Citation Nr: 21028703 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 17-60 800 DATE: May 11, 2021 ORDER New and material evidence having been received, the claim for service connection for a bilateral hip condition is reopened; to this extent only, the appeal is granted. REMANDED Entitlement to service connection for a bilateral hip condition is remanded. FINDINGS OF FACT 1. A December 2008 rating decision denied service connection for a bilateral hip condition. 2. The Veteran did not appeal the December 2008 decision and VA did not actually or constructively receive documentation constituting new and material evidence within the one-year appeal period. 3. Evidence received since the time of the final December 2008 rating decision is new and relates to an unestablished fact necessary to substantiate the claim for service connection for a bilateral hip condition. CONCLUSIONS OF LAW 1. The December 2008 rating decision that denied service connection for a bilateral hip condition is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 19.20, 19.21, 19.52, 20.1103 (2020). 2. New and material evidence has been received to reopen the claim for service connection for a bilateral hip condition. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2006 to August 2007. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A Board hearing was held before the undersigned in September 2020. A transcript of the hearing is of record. In August 2018, the Veteran submitted a RAMP opt-in election form requesting to participate in the Rapid Appeals Modernization Program (RAMP). The Veteran selected the Supplemental Claim review option for the left and right hip conditions. In September 2020, the Veteran was sent a notification letter asking whether she still wanted to participate in RAMP. She was informed that she should respond within 60 days from the date of the letter if she wanted to participate in RAMP and that if she did not want to participate she did not need to take any action and her appeal would remain at the Board and be worked in docket order. To date, a response has not been received; thus, the Board will proceed with adjudication of her claims in the legacy system. New and Material Evidence The Veteran's claim for service connection for a bilateral hip condition was originally denied in a December 2008 rating decision. The RO denied the claim after finding that there was no evidence of a current disability, noting specifically that a chronic disability associated with complaint of bilateral hip sprain during service was not established. The Veteran did not appeal the December 2008 rating decision, nor was any new and material evidence actually or constructively received within a year following the decision; therefore, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104(a), 3.156(b), 19.20, 19.21, 19.52, 20.1103. Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. §§ 7104, 7105. However, pursuant to 38 U.S.C. § 5108, 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 is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence cannot be cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id. In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118. Regardless of the RO's determination as to whether new and material evidence has been received, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claim and to adjudicate the claim de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all of the evidence. Justus, 3 Vet. App. at 512. Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513. As the December 2008 decision was the last final decision regarding this claim, the Board must review all the evidence submitted since that time to determine whether the Veteran's claim should be reopened and readjudicated on a de novo basis. As such, the Board first turns to the question of whether new evidence has been submitted since the final December 2008 rating decision. Evidence associated with the claims file since the December 2008 decision includes private treatment records and an October 2016 VA examination report which note a diagnosis of bilateral hip dysplasia. This evidence qualifies as new because it was not of record at the time of the December 2008 decision and it is not cumulative or redundant of the evidence of record at the time of that decision. Comparing this evidence to that submitted prior to the December 2008 decision, the Board finds the new evidence also qualifies as material because it provides evidence of a current disability, which is an unestablished fact necessary to substantiate the Veteran's claim of service connection for a bilateral hip condition. See Justus, 3 Vet. App. at 512-13. Accordingly, the Board finds that this new evidence also qualifies as material. The Board therefore finds new and material evidence has been received since the final December 2008 rating decision. Accordingly, the claim is reopened and to this extent only the appeal is granted. Shade, 24 Vet. App. at 117. REASONS FOR REMAND Entitlement to service connection for a bilateral hip condition is remanded. The Board finds further development is required before a decision can be made regarding the Veteran's claim. In June 2016, a VA examiner opined that the Veteran's bilateral hip condition was less likely than not incurred in or caused by the Veteran's hip sprain during service. In support of the opinion, the examiner noted that a review of available records did not show any evaluation or treatment for a bilateral hip condition. The examiner also noted that snapping hip syndrome was mentioned but the record contained no further documentation regarding the condition. The examiner indicated that there was no objective evidence of hip dysplasia and no continuity of symptomatology in close proximity to the Veteran's release from service. However, the Board finds the opinion inadequate. First, the record contains private treatment records from February 2015 and July 2015 which show the Veteran was evaluated and treated for a bilateral hip dysplasia (which was confirmed by imaging studies). In addition, although the examiner indicated that the Veteran did not report continuity of symptomatology, during the September 2020 Board hearing, she testified that she had been experiencing pain in her hips since service. Thus, the Board finds remand for a new VA examination and medical opinion necessary. In addition, the Board notes that the Veteran reported, during the September 2020 Board hearing, that she was diagnosed with a congenital hip condition in 2015. However, the private treatment records from 2015 do not indicate the condition was congenital. On remand, the examiner should address whether the Veteran's diagnosed snapping hip syndrome and/or bilateral hip dysplasia is a congenital condition. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination to determine the nature and etiology of her bilateral hip condition. The electronic claims file, including this remand, must be made available to the examiner for review. After a review of the claims file and examination of the Veteran, the examiner is asked to respond to the following: (a) Are the Veteran's diagnosed bilateral hip conditions, including bilateral hip dysplasia and snapping hip syndrome, a congenital defect or a congenital disease? (b) If it is determined that any diagnosed bilateral hip condition is a congenital defect, then is it at least as likely as not (a probability of 50 percent or greater) that there was a superimposed disease or injury in service that resulted in additional disability of the hips? (c) If it is determined that any diagnosed bilateral hip condition is a congenital disease, then is there clear and unmistakable evidence that it preexisted the Veteran's service? (d) If the answer to (c) is yes, then is there clear and unmistakable evidence that the preexisting bilateral hip condition was not aggravated beyond its natural progression during service? (e) If the answer to (c) or (d) is no, then is it at least as likely as not that the bilateral hip condition is related to an in-service injury, event, or disease? (f) For any other currently diagnosed bilateral hip condition, is it at least as likely as not (a 50 percent probability or greater) that such condition is related to an in-service injury, event, or disease? In providing a response to (e) and (f), the examiner should address: (i) the Veteran's treatment for bilateral hip sprain/strain noted in service treatment records, (ii) the Veteran's contention that her condition onset in basic training after maxing out on push-ups and sit-ups, and (iii) the Veteran's reports of experiencing pain in her hips in service and continuously since her separation from service. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Jiggetts 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.