Citation Nr: 21027972 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 16-38 014 DATE: May 7, 2021 ORDER Entitlement to service connection for a low back disability, to include as secondary to a service-connected left hip disability, is granted. Entitlement to service connection for a right hip disability, to include as secondary to a service-connected left hip disability, is granted. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran's favor, his service-connected left hip disability caused his low back condition to develop. 2. Resolving all reasonable doubt in the Veteran's favor, his service-connected left hip disability caused his right hip condition to develop. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a low back disability, to include as secondary to a service-connected left hip disability, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for entitlement to service connection for a right hip disability, to include as secondary to a service-connected left hip disability, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from May 1989 to May 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that in August 2016 the Veteran requested a hearing before a Veterans Law Judge. A hearing was scheduled for May 2019. However, the Veteran did not report to the hearing. The Board's hearing request is thus deemed withdrawn. 38 C.F.R. § 20.704. SERVICE CONNECTION Generally, the Veteran contends that he is entitled to service connection for a right hip condition and a low back condition. With respect to the right hip disability, service treatment records reflect that he described pain in his right hip in 1990 and was initially diagnosed with tendonitis before an x-ray in 1991 showed a healed fracture in the right hip. Although the record reasonably raises the issue of service connection on a direct basis, it appears that the Veteran is arguing that he has a current right hip disability that is secondary to a service-connected left hip disability. With respect to his low back, he argues that his service-connected left hip disability has altered his gait, which has resulted in his current low back issues. By way of procedural history, the Veteran originally filed a claim for service connection for right hip and low back conditions secondary to a service-connected left hip disability in June 2011. These claims were denied in a January 2012 rating decision, which found that the available evidence did not establish that his right hip or low back conditions were related to his service or his service-connected left hip disability. Less than one year after he was notified of the rating decision, the Veteran requested "reopening" of his claim for the right hip condition in February 2012. The RO issued an April 2012 rating decision that denied his claim once more. In May 2012, he submitted a request for "reconsideration" of the claim for the right hip condition, as well as a lay statement regarding his right hip condition. The RO informed him in a September 2012 letter that it had received his request for reconsideration of the April 2014 rating decision, but that he would need to submit or identify new and material evidence, file a notice of disagreement with the April 2014 rating decision, or identify clear and unmistakable error in a prior decision before it could take further action regarding his request. The Veteran did not respond to the letter. Thereafter, the Veteran submitted a new claim for service connection for his right hip and low back conditions in October 2013. In April 2014, the RO issued a rating decision finding that new and material evidence had not been submitted and that reopening his previously denied claims was not warranted. After filing a timely notice of disagreement, the RO issued a statement of the case that addressed the merits of his claims but not whether new and material evidence had been received. Generally, a claim that has been denied in an unappealed decision may not thereafter be reopened. 38 U.S.C. § 7105(c). An exception to this rule exists for cases in which new and material evidence is presented or secured with respect to a claim that has been disallowed in a finally adjudication decision, in which case the claim must be reopened and the former disposition reviewed. 38 U.S.C. § 5108. However, where new and material evidence is received prior to the expiration of the one-year appeal period following a rating decision, the rating decision does not become final. In other words, a claim remains pending and does not need to be reopened where new and material evidence has been submitted within the one-year appellate period following a rating decision denying that claim. Here, although the Veteran did not file a notice of disagreement within one year of the January 2012 rating decision that denied service connection for his right hip and low back conditions, he submitted a lay statement relating to his right hip during the one-year appellate period. Moreover, VA treatment records related to his back and right hip were generated during the one-year appellate period following the January 2012 rating decision. See, e.g., November 2012 VA Neurosurgery Consult (noting complaints of pain in the back radiating to the hips, as well as a history of a right hip fracture during service). Although these records were not associated with the claims file during the appellate period, the RO is considered to have been in constructive receipt of the VA-generated records during this timeframe. See Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020); Bell v. Derwinski, 2 Vet. App. 363 (1992). Although the RO considered VA treatment records from January 2013 to April 2014 in its April 2014 rating decision, the RO did not address whether the Veteran's May 2012 lay statement or the VA treatment records generated between January 2012 and December 2013 were new and material evidence. As such, because the RO did not issue a decision responding to the question of whether the VA treatment records from prior to 2013 or the Veteran's May 2012 lay statement was new and material, the January 2012 rating decision did not become final. Beraud v. McDonald, 766 F.3d 1402 (Fed. Cir. 2014). Accordingly, the claims have remained pending since June 2011 and the Board does not need to address whether new and material evidence has been submitted with respect to these claims. Turning to the merits of the Veteran's claims, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three criteria: (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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 448 (1995). Here, the evidence clearly indicates that the Veteran has a current diagnosis of degenerative joint disease of the lumbar spine. With respect to the right hip, Dr. R.P. diagnosed "right hip degenerative disease" pursuant to a private medical examination in July 2019. Dr. R.P. also noted that right hip flexion and abduction were limited, that internal and external rotation in the sacroiliac joint caused pain, that he could not cross his legs bilaterally, and that he relied on assistive devices to perform standing physical examination tests. Although the nature of his right hip disability remains somewhat unclear to the Board, even considering Dr. R.P.'s report, the evidence nonetheless indicates that he has right hip pain that causes functional impairment of his earning capacity. As such, he has established that he has a current right hip condition as well. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Board has also reviewed the Veteran's service treatment records and post-service medical records. With respect to the Veteran's right hip condition, service treatment records reveal that he complained of left hip pain for the past two months in May 1990. Although his chief complaint concerned left hip pain, he also reported that the pain would sometimes radiate to the right thigh area and walked with a distinct limp. His treatment provider diagnosed tendonitis of the right hip. He attended follow-up medical appointments with respect to right hip tendonitis in June and July. Approximately one year later, in June 1991, the Veteran again complained of hip pain. X-rays taken that month indicated that he had a nondisplaced fracture of the left femoral neck, as well as a healing nondisplaced stress fracture of the right femoral neck. Soon thereafter, he underwent surgery to have the left hip fracture pinned and was placed on crutches. A June 1991 medical board report indicated that his past medical history was significant for an old stress fracture of the right hip, which had healed. In a May 1993 report of medical history, he indicated that he was in good health, other than occasional hip pain. He endorsed swollen or painful joints, cramps in his legs, broken bones, and arthritis. With respect to the Veteran's post-service treatment records, he has consistently reported a history of pain in his low back and right hip. For instance, he reported a history of "murderous" low back and left hip pain at a VA emergency department visit in January 2012, as well as chronic pain in his right hip and low back at an April 2012 VA Primary care physician visit. At a November 2012 VA neurosurgery consultation, he complained of radiating back pain and stated that he had two hip fractures during active duty. The chief questions for the Board are thus (1) whether the Veteran's right hip condition is directly related to his service or, alternatively, secondary to his left hip disability, and (2) whether his low back condition is secondary to his left hip disability. The Board notes that in September 2011 the Veteran was afforded a VA examination with respect to his low back and right hip conditions. The VA examiner opined that his low back condition was less likely than not related to his service-connected left hip disability, because there was no scientific knowledge supporting his contentions that the residuals of his in-service left hip fracture caused or aggravated lumbar spine degenerative joint disease. However, the Board finds this opinion to be inadequate, as it is conclusory and does not address the Veteran's lay contentions that his low back condition was related to the altered gait caused by his left hip disability. Additionally, the VA examiner declined to address the question of whether his right hip condition was secondary to his left hip disability altogether. The September 2011 VA examination report thus has little, if any, probative value. The Veteran submitted a private medical opinion from Dr. R.P. in October 2019. In his report, Dr. R.P. indicated that he conducted an in-person evaluation of the Veteran in July 2019. He also reviewed and summarized numerous medical records, including service treatment records and post-service VA treatment records, as well as medical literature discussing the hips and spine. On physical examination, the Veteran reported that he had walked with an altered gait since approximately 2005 but perhaps earlier. He had limited range of motion in his back as well as his right hip. In his report, Dr. R.P. opined that it was at least as likely as not that the Veteran's low back and right hip conditions were related to his service-connected left hip disability. As rationale, Dr. R.P. cited various orthopedic research articles, including an article called Altered Erector Spinal Activity and Trunk Motion Occurs with Moderate and Severe Unilateral Hip Osteoarthritis, which concluded that abnormal gait did in fact cause low back pain in a previously unaffected back. He also cited medical discussion papers and other studies finding that altered gait patterns affect the low back in a negative manner and can cause pain. With respect to the Veteran's right hip condition, Dr. R.P. cited to an article called Skeletal Malalignments of the Lower Quarter: Correlated and Compensatory Motions and Postures, which stated that skeletal malalignment could alter the joint load distribution and, therefore, joint contact pressure distribution of adjacent or distant joints. This article supported his conclusion that the Veteran's left hip disability had caused his right hip pathology to develop. Ultimately, the Board finds that Dr. R.P.'s private medical report is entitled to significant probative weight. It is well-researched, detailed, and thorough. Dr. R.P. supported his positive nexus opinions with objective examination findings as well as medical literature and citations to the Veteran's service and post-service medical records. Although he did not address whether the Veteran's right hip condition had its onset during his service, it was unnecessary to do so given his opinion that the left hip disability caused the right hip condition. As such, although the record reasonably raised the theory of entitlement on a direct basis, no further analysis under 38 C.F.R. § 3.303 is necessary. (Continued on the next page) Resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's service-connected left hip disability caused his low back and right hip conditions to develop. As such, service connection is warranted on a secondary basis. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Rademacher, 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.