Citation Nr: 21007605 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 16-16 351 DATE: February 10, 2021 ORDER New and material evidence having been submitted, the claim for entitlement to service connection for a right hip disability, to include as secondary to service-connected right knee disability is REOPENED. REMANDED Entitlement to service connection for a right hip disability to include as secondary to service-connected right knee disability is remanded. Entitlement to service connection for a left hip disability, to include as secondary to right knee disability is remanded. Entitlement to service connection for a left knee disability, to include as secondary to service-connected right knee disability is remanded. FINDINGS OF FACT 1. A December 2000 Department of Veterans Affairs (VA) Regional Office (RO) rating decision denied the Veteran's claim of service connection for a right hip disability; the Veteran was notified of the decision and apprised of his right to appeal but did not file a timely appeal or submit new and material evidence within one year of the notice of decision. 2. A subsequent September 2005 rating decision continued the denial of service connection for a right hip disability finding that new and material evidence had not been submitted to reopen the previously disallowed claim for service connection. 3. Evidence received since the September 2005 rating decision is neither cumulative nor repetitive of facts that were previously considered and raises the possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The December 2000 rating decision that denied service connection for a right hip disability is final. 38 U.S.C. § 7105; 38 C.F.R. § §§ 20.302, 20.1103. 2. The September 2005 rating decision that denied service connection for a right hip disability is final. 38 U.S.C. § 7105; 38 C.F.R. § §§ 20.302, 20.1103. 3. The criteria for reopening the claim of service connection for a right hip disability are met. 38 U.S.C. § 5108; 38 C.F.R. § § 3.156 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the U.S. Army from September 1968 to September 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In December 2020, the Veteran and his spouse testified at a virtual Board hearing before the undersigned Veterans’ Law Judge. A copy of the hearing transcript is of record. Claim to Reopen The Veteran's claim for entitlement to service connection for a right hip disability, among other claims, was initially denied by the RO in a December 2000 rating decision because the Veteran’s service medical records do not show treatment or diagnosis of the claimed condition. The Veteran was notified of the denial by letter dated January 11, 2001. The Veteran did not appeal that decision within one year of notification of the decision, and it therefore became final. See 38 C.F.R. § § 20.302 (a). The Veteran filed to reopen his claim for entitlement to service connection for a right hip disability in November 2004. In a September 2005 rating decision, the RO determined that new and material evidence had not been submitted to reopen the claim. The Veteran did not appeal the September 2005 decision within one year of notification of the decision, and it therefore became final. See 38 C.F.R. § § 20.302 (a). In the process of developing this claim, the Veteran submitted new evidence consisting of lay statements. Prior to making a determination with respect to the Veteran's claim of service connection, the Board must first determine whether new and material evidence that is sufficient to reopen the claim has been submitted. A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § § 3.156. New evidence is defined as evidence not previously submitted to agency decision makers. 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 sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § § 3.156 (a). The Board is aware that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Moreover, the Court of Appeals for Veterans Claims explained this standard is intended to be a low threshold. Id. 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). At the time of the September 2005 rating decision, the evidence of record included: Medical treatment records from the VA and private facilities; Service Treatment Records (STRs); and lay statements. Following a review of the Veteran’s file, relevant evidence added to the record since the September 2005 rating decision, include additional treatment records, and a July 2013 Disability Benefits Questionnaire (DBQ) by a VA Examiner. In addition, other pertinent evidence submitted also included the Veteran’s spouse sworn statement, regarding the onset and continuity of symptomology of his right hip disability. See December 2020 Hearing transcript. The Board finds that these constitute "new" evidence, as they were not available at the time of the September 2005 rating decision. Furthermore, the Board notes that this new evidence is material, as it suggests that there may be a nexus between the Veteran’s right hip and his military service. Therefore, the Board finds there is sufficient evidence to reopen the previously-denied claim for entitlement to service connection for a right hip disability. REASONS FOR REMAND 1. Entitlement to service connection for a right hip disability to include as secondary to service-connected right knee disability is remanded. 2. Entitlement to service connection for a left hip disability, to include as secondary to right knee disability is remanded. The Veteran contends that he has bilateral hip disabilities that are related to service to include as due to his service-connected right knee disability. The Veteran's VA medical records contain notes regarding the Veteran’s hip complaints. A June 2012 Physical Therapy Consult noted that the Thomas Test revealed severely limited 1 and 2 joint hip flexors bilaterally. See CAPRI In a June 2011 Primary Care Note, the Veteran stated that he has pain that starts from lower back and radiates down to his left leg and around his hips. His assessment and active problems were listed as “Hip Pain”. A July 2011 X-ray indicated a normal left hip. See CAPRI. The Veteran was afforded a VA Hip Conditions examination in July 2013. The examiner noted that the x-ray on July 26, 2013 shows no bony, joint, or soft tissue abnormality of either hip. The hip joint spaces are well preserved; and that the hips were normal bilaterally. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that there was no objective evidence of a hip disorder on exam; therefore, a DBQ medical opinion was not needed. See July 2013 C&P Examination. The Board finds that the July 2013 VA examiner, however, did not address the validity of the prior findings of a bilateral hip pain shown during this appeal. See CAPRI. Importantly, service connection may be granted for a disability shown and resolved during the appeal period. See McClain, 21 Vet. App. at 321 (holding that the “current disability” requirement is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim” and reversing the Board's denial of service connection where disability resolved itself during pendency of appeal). In a March 2016 Statement of the Case (SOC), the RO stated that even though treatment records noted pain, pain alone without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. The Board notes that pain alone, if it causes functional impairment, can be a disability for VA purposes. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Given the above, remand for a new medical examination is necessary.   3. Entitlement to service connection for a left knee disability, to include as secondary to service-connected right knee disability is remanded. The Veteran asserts that his left knee disability is related to service to include as secondary to his service-connected right knee disability. The Veteran was afforded a VA examination in July 2013. The examiner noted that the Veteran has a left knee mild degenerative joint disease that is consistent with natural aging and increased BMI, after service. The examiner opined that the claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service connected condition. The examiner’s rationale was that few references have been found to the effect of the limp on the other leg. The examiner continued that the evidence available indicates that an injury in one extremity rarely causes a major problem in the opposite or uninjured extremity; and that a preponderance of medical literature shows that natural age especially if combined with increased axial load due to increased BMI leads to degenerative changes in weight-bearing joints and spine. The examiner concluded that the currently diagnosed left knee mild DJD is consistent with natural aging and increased BMI of 37.8 and that is not related or aggravated beyond natural progression by the service connected opposite knee DJD. See July 2013 C&P Examination. The Board finds July 2013 examination inadequate for adjudicative purposes because the examiner did not provide an opinion on direct service connection for the left knee disability. Not only must the medical opinion clearly consider direct service connection, it must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions. See Tucker v. West, 11 Vet. App. 369, 374 (1998) (vacatur and remand may be warranted where the Board has failed to provide an adequate statement of reasons or bases for its determinations). Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Once VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Thus, a new medical examination is warranted.   The matters are REMANDED for the following action: 1. Obtain all outstanding VA and private medical records and associate them with the claims file. 2. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any left knee disorder, to include degenerative arthritis. The claims file must be provided to and be reviewed by the examiner in conjunction with the examination. For each left knee disability identified, please opine as to: (a) whether it is at least as likely as not (50 percent or greater probability) that the condition is etiologically related to the Veteran's active service. (b) whether it is at least as likely as not that his service-connected right knee disability caused OR aggravated the Veteran's left knee disability. The examiner must provide supporting rationale for his/her opinion(s). This includes reference to lay or medical evidence contained in the claims file, if appropriate, or to medical principles relied upon in forming his/her opinion. 3. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any bilateral hip disability. The examiner should be notified that pain alone can be considered a disability if it causes functional loss. The examiner must opine on: (a) whether it is at least as likely as not (50 percent or greater probability) that any bilateral hip disability is related to service. (b) whether it is at least as likely as not that his service-connected right knee disability caused OR aggravated any bilateral hip disability. (c) To the extent that the examiner concludes that the Veteran has not had any bilateral hip disability during or approximate to this appeal, the examiner must explain his/her conclusion and address in particular why the findings of a bilateral hip pain as noted in the medical treatment records are incorrect/invalid or otherwise not supported. A complete rationale requires consideration of the lay assertions and the medical evidence of record. 4. After completing the requested actions and any additional notification and/or development deemed warranted, the AOJ should readjudicate the issue of service connection claims for left knee and bilateral hip disabilities. If the benefits sought on appeal are not granted, the Veteran must be furnished a supplemental statement of the case (SSOC) and afforded the appropriate time period for response. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. M. Rogers, 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.