Citation Nr: 21029539 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 17-04 865 DATE: May 13, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for a bilateral hip disability is reopened. REMANDED The claim of entitlement to service connection for a bilateral hip disability is remanded. The claim of entitlement to a temporary total evaluation for convalescence for surgery related to a bilateral hip disability is remanded. FINDING OF FACT 1. In a final February 2011 rating decision, the RO denied the Veteran's claim seeking entitlement to service connection for a bilateral hip disability. 2. The evidence received since the February 2011 rating decision is not cumulative or redundant of evidence previously of record and relates to unestablished facts necessary to substantiate the claim for entitlement to service connection for a bilateral hip disability. CONCLUSION OF LAW New and material evidence has been received, and the criteria for reopening the claim of entitlement to service connection for a bilateral hip disability have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from in the United States Army from February 1991 to June 1991, from January 1996 to October 2002, and from September 2004 to March 2009. These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2015 and February 2016 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a March 2021 Board hearing. A transcript has been associated with the evidence of record. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a bilateral hip disability. "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 can be neither cumulative nor 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). Once the case is reopened, the presumption as to the credibility no longer applies. Justus, 3 Vet. App. at 513. 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 VA's duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118. 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 the evidence. In February 2011, the RO denied the Veteran's claim of entitlement to service connection for a bilateral hip disability. The February 2011 rating decision denied the claim based on a finding that, despite subjective complaints having bilateral hip pain, there were no objective findings to support a current diagnosis of a bilateral hip condition. The RO further found that, although there was a record of treatment in service, the evidence of record did not demonstrate that the Veteran had a permanent residual or chronic bilateral hip disability. The Veteran did not appeal the 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. §§ 3.156, 19.20, 19.21, 19.52, 20.1103. Since the February 2011 decision, VA has received new and material evidence to reopen the claim. In this regard, VA treatment records reflect that the Veteran was diagnosed as having a bilateral hip disability during the appeal period. See, e.g., 5/19/15 Orthopedic Surgery Consultation Note See, e.g., 5/19/15 Orthopedic Surgery Consultation Note (diagnosing a left hip femoral acetabular impingement with labral tear and acetabular edema"); 11/03/15 Operative Report (diagnosing a "right hip joint disorder with question of labrum tear"). As explained above, the Board is obligated to presume the credibility of such lay statements for the purpose of determining whether to reopen the claim. This new evidence relates to the basis for the original denial and raises a reasonable possibility of substantiating the claim. If taken to be true, this reflects that the Veteran has a current bilateral hip disability which may be related to her military service. The Board therefore finds that this evidence is new and material, and the Veteran's claim is reopened. REASONS FOR REMAND The Board regrets the additional delay but finds that remand for development is needed. 1. Entitlement to service connection for a bilateral hip disability. The Board's finding of new and material evidence to reopen the Veteran's bilateral hip disability claim entitles her to a new VA examination. See Shade, 24 Vet. App. at 118; see also McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Veteran's service treatment records show that she was treated for bilateral hip pain in February 2006; diagnosed with left hip sprain in July 2008; and treated for joint pain, localized in the hip, in October 2008. At her March 2021 Board Hearing, the Veteran testified that she was on active duty when she began experiencing a lot of hip pain in 2004 when she was pregnant with her son. See Board Hearing Transcript, p 2. Likewise, lay/buddy statements from the Veteran's supervisor (February 2011), ex-husband (January 2011), co-worker (January 2011), and the Veteran herself (March 2021) provide additional context regarding the onset and impact of her bilateral hip symptoms. Before the claim on appeal can be adjudicated, the Veteran must be afforded a VA examination to ascertain the nature and etiology of her (now) diagnosed bilateral hip disability. 2. Entitlement to a temporary total evaluation for convalescence for surgery related to a bilateral hip disability. As the claim for temporary total evaluation for convalescence for surgery related to bilateral hip disability is inextricably intertwined with the remanded claim of entitlement to service connection for bilateral hip disability, it is also remanded. These matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of any diagnosed hip disability. After reviewing the evidence of record and conducting an evaluation of the Veteran, the examiner is asked to respond to the following: Whether it is at least as likely as not (50 percent or greater probability) that any current bilateral hip disability had its onset in service or is otherwise etiologically related to active service? Attention is invited to the Veteran's STRs noting treatment for bilateral hip pain in February 2006; a diagnosis of left hip sprain in July 2008; and treatment for joint pain, localized in the hip, in October 2008. In providing the requested opinion, the examiner should consider and discuss all pertinent medical records, as well as the Veteran's lay/buddy statements and hearing testimony. The examiner must provide adequate rationale for all medical conclusions reached. 2. After completing the above action and any other necessary development, the claims of (1) entitlement to service connection for a bilateral hip disability, and (2) entitlement to a temporary total disability evaluation must be readjudicated. If any claim remains denied, a Supplemental Statement of the Case must be provided to the Veteran and her current representative. After the Veteran has had adequate opportunity to respond, the appeal must be returned to the Board for appellate review. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael L. Marcum, 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.