Citation Nr: 21075247 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 17-33 548 DATE: December 17, 2021 ORDER New and material evidence having been submitted, the claim for service connection for osteoarthritis of the left hip is reopened. REMANDED Entitlement to service connection for osteoarthritis of the left hip s/p hip replacement, is remanded. FINDINGS OF FACT 1. An unappealed July 1995 rating decision denied the Veteran's claim for service connection for osteoarthritis of the left hip finding no evidence of a current disability at that time. 2. Evidence received since the July 1995 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 osteoarthrosis of the left hip, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The July 1995 rating decision denying entitlement to service connection for osteoarthritis of the left hip is final. 38 U.S.C. § 7104, 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence has been received sufficient to reopen the claim for entitlement to service connection for osteoarthritis of the left hip. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Marine Corps from November 1972 to January 1990. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision issued by a VA Regional Office (RO) reopening the claim and denying it on the merits. The RO's decision to reopen, however, is not binding on the Board and, consequently, the Board is obligated to consider the issue of new and material evidence and make an independent determination. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Veteran was scheduled to testify before the Board in November 2021. Notice of the hearing was sent to his last known address and the Veteran's claims file contains no returned mail nor address change request. In addition, VA contacted the Veteran on the phone in October 2021 to confirm his hearing date with no indication that the Veteran would not appear. To date, he has not shown good cause for his "no show," nor requested a new Board hearing. Accordingly, the Board considers the hearing request to be withdrawn. 38 C.F.R. § 20.704 (d). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). New and material evidence having been submitted, the claim for service connection for osteoarthritis of the left hip is reopened. Generally, a claim which has been denied in an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). An 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 VA Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means evidence not previously submitted. Material evidence means existing evidence that by itself or when considered with previous evidence relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final decision and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). If the evidence is new, but not material, the inquiry ends, and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court 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." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." The Court further held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what new and material evidence is, rather than a separate determination to be made after the Board has found that evidence is new and material. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). As a final matter before turning to the specific facts of the Veteran's case, the Board notes that it has considered the applicability of 38 C.F.R. § 3.156(b), which provides that when new and material evidence is received prior to the expiration of the appeal period it will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. In the instant case, no new and material evidence was submitted within the appeal period after the 1995 rating decision nor is there indication of evidence "constructively" before the VA within the appeal period. Accordingly, 38 C.F.R. § 3.156(b) is not applicable. See Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). In the present case, the RO by a decision entered in July 1995, denied the Veteran's original claim for service connection for osteoarthritis of the left hip on the grounds that the condition was not confirmed on x-rays, which indicated a normal hip. Specifically, the RO stated, "service connection is denied for degenerative changes of the left hip as not found on last examination". The RO notified the Veteran of its decision, and of his appellate rights, and no appeal was initiated within one year and, as indicated above, no new and material evidence was received (or constructively received) within a year. 38 C.F.R. § 3.156(b). As a result, the RO's decision became final. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior final adjudication (i.e., the July 1995 decision). 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a) (2018); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). At the time of the July 1995 rating decision, the file included the Veteran's service treatment records, which were not indicative of any left hip condition. The record also included VA examinations from May and July 1995 that indicated the Veteran had history of osteoarthritis of the left hip however, x-ray findings were indicative of a normal left hip. Since the July 1995 RO decision, the Veteran has elaborated on his claim for service connection for osteoarthritis of the left hip to include as secondary to his various service-connected musculoskeletal conditions. Specifically, he contends that he originally broke and dislocated his right ankle and knee. Later this required a total knee replacement which then resulted in development of arthritis in his right hip. These conditions then resulted in the Veteran having to undergo two back surgeries. All these conditions then resulted in him having to overuse his left side to compensate. This overuse, he contends, has resulted in severe arthritis in his left hip which later caused the need for a total left hip replacement. See June 2017 VA Form 9. In support of his claim, the Veteran has submitted a medical opinion from his primary care physician, Dr. D.M.B dated in November 2015. In February 2016, the RO afforded the Veteran a new VA examination for his left hip confirming a diagnosis of osteoarthritis of the left hip. The evidence is "new" in that it was not previously considered in the 1995 rating decision, and it is also "material" in that it relates to the unestablished fact in the 1995 rating decision, namely diagnosis. Whereas the 1995 rating decision denied the Veteran's claim finding no evidence of a left hip disability, the new evidence clearly shows a current diagnosis. The new evidence also pertains to nexus and although there is evidence that both supports and cuts against nexus to service, for purposes of reopening, the evidence is both new and material in that it raises a reasonable possibility of substantiating the claim. For these reasons, the Board finds reopening the claim proper. REASONS FOR REMAND Entitlement to service connection for osteoarthritis of the left hip s/p hip replacement, is remanded. Having found new and material evidence being submitted, the matter may now be considered on the merits. At the same time, further development is necessary for a fair adjudication of the appeal. As noted above, the Veteran contends that his current osteoarthritis in his left hip resulting in a total hip replacement, is the result of his currently service-connected musculoskeletal conditions. Specifically, the Veteran asserts that his service-connected right knee arthroplasty with traumatic arthritis, right ankle fracture, right hip arthritis, and degenerative disc disease of the lumbar spine caused the Veteran to overuse his left side in order to compensate. This overuse, the Veteran contends, caused or aggravated his left hip osteoarthritis to the point where he required a total hip replacement in 2015. In support, the Veteran submitted a November 2015 medical opinion from his primary care physician Dr. D.M.B. His doctor opined that the Veteran's ankle fracture appeared to be the most severe and "therefore was the most likely to [have] contributed the most" to his development of left hip osteoarthritis. The Board is not persuaded by the opinion as it is merely conclusory without a supporting rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (a mere conclusion by an examiner is insufficient to allow the Board to make a fully informed decision as to the probative value of the opinion). See also Horn v. Shinseki, 25 Vet. App. 231, 240-42 (2012) (stating that under caselaw "an unexplained conclusory opinion is entitled to no weight in a service-connection context"). At the same time, Dr. D.M.B.'s opinion at least raises the possibility of a secondary nexus to the Veteran's other se0rvice-connected disabilities. In February 2016, the Veteran was afforded a VA hip examination where the examiner confirmed the current diagnosis of osteoarthritis of the left hip with a history of total hip replacement in March 2015 but opined that the Veteran's osteoarthritis of the left hip status post hip replacement is less likely than not proximately due to or the result of the Veteran's service-connected right ankle disability. The examiner explained that "osteoarthritis has no single specific cause, but there are certain factors that may make you more likely to develop the disease." The examiner listed several of said factors, to include obesity, previous injury to the hip joint and improper formation of the hip joint at birth but did not specify in particular which of these factors applied to the Veteran and, indeed, went on to say that "even if you do not have any of the risk factors...you can still develop osteoarthritis." Lastly, the examiner opined "it would not be physiologic for injury to the contralateral ankle to influence this condition." The Board finds the February 2016 VA examiner's opinion inadequate and inconclusive as the examiner did not indicate whether the Veteran's service-connected ankle caused or aggravated his left hip diagnosis, but rather only said "it would not be physiologic for injury to the contralateral ankle to influence this condition." It is unclear whether the term "influence" rules out both causation and aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). Further, the examiner limited the opinion to solely the Veteran's service-connected right ankle fracture, but the Veteran's contention encompasses several other service-connected conditions which have not been considered or addressed by any VA examiner. Additionally, no examiner has properly considered or addressed the contention that overuse of his left side due to his service-connected conditions caused or aggravated his current osteoarthritis in his left hip. Therefore, a remand is further warranted to provide a secondary nexus opinion which considers all the Veteran's service-connected musculoskeletal conditions as well as the contention that they forced him to overuse his left hip. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from an appropriate clinician regarding the Veteran's claim seeking secondary service connection for osteoarthritis of the left hip. The examiner is directed to review the claims folder. Whether a physical examination is necessary is left to the discretion of the examiner. After a thorough review of the claims file and examination (to the extent necessary), the examiner is asked to address the following: (a) Whether the Veteran's osteoarthritis of the left hip is at least as likely as not caused by or aggravated beyond its natural progression by any of his service-connected musculoskeletal disability, to include his right knee disability, his right ankle disability, his right hip arthritis, his lumbar spine disability, and/or his right lower extremity radiculopathy. With regard to the term "aggravated," as used in 38 C.F.R. § 3.310 (b), the examiner is cautioned that this term does not require that there be "permanent worsening" of the nonservice-connected disability. Instead, secondary service connection is warranted for "any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence." See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). The examiner should review the entire claims file, including any relevant lay statements and medical evidence. Specifically, the examiner should consider the Veteran's reports of overuse of his left hip to compensate for his various service-connected musculoskeletal disabilities on the right side. A complete rationale should be provided for any opinions offered and conclusions reached. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. F. Minnitte, Attorney Advisor 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.