BVA9507935 DOCKET NO. 92-23 756 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Whether there is clear and unmistakable error in prior decisions denying service connection for a left hip disorder. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for a left hip disorder. REPRESENTATION Appellant represented by: Maryland Veterans' Service Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Keyes, Associate Counsel INTRODUCTION The veteran served on active duty from August 1942 to October 1945. In April 1977, the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland, denied the veteran's claim for service connection for a left hip disorder as secondary to a service-connected left knee disorder, and he was notified of this decision that same month. He appealed the rating decision, and in February 1979, the Board denied service connection for a disorder of both hips, including arthritis of the hips, on both direct and secondary bases, and denied arthritis of the hips on a presumptive basis. In June and July 1987 and January 1988, the RO denied petitions by the veteran to reopen his claim for service connection for a disorder of the hips, including arthritis of the hips, on the basis that no new and material evidence had been received to justify a reopening. The veteran appealed the January 1988 RO denial of his petition to reopen, and the Board, after remanding the matter for an unrelated purpose, denied service connection for arthritis of both hips in January 1990 on the grounds that "evidence submitted since the [Board] decision of February 1979 does not establish a new factual basis which would demonstrate that arthritis of either of the veteran's hips was incurred in or aggravated by his active military service, that arthritis was present to the requisite degree within a year of his separation therefrom, or that arthritis is proximately due to or the result of a condition of service origin." This appeal arises from a November 1990 rating decision of the RO that denied the veteran's petition to reopen his claim for service connection for a left hip disorder on the basis that no new and material evidence had been submitted. On the April 1991 statement of the case, the issue was phrased as "Propriety of review of denial of service connection for left hip" but the laws and regulations cited were those pertaining to the reopening of claims. An October 1992 statement of the veteran's representative conceded that the veteran had failed to provide new and material evidence to reopen his claim but alleged that prior denials of service connection for a left hip disorder were in error. I observe that this concession was made before the United States Court of Veterans Appeals (Court) issued its decision in Glynn v. Brown, in which it held that to determine whether or not new and material evidence has been submitted, adjudicators must consider all evidence submitted since the last final denial on the merits of the claim and not just the evidence submitted since the last denial of a petition to reopen the previously denied claim. Glynn v. Brown, 6 Vet.App. 523, 528-29 (1994). I note that the veteran has emphasized certain evidence submitted since the last final denial on the merits, contending that it shows that his left hip disorder is directly related to his service-connected left knee disorder. Accordingly, I conclude that the appeal concerning the reopening of the veteran's claim has not been withdrawn. The case was held pending a decision by the United States Court of Appeals for the Federal Circuit in Smith v. Brown, 35 F.3d 1516 (Fed. Cir. 1994), which was issued in August 1994. It has been returned to the Board for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that there was clear and unmistakable error in prior Board and RO decisions denying service connection for a left hip disorder. He also contends that the RO committed error in denying his petition to reopen his claim for service connection for a left hip disorder. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter and for the following reasons and bases, it is the decision of the Board that no clear and unmistakable error under 38 C.F.R. § 3.105(a) exists in a prior RO or Board decision as a matter of law. It is also the decision of the Board that new and material evidence has been submitted to reopen a claim for service connection for a left hip disorder. FINDINGS OF FACT 1. The RO denied service connection for a left hip disorder in April 1977. 2. The Board upheld the RO's April 1977 rating decision and denied service connection for a disorder of the hips, including arthritis of the hips, in February 1979. 3. Rating decisions subsequent to the Board's February 1979 decision, and the Board's January 1990 decision, only considered whether the claim for service connection for a left hip disorder was reopened, and did not address the merits of the claim. 4. No evidence raising a reasonable possibility that a left hip disorder was incurred in or aggravated during service has been received since the February 1979 Board decision. 5. No evidence raising a reasonable possibility that arthritis of the left hip was incurred within the presumptive period following separation from service has been received since the February 1979 Board decision. 6. Medical evidence has been submitted since the February 1979 Board decision which raises a reasonable possibility that a left hip disability is the proximate result of the veteran's service-connected left knee disorder. CONCLUSIONS OF LAW 1. The April 1977 rating decision denying service connection for a left hip disorder has been subsumed by the February 1979 Board decision that affirmed it. 38 C.F.R. § 20.1104 (1994). 2. No claim of clear and unmistakable error can exist as a matter of law in the February 1979 Board decision or in the April 1977 RO decision, which was subsumed by the February 1979 Board decision. Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994); Duran v. Brown, 7 Vet.App. 216, 224 (1994); 38 C.F.R. § 20.1104 (1994). 3. The February 1979 Board decision upholding the RO's April 1977 rating decision and denying service connection for a disorder of the hips, including arthritis of the hips, is final. 38 U.S.C.A. § 7103 (West 1991); 38 C.F.R. § 20.1100 (1994). 4. Certain evidence received since the Board's February 1979 decision denying service connection for a disorder of the hips, including arthritis of the hips, is new and material, and the veteran's claim for service connection for a left hip disorder has been reopened. 38 U.S.C.A. § 5108 (West 19991); 38 C.F.R. § 3.156 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Clear and Unmistakable Error in Prior Decisions Denying Service Connection for a Left Hip Disorder. The October 1992 statement specifically asserts that the denial of service connection for a left hip disorder, on the merits of the claim, contained clear and unmistakable error because the Board refuted a medical opinion that the veteran's left hip disorder was related to his service-connected left knee disorder with its own unsubstantiated medical conclusion. In Smith v. Brown, the United States Court of Appeals for the Federal Circuit held that clear and unmistakable error under 38 C.F.R. § 3.105(a) applies only to decisions of the agency of original jurisdiction (AOJ) and not to prior decisions of the Board. Smith, 35 F.3d at 1527. In the wake of Smith, the United States Court of Veterans Appeals (Court) held that, since a decision of an AOJ that is affirmed or upheld by the Board is subsumed by that Board decision, no clear and unmistakable error under 38 C.F.R. § 3.105(a) exists as a matter of law with respect to that AOJ decision. Duran, 7 Vet.App. at 224; 38 C.F.R. § 20.1104 (1994). In this case, decisions on the merits of the claim for service connection for a left hip disorder, including arthritis of the left hip, were rendered by the RO, the AOJ in this case, in the April 1977 rating decision and by the Board in its February 1979 decision that upheld the RO decision. In light of the holdings in Smith and Duran, I conclude that no clear and unmistakable error can exist as a matter of law in the February 1979 Board decision or in the April 1977 RO decision that was subsumed by it. Smith, 35 F.3d at 1527; Duran, 7 Vet.App. at 224. Accordingly, the appeal to the Board on the basis of clear and unmistakable error in the April 1977 RO decision and the February 1979 Board decision must be dismissed. Sabonis v. Brown, 6 Vet.App. 426, 430 (1994). II. New and Material Evidence To Reopen a Claim for Service Connection for a Left Hip Disorder. To reopen a finally denied claim, a veteran must submit new and material evidence. 38 U.S.C.A. § 5108 (West 1991). Evidence is new when not merely cumulative of other evidence on the record. Material evidence is relevant to and probative of the issue at hand and of sufficient weight and significance that there is a reasonable possibility that, when viewed in the context of all of the evidence, both old and new, the additional evidence will change the disposition of the claim. Vecina v. Brown, 6 Vet.App. 519, 522 (1994); Mintz v. Brown, 6 Vet.App. 277, 280 (1994); Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991); see Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). In determining whether new and material evidence has been submitted to reopen a finally denied claim, consideration must be given to all of the evidence submitted since the last final denial on the merits rather than limited to evidence received since the most recent denial of reopening. Glynn v. Brown, 6 Vet.App. 523, 528-29 (1994). In order to comply with the holding in Glynn, I must determine, from among three RO and two Board decisions in the claims file, which decision constitutes the last final denial on the merits of the claim for service connection for a left hip disorder. Glynn, 6 Vet.App. at 528-29. The 1979 Board decision denied service connection for a disorder of the hips, including arthritis of the hips. This decision was rendered on the merits of the claim, the Board noting that the appeal was entered from the veteran's initial application for service connection for a hip disorder. After the Board's 1979 decision, the RO, in June and July 1987 and January 1988, denied petitions by the veteran to reopen his claim for service connection for a disorder of the hips, including arthritis of the hips, on the basis that no new and material evidence had been received to justify a reopening. The veteran appealed the January 1988 RO denial of his petition to reopen, and the Board, after remanding the matter for an unrelated purpose, denied service connection for arthritis of both hips in January 1990 on the grounds that "evidence submitted since the [Board] decision of February 1979 does not establish a new factual basis which would demonstrate that arthritis of either of the veteran's hips was incurred in or aggravated by his active military service, that arthritis was present to the requisite degree within a year of his separation therefrom, or that arthritis is proximately due to or the result of a condition of service origin." Although it employed the " new factual basis" terminology then in use, the effect of the January 1990 Board decision was to deny the veteran's petition to reopen his claim for service connection for a disorder of the hips. Further, I note that the 1990 Board decision contains only two conclusions of law, namely that the February 1979 Board decision was final and that evidence submitted since that decision did not establish a new factual basis on which the benefits sought might be granted. Therefore, I conclude that the January 1990 Board decision was not a denial on the merits of the claim, and the last final denial on the merits was the Board decision of February 1979. The evidence submitted since the February 1979 Board decision consists of the following: (1) outpatient treatment reports from a VA Medical Center (VAMC) dated from July 1978 to July 1980; (2) a November 1979 VA examination report; (3) discharge summaries from a private hospital for periods of hospitalization from September to October 1980, in April and July 1982, from May to June 1983, and from September to October 1983; (4) progress notes from a private hospital from December 1982 to December 1984; (5) a rheumatology consultation report dated in April 1982; (6) letters dated November 1984 and July 1985 between private physicians; (7) a February 1983 private x-ray report of the right knee, left leg, left shoulder, cervical spine, and lumbar spine; (8) progress notes from a Municipal Health Services Program dated from 1982 to 1987; (9) a February 1987 VA x-ray report of the pelvis, hips, and left shoulder; (10) VAMC discharge summaries for periods of hospitalization from June 1987 to July 1987, and August 1987; (11) several lay statements, including statements from the veteran himself; (12) letters from Dr. Jeudy, a private physician, dated March 1988, October 1990, and March 1992; (13) an August 1988 VA examination report; (14) the sworn testimony given at hearings conducted in November 1988 and February 1992; (15) a February 1992 VA x-ray report of the hips and knees; (16) a VA progress note from March 1992; and (17) a page from a medical treatise, submitted by the veteran's representative in October 1992. Concerning a claim for service connection for a left hip disorder on a direct basis, I find that the evidence listed above, while new, is not material because none of the evidence, when viewed in the context of all the evidence, both old and new, raises a reasonable possibility of changing the outcome of the Board's 1979 denial of service connection on a direct basis. The veteran has contended that he injured his entire left side in a motorcycle accident in service. Specifically, in a statement submitted in April 1988, he contended that he worked as a mechanic in service and, following repair of a motorcycle, he was instructed to test the motorcycle on the road. He started the motorcycle engine and there was a mechanical failure involving the accelerator or carburetor causing the motorcycle to lurch forward with great force. The veteran reported that he was slammed against the maintenance shop wall, the whole left side of his body taking the blow. In stating that he injured his whole left side, including his left hip, during service, the veteran is essentially claiming service connection for a left hip disorder, including arthritis of the left hip, on direct basis, i.e., by claiming that the left hip disorder is the result of the injury to his left side in service. X-ray evidence in the claims file showing more marked degenerative changes on the left side of the body, including the left knee, the left hip, and the left shoulder, perhaps provides some support for this claim. However, the Board considered service connection for arthritis of the hips on a direct basis in 1979 and denied the claim. At the time of the Board's denial in 1979, service records in the claims file confirmed that the veteran worked as a mechanic during service. Service medical records reflect treatment in September 1944 for a left knee disorder in service, including surgery on the knee, but the records are ambiguous regarding the cause of the knee disorder. Some records reflect that history of trauma was not "obtainable"; one doctor specifically noted that the veteran "[h]as never injured his left knee." However, a September 1944 field hospital ward sheet notes a history of a motorcycle accident "about 1½ years ago." In November 1947, two years after he was discharged from service, the veteran reported to a private physician that he had injured both knees in a motorcycle accident in service. However, there are no complaints or findings in the service medical records or in the 1947 private physician's report of an injury during service to the left hip or to the entire left side of the body. Moreover, there is no evidence of arthritis of the left hip in service. Medical evidence before the Board in 1979 clearly reflected degenerative changes in both hips as early as 1977, and, in his February 1977 letter, Dr. James E. White referred to arthritis of the left hip as present in 1976. A May 1974 VA radiographic report for the left hip reflected no abnormalities. The March 1977 VA x-ray report, however, when comparing that film to the May 1974 film, refers to "increased arthritis of the left hip." The medical evidence before the Board in 1979 did show that degenerative changes of the left hip were more severe than those of the right hip. Since the Board's denial in 1979 of service connection on a direct basis, no corroborative evidence has been submitted for the veteran's statements that he injured his entire left side, not just his left knee, during service. Additional medical evidence reflecting osteoarthritic changes of the left hip of greater severity than those on the right has been submitted since 1979, but medical evidence depicting this difference in severity was before the Board in 1979. The additional evidence is therefore cumulative and not new. Consequently, I conclude that no new and material evidence has been submitted since the Board's 1979 decision to reopen a claim for service connection on a direct basis for a left hip disorder. Similarly, no medical evidence has been submitted since the Board's 1979 decision to show that arthritis of the left hip existed and was disabling to a degree of 10 percent or more in the year following the veteran's discharge from service in October 1945. As noted above, in 1979 the Board considered a 1974 x-ray report of the left hip, which indicated no abnormalities, and Dr. White's February 1997 letter, which is the earliest evidence of arthritic changes in the left hip. Accordingly, I conclude that no new and material evidence has been submitted since the Board's 1979 decision to reopen a claim for service connection on a presumptive basis for arthritis of the left hip. 38 U.S.C.A. § 1112(a)(1) (West 1991); 38 C.F.R. §§ 3.307, 3.309(a) (1994). Concerning the reopening of the claim for service connection for a left hip disorder as secondary to the veteran's service-connected knee disorder, I note that the evidence relevant to service connection on this basis that was before the Board in 1979 consisted of the opposing opinions of two physicians. On a small prescription slip dated September 1976, Dr. White wrote the veteran's name and stated, "I feel that trouble with [the] l[ef]t hip is caused by [the] left knee." On a March 1977 VA examination report, a VA examiner wrote, "In view of the fact that this veteran has degenerative changes in the lumbar spine and both hips I am of the opinion that the left hip condition is not the result of the left knee condition." I find that most of the evidence submitted since the Board's 1979 decision does not raise a reasonable possibility of changing the outcome of the denial of service connection on a secondary basis because it is either lay evidence which is not competent evidence as to this medical question (Items 11 and 14, listed above); or it is medical evidence primarily concerning disorders other than a disorder of the left hip (Items 1, 3, 4, 7, 8, 13, 16); or it is medical evidence that merely describes the current condition of the left hip without relating it to the service-connected left knee disorder (Items 5, 6, 10, 15). However, in a letter dated March 1988 (Item 12), Dr. Turgot Jeudy, a private physician, stated that the veteran was first seen in his office in 1979 for a problem in relation to his left knee but later began to experience difficulty with his left hip. The doctor also stated, "It is our opinion that the problem of the hip is in direct relation to the left knee and has been brought about by position stress." Dr. Jeudy reiterated his opinion in nearly the exact words in an October 1990 letter. I find that Dr. Jeudy's opinion, rather than being cumulative of evidence that was before the Board in 1979, corroborates the September 1976 opinion of Dr. White that the a left hip disorder is related to the service-connected left knee disorder. Paller v. Principi, 3 Vet.App. 535, 538 (1992). In addition, I note that the page from the medical treatise submitted by the veteran's representative in October 1992 (Item 17) reflects that the cause of osteoarthritis is unknown, but that biomechanical stresses are among several suggested causal factors. I find that Dr. Jeudy's corroborative opinion, together with the excerpt from the medical text, is relevant and probative to the issue at hand and raises a reasonable possibility of changing the outcome of the Board's 1979 denial of service connection for arthritis of the left hip as secondary to the veteran's service-connected left knee disorder. Accordingly, I conclude that this evidence constitutes new and material evidence to reopen the claim for service connection for a left hip disorder, including arthritis of the left hip, on this basis. After considering the brief statement of Dr. Jeudy in light of the brief statement of Dr. White, which it corroborates, and the opinion of the VA examiner in March 1977, which it opposes, I conclude that remand is required for further development. ORDER Clear and unmistakable error not having been found to exist in prior Board and RO decisions as a matter of law, a claim for service connection based on clear and unmistakable error in these decisions is dismissed. New and material evidence having been submitted, a petition to reopen a claim for service connection for a left hip disorder is granted. REMAND In Allen v. Brown, No. 93-245 (U.S. Vet. App. March 17, 1995), a veteran sought service connection for left hip and knee disorders as secondary to his service-connected right knee disorder under 38 C.F.R. § 3.310. The Court considered two of its previous decisions, Tobin v. Derwinski, 2 Vet.App. 34 (1991) and Leopoldo v. Brown, 4 Vet.App. 216 (1993), and determined that a conflict existed in its interpretation of the law. In Allen, the Court reconciled its holdings in Tobin and Leopoldo by holding that the interpretation of the law in Tobin prevails. Specifically, the Court held that "when aggravation of a veteran's non- service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Cf. 38 C.F.R. § 3.322 (1994) (in compensating for aggravation of a preservice disability by active service, it 'is necessary to deduct from the present evaluation the degree, if ascertainable, of the disability existing at the time of entrance into active service, in terms of the rating schedule . . .')." Allen, No. 93-245, slip op. at 16. In light of the Court's ruling in Allen, I conclude that this case must be REMANDED for the following development: 1. The veteran should be asked to provide a list of those who have treated him for his left hip disorder. The RO should obtain all records of any treatment reported by the veteran that are not already in the claims file, and these records should be associated with the claims file. 2. Subsequently, the RO should schedule the veteran for a comprehensive VA orthopedic examination. The study is to be conducted in accordance with the VA Physician's Guide for Disability Evaluation Examinations. All indicated tests are to be conducted. The claims file and a copy of this remand must be made available to and reviewed by the examiner prior to the requested study. The examiner must review the introductory section of this remand in order to be able to provide the appropriate information for rating purposes. The examiner should consider the opinions of other physicians regarding the relationship, if any, between the veteran's service-connected left knee disability and arthritis of the left hip. Specifically, the examiner should note the opinions of Dr. James E. White in September 1976 that the trouble with the left hip is caused by the left knee; of Dr. Paul Schenker in March 1977 that the left hip condition is not the direct result of the left knee condition in view of the fact that the veteran has degenerative changes in the lumbar spine and both hips; and of Dr. Turgot Jeudy in March 1988 that the problem of the hip is in direct relation to the left knee and has been brought about by positional stress. In addition, the examiner should also consider the opinion rendered in November 1979 by Dr. Ralph Mostwill, who examined the veteran in connection with a claim for service connection for a left ankle disorder, that the condition of the veteran's left ankle is not directly due to the condition of his left knee but rather is part of the picture of generalized osteoarthritis noted in the hips and elsewhere. Dr. Mostwill also stated that if a right ankle disorder were present, he would agree that abnormal weight bearing might be of some consequence in causing his symptoms. Finally, the examiner should note the medical evidence in the claims file which reflects degenerative changes of greater severity on the left, particularly the left hip, than on the right. Based on his findings on examination and on his review of the medical evidence in the claims file, particularly the evidence noted in the preceding paragraph, the examiner should express his opinions concerning the questions below. If the information sought cannot be determined or is not ascertainable, the examiner should so state and explain why the question posed cannot be answered. (a) What is the likelihood, based on what is medically known about causes or possible causes of arthritis, that arthritis of the veteran's left hip, or any other left hip disorder, was caused by his left knee disorder as opposed to some other factor or factors? (b) What is the likelihood that the veteran's left knee disorder aggravated or contributed to or accelerated the degenerative process in his left hip or aggravated any other left hip disorder? (c) If the veteran's left knee disorder aggravated or contributed to or accelerated the degenerative process in his left hip or aggravated any other left hip disorder, to what extent did it so contribute as compared to the natural progress of the disease itself or as opposed to other possible contributing factors, if any? A complete rationale should be provided for all conclusions reached and opinions rendered. 3. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention should be directed to the examination report. If the requested examination does not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, the report must be returned for corrective action. If the decision remains unfavorable following completion of these actions, the veteran and his representative should be provided with a supplemental statement of the case and afforded a reasonable period of time in which to respond. Thereafter, in accordance with the current appellate procedures, the case should be returned to the Board for completion of appellate review. No action is required of the veteran until further notice is issued. MARY GALLAGHER Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994).