Citation Nr: 21072522 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 17-02 781 DATE: December 3, 2021 ORDER New and material evidence has been received to reopen a claim of entitlement to service connection for a left hip disability. REMANDED Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a right hip disability is remanded. FINDINGS OF FACT 1. The Veteran's claim for service connection for a bilateral (left and right) hip disability was previously considered and denied in a September 2009 rating decision; he did not appeal that decision and documentation constituting new and material evidence was not actually or constructively received within the one-year appeal period following notification of that decision. 2. But additional evidence received since that September 2009 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for a left hip disability, and raises a reasonable possibility of substantiating this claim. CONCLUSIONS OF LAW 1. The September 2009 rating decision previously considering and denying service connection for a bilateral (left and right) hip disability is final and binding based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103. 2. However, there is new and material evidence since that decision to reopen the claim for service connection for a left hip disability. 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 1969 to April 1972. This appeal to the Board of Veterans' Appeals (Board) is from an August 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Board, in relevant part, determined there was new and material evidence and consequently reopened the claim for service connection for a right hip disability. However, rather than immediately readjudicating this claim on its underlying merits, de novo, the Board proceeded to instead remand this claim and the petition to reopen the claim for service connection for a left hip disability back to the RO (Agency of Original Jurisdiction (AOJ)) for further development and consideration including to have the Veteran reexamined for needed medical comment concerning the etiology of his bilateral hip disability, especially in terms of whether directly related to his military service or secondarily related, meaning caused or aggravated by his already determined to be service-connected right knee disability. Unfortunately, there was not the required substantial compliance with the remand directives and, as such, another remand is required. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Prior this additional remand, however, the Board is reopening the claim for service connection for a left hip disability. 1. New and material evidence has been received to reopen the claim for service connection for a left hip disability As already alluded to, the Veteran's claim for service connection for a bilateral (left and right) hip disability was originally considered and denied in a September 2009 rating decision. The RO duly notified him of that decision and of his appellate rights. However, he did not appeal that decision and documentation constituting new and material evidence was not constructively or actually received within the appeal period. Consequently, that September 2009 decision became final and binding on him based on the evidence of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.201, 20.302, 20.1103 (2018). The September 2019 Board decision since issued found that the Veteran had submitted new and material evidence concerning his right hip claim and consequently reopened that claim. But the Board then proceeded to remand this right hip claim, also the petition to reopen the claim concerning the left hip, back to the RO (AOJ) for the additional development and consideration already mentioned. On remand, the petition to reopen the claim concerning the left hip continued to be denied, so the Board must first make this threshold preliminary determination of whether there is new and material evidence to reopen this claim because this affects the Board's jurisdiction to adjudicate this claim on its underlying merits. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996). Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. A claim on which there is a final decision, however, may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. "New" evidence means existing evidence not previously submitted to agency decisionmakers. "Material" evidence means existing 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 prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id. When determining whether a claim should be reopened, the credibility of the newly submitted evidence is to be presumed unless inherently incredible or beyond the competence of the person making the assertion. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). The September 2009 rating decision denied the claim for service connection for a bilateral hip condition (so including left hip condition, specifically) based on a finding that it was not secondary to the Veteran's service-connected right knee disability and since it neither onset during nor was the result of his service. Thus, the claim was denied on both direct and secondary service connection bases. Evidence added to the record since that September 2009 final and binding denial of this claim includes VA treatment records, the Veteran's written statement in his April 2014 Notice of Disagreement (NOD), and importantly his September 2012 petition to reopen his claim citing a private doctor's opinion that the Veteran's hip pain is caused by his service-connected right knee disability. Aside from being new, this additional evidence also is material in that it relates to an unestablished fact necessary to substantiate the claim for service connection for a left hip disability and raises a reasonable possibility of substantiating this claim because it attributes the left hip pain to the Veteran's military service secondarily by way of his already determined to be service-connected right knee disability. Since the evidence is both new and material in these regards, this claim of entitlement to service connection for a left hip disability is reopened. REASONS FOR REMAND 2. Entitlement to service connection for a left hip disability is remanded. 3. Entitlement to service connection for a right hip disability is remanded. The September 2019 remand directed examination of the Veteran for needed medical opinions concerning the posited notions of direct and secondary service connection for these left and right hip disabilities being claimed. The remand further specified that his lay statements concerning his medical history, including when his symptoms began, must be acknowledged and considered by the VA examiner. To this end, the Veteran underwent a VA hip examination in December 2019. The examination report shows he relayed to the examiner that his hip pain had onset after right knee surgery in 1970, so during his service. His service treatment records (STRs) confirm that he underwent right knee surgery during his service. Despite the examiner recording the Veteran's lay statements and this history, in providing the requested opinions the examiner did not address that earlier knee surgery during service and the Veteran's lay statement that it had "led to the [issues with his] hips." This is important because this at least suggest the Veteran's hip disabilities may have incepted during his service, however, this contention is not addressed in the examiner's opinion concerning direct service connection. Moreover, the examiner's opinion regarding the additional possibility of secondary service connection similarly does not mention the Veteran's right knee surgery during service and his reports of hip pain originating after that initial surgery in service, rather than owing to his later knee surgeries that he had after eventual diagnosis of his bilateral hip disability. Because the examiner did not address the Veteran's lay statements that his right knee surgery during service caused or precipitated his hip pain or disability, even potentially during his service, supplemental medical comment is needed to fully address the contentions that have been put forth. Accordingly, these claims are again REMANDED for the following still additional development and consideration: Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's left and right hip disabilities are traceable to the right knee surgery he initially had during his service, in 1970, including in terms of whether his hip pain onset after that surgery or is proximately due to, the result of, or aggravated by any service-connected disability but especially his right knee disability prompting that initial surgery. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Pak 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.