Citation Nr: 21030107 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 19-05 759 DATE: May 17, 2021 ORDER New and material evidence having been received, the claim of service connection for a right hip disorder is reopened; to this limited extent, the appeal is granted. REMANDED Service connection for a right hip disorder. Service connection for a right ankle disorder. REASONS AND BASES The Veteran served on active duty from April 1964 to July 1964. The case is on appeal from a July 2017 rating decision. In April 2021, the Veteran testified at a Board hearing. Whether new and material evidence was received to reopen a previously denied claim of service connection for a right hip disorder. By a February 1980 rating decision, a claim of service connection for a right hip disability was denied. The Veteran was notified of the decision by letter later that month, which was mailed to the then current mailing address of record. The Veteran submitted an April 1980 notice of disagreement (NOD). In May 1980, the RO issued a statement of the case (SOC), which was also mailed to the then current mailing address of record. The Veteran did not file a timely substantive appeal. Thereafter, nothing further regarding the claim was received until the present claim to reopen in April 2017. As the Veteran did not perfect an appeal, the February 1980 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Board finds that new and material evidence has been submitted so that the previously denied claim of service connection for a right hip disorder is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). See also the April 2021 Board hearing testimony. The reopened claim for service connection for a right hip disorder will be addressed further in the remand section below. REASONS FOR REMAND 1. Service connection for a right hip disorder. The Veteran contends that he has a right hip disorder that pre-existed service and was aggravated by such. The Veteran testified at the Board hearing that he injured his right hip, including a dislocation, prior to service while playing football. The Veteran's service treatment records (STRs) include his January 1964 enlistment examination report which indicated no musculoskeletal problems. The examiner reported the Veteran has a history of dislocation of the right hip while playing football in high school and he was told at that time to have surgery to his right hip if dislocation should ever recur. However, the examiner stated there was no demonstrable abnormality of the right hip or leg at that time. A May 1964 record indicated the Veteran reported a right hip problem. He stated he suffered a football injury to his right hip three years prior and the examiner noted a residual lump and pain. A June 1964 STR showed pain and discomfort in the Veteran's right hip area during excessive activity. The June 1964 examination revealed diagnoses of right hip degenerative arthritis and dysplasia. Shortly after the June 1964 examination, the Veteran separated from service. A veteran is presumed to be in sound condition when examined, accepted, and enrolled for service, except for the disorders noted at time of the examination. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). A history provided at entrance by the veteran in and of itself is not a notation. See 38 C.F.R. § 3.304(b)(1); Crowe v. Brown, 7 Vet. App. 238, 245 (1994). Here, there is more than a standalone history of a pre-existing right hip disorder. Although the January 1964 examiner at enlistment found the condition to have no abnormalities and the area of the body normal for enlistment, the Board finds that the evidence overall supports a noted pre-existing condition noted at entrance, even if the impairment level may have been normal. Thus, this case is one of service aggravation for the right hip. For service aggravation cases, a preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during that service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. As noted, there is a May 1964 STR which reported a right hip problem, as well as a residual lump and pain. Further, a June 1964 STR prior to the Veteran's separation from service indicated pain and discomfort in the Veteran's right hip area during excessive activity and a diagnosis of degenerative arthritis of the right hip. Based on the above, although the Veteran had a preexisting right hip condition, the baseline is essentially normal at the time of entrance. Shortly after the Veteran's active service period began, he sought treatment for pain in his right hip. Following a June 1964 examination and review by a medical board, he was then found unfit for retention and separated from service. As noted, the June 1964 examination revealed diagnoses of right hip degenerative arthritis and dysplasia. Given the evidence of potential aggravation during service of the Veteran's pre-existing right hip disability, the Board finds that the Veteran should be afforded a VA examination on remand to determine if his right hip disorder worsened in service beyond the natural progress of the disease, and whether a current right hip disorder is related to such. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Service connection for a right ankle disorder. During the April 2021 hearing, the Veteran testified that he has right ankle problems due to his right hip disability. He stated the right ankle condition is primarily due to him favoring his right hip, which has weakened his right ankle. Since the right hip claim is being remanded, the right ankle claim must also be remanded, as the issues are intertwined. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination (or telehealth interview, record review, etc., if an in-person examination is not feasible) by a qualified medical professional for an opinion with respect to the pre-existing right hip disorder. The examiner should first identify all right hip diagnoses. The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that there was an increase in severity of the pre-existing right hip disability, which was more than a temporary flare-up, during service. If so, the examiner should then provide an opinion as to whether it is clear and unmistakable (i.e., undebatable from a medical standpoint) that the increase in severity was due to the natural progress of the disorder. The examiner must consider and address the Veteran's STRs and the April 2021 hearing testimony. 2. If service connection is granted for the right hip, schedule the Veteran for a VA examination (or telehealth interview, record review, etc., if an in-person examination is not feasible) by a qualified medical professional for an opinion to determine the nature and etiology of any diagnosed right ankle disorder. (Continued on the next page) The examiner should first identify any right ankle diagnoses. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the right ankle disorder was caused or aggravated by his service-connected right hip disorder, to include caused by an altered gait as a result of the right hip disability. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Isaacs, Brandon 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.