Citation Nr: 21027801 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 17-25 193 DATE: May 6, 2021 ORDER New and material evidence having been received, the claim of service connection for a left hip disability is reopened. REMANDED Entitlement to service connection for a left hip disability is remanded. FINDINGS OF FACT 1. In a final decision issued in March 2013, the Regional Office (RO) denied the Veteran's claim of entitlement to service connection for a left hip disability. 2. Evidence added to the record since the final March 2013 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a left hip disability. CONCLUSIONS OF LAW 1. The March 2013 rating decision that denied service connection for a left hip disability is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. §§ 20.1100(a), 20.1103 (2020). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a left hip disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1990 to April 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in January 2021; a transcript is of record. It is noted that while the appeal of this claim was pending before the Board, the Veteran underwent another VA hip examination in February 2021. The RO subsequently issued a rating decision in March 2021, which continued its previous denial of the claim on appeal. Although the agency of original jurisdiction (AOJ) has not issued a supplemental statement of the case (SSOC) after this additional relevant evidence was obtained, this evidence was considered by the AOJ in the first instance in rating decision. The Veteran is not prejudiced because he was notified of the AOJ's consideration of the evidence and readjudication of his claim in a rating decision rather than a SSOC. See Sprinkle v. Shinseki, 733 F.3d 1180, 1184 (Fed. Cir. 2013) (noting that a SSOC is issued when additional pertinent evidence is received by the AOJ after the issuance of a SOC "[t]o ensure that claimants receive the benefit of this two-tiered review within the agency."). Moreover, the pertinent regulations were adequately provided to the Veteran in the April 2017 statement of the case (SOC). New and Material Evidence A claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. 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 regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). In establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of whether the RO found that new and material evidence had been submitted to reopen a claim for service connection, it is well established that the Board must determine on its own whether new and material evidence has been submitted to reopen a claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). 1. New and material evidence having been received, the previously denied claim of entitlement to service connection for a left hip disability is reopened. The Veteran was denied service connection for a left hip disability in a March 2013 rating decision. In the year following that rating decision, the Veteran did not submit any statements expressing disagreement with the denial of service connection for a left hip disability, nor did he submit any documents concerning the claim that could be considered new and material evidence. Thus, the March 2013 rating decision became final. 38 C.F.R. § 20.1103. Evidence received since the March 2013 rating decision includes hearing testimony regarding the onset and circumstances of his left hip problems, as well as an October 2014 medical statement indicating that there is "some correlation of chronic low back pain causing aggravation of hip arthritis." The Veteran's hearing testimony and October 2014 medical statement suggest a possible relationship between his current left hip disability and active service, and/or his service-connected lumbar spine disability. This evidence is not cumulative or redundant of the evidence previously of record. Moreover, it relates to an unestablished fact necessary to substantiate the claim. Therefore, it is new and material, and reopening of the claim is in order. REASONS FOR REMAND 1. Entitlement to service connection for a left hip disability is remanded. The Veteran contends that his left hip disability is related to service; alternatively, he asserts that it is secondary to his service-connected lumbar spine disability. During his hearing before the undersigned, the Veteran testified that he performed a lot of running, walking, rucking, and mobile duties during active service. He stated that he did not remember exactly where his in-service left hip injury happened but that he was in a lot of pain and "just kept going." He testified that his left leg/groin area really started hurting approximately 3 to 4 years after service, at which time he was treated at a VA facility with cortisone shots and told that he needed a left hip replacement. He further stated that his doctor told him that his left hip condition most likely happened in the military. In terms of medical evidence, the record reflects that the Veteran has a current diagnosis of degenerative arthritis of the left hip, status post hip replacement. Service connection is also in effect for IVDS of the lumbar spine (previously characterized as recurrent muscular low back strain). The Veteran submitted an October 2014 medical statement from Dr. W.N., in which Dr. W.N. acknowledged that the Veteran had a service-connected injury to the lumbar spine and significant left hip arthritis and opined that there was "some correlation of chronic low back pain causing aggravation of hip arthritis." The record also contains two VA medical opinions on the issue of secondary service connection. Specifically, the April 2017 VA examiner opined that the left hip disability was less likely than not proximately due to or the result of the Veteran's service connected recurrent muscular low back pain. The examiner reasoned that the current medical literature did not support causal nexus between the claimed left hip condition and service-connected recurrent muscular back pain. The examiner further stated, "There is no objective evidence to support aggravation." Likewise, in February 2021, the VA examiner opined that the claimed left hip condition was less likely than not proximately due to or the result of the service-connected lumbar spine disability. The examiner reasoned that there was no causal nexus between service-connected arthritis of the lumbar spine (previously recurrent muscular low back strain) and the claimed left hip replacement. In support of this conclusion, the examiner cited to various internet articles from the Mayo Clinic and the American Academy of Orthopaedic Surgeons (AAOS) which elaborate on the various causes and risk factors for osteoarthritis. In this case, based on the Veteran's competent hearing testimony, the issue of entitlement to service connection on a direct basis has been raised by the record. While the Veteran has been afforded VA examinations/opinions to address entitlement on a secondary basis, to date, he has not been provided a VA examination/opinion to determine whether his currently diagnosed left hip arthritis (status post hip replacement) is directly related to, or otherwise had its onset during active duty service. This should be accomplished upon remand. Lastly, the Board notes that the Veteran testified that he was treated at a VA facility for left hip related symptoms following service (approximately 3 to 4 years following separation) and that his only medical treatment has been through VA facilities. A review of his VA treatment records reflects that the Veteran moved to Florida in 2008 and that he has been treated at the West Palm Beach VAMC since 2009. Prior to 2009, the claims file contains a few records from the Miami VAMC dated in 2001 and 2002, and one record from the Allentown VAMC dated in 1999. On remand, the RO should ensure that the Veteran's complete record of post-service medical treatment is associated with the claims file. The matters are REMANDED for the following action: 1. Obtain and associate with the virtual file any outstanding VA treatment records. Specifically, records generated by VA facilities from 1993 to 2009, if extant. must be obtained. Efforts to obtain these records must be documented in the claims file and continue until it is reasonably certain that the records do not exist or that any further efforts to obtain the records would be futile. 2. Thereafter, obtain a VA medical opinion from a qualified examiner regarding the Veteran's left hip disability, diagnosed as degenerative arthritis, status post left hip replacement. The claims file must be reviewed by the examiner. A new examination may be ordered if the examiner deems it necessary. The examiner should provide an opinion as to whether it is at least as likely as not (i.e. 50 percent probability or more) that such disability was incurred in, or as a result of active duty service, to include the Veteran's reported engagement in various physical duties. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After completing the above, and any other development deemed necessary, readjudicate the appeal. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Hoeft 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.