Citation Nr: 21008808 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 17-26 120 DATE: February 18, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for left hip arthritis, status post replacement is reopened. Entitlement to service connection for left hip arthritis, status post replacement is granted. FINDINGS OF FACT 1. An unappealed July 1990 rating decision denied service connection for a left hip condition. 2. Evidence added to the record since the July 1990 rating decision, which was not previously of record, and which is not cumulative of other evidence of record, raises a reasonable possibility of substantiating the claim of entitlement to service connection for left hip arthritis, status post replacement. 3. The Veteran’s left hip arthritis, status post replacement, was caused or aggravated by his service-connected knee and lumbar spine disabilities. CONCLUSIONS OF LAW 1. The criteria for reopening the claim for entitlement to service connection for left hip arthritis have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. Service connection for left hip arthritis, status post replacement, on a secondary basis is warranted. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1969 to February 1990. This matter comes before the Board of Veterans Appeals (Board) on appeal from a rating decision issued in June 2015 by a Department of Veterans Affairs (VA) Regional Office (RO or AOJ). In November 2020, the Veteran testified at a Video Conference Board Hearing before the undersigned Veterans Law Judge. The transcript is of record. 1. New and Material Evidence Having Been Received, the Claim of Entitlement to Service Connection for Left Hip Arthritis, Status Post Replacement is Reopened. Irrespective of the RO’s actions, it is the Board’s responsibility to consider whether it is proper for a claim to be reopened. Barnett v. Brown, 93 F.3d 1380 (Fed. Cir. 1996). Generally, unappealed rating decisions are final with the exception that a claim may be reopened by the submission of new and material evidence. When an appellant seeks to reopen a claim based on new and material evidence, the VA must first determine whether the additional evidence is “new and material.” Second, if the VA determines that new and material evidence has been added to the record, the claim is reopened and the VA must evaluate the merits of the appellant’s claim in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140 (1991). In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence is generally presumed. Cox v. Brown, 5 Vet. App. 95 (1993). New evidence means 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 regulation does not require new and material evidence as to each previously unproven element of a claim and creates a low threshold for reopening claims. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of the new evidence is presumed; its weight is not presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In a July 1990 rating decision, the RO denied service connection for a left hip condition. The RO determined that while the Veteran’s service treatment records showed complaint of hip pain in 1989, VA examination did not show any pathology of the left hip. Notification of the decision was provided to the Veteran in August 1990. The Veteran did not appeal that decision and no new and material evidence was received within a year of the rating decision. As such, the July 1990 rating decision became final. In January 2014, the Veteran filed a claim for an increased rating for surgical complications of pregnancy, traumatic arthritis, and for removal of uterus. In October 2014, the AOJ initiated development of the Veteran’s claims, and included a claim to reopen the Veteran’s left hip disorder. In January 2015, the AOJ noted there was no pending claim for a left hip condition. In March 2015, the Veteran requested that her claim to reopen service connection for left hip disorder, to include left hip replacement, be included in her pending claim. Evidence received since the July 1990 rating decision includes: (1) June 2014 and September 2014 VA examination reports for the Veteran’s knee and lumbar spine disabilities that generally associate the Veteran’s left hip disability to service-connected knee and lumbar spine disabilities; (2) the Veteran’s November 2020 testimony wherein she testified that she began to experience pain in the left hip in service that never went away, became progressively worsened due to service-connected knee and lumbar spine disabilities, and eventually required left hip replacement; and (3) a November 2020 private opinion letter linking the Veteran’s left hip disorder to her service-connected knee and lumbar spine disabilities. This evidence is new to the record, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. Accordingly, the Veteran’s petition to reopen her claim for entitlement to service connection for left hip arthritis, status post replacement is granted. 2. Entitlement to Service Connection for Left Hip Arthritis, Status Post Replacement The Veteran contends that her left hip disability is secondary to service-connected knee and lumbar spine disabilities. See November 2020 hearing transcript. In November 2020, the Veteran’s spouse wrote that he observed her experiencing pain in her back and joints while serving as a computer operator over a ten year period. He stated that the Veteran’s duties involved loading large trays of punched cards weighing anywhere from 10 pounds to 40 pounds, and transporting large boxes of paper weighing up to 90 pounds. In pertinent part, service connection is provided for a disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. The Veteran’s service treatment records include a February 1970 record documenting her report of pain “all up and down the spine” from lifting heavy boxes. A March 1989 service treatment record notes the Veteran’s complaints of pain in the hips, back, and knees. Post-service treatment records show that in March 2014, the Veteran sought treatment for low back pain and left hip pain. The record noted low back pain with pain radiating into the Veteran’s buttocks and down the posterior aspect of her leg to the level of her knee. X-rays of the left hip showed degenerative changes with narrowing of the joint space and subchondral cyst formation. MRI of the left hip demonstrated moderate to severe degenerative changes with some edema present. An April 2014 private treatment record notes a diagnosis of left hip degenerative joint disease. The Veteran underwent left total hip replacement in April 2014. A current disability is, therefore, demonstrated. Service connection for arthritis of right and left knees and degenerative disc disease of the lumbar spine with intervertebral disc syndrome has been established. Regarding a link between the disability and the service-connected knee and lumbar spine disabilities, the record includes a November 2020 letter from the Veteran’s private orthopedic surgeon, Dr. M.S. Dr. M.S. opined that the Veteran’s left hip osteoarthritis, which ultimately led to total hip replacement surgery, was likely related to chronic knee and spine problems that the Veteran first experienced while on active duty in the military. Dr. M.S. explained that the knee and spine problems affected the Veteran’s gait and activity level, likely resulting in increased wear and tear in the hip over a period of many years. Additional evidence supportive of the Veteran’s claim includes a June 2014 VA examination for the Veteran’s service-connected knee disability and a September 2014 VA examination for the Veteran’s service-connected back disability. Both examiners noted the Veteran’s report that she carried 90-pound boxes of paper daily for 9 years, and recently had left hip replacement. The June 2014 examiner noted the Veteran had significant disc degeneration that contributed to unbalanced gait and knee pain, and that the Veteran used a cane since her hip replacement to stabilize gait and decrease pain and stress on her knees. The September 2014 examiner noted the Veteran described her low back and hip pain, in-service, as a low throb that progressed to sharp pain, then went to shooting pain in hips, primarily on the lower left side. Evidence weighing against the Veteran’s claim includes an April 2015 VA medical opinion. The examiner concluded that medical record documentation did not support a left hip condition incurred in or related to an in-service left hip injury. The examiner, however, did not opine as to whether the Veteran’s left hip arthritis, status post replacement was due to the service-connected knee and lumbar spine disabilities as asserted by the Veteran, and generally associated by the June 2014 and September 2014 VA examiners. In light of the foregoing, and there being no competent opinion to the contrary, the Board finds that the evidence of record supports the theory of entitlement raised by the Veteran. Thus, service connection for left hip arthritis, status post replacement on a secondary basis is warranted and the claim is granted. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith, 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.