Citation Nr: 1120786	
Decision Date: 05/27/11    Archive Date: 06/06/11

DOCKET NO.  06-30 826	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUES

1.  Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for residuals of a left ankle sprain.

2.  Entitlement to service connection for residuals of a left ankle fracture, to include as secondary to residuals of a left ankle sprain.

3.  Entitlement to service connection for osteoarthritis of the left knee, status post arthroscopy and total arthroplasty, to include as secondary to residuals of a left ankle sprain.


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America



ATTORNEY FOR THE BOARD

A. Shawkey, Counsel


INTRODUCTION

The appellant (Veteran) served on active duty from October 1965 to January 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision of the St. Paul, Minnesota, Regional Office (RO) of the Department of Veterans Affairs (VA).  This matter was previously before the Board in August 2008 at which time the Board noted that initial consideration of the Veteran's claim of entitlement to service connection for residuals of a left ankle sprain was whether new and material evidence had been received with respect to reopening the claim in order to establish jurisdiction over the underlying service connection issue.  See 38 U.S.C.A. §§ 5108, 7105 (West 2002); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); VAOPGCPREC 05-92.  The Board then proceeded to find that new and material evidence had not been received to reopen the claim of entitlement to service connection for residuals of a left ankle sprain.  

The appellant appealed the Board's August 2008 decision to the United States Court of Appeals for Veterans Claims (CAVC).  In a Memorandum Decision by the CAVC in November 2010, the CAVC reversed the Board's August 2008 decision to the extent that it denied reopening the appellant's residual left ankle disability claim, and remanded this issue along with the "inextricably intertwined" issues of entitlement to service connection for residuals of a left ankle fracture, to include as secondary to residuals of a left ankle sprain, and entitlement to service connection for osteoarthritis of the left knee, status post arthroscopy and total arthroplasty, to include as secondary to residuals of a left ankle sprain, to the Board for further proceedings consistent with the opinion.  The matter is once again before the Board.

In a written statement in February 2011, the Veteran's representative reported that the Veteran had raised new claims of entitlement to service connection for ischemic heart disease (IHD); hypertension, claimed as due to exposure to Agent Orange, diabetes or IHD; fatigue, claimed as secondary to diabetes; and headaches, claimed as secondary to diabetes.  As these new claims have apparently not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  

The underlying issue of entitlement to service connection for a left ankle sprain, as well as the issues of entitlement to service connection for residuals of a left ankle fracture and osteoarthritis of the left knee, to include as secondary to a left ankle sprain, are being remanded and are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  In an August 1969 rating decision, the RO denied service connection for residuals of a left ankle sprain.  This decision was not appealed and is final.

2.  Evidence associated with the claims file since the RO's August 1969 denial was not previously before agency decision makers, is not cumulative or duplicative of evidence previously considered, relates to an unestablished fact necessary to substantiate the merits of the claim, and raises a reasonable possibility of substantiating the claim.


CONCLUSIONS OF LAW

1.  The August 1969 rating decision denying the Veteran's application to reopen his claim of entitlement to service connection for residuals of a left ankle sprain is final.  38 U.S.C.A. § 7105(c) (West 2002); 38 CFR §§ 20.204, 20.1103 (2010).

2.  Evidence received since the final August 2009 RO determination, in which the RO denied service connection for residuals of a left ankle sprain, is new and material, and this claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Veterans Claims Assistance Act of 2000

Initially, the Board notes that, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002).  To implement the provisions of the law, VA promulgated regulations published at 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010)).  The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  The Board points out that the VCAA expressly provides that nothing in the Act "shall be construed to require [VA] to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in section 5108 of this title."  38 U.S.C.A. § 5103A(f).

While some duties imposed by the VCAA are pertinent to applications to reopen previously denied final claims, e.g. Kent v, Nicholson, 20 Vet. App. 1 (2006), in addition to the duties imposed on the underlying claim of service connection, the Board finds that, in view of the Board's favorable disposition of the claim presently being decided with respect to reopening the claim for service connection for residuals of a left ankle disability, the VCAA and its implementing regulations do not prevent the Board from rendering a decision as to this issue.


II.  Analysis

Pertinent Law and Regulations

Under pertinent law and VA regulations, VA may reopen and review a claim that has been previously denied if new and material evidence is received since the last final decision.  That is, only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record.  Evans v. Brown, 9 Vet. App. 273 (1996).

The definition of "new and material evidence" as set forth in 38 C.F.R. § 3.156(a) was revised, effective August 29, 2001.  This new regulation provides:  A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers.  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.  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. 66 Fed. Reg. 45630 (2001) (codified as amended at 38 C.F.R. § 3.156(a)).  This latest definition of new and material evidence only applies to a claim to reopen a finally decided claim received by the VA on or after August 29, 2001.  Id.  As the Veteran in this case filed an application to reopen a claim of entitlement to service connection for residuals of a left ankle sprain in October 2005, the revised version of 3.156 is applicable in this appeal.

Furthermore, for purposes of the "new and material" evidence analysis, the credibility of the evidence is presumed.  Justus v. Principi, 3 Vet. App. 510, 512-13 (1992).

Applicable law provides that service connection will be granted if it is shown that the veteran suffered from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.

Discussion

In the instant case, entitlement to service connection for residuals of a left ankle sprain was initially denied by the RO in August 1969.  Since that time, the Veteran has attempted to reopen the claim, but the RO and Board have denied the claim.  The basis of these denials was that no new and material evidence had been submitted to reopen the claim.

By way of background, the Veteran's service treatment records show that he underwent left ankle x-rays in October 1967 after twisting this ankle playing basketball.  X-rays were taken to rule out fracture, and the results were normal.  The Veteran was treated with an ace bandage.  The Veteran's separation examination report revealed a normal clinical evaluation of the lower extremities.  

At a VA examination in July 1969, the appellant reported that he had noticed a couple of occasions since his discharge from service when, after being on his feet for a long time, the left ankle would swell and stay sore for approximately one week.  X-rays of the left ankle at that time revealed a normal left ankle.  The Veteran was diagnosed as having history, ankle sprain.  

In August 1969, the RO denied service connection for ankle sprain on the basis that such disability had not been found on examination (in July 1969).  

In October 2005, the appellant filed to reopen the claim of entitlement to service connection for residuals of a left ankle sprain.  He also filed at this time claims of entitlement to service connection for a left broken ankle and left knee replacement, claimed as secondary to his inservice left ankle sprain.

In an October 2005 statement, Philip H. Haley, M.D., reported that the Veteran had sprained his left ankle at work in October 1981 after stepping on a piece of cement, and fractured and sprained this ankle in April 1985 when he stepped on an angle iron at work twisting the ankle.  He reported that the Veteran again sprained this ankle in March 1996 when he slipped on ice.  He went on to report that the Veteran was first seen for his left knee in June 2003 and underwent a partial knee replacement in March 2004.  He concluded that he did not know the details of the Veteran's 1967 injury or related treatment and it would be difficult to relate the Veteran's ankle problems in 1967 because of the injuries that occurred in 1981, 1985 and 1996.

In a subsequent statement in December 2006, Dr. Haley said that he reviewed the Veteran's records showing that he sprained his left ankle playing basketball in October 1967.  He went to report that the 1967 injury was a "contributing factor to [the appellant's] ongoing symptoms of pain, stiffness and instability in the ankle."  He reasoned that while tears of supporting ligaments related to the ankle sprains heal, the ligaments do not return to "true normal status."  

As noted in the introduction above, the CAVC, in a November 2010 Memorandum Decision, reversed the Board's August 2008 decision that denied to reopen the Veteran's claim of entitlement to service connection for residuals of a left ankle sprain on the basis that new and material evidence had not been submitted.  The CAVC brought attention to the Board's finding that while additional evidence in support of the Veteran's claim to reopen was new, it was not material.  More specifically, the Board found that the new evidence did not contain a diagnosis of a left ankle disability even though the medical opinion described current symptoms that may be related to service.  The CAVC disagreed with the Board's finding and concluded that the medical opinion linking the appellant's "ongoing symptoms of pain, stiffness, and instability of the ankle" to his in-service left ankle sprain was "clearly sufficient to at least trigger further assistance" pursuant to pertinent law.  

Accordingly, the evidence submitted subsequent to August 1969, when looking at the record in its entirety, is new and material and is sufficient to reopen the claim of entitlement to service connection for residuals of a left ankle sprain.  38 C.F.R. § 3.156.



ORDER

New and material evidence having been submitted, the claim of entitlement to service connection for residuals of a left ankle sprain is reopened.  To this extent only, the appeal is allowed.


REMAND

Now that the claim of entitlement to service connection for residuals of a left ankle sprain has been reopened, additional development is warranted prior to deciding the merits of this claim.  In this regard, in view of the documented inservice left ankle injury, the Veteran's reports of periodic left ankle problems following service, and evidence of postservice ankle sprains and fractures, the Board finds that a medical examination is necessary prior to deciding this appeal.  38 U.S.C.A. § 5103A(d); See also McLendon v. Nicholson, 20 Vet. App. 79 (2006).

With respect to the remaining issues on appeal of entitlement to service connection for residuals of a left ankle fracture, to include as secondary to residuals of a left ankle sprain, and entitlement to service connection for osteoarthritis of the left knee, status post arthroscopy and total arthroplasty, also to include as secondary to residuals of a left ankle sprain, the CAVC noted in its November 2010 Decision Memorandum that they are "inextricably intertwined" with the issue of entitlement to service connection for residuals of a left ankle sprain.  Accordingly, once this latter issue is readjudicated, appropriate action should be taken with respect to these remaining two issues.  Such action may include affording the Veteran a VA examination and obtaining a medical nexus opinion.  See 38 U.S.C.A. § 5103A(d).

Based on the foregoing, the case is REMANDED for the following action:

1.  Updated treatment records should be obtained and associate with the claims folder.

2.  Thereafter, schedule the Veteran for a VA orthopedic examination to determine whether the Veteran presently has a left ankle disability related to service, to include whether he has residuals of the inservice left ankle injury in October 1967.  Have the designated examiner review the claims file for the pertinent medical and other history, including a complete copy of this remand.  The examiner should be asked to opine whether it is at least as likely as not (a 50 percent degree of probability or higher) that the Veteran presently has a left ankle disability related to service, namely residuals of the October 1967 inservice left ankle injury.  The examiner should support all opinions with a complete rationale.

3.  After the development requested above has been completed, the RO should again review the record and readjudicate the claim of entitlement to service connection for residuals of a left ankle sprain.  Thereafter, the RO should conduct any appropriate development with respect to the issues of entitlement to service connection for residuals of a left ankle fracture, to include as secondary to residuals of a left ankle sprain, and entitlement to service connection for osteoarthritis of the left knee, status post arthroscopy and total arthroplasty, to include as secondary to residuals of a left ankle sprain, and then readjudicate these claims.  If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be given the opportunity to respond thereto.

The appellant and his representative have the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).



______________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs