Citation Nr: 21027486 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 18-09 585 DATE: May 5, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for a left hip disability is reopened; to that extent only, the appeal is granted. REMANDED Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a left knee is remanded. FINDINGS OF FACT 1. A June 2011 rating decision denied entitlement to service connection for a left hip disability based on finding the evidence did not show the claimed disability was related to a service-connected right hip disability or directly related to service. 2. Since the June 2011 rating decision became final, evidence relating the left hip disability to the right hip disability has been received. This evidence relates to an unestablished fact necessary to substantiate the claim of service connection for a left hip disability, and it raises a reasonable possibility of substantiating such claim. CONCLUSION OF LAW New and material evidence has been received to reopen the claim of entitlement to service connection for a left hip disability; thus, the Veteran's petition to reopen his claim is granted. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from December 1977 to April 1994. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Veteran testified at a hearing before the undersigned in March 2021. A transcript of the hearing is of record. New and Material Evidence Generally, if a claim for service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. "New" evidence is defined as existing evidence not previously submitted to agency decisionmakers. "Material" evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a "low" threshold and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110 (2010). Despite any prior determination reached by the RO regarding the claims on appeal, under the legacy appeal system, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). A June 2011 rating decision denied entitlement to service connection for a left hip disability based on finding the evidence did not show the claimed disability was related to a service-connected right hip disability or directly related to service. The Veteran did not perfect an appeal of this decision or submit new and material evidence within the year following the determination, and it became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 19.20, 20.1103. As previously noted, a final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. The Veteran submitted a petition to reopen his claim in February 2016. The pertinent evidence of record in June 2011 included the Veteran's service treatment records; private treatment records; and a May 2011 VA hip examination report. Evidence received since the June 2011 rating decision became final includes a June 2017 VA hip examination report that notes the Veteran had been compensating for pain caused by his service-connected right hip disability by using his left hip for weight bearing. As the observation provides for the possibility that the Veteran has a left hip disability that is related to his service-connected right hip disability, the Board finds that this new evidence received relates to an unestablished fact necessary to substantiate the claim for service connection for a left hip disability, and raises a reasonable possibility of substantiating such claim. The Board accordingly finds that new and material evidence has been received to reopen the claim of service connection for left hip disability. To that extent only, the appeal is granted. The reopened claim will be addressed in Remand section below. REASONS FOR REMAND 1. Entitlement to service connection for a left hip disability is remanded. 2. Entitlement to service connection for a low back disability is remanded. 3. Entitlement to service connection for a left knee disability is remanded. The Veteran asserts he has left hip, left knee, and back disabilities secondary to his service-connected right hip disability. He was provided examinations in May 2011 and March 2016. The May 2011 examiner diagnosed a left hip strain and opined it was less likely than not caused by or a result of the service-connected right hip disability. The March 2016 examiner diagnosed left hip bursitis, degenerative arthritis of the spine, and left knee patellofemoral pain syndrome and bursitis. The examiner opined each disability was less likely than not caused by the service-connected right hip disability. The examiner opined the left hip stiffness was a manifestation of the back disability and that there is no known causative nexus relationship between right hip bursitis and the claimed disabilities. However, the examiner did not address whether the right hip disability aggravated the claimed disabilities. A medical examination or opinion that fails to address whether a service-connected disability aggravated the claimed disability is inadequate to inform the Board on the issue of secondary service connection. See ElAmin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). Accordingly, the Board must remand the matters of service connection for left hip, left knee, and back disabilities to obtain addendum opinions on whether the service-connected right hip disability has aggravated those disabilities. In addition, it appears there are outstanding VA and private treatment records. The Veteran's VA treatment records show a private provider performed a left knee replacement in December 2018 under VA's Veterans Choice Program. VA treatment records indicate multiple sets of records were received from the outside provider prior to and following the surgery, but the records are not associated with the claims file. In addition, a September 2010 private treatment record notes the Veteran sustained left knee injuries in a motor vehicle accident, but records of treatment for these injuries are not associated with the record. It is not clear whether the Veteran did not submit all of the records from the provider who noted the injuries or the records of treatment from another provider are outstanding. Accordingly, such records must be sought on remand. The Board suggests that the Veteran obtain and submit these records to expedite this action. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records, including any records received from the private orthopedist treating the Veteran's left knee disability under VA's Veterans Choice Program. 2. Contact the Veteran and ask him to identify whether there are any outstanding private medical records reflecting treatment for the claimed left hip, left knee, and low back disabilities, including from the provider who treated left knee injuries sustained during a motor vehicle accident in 2010. After obtaining all needed authorizations from the Veteran, obtain those records and associate them with the electronic claims file. To expedite this action, the Veteran is encouraged to get these records himself and submit any additional VA or private medical records in his possession. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the claimed left hip, left knee, and back disabilities. The claims file should be made available and reviewed by the examiner. Following consideration of the evidence of record (both lay and medical), the examiner is asked to address the following: (a) For each left hip disability diagnosed, including bursitis and arthritis, provide an opinion as to whether it is at least as likely as not (a 50% or greater probability) that the left hip disability was either caused or aggravated by (the concept of aggravation must be specifically addressed) the Veteran's service-connected right hip disability. If the left hip disability is found to not have been caused, but to have been aggravated by the service-connected right hip disability, please identify the degree of impairment that is due to such aggravation. (b) For each left knee disability diagnosed, including bursitis, provide an opinion as to whether it is at least as likely as not (a 50% or greater probability) that the left knee disability was either caused or aggravated by (the concept of aggravation must be specifically addressed) the Veteran's service-connected right hip disability. If the left knee disability is found to not have been caused, but to have been aggravated by the service-connected right hip disability, please identify the degree of impairment that is due to such aggravation. (c) For each back disability diagnosed, including arthritis, provide an opinion as to whether it is at least as likely as not (a 50% or greater probability) that the back disability was either caused or aggravated by (the concept of aggravation must be specifically addressed) the Veteran's service-connected right hip disability. If the back disability is found to not have been caused, but to have been aggravated by the service-connected right hip disability, please identify the degree of impairment that is due to such aggravation. In providing an answer to the above questions, the examiner should consider and discuss, among other things, the June 2017 VA hip examiner's observation that the Veteran had been compensating for pain caused by his service-connected right hip disability by using his left hip for weight bearing. The examiner should also be aware that the U.S. Court of Appeals for Veterans Claims held in a recent case, Ward v. Wilkie, 31 Vet. App. 233 (2019), that a "permanent worsening" of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation can be established by a temporary, incremental worsening of a disability, including an increase in pain). The examiner must include in the medical report the rationale for any opinion expressed. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board William A. Skowronski, 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.