Citation Nr: 21041037 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 17-38 054 DATE: July 7, 2021 ORDER New and material evidence has been received, and the claim for service connection for left thigh injury is reopened. REMANDED Entitlement to service connection for left thigh injury is remanded. Entitlement to service connection for low back secondary to left thigh injury is remanded. FINDING OF FACT 1. A January 2009 rating decision denied service connection for left thigh injury; the Veteran did not perfect an appeal of that decision or submit new and material evidence within the remainder of the appeal period. That decision is final. 2. Evidence received since the January 2009 rating decision is new and contributes to a more complete picture of circumstances surrounding the origin of the Veteran's disability. CONCLUSION OF LAW Evidence submitted to reopen the claim for service connection for left thigh injury is new and material, and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army from November 1980 to March 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2021, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. NEW AND MATERIAL EVIDENCE 1. Whether new and material evidence has been submitted to reopen the claim for service connection for left thigh injury. Generally, if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to VA. Material evidence means 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. For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service connection for a left thigh injury was denied in a January 2009 rating decision on the basis that there was no evidence of a persistent disability in service. The Veteran did not perfect a timely appeal or submit new and material evidence during the appeal period, and the decision became final. 38 C.F.R. §§ 3.156, 20.1103 (2009). The Veteran submitted the current request to reopen his claim in April 2016. A May 2016 rating decision declined to reopen the claim for service connection. This appeal followed. The evidence received since the January 2009 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. For example, the Veteran's testimony during his May 2021 Board hearing indicates that he experienced pain in his left thigh since his motor vehicle accident in service, that the contusion was closer to the hip, and that the pain has continued since. As this evidence contributes to a more complete picture of the circumstances regarding the origin of the Veteran's disability, the evidence is new and material. Accordingly, the claim is reopened and will be considered on the merits. REASONS FOR REMAND 1. Entitlement to service connection for left thigh injury is remanded. Reopening the claim does not end the matter; rather, the claim must now be addressed on the merits. However, the Board finds that a new VA examination is needed prior to adjudication of this claim. A June 2017 VA examination was obtained in connection with this claim. The VA examiner concluded that there was no current diagnosis for a left thigh condition. However, the Veteran's treatment records note left leg and hip complaints and he reported left thigh complaints during his Board hearing. Thus, a new VA examination and opinion is warranted. 2. Entitlement to service connection for low back is remanded. The Veteran contends that his low back condition is secondary to his left thigh injury due to his altered gait. See October 2016 Statement from Representative. Thus, this issue is intertwined with the left thigh claim. The matters are REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have treated him for his left thigh injury and low back condition. After securing the necessary releases, request any identified records that are not duplicates of those associated with the claims file. If any requested records cannot be obtained, the Veteran should be notified of such. 2. Schedule the Veteran for a VA thigh examination to address the claim for left thigh injury. The claims file must be reviewed by the examiner in conjunction with the examination. All indicated tests should be conducted and the results reported. After review of the claims file and examination of the Veteran, the examiner should respond to the following: a. Indicate whether the Veteran has a diagnosed disability in the left thigh area. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion below. b. Is at least as likely as not (50 percent probability or more) that the Veteran's disability is related to service, to include addressing the in-service MVA with left thigh contusion and the Veteran's testimony regarding contined pain since then. A rationale for the opinion should be provided. 3. If a favorable decision is rendered on the left thigh claim, obtain an addendum opinion on the claim for secondary service connection for the low back disability should be obtained, which addresses whether the low back disability was cause by or is aggravated by the left thigh disability. 4. If the claims remain denied, issue a supplemental statement of the case. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. N. Wilson, 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.