Citation Nr: 21075501 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 19-12 429A DATE: December 20, 2021 ORDER As new and material evidence has been received, the claim for entitlement to service connection for a left hip disability is reopened. REMANDED Entitlement to service connection for a left hip disability, including secondary to right hip, back, and/or bilateral knee disorder, is remanded. FINDINGS OF FACT 1.The September 2013 rating decision denying the Veteran's claim for service connection for a left hip disability is final. 2. Evidence associated with the claims file since the September 2013 rating decision is new and raises a reasonable possibility of substantiating the claim for entitlement to service connection for a left hip disability. CONCLUSION OF LAW The criteria for reopening a final denial of service connection for a left hip disability are met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1970 to November 1977. This matter is before the Board of Veterans' Appeals (Board) from a February 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ). A copy of the transcript is of record. As new and material evidence has been presented, a service connection for a left hip disability is reopened. In June 2016, the RO received VA Form 21-526EZ, Fully Developed Claim; the Veteran requested to reopen his claim for service connection for a left hip disorder. In a rating decision of September 2013, the RO denied service connection for a left hip disability based on a finding of no current diagnosis of a left hip disability. Specifically, the RO cited that although the July 2013 VA examination findings revealed the mild degenerative joint disease of the left hip, the examiner concluded that it was "incidental and typical for age and not symptomatic." Furthermore, the hip pain was of the lateral hip and buttock and, thus, part of the symptoms associated with chronic lumbar spine strain. The Veteran was informed of the rating decision and his appellate rights. The Veteran did not submit notice of disagreement (NOD) or provide new and material evidence within one year of the rating decision promulgation. Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011); Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). Hence, the rating decision of September 2013 is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.160 (d), 19.20, 19.52, 20.1103. The Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim. 38 U.S.C. § 7104 (b) (2012); King v. Shinseki, 23 Vet. App. 464 (2010); DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006) (holding that res judicata generally applies to VA decisions). However, the finality of a previously disallowed claim can be overcome by submitting new and material evidence. 38 U.S.C. § 5108 (2012). New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that relates to an unestablished fact necessary to substantiate the claim by itself or when considered with previous evidence of record. 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. 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material for purposes of deciding whether a claim should be reopened, "the credibility of the evidence is to be presumed." Savage v. Gober, 10 Vet. App. 488 (1997); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Only in cases in which the newly submitted evidence is "inherently false or untrue" does the presumption of credibility not apply. Duran v. Brown, 7 Vet. App. 216, 220 (1994). The evidence obtained more than one year after the September 2013 rating decision includes additional treatment records and lay statements wherein, he proffered a new theory of service connection of left hip as due to his bilateral, knee and back disabilities. During his hearing testimony, he also attributed his in-service right leg injury as causing him to walk with a limp for a significant period and thus causing his left hip disability. The Board finds this evidence is new and material, and therefore the claim for service connection for a left hip disability is reopened. As the Board finds that the evidence received since the September 2013 rating decision is new and material and raises a reasonable possibility of substantiating the claim for a left hip disability, the claim is thus, reopened. 38 U.S.C. § 5107 (2012); Annoni v. Brown, 5 Vet. App. 463 (1993). REASONS FOR REMAND Entitlement to service connection for a left hip disability, including secondary to right hip, back, and/or bilateral knee disorder, is remanded. The Veteran has been diagnosed with arthritis of the left hip. He contends that it is related to service, including secondary to his right hip, right knee, and back disorders. In his May 2019 Form 9, the Veteran indicated that his back and knee disabilities have caused him to walk unsteadily, causing his hip issues. Moreover, he broke his right femur while in service and now has a limp, causing hip issues. During his Board hearing, he testified that he was involved in an April 1977 motorcycle accident while in service. Since then, he has left hip pain and walked with a limp because of the 1.5-inch leg length discrepancy that resulted therefrom. He described the pain level as between six or seven, when it occurred, being forced to take a break from what he is doing, and taking Tylenol or the generic brand alleviates the pain. The Veteran was afforded a VA examination in March 2019. The examiner noted that there was no left hip pain "today." Nonetheless, he found "[e]vidence of early degenerative changes in ... the bilateral hips, consistent with his age as the cause." The Board finds this March 2019 examination incomplete. Barr v. Nicholson, 21 Vet. App. 303 (2007). The examiner did not consider other factors, including his bilateral knee, hips, and back disabilities, as the cause for the Veteran's left hip degenerative joint disease. As there is no examination on record addressing the secondary service theory, a remand is warranted for a supplemental examination. Atencio v. O'Rourke, 30 Vet. App. 74, 90 (2018). Accordingly, the matter is REMANDED for the following action: 1. Provide the Veteran's claim file to a qualified clinician so that a supplemental examination may be provided addressing the etiology of his left hip disorder. The entire claims file and a copy of this remand must be made available to the examiner for review. A physical or telehealth examination of the Veteran is only required if deemed necessary by the clinician. Although an independent review of the claims file is required, the Board calls the clinician's attention to the following: a. STRs dated on March 31, 1977, noting the Veteran's involvement in a motorcycle accident. b. Statement of March 2013 attributing left hip disability to his right hip and bilateral knee disabilities. c. May 2019 dated Form 9 noting that his left hip was due to his back and knee, which caused him to walk unsteady, causing his hip issues. Broke right femur in service and now has a limp. d. March 2021 Board hearing testimony. The clinician is asked to address the following: a. The examiner must determine whether it is as likely as not (50 percent probability or greater) that left hip disorder had its onset during active service or is related to any incident of service, including the April 1977 motor vehicle accident. b. Whether it is at least as likely as not (50 percent or greater probability) that left hip disorder is proximately caused by his service-connected right hip, back, and/or bilateral knee disorder. c. Whether it is at least as likely as not (50 percent or greater probability) that obstructive left hip disorder is aggravated by any of his service-connected right hip, back, and/or bilateral knee disorders. The clinician is reminded that a VA medical opinion should not combine causation and aggravation; separate findings and rationales should be provided for each one. Atencio, 30 Vet. App. 74, 90 (2018). The examiner must provide a complete rationale for his or her opinion(s) in the examination report. If any of the above-requested opinions cannot be made without resorting to speculation, the examiner must state this and provide a rationale for such a conclusion. 2. Then, readjudicate the claim. If any decision is adverse to the Veteran, issue a supplemental statement of the case, and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Stevens, 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.