Citation Nr: 1004624 Decision Date: 02/01/10 Archive Date: 02/18/10 DOCKET NO. 06-02 664 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for residuals of a right ankle injury. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Patrick Alberts, Associate Counsel INTRODUCTION The Veteran had active service from August 1970 to April 1976, followed by a period of reserve duty. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. By way of history, the Veteran's claim was denied in a March 2003 rating decision. The Veteran submitted a notice of disagreement in April 2003 and in September 2003 a statement of the case was issued. He withdrew his appeal in October 2003. The Veteran submitted a claim to reopen in April 2004, from which this appeal originates. The Veteran was scheduled for a hearing before the Board in May 2007; he withdrew his hearing request in an April 2007 correspondence. FINDINGS OF FACT 1. Service connection for residuals of a right ankle injury was denied in a March 2003 rating decision; the Veteran did not appeal the decision. 2. The evidence received since the March 2003 rating decision was not previously of record and relates to an unestablished fact necessary to substantiate the claim of service connection for residuals of a right ankle injury. 3. The Veteran's right ankle disability was first documented approximately 16 years after service, and there is no competent medical evidence that it is etiologically related to service. CONCLUSIONS OF LAW 1. The March 2003 rating decision that denied service connection for residuals of a right ankle injury is final. 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2009); 38 C.F.R. §§ 20.302, 20.1103 (2009). 2. The evidence received since the March 2003 rating decision is new and material, and the claim is reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2009); 38 C.F.R. § 3.156(a) (2009). 3. Residuals of a right ankle injury are not etiologically related to active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the VA will seek to provide; (3) that the claimant is expected to provide. 38 C.F.R. § 3.159. These notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability; a connection between the veteran's service and the disability; degree of disability; and the effective date of any award of benefits. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits is issued by the agency of original jurisdiction. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). As to timing of notice, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that timing-of-notice errors can be "cured" by notification followed by readjudication. Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006) (Mayfield II); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) ("The Federal Circuit specifically mentioned two remedial measures: (1) The issuance of a fully compliant [section 5103(a)] notification, followed by (2) readjudication of the claim."); Pelegrini v. Principi, 18 Vet. App. 112, 122-24 (2004) ("proper subsequent VA process" can cure error in timing of notice). In the present case, VA provided the Veteran with 38 U.S.C.A. § 5103(a)-compliant notice in April 2004, November 2004, May 2005, and November 2005 correspondences. The Veteran's claims were last readjudicated in a January 2006 supplemental statement of the case, thereby curing any deficiency in the timing of notice. VA has obtained service treatment records, assisted the Veteran in obtaining evidence, and afforded the Veteran a physical examination. The record as it stands includes sufficient competent evidence to decide the claim. See 38 C.F.R. § 3.159(c)(4). Under these circumstances, no further action is necessary to assist the Veteran. In sum, the record reflects that the facts pertinent to the claim being decided have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. Accordingly, the Board will adjudicate the claim on the merits. New and Material Evidence Pursuant to 38 U.S.C.A. § 7105(c), a final decision by the RO may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered. The exception to this rule is described under 38 U.S.C.A. § 5108, which provides that "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the [Board] shall reopen the claim and review the former disposition of the claim." Therefore, once a rating decision has been issued, absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by VA. 38 U.S.C.A. §§ 5108, 7105(c); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). 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. 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. 38 C.F.R. § 3.156(a). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Additionally, when determining whether the Veteran has submitted new and material evidence to reopen a claim, consideration must be given to all the evidence since the last final denial of the claim. Evans v. Brown, 9 Vet. App. 273 (1996). In Evans, the Court indicated that the newly presented evidence need not be probative of all the elements required to award the claim, but need only tend to prove each element that was a specified basis for the last disallowance. The Board has reviewed the evidence of record and finds that the Veteran has submitted new and material evidence to reopen the claim of service connection for service connection for residuals of a right ankle injury. A review of the new evidence shows that a right ankle disorder was first noted in an April 1992 reserve officer training camp medical examination, citing his report of the ankle having been surgically pinned. The date of the injury was not provided. In an April 1997 medical examination, the Veteran reported that he underwent ankle surgery when he was 44 years of age. As this evidence has not been previously considered, it is "new." Furthermore, as it pertains to the Veteran's history of ankle injury, it is "material" under 38 C.F.R. § 3.156. Given the state of the current record and the newly received evidence, the Board finds that new and material evidence has been submitted. Thus, the claim is reopened. Because the RO had also reopened the veteran's claim and adjudicated the issue on the merits, the Veteran is not prejudiced by the Board's doing so. Factual Background A medical report from reserve officer training (ROTC) camp in June 1969 shows that the Veteran reported a broken arm 10 years prior. He denied undergoing any operations. The Veteran's service treatment records (STRs) show that in August 1970, the Veteran denied any prior surgery and had a normal clinical evaluation. In a May 1973 examination, the Veteran reported that he had fractured his left forearm at 14 years of age, but that he denied all other interval medical or surgical history since his last periodic examination. A sick call record from July 1975 shows that the Veteran was in a recent motorcycle accident. He was noted to have lacerations to his right eyebrow and chin, abrasions to his chin and cheek, a sore knee, and contusions on his right side. In April 1976, during the month of his separation from active duty, the Veteran indicated that he fractured his left wrist while in high school; he denied any other operations. He was noted to have a circular scar above his right knee. After active service, in an April 1979 medical history report, the Veteran indicated that he fractured his left wrist "many years ago." He further noted that he had broken bones in his right knee and left wrist 20 years prior. The Veteran reported no other surgeries. A June 1980 record shows that the Veteran complained of a tender right Achilles tendon. In April 1986, the Veteran reported that he had a history of fractured left wrist and right knee. In April 1992, the Veteran indicated that he had a history of fractured right hand, right ankle, and right arm. He noted that had had a broken right ankle and underwent surgery to have it surgically pinned. In an October 2002 statement, the Veteran's representative indicated that the Veteran sustained an injury to his right Achilles tendon while on active duty for training. He noted that as a result of his weakened Achilles tendon, the Veteran sustained a severe break of his right ankle while skiing in an off-duty capacity. The Veteran underwent a VA examination in January 2003. The Veteran complained that he injured his right knee in a motorcycle accident while stationed in Germany. The examiner noted that the Veteran's ankle showed a well-healed surgical scar over the lateral malleolus. There was tenderness over the metallic fixation device, which was palpable. In January 2010, the Veteran's representative argued that the Veteran injured his right side in the July 1975 and that his right side included his right ankle. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the merits on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances lay, evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107. A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). As noted above, the Veteran complained of a tender right Achilles tendon in 1980. It is not clear whether this was during a period of active duty for training, but the Board will assume, without conceding, that it was during a period of active duty for training. There is no further medical evidence of any Achilles tendon complaints. It appears that the Veteran's right ankle was fractured in the winter of 1992. He has indicated that the ankle was injured while skiing. There is absolutely no evidence that the Veteran had any sort of chronic Achilles tendon weakness or disability. Further, there is absolutely no evidence that the Veteran's right ankle fracture while skiing had anything to do with an Achilles tendon disability. The evidence simply does not support such a specious contention. The Veteran's STRs are silent for any evidence of ankle injury or surgery. Throughout active service, the Veteran dutifully reported the past surgery to his arm, but did not mention either an Achilles tendon injury or an ankle injury. In April 1997, the Veteran indicated that he had his ankle surgically repaired at 44 years of age. This information indicates that the Veteran's surgery was in 1992, approximately 16 years after service. As there is no evidence supporting a claim for service connection for residuals of an ankle injury, the Board finds that the preponderance of the evidence is against the claim. (CONTINUED ON NEXT PAGE) ORDER New and material evidence having been received, the claim for service connection for residuals of an ankle injury is reopened. Entitlement to service connection for residuals of a right ankle injury is denied. _________________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs