Citation Nr: 21013018 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 17-63 562 DATE: March 8, 2021 ORDER New and material evidence having been received, the application to reopen the claim of service connection for a right hip disorder is granted. New and material evidence having been received, the application to reopen the claim of service connection for a left hip disorder is granted. Service connection for a right hip disorder is denied. Service connection for a left hip disorder is denied. Service connection for a right shoulder disorder is denied. FINDINGS OF FACT 1. The Veteran had active duty from August 1999 to January 2000 and from January 2003 to January 2004. 2. Service connection for a right hip disorder was denied in May 2007 and again in November 2009; evidence submitted since the last final denial in November 2009 is new and material. 3. Service connection for a left hip disorder was denied in November 2009; evidence submitted since the last final denial in November 2009 is new and material. 4. The Veteran sustained bilateral hip and right shoulder injuries in service; the symptoms were not shown to be chronic; the current bilateral hip and right shoulder disorders are not causally or etiologically related to service. CONCLUSIONS OF LAW 1. The May 2007 and November 2009 rating decisions are final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103, 20.1100 (2020). 2. New and material evidence has been received to reopen the claim of service connection for a right hip disorder. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. §§ 3.104, 3.156, 3.309, 3.311, 20.302, 20.110 (2020). 3. New and material evidence has been received to reopen the claim of service connection for a left hip disorder. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. §§ 3.104, 3.156, 3.309, 3.311, 20.302, 20.110 (2020). 4. A right hip disorder was not incurred in service. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2020). 5. A left hip disorder was not incurred in service. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2020). 6. A right shoulder disorder was not incurred in service. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In connection with this appeal, the Veteran testified at a September 2020 hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file.   New and Material Evidence to Reopen Claims for Bilateral Hip Disorders Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. “New” evidence means evidence “not previously submitted to agency decisionmakers.” “Material” evidence means “evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim.” 38 C.F.R. § 3.156 (a). In order to be “new and material” evidence, the evidence must not be cumulative or redundant, and “must raise a reasonable possibility of substantiating the claim,” which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). The claim for a right hip disorder was originally denied in May 2007 due to the absence of a current disability. The Veteran did not appeal, and that decision became final. The claim was denied again in November 2009 on the bases that there was no relationship between a current disorder and service. The claim for a left hip disorder was denied in November 2009 on the bases there was no relationship between a current disorder and service. The evidence included service treatment records (STRs) and post-service treatment records. The Veteran did not appeal these decisions and they became final one year later. With respect to both the right and left hip disorder, the evidence received since the November 2009 rating decision is new and material evidence and is sufficient to reopen service connection for a right and left hip disorder. Specifically, the Veteran submitted an October 2020 treatment record from a private clinician that included the medical opinion that there was a greater than 51 percent probability that the current chronic bilateral hip pain disorder was caused by service. The October 2020 medical opinion linking the current bilateral hip disorder to service is new to the record, addresses the ground of the prior denials, is presumed credible for the limited purpose of reopening the claims, and raises a reasonable possibility of substantiating the claims. For these reasons, new and material evidence has been received to reopen service connection for a right hip disorder and a left hip disorder. Service Connection Claims Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Bilateral Hip Disorder The Veteran claims that service connection is warranted for a bilateral hip disorder because it was incurred in service. Specifically, he argues that his current bilateral hip disorder is related to bilateral hip injuries in service following motor vehicle accidents. As to a current disorder, an October 2020 private treatment record noted that the Veteran had chronic bilateral hip pain. As such, the first element of service connection has been met. As to in-service incurrence, the STRs and medical treatment records reflect that the Veteran was involved in two motorcycle accidents in July 2003. The treatment records reflect that was diagnosed with abrasions of the right and left hip and X-rays of the hips were normal. An August 2003 treatment record noted that he continued to report right hip pain, but it was improving and there was no evidence of swelling, redness, or bruises and an X-ray of the right hip was normal. A September 2003 treatment record showed continued complaints of pain and the Veteran was diagnosed with right hip pain. A September 2003 scan showed an impression of normal right hip. On a subsequent September 2003 treatment record, the Veteran reported complaints of right hip pain for the last two months and no assessment was given as to the right hip. Next, on a November 2003 Referral for Civilian Medical Care record, the Veteran reported right hip pain and a provisional diagnosis of right hip pain was noted by the clinician. On a December 2003 Referral for Civilian Medical Care record, he complained of bilateral hip pain status/post motorcycle accident, he was noted to be attending physical therapy with no improvement, and he was assessed with right hip labral tear. Further, a June 2004 Report of the Medical Board noted a diagnosis of right hip pain, status/post contusion; however, June 2004 Physical Evaluation Board (PEB) Findings reflected that the Veteran was found unfit for duty due to a right knee disorder. Nonetheless, with evidence of an in-service injury, the second element of service connection is met. As to medical nexus, in a November 2012 VA examination, the Veteran reported experiencing recurrent right hip pain since a motorcycle accident in-service in 2003 and a motor vehicle accident in 2004. The examiner diagnosed right hip tendonitis but opined that it was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner reasoned that the Veteran was treated for an acute, transient condition of the right hip after a motorcycle accident during service, but there was no evidence that the condition became a chronic problem. In a January 2014 VA examination report, the examiner found a normal examination of the bilateral hips. The examiner opined that the Veteran’s bilateral hip disorder was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner indicated that although the Veteran was diagnosed with acute bilateral hip pain associated with tendonitis after he was involved in a motorcycle accident in service, it resolved while in service. Further, he noted that the Veteran was not diagnosed with chronic bilateral hip condition while in-service and that he underwent a Medical Evaluation Board (MEB) in June 2004 and was diagnosed with acute right hip contusion. To the extent that the Veteran asserts a nexus between his bilateral hip disorder and service, he submitted an October 2020 private medical opinion diagnosing chronic bilateral hip pain. The clinician opined that there was a greater than 51 percent probability that the current chronic bilateral hip pain disorder was caused by service. However, no rationale was offered for that opinion. A conclusory opinion is insufficient to allow the Board to make an informed decision as to the weight to assign to the opinion. Further, the clinician stated that she reviewed only the Veteran’s treatment records since separation from service. There was no indication that she reviewed the STRs before rendering her opinion. As such, this opinion is afforded lesser probative value. On the other hand, the November 2012 and January 2014 VA examinations are adequate, when read in conjunction with one another, as the examiners thoroughly reviewed and discussed the relevant evidence, considered the contentions of the Veteran, and provided thorough supporting rationales for the conclusions reached. There was no indication that any relevant or relied upon fact was misstated or improperly considered. As a result, the opinions provided by the VA examiners are the most probative evidence. The Veteran’s VA and private treatment records were also reviewed. With the exception of the October 2020 private medical opinion, there is no indication that any other providers established a connection between a bilateral hip disorder and service. As such, greater probative weight is afforded the VA examination and opinion reports. Therefore, medical evidence weighs against the claims. Right Shoulder The Veteran claims that service connection is warranted for a right shoulder disorder because it was incurred in service. Specifically, he argues that his current right shoulder disorder is related to right shoulder injuries in service following motor vehicle accidents. As to a current disorder, the Veteran has been diagnosed with a right shoulder disorder. Specifically, a January 2014 VA examiner diagnosed right shoulder supraspinatus tendinopathy. A November 2017 VA examiner diagnosed rotator cuff tendonitis in the right shoulder. Therefore, a current disability is shown, and the first element of direct service connection is met. As to an in-service incurrence, as noted above, he STRs reflect that the Veteran was involved in two motorcycle accidents in July 2003 and was treated for abrasions to his knee and hips. An October 2003 private physical therapy note reflected complaints of right shoulder pain; however, a June 2004 Report of Medical Board did not reflect a diagnosis related to the right shoulder. Further, June 2004 PEB findings reflected that he was found unfit for duty due to a right knee disorder. Nonetheless, with evidence of an in-service injury, the second element of service connection is satisfied. To the extent that the Veteran asserts a nexus between service and his right shoulder disorder, at a January 2014 VA examination, he reported intermittent right shoulder pain and stiffness following a motorcycle accident during service. The examiner diagnosed right shoulder supraspinatus tendinopathy. After a physical examination and review of the file, the examiner opined that it was less likely than not that the right shoulder disorder was incurred in service. The examiner reasoned that although the Veteran had experienced right shoulder pain in-service after he was in a motorcycle accident, it resolved while he was in service. Further, the examiner noted that the Veteran underwent an MEB in June 2004 and there was no mention of right shoulder condition. At a November 2017 VA examination, the Veteran reported chronic right shoulder pain after a motorcycle accident during service. The examiner diagnosed rotator cuff tendonitis in the right shoulder. Upon examination, the examiner opined that it was less likely than not that the right shoulder disorder was related to a specific exposure event experienced by the Veteran during service in Southwest Asia as rotator cuff tendinopathy was a disease with a clear and specific etiology and diagnosis. The examiner reasoned that based on medical literature review, there was no evidence to support an association between Gulf War illness or specific exposure during the Gulf War and rotator cuff tendinopathy of the right shoulder. To the extent that the Veteran asserts a nexus between his right shoulder disorder and his active service, he submitted an October 2020 private medical opinion diagnosing chronic right shoulder pain. The clinician opined that there was a greater than 51 percent probability that the current chronic right shoulder pain disorder was caused by service. However, the clinician stated that she reviewed only the Veteran’s treatment records since separation from service and not the STRs before rendering her opinion. Further, no rationale was offered for that opinion. As noted, a conclusory opinion is insufficient to allow the Board to make an informed decision as to the weight to assign to the opinion. As such, this opinion is afforded lesser probative value. On the other hand, the January 2014 and November 2017 VA examinations are adequate, when read in conjunction with one another, as the examiner thoroughly reviewed and discussed the relevant evidence, considered the contentions of the Veteran, and provided thorough supporting rationales for the conclusions reached. There was no indication that any relevant or relied upon fact was misstated or improperly considered. As a result, the opinions provided by the VA examiner are the most probative evidence. The Veteran’s VA and private treatment records were also reviewed. With the exception of the October 2020 private medical opinion, there is no indication that any other providers established a connection between a right shoulder disorder and service. As such, greater probative weight is afforded the VA examination and opinion reports. Therefore, medical evidence weighs against the claim. With respect to all the claims, the Board has considered the Veteran’s lay statements that the disorders began in service. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to offer etiologies of his disorders due to the medical complexity of the matters involved. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claims for service connection and there is no doubt to be otherwise resolved. As such, the appeals are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Grzeczkowicz 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.