Citation Nr: 0102129 Decision Date: 01/25/01 Archive Date: 01/31/01 DOCKET NO. 98-16 222A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a right leg and ankle disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. A. Markey, Counsel INTRODUCTION The veteran served on active duty from December 1951 to February 1952. This matter came before the Board of Veterans' Appeals (Board) from a June 1998 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia that new and material evidence had not been submitted sufficient to reopen a previously denied claim of entitlement to service connection for a right leg and ankle disability. In December 2000, this case was advanced on the docket by order of the Deputy Vice Chairman of the Board pursuant to 38 U.S.C.A. § 7101 (West 1991 & Supp. 2000) and 38 C.F.R. § 20.900(c) (2000). The Board notes that in a informal hearing presentation received in January 2000, the veteran's representative essentially presents argument to the effect that prior Board decisions with respect to the above claim were erroneous. However, he specifically indicates that nothing in the presentation should be construed as either a motion for reconsideration of these decisions or for review of any of them on the basis of clear and unmistakable error. As such, no such claims are before the Board at this time. FINDINGS OF FACT 1. The Board, in a June 1988 decision, denied the veteran's application to reopen a previously denied claim of entitlement to service connection for a right leg and ankle disability. This was the last disallowance of this claim. 2. Evidence received since the June 1988 decision, reviewed along with evidence previously submitted, is so significant that it must be considered to fairly decide the merits of these claims. CONCLUSION OF LAW 1. A June 1988 Board decision which denied the veteran's application to reopen a previously denied claim of entitlement to service connection for a right leg and ankle disability is a final decision. 38 U.S.C.A. § 7104 (West 1991 & Supp. 2000); 38 C.F.R. § 20.1100 (2000). 2. Evidence submitted in support of the veteran's attempt to reopen his claim of entitlement to service connection for a right leg and ankle disability is new and material, and this claim is reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (2000). REASONS AND BASES FOR FINDINGS AND CONCLUSION Applicable law provides that service connection will be granted if it is shown a particular disease or injury resulting in disability was incurred or aggravated during active duty. 38 U.S.C.A. § 1110 (West 1991 & Supp. 2000); 38 C.F.R. § 3.303 (2000). In an October 1952 decision, the Board denied the veteran's claim of entitlement to service connection for right peroneal paralysis, by aggravation, due to trauma, with secondary contracture, right ankle. It was noted that the veteran was treated by Victor L. Glover, M.D. in 1938 for acute osteomyelitis of the right foot; and that he had had surgery followed by peroneal palsy and drop foot. Further, it was noted that Dr. Glover related that the veteran developed a fairly satisfactory return of function prior to entering service. The Board discussed the veteran's service medical records, which reflected that he presented in December 1951 with a sprained right ankle sustained while running with his platoon. The Board pointed out that in January 1952, the Physical Evaluation Board (PEB) submitted findings to the effect that the veteran was unable to perform his duties by reason of osteomyelitis, chronic, quiescent, and neuropathy peroneal, following osteomyelitis; and that the disability existed prior to service and was not permanently aggravated by service. The Board also noted that the veteran was hospitalized at a VA facility from February 1952 to April 1952 and was discharged with a diagnosis of paralysis, right peroneal nerve, due to trauma and contracture, right ankle, secondary to traumatic lesion of the right peroneal nerve. In denying the claim, the Board determined that the evidence established that the veteran's right lower extremity pathology existed prior to service but did not establish that the inservice injury resulted in permanent residual disability. The Board also found that aggravation of the veteran's preexisting condition was not shown on discharge examination or during the February to April 1952 hospitalization. Similar conclusions were reached by the Board in decisions dated in November 1953 and in May 1957. In February 1968 and June 1988, the Board denied service connection for a right leg and ankle disability on the basis that a new factual basis showing entitlement to service connection had not been established. Evidence of record at the time of these decisions included lay statements to the effect that the veteran's osteomyelitis was aggravated by service, as well as a medical opinion from Edmond J. McDonnell, M.D. that the inservice injury contributed to his pre-service disability. These Board decisions are final and are not subject to revision upon the same factual basis. 38 U.S.C.A. § 7104 (West 1991 & Supp. 2000); 38 C.F.R. § 20.1100 (2000). However, the law and regulations provide that if new and material evidence has been presented or secured with respect to a claim which has been disallowed, the claim may be reopened and the former disposition reviewed. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (2000). "New and material" evidence is evidence not previously submitted, not cumulative or redundant, and which by itself, or along with evidence previously submitted, is so significant that it must be considered to fairly decide the merits of the claim. 38 C.F.R. § 3.156 (a) (1999); Hodge v. West, 155 F.3d 1356 (Fed Cir 1998); see also Evans v. Brown, 9 Vet. App. 273. The United States Court of Appeals for Veterans Claims (hereinafter the Court) has stated that in determining whether the evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The Board is required to give consideration to all of the evidence received since the last disallowance of this claim on any basis or, in this case, since the Board decision dated in June 1988. Evans. In February 1998, the veteran filed an application to reopen his claim for entitlement to service connection for a right leg and ankle disability. The relevant evidence includes a January 2001 statement from Craig N. Bash, M.D., a neuro- radiologist. Dr. Bash indicates that he reviewed copies of pertinent records contained in the veteran's claims folder, to include service and post-service medical records, and that in his opinion, the veteran's current right ankle pathology is directly related to his inservice injury. Among other things, Dr. Bash noted that the medical board statement (the Board assumes that he is referring to PEB) to the effect that the veteran's disability was not permanently aggravated by service was "clearly inaccurate," and that the veteran likely injured his collateral ankle ligaments in service and has since developed ankle instability, advanced degenerative arthritis, and fusion. It is not entirely clear whether Dr. Bash's opinion that the veteran's right leg and ankle disability is related to service is predicated on the theory that the injury aggravated a pre-service disability (the osteomyelitis), or whether Dr. Bash's opinion is that the inservice injury itself caused a separate disability. The latter opinion would present a somewhat different scenario from that reviewed throughout the long history of this claim. Nevertheless, the Board finds that, assuming the credibility of the opinion as required by Justus, the veteran has submitted new and material evidence, since a permissible construction of Dr. Bash's statement is an opinion that the veteran's current disability stems from inservice aggravation caused by the injury sustained therein. This evidence is not only new, but is also material because it provides evidence that the veteran has a current right ankle disability that resulted from the inservice injury. Thus, this evidence is relevant and probative to the issue at hand and is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156 (2000). However, since the new and material evidence presents some ambiguity as to the precise underlying theory supporting the asserted relationship to service, the Board finds that further development and adjudication will be needed as noted in the REMAND below. ORDER New and material evidence having been submitted, the veteran's claim of entitlement to service connection for a right leg and ankle disability is reopened; to this extent only, the veteran's claim is granted. REMAND As noted above, applicable law provides that service connection will be granted if it is shown a particular disease or injury resulting in disability was incurred or aggravated during active duty. 38 U.S.C.A. § 1110 (West 1991 & Supp. 2000); 38 C.F.R. § 3.303 (2000). Recently, Congress amended 38 U.S.C.A. § 5107 (and amended or added other relevant provisions) to reflect that VA has a duty assist a claimant in developing all facts pertinent to a claim for benefits. Such duty includes requesting information as described in 38 U.S.C.A. § 5106, as well as the accomplishment of a medical examination when such examination may substantiate entitlement to the benefits sought. A claim may be decided without providing such assistance only when no reasonable possibility exists that such assistance will aid in the establishment of entitlement, or the record includes medical evidence sufficient to adjudicate the claim. See Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (to be codified at 38 U.S.C. §§ 5102, 5103, 5103A, and 5107). In this regard, the Board is of the opinion that a VA medical examiner should be given an opportunity to review the entire claims folder and provide an opinion as to the nature of the relationship, if any, between the veteran's right leg and ankle disability and his service, to specifically include whether the preexisting osteomyelitis was aggravated by the December 1951 injury, discussed above. As noted in the "Introduction" portion of this decision, this matter was recently advanced on the docket by order of the Deputy Vice Chairman of the Board. Essentially, such action was based on evidence indicating that the veteran is seriously ill and is currently hospitalized at the Winchester Medical Center in Winchester, Virginia. The Board points this out to ensure the expeditious treatment of this claim by the RO to the greatest extent practicable. In view of the above, this matter is remanded to the RO for the following action: 1. Out the outset, it is requested that, given the veteran's current medical condition, noted above and in recent documentation of record, this claim be afforded expeditious treatment by the RO to the greatest extent practicable. 2. The RO should have an appropriate VA specialist review the entire claims folder, including a copy of this REMAND, and provide an opinion as to whether it is at least as likely as not that the veteran aggravated the pre-service osteomyelitis of the right lower extremity while in service (specifically in December 1951 when he injured his ankle); and/or whether any current right lower extremity disability, as shown in the record, resulted from the December 1951 injury. In providing such an opinion, the examiner should specifically comment on the opinions expressed by Drs. Glover, McDonnell, and Bash, as well as any other medical opinions of record, including opinions noted in the service medical records. The complete rationale for all conclusions reached (to include citation, as necessary, to specific evidence in the record) should be set forth. 3. The RO should review the examiner's opinion to determine if it is in compliance with this REMAND. If deficient in any manner, it should be returned, along with the claims file, for immediate corrective action. 4. After completion of the foregoing, and after undertaking any further development deemed warranted by the record, the RO should readjudicate this claim on appeal in light of all pertinent evidence and legal authority, to specifically include that cited to herein. The RO must review this claim on the merits, and provide adequate reasons and bases for its determinations, addressing all issues and concerns that were noted in this REMAND. 5. If the claim on appeal continues to be denied, the veteran and his representative must be furnished a supplemental statement of the case and be given an opportunity to submit written or other argument in response thereto before the claims file is returned to the Board for further appellate consideration. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). D. C. Spickler Member, Board of Veterans' Appeals