability or greater) that the right hip condition was proximately caused by or aggravated by the service-connected left knee and right ankle conditions? "Permanent worsening" of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation. Ward v. Wilkie, 31 Vet. App. 233 (2019). The VA examiner must provide separate findings and rationales relating to causation and aggravation. The examiner should consider the January 2019 private opinion evidencing a link between the right hip condition and the service-connected disabilities. The examiner must provide a rationale in support of all opinions provided. If the examiner cannot provide an opinion without conducting an examination of the Veteran, then an examination must be scheduled. If any opinion cannot be provided without resorting to speculation, the examiner must explain why this is so. (Continued on the next page) 3. Readjudicate the claim on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, provide the Veteran and his representative with a supplemental statement of the case and afford them the requisite opportunity to respond before the case is returned to the Board for further appellate action. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. Asfaw, Associate 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.