Citation Nr: 21024904 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 17-62 999 DATE: April 26, 2021 ORDER New and material evidence having been presented, the previously denied claim of entitlement to service connection for residuals of a left leg fracture is reopened. REMANDED A claim of entitlement to service connection for residuals of a left leg fracture is remanded. A claim of entitlement to service connection for a right hip condition, to include as secondary to residuals of a left leg fracture, is remanded. A claim of entitlement to service connection for a bilateral knee condition, to include as secondary to residuals of a left leg fracture, is remanded. FINDINGS OF FACT A September 2002 rating decision that denied service connection for residuals of a left leg fracture was final. A July 2012 rating decision that denied reopening a claim of entitlement to service connection for residuals of a left leg fracture was final; evidence received since that time is both new and material. CONCLUSION OF LAW New and material evidence has been received to reopen the claim for service connection for residuals of a left leg fracture. REASONS AND BASES FOR FINDING AND CONCLUSION Procedurally, the Veteran fractured his left leg in an automobile accident in 1987. He entered active service in the United States Army in November 2001. He was discharged from service in July 2002 due to in-service findings that his left leg condition existed prior to service and was not aggravated during service. In May 2020, the Veteran testified before the undersigned Veterans Law Judge in support of his claims. He is currently not service-connected for any disabilities. New and Material Evidence The RO denied service connection for residuals of a left leg fracture in a September 2002 rating decision. Although the Veteran submitted a notice of disagreement to the rating decision, and the Regional Office (RO) prepared a statement of the case (SOC), the Veteran failed to perfect his appeal by filing a VA Form-9. Therefore, the September 2002 rating decision became final in September 2003. The Veteran filed a second application for compensation for a left leg condition in October 2011. In a July 2012 rating decision/notification letter, the RO denied the Veteran’s claim on the basis that new and material evidence to reopen the previously denied claim had not been presented. The Veteran did not appeal; and the July 2012 rating decision became final. Subsequently, the Veteran applied for compensation for, among the other issues on appeal, a lower left leg condition. In the March 2017 rating decision, the RO continued to deny service connection for the Veteran’s left leg condition on the basis that the evidence submitted in support of reopening the claims was not new and material. Since the issuance of the March 2017 rating decision, a May 2020 BVA hearing transcript and a July 2020 medical nexus opinion submitted by the Veteran have been associated with the claims file. The Board finds that this evidence relates to unestablished facts necessary to substantiate this service connection claim. Therefore, the Board finds that this claim should be reopened. REASONS FOR REMAND A Left Leg Condition, a Right Hip Condition, and a Bilateral Knee Condition A review of the record on appeal reveals that additional development is necessary in this case. Initially, the Board observes that the Veteran submitted a statement in July 2020 and testified during his May 2020 BVA hearing that he was in the process of applying for Social Security Disability Insurance (SSDI). Upon remand, the records from the Social Security Administration should be obtained as the records are more likely than not relevant and there is a reasonable possibility that the records could help substantiate the claim. See 38 C.F.R. § 3.159(c)(2); Golz v. Shinseki, 590 F.3d 1317, 1322 (Fed. Cir. 2010) (VA’s duty to assist includes obtaining relevant social security records). It appears to the Board that the only VA examination the Veteran has been afforded in relation to his claim for service connection for residuals of a left leg fracture occurred in April 2003. A review of the examination report reveals that it did not address service treatment records in which the Veteran reported that he had fractures of his foot and toes during his period of service, nor did it discuss a June 2002 Entrance Physical Standards Board record in which the Veteran was noted as having a chief complaint of left lower extremity pain with exertion and a final diagnosis of “[l]eg pain exacerbated with exertion.” The same document reported that the Veteran’s leg pain existed prior to service and had not been aggravated in service without distinguishing the differences between what constituted exacerbation and what constituted aggravation. Even though the Veteran was afforded a VA examination in relation to his service connection right hip claim, the examiner found that he did not have a current diagnosis; and he reported that the Veteran told him that he did not have a right hip condition while in the military. A review of the Veteran’s service treatment records reveals complaints of bilateral hip pain in February 2002 and May 2002. A June 2020 medical record reveals the Veteran has a current diagnosis of post-traumatic osteoarthritis of the right hip. Lastly, the Veteran testified during his BVA hearing that he believes that he had to undergo a right hip replacement “as a residual of all that stuff in training.” He also reported that one of his legs is a full half-inch shorter than the other one. Given the evidence of the Veteran’s complaints in service, his current diagnosis and his testimony, the Board finds that he should be afforded a new orthopedic examination. Lastly, although the Veteran indicated in his May 2002 separation from service medical history form that he had knee trouble in service, to include swelling of the knees, he has not been afforded a VA examination in relation to his service connection bilateral service connection claim on either a direct or secondary basis. On remand, such an examination should be scheduled. The matters are REMANDED for the following actions: 1. Make appropriate efforts to obtain from the Social Security Administration the complete set of records associated with the Veteran’s claim for disability benefits. See 38 C.F.R. § 3.159 (c)(2). Any negative response must be included in the record, and the Veteran must be notified of such inability and informed that he may submit any records he may have in his possession. 2. Afford the Veteran a VA examination with an appropriate medical provider, preferably an orthopedist, to address the likelihood that he suffers from a disability that is related to service or developed secondary to a service-connected condition. In this regard, the examiner should provide medical opinions as to whether it is at least as likely as not that the Veteran suffers from: (a) pre-existing residuals of a left leg fracture that were aggravated during his period of service, (b) a right hip condition directly related to service or one that developed secondary (causation and aggravation) to his residuals of a left leg fracture, and (c) a bilateral knee condition that directly manifested during his period of service or one that developed secondary (causation and aggravation) to his left leg fracture residuals. As to the Veteran’s aggravation claim, the medical professional should be asked to comment on the service treatment records and BVA hearing testimony that raises the question of whether the Veteran fractured either his toes or his foot/feet during his period of active service. The medical professional should also discuss the service treatment record in the claims file that indicates the Veteran’s pre-existing left leg condition was “exacerbated” during active service but not “aggravated.” The examiner should be informed that “aggravation” is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms. Evidence of permanent worsening is not required. A rationale for all medical opinions must be provided. 3. Contact the Veteran and provide him with a copy of any examination reports/medical opinions produced in response to directive #2 above. In doing so, notify the Veteran of his opportunity to provide the doctor who prepared the July 2020 nexus medical opinion, A.N., M.D., a copy of this remand and the medical reports/opinions in order to potentially obtain an addendum medical opinion. 4. After undertaking any additional development warranted, readjudicate the Veteran’s claims. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Talpins 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.