Citation Nr: 21075608 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 17-67 124 DATE: December 21, 2021 ORDER New and material evidence having been received, the petition to reopen the claim of entitlement to service connection for a right hip disability is granted. REMANDED Entitlement to service connection for a right hip disability, to include as secondary to service-connected bilateral foot disability, is remanded. Entitlement to service connection for acquired psychiatric disability, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for vertigo is remanded. FINDINGS OF FACT 1. A December 2005 rating decision denied entitlement to service connection for bilateral hip disability. The Veteran was notified of that decision, but did not initiate an appeal, and new and material evidence was not received within one year of the notice of that rating decision. 2. Some of the evidence received since December 2005, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of service connection for a right hip disability. CONCLUSIONS OF LAW 1. The December 2005 rating decision, which denied the Veteran's claim of entitlement to service connection for bilateral hip disability, is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103. 2. The additional evidence received since the December 2005 rating decision is new and material, and the claim of entitlement to service connection for a right hip disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from April 1993 to August 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified at a Board hearing. The transcript of the hearing is of record. New and Material Evidence 1. New and material evidence having been received, the petition to reopen the claim of entitlement to service connection for a right knee disability is granted. In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to VA. 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. 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 and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the "credibility" of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The December 2005 rating decision denied service connection for bilateral hip disability as there was no evidence that a bilateral hip condition incurred in or was aggravated by military service or that a physician determined that her bilateral hip condition have been caused by a service-connected disability. The Veteran did not appeal that decision and new and material evidence was not received within a year of the decision. Accordingly, the December 2005 decision is final. The Veteran filed her claim to reopen in April 2015. Since the December 2005 rating decision for bilateral hip disability, the evidence of record shows she was afforded a new VA examination in August 2015. The records also show that a hearing testimony and a June 2016 private medical opinion were associated with the file. In June 2016, Dr. J. Saliman opined that her participation in running may have caused early onset of symptoms of a right hip pain that resulted in a right hip arthroscopic femoroplasty, acetabuloplasty, labral repair, debridement of ruptured ligamentum and capsular repair. See June 2016 Medical Treatment Record Non-Government Facility. The Board finds this medical opinion new and material evidence. The Board finds the Veteran's testimony, August 2015 VA examiner's medical opinion, and the June 2016 private medical opinion to be new evidence because they were not of record at the time of the final rating decision in December 2005. The June 2016 private medical opinion is also material, as it indicates the Veteran's right hip disability may be related to her service. This new evidence raises a reasonable possibility of substantiating the claim of entitlement to service connection for a right hip disability and as such the claim is now reopened. See Shade, 24 Vet. App. 110. REASONS FOR REMAND 2. Entitlement to service connection for a right hip disability, to include as secondary to service-connected bilateral foot disability, is remanded. In the July 2021 hearing, she attested that in the past she complained of low back pain. However, she was informed by medical professionals that it was actually a right hip pain radiating to her back. She also stated that her hip pain may be related to her service-connected bilateral foot disability. A review of the service treatment records (STRs) shows that in the March 1993 enlistment examination she exhibited normal lower extremities with no swollen or painful joints, arthritis, or rheumatism. In the June 1994 separation examination, she exhibited normal lower extremities, but she endorsed having swollen or painful joints. In a July 1994 STR, she complained of back pain, hip pain, and knee pain. See June 2016 Medical Treatment Record Government Facility. The Veteran was afforded a VA examination in August 2015. In the August 2015 VA examination, the examiner diagnosed her with femoral acetabular impingement syndrome and iliopsoas tendonitis of the right hip. The examiner noted that she reported that she ran and sprinted in service and that is the cause of the labral tear in her right hip. The examiner proceeded to opine that the Veteran's right hip disability is less likely than not proximately due to or the result of her service-connected disabilities. The examiner explained that her right hip condition is due to a labral tear and femoroacetabular impingement, which can be caused by running and sprinting. A hip labral tear is damage to cartilage and tissue in the hip socket. In some cases, it causes no symptoms. In others it causes pain in the groin or having a feeling of the leg 'catching' or 'clicking' in the socket as it moves. Over time, labral tears in the hip may cause permanent damage to the joint. The labrum is a band of tough cartilage and connective tissue that lines the rim of the hip socket, or acetabulum. It cushions the joint of the hip bone, preventing the bones from directly rubbing against each other. The labrum also helps keep the leg bone in place and increases stability of the joint. The labrum can tear for many reasons. Some people get a torn labrum from falls or car accidents. Sports that require regular rotation of the hip such as running, and sprinting can increase the risk. In June 2016, Dr. Saliman opined that her participation in running may have caused early onset of symptoms that resulted in a right hip arthroscopic femoroplasty, acetabuloplasty, labral repair, debridement of ruptured ligamentum and capsular repair on December 1, 2014. The Board finds that an addendum medical opinion is warranted as the August 2015 medical opinion is incomplete. The examiner rendered a negative nexus opinion that the Veteran's right hip disability is not etiologically related to her service-connected disabilities but then noted that running and sprinting can increase her risk for having a right hip disability. However, the examiner did not opine as to direct service connection. The examiner also did not opine on aggravation. As such, the Board finds that a remand is warranted. The Board also finds the June 2016 private medical opinion incomplete as Dr. Saliman opined that running "may" have caused her right hip disability but did not state that it was related to service or running in service. Further, the Board finds the term "may have caused" too speculative. See Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992) (doctor's letter stating probability in terms of "may or may not" was speculative); Bostain v. West, 11 Vet. App. 124, 127-28 (1998), quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993), (a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship). Additionally, at the July 2021 hearing, the Veteran identified possible pertinent medical records not associated with the file such as her physical therapy treatment records and treatments from Dr. Sullivan, an orthopedic surgeon. 3. Entitlement to service connection for acquired psychiatric disability, to include as secondary to service-connected disabilities, is remanded. 4. Entitlement to service connection for vertigo is remanded. In the July 2021 hearing, she attested that she was depressed in service. However, she stated that she tried to hide her depression as she did not want it to affect her occupation or be "black mark[ed]." She also recalled and gave a detailed encounter where she was sexually assaulted in service. However, she was hesitant to pursue a military sexual trauma (MST) claim. She also claimed that she is depressed due to her chronic pain. She sought treatment in 2001 and started her medication in 2004 for her depression. She testified that she no longer has vertigo. A review of the STRs shows that in the March 1993 enlistment examination she exhibited normal head and psychiatric condition. She denied having dizziness or fainting spells. However, in a June 1993 STR, she was diagnosed with anemia and she was noted to have very low iron. See March 2015 STR Medical. In a July 1993 STR, she complained of dizziness, faintness, blackout, and vertigo. She was diagnosed with anemia. The Board notes that she is service connected for iron deficiency anemia. A review of the post-service treatment records shows that she has active problems of vertigo, chronic posttraumatic stress disorder, major depressive disorder, and MST. See April 2015 CAPRI. On remand, the VA should seek clarification as to whether the Veteran wants to pursue her claim for MST. Additionally, a VA examination should be afforded to the Veteran for her claim for an acquired psychiatric disability to determine whether her psychiatric disability is etiologically related to her chronic pain. Further, a VA examination should be afforded to the Veteran for her claim for vertigo to determine whether vertigo is secondary to her service-connected anemia. The matters are REMANDED for the following action: 1. The RO must send a letter requesting clarification from the Veteran on whether her claim for entitlement to service connection for an acquired psychiatric disability encompasses a claim for MST. 2. Obtain any outstanding VA treatment records dated from 1998 to the present. 3. Obtain all outstanding private treatment records. Specifically obtain records from Dr. Sullivan and from her physical therapist. All efforts to obtain these records must be documented in the claims file. 4. Right hip disability - Obtain an addendum opinion to the August 2015 VA examination from an appropriately qualified examiner to determine the nature and etiology of the Veteran's right knee disability. The claims file, including a copy of this remand, must be made available to be reviewed by the examiner. (a) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's right hip disability had its onset in service or is otherwise etiologically related to service. The examiner should address the June 1994 separation examination wherein she exhibited normal lower extremities but endorsed having swollen or painful joints. Then, in a July 1994 STR, she endorsed having hip pain. See June 2016 Medical Treatment Record Government Facility. The examiner should also consider her July 2021 testimony wherein the Veteran claimed that she was informed that her low back pain was actually a right hip pain radiating to her low back. The examiner should also note that the August 2015 examiner commented that sports that require regular rotation of the hip such as running, and sprinting can increase the risk of a right hip disability such as a right labral tear. (b) The examiner must also provide an opinion as to whether it is at least as likely as not (a fifty percent probability or greater) that the Veteran's right hip disability was (i) caused by or has been (ii) aggravated (worsened beyond the natural progress of the disorder) by her service-connected bilateral foot disability. The examiner is reminded that the standard does not require that worsening be permanent worsening. 5. Psychiatric disability - The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's acquired psychiatric disability had its onset in service or is otherwise etiologically related to service. If the Veteran affirms that her claim for psychiatric disability includes a claim for MST, this should be considered. The examiner must also provide an opinion as to whether it is at least as likely as not (a fifty percent probability or greater) that the Veteran's acquired psychiatric disability was (i) caused by or has been (ii) aggravated (worsened beyond the natural progress of the disorder) by her service-connected disabilities. The examiner is reminded that the standard does not require that worsening be permanent worsening. 6. Vertigo - The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's vertigo had its onset in service or is otherwise etiologically related to service. The examiner should address the June 1993 STR wherein she was diagnosed with anemia as she had very low iron. See March 2015 STR Medical. In a July 1993 STR she complained of dizziness, faintness, blackout, and vertigo. She was diagnosed with anemia. The examiner must also provide an opinion as to whether it is at least as likely as not (a fifty percent probability or greater) that the Veteran's vertigo was (i) caused by or has been (ii) aggravated (worsened beyond the natural progress of the disorder) by her service-connected iron deficiency anemia. The examiner is reminded that the standard does not require that worsening be permanent worsening. (Continued on the next page) A detailed rationale for all opinions must be provided. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Noh, 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.