Citation Nr: 1319870	
Decision Date: 06/20/13    Archive Date: 07/02/13

DOCKET NO.  09-37 489	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for a left ankle disability, and if so, whether the reopened claim should be granted.

2.  Entitlement to service connection for sleep apnea.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

A. Adamson, Counsel



INTRODUCTION

The Veteran served on active duty from August 1974 to August 1995. 

This case comes before the Board of Veterans' Appeals (Board) on appeal of an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. 

The Board recognizes that, in addition to the issues listed in the case caption above, the Veteran perfected an appeal of the October 2008 denial of a total disability rating based upon individual unemployability (TDIU).  The RO, however, granted a TDIU by way of a June 2010 rating decision.  Thus, this issue is no longer in appellate status.

The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA.

The issues of entitlement to service connection for a left ankle disability and for sleep apnea are addressed in the REMAND that follows the ORDER section of this decision.


FINDINGS OF FACT

1.  A November 2004 rating decision denied reopening of a previously denied claim of entitlement to service connection for a left ankle disability; the Veteran did not appeal the decision or submit any pertinent evidence within the appeal period. 

2.  Evidence received subsequent to the expiration of the appeal period includes evidence that is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection for a left ankle disability. 


CONCLUSION OF LAW

New and material evidence has been presented to reopen a claim of entitlement to service connection for a left ankle disability.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

As a preliminary matter, the Board notes that the Veteran has been provided all required notice, to include notice pertaining to the disability-rating and effective-date elements of his claim.  In addition, the evidence currently of record is sufficient to substantiate his claim to reopen the previously denied claim of entitlement to service connection for a left ankle disability.  Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012) or 38 C.F.R. § 3.159 (2012) before the Board decides this matter.

Legal Criteria

Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed.  38 U.S.C.A. § 7105(c) (West 2002).  The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.  Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.  38 C.F.R. § 3.156(b).

New evidence is defined as existing evidence not previously submitted to agency decisionmakers.  Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a). 

The U.S. Court of Appeals for Veterans Claims (Court) recently interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim."  Shade v. Shinseki, 24 Vet. App. 110 (2010). 

For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). 

Analysis

The RO initially denied service connection for a left ankle sprain in February 1996.  The Veteran was notified of the denial by a letter dated that same month.  He did not appeal the denial or submit any additional pertinent evidence within the appeal period.  The Veteran again raised a claim for service connection for a left ankle disability in July 2004 and, in November 2004, the RO declined to reopen the claim as no new and evidence had been presented.

While the RO recognized that the Veteran experienced a left ankle sprain in service, the basis for the denials in February 1996 and November 2004 was that the Veteran had no residual disability.  

The evidence of record in November 2004 consisted the Veteran's statements, service treatment records (STRs), outpatient records from the William Beaumont Army Medical Center.  

The Veteran did not appeal the November 2004 rating decision or submit any pertinent evidence within the appeal period.  The evidence received after the expiration of the appeal period includes private podiatry records showing a ligament tear in the left ankle and showing that the Veteran underwent modified Lee lateral ankle stabilization on the left in March 2009.  An October 2009 VA general medical examination report also includes the diagnosis of left ankle ligamental tear with postoperative tendon stabilization.  Moreover, a January 2009 report from the private podiatrist notes that the Veteran had sprained his ankle in service and "developed some type of ligament tear."  The assessment at that time was status post tear with possible arthritic degenerative changes.  Thus, since the prior denial, evidence has been added to the claims file showing left ankle ligament tear and suggesting that it may be associated with an in-service event.

The Board finds that the 2009 private records and VA examination report are new and material, as these records relate to a previously unestablished element of entitlement to service connection for a left ankle disability - namely the records support the presence residuals of a left ankle sprain in service.  Accordingly, this evidence is sufficient to reopen the previously-denied claim for service connection for a left ankle disability.  


ORDER

The Board having determined that new and material evidence has been received, reopening of the claim of entitlement to service connection for a left ankle disability is granted.


REMAND

The Board is of the opinion that additional development is required before the Veteran's claim of entitlement to service connection for a left ankle disability is decided.  STRs show that the Veteran sought treatment in June 1990 for left ankle pain, which had existed for the prior six weeks.  Tenderness and edema were noted.  The Veteran reported that while running, he had stepped on a rock and twisted his ankle.  X-rays revealed no evidence of a fracture, and left ankle sprain was diagnosed.  The report of a periodic evaluation in April 1993 does not show that any left ankle symptoms were reported at that time.  Painful joints were reported at the time of his separation examination in April 1995; however, they were described as low back pain and right wrist pain.  There was no notation of any abnormality related to the left ankle at the time of separation from service.

Following service, in January 2009, the Veteran sought treatment from a private podiatrist.  The record reflects that the Veteran reported the in-service ankle sprain and the private examiner referred to an MRI report that showed segmental tendinosis partial tear involving the pareneous longus and tibalis posterior tendon complex.  The physician reported that there is also a chronic partial tear of the medial deltoid ligament on the left ankle.  In March 2009, the Veteran underwent modified Lee lateral ankle stabilization on the left. 

In October 2009, the Veteran also underwent VA general medical examination, at which time left ankle ligamental tear with postoperative tendon stabilization was noted as the diagnosis.  At no time, however, has a medical opinion been obtained addressing the possibility that the ligament tear noted post-service is related to the ankle twist and diagnosed ankle pain in service.  Such an opinion is necessary before the Board decides this claim.  

As to the Veteran's claim for service connection for sleep apnea, the Board notes that December 2007 VA outpatient reports show that the Veteran uses a CPAP machine at night.  July 2008 records also show that he receives treatment for sleep apnea.  The Veteran's service treatment records do not show that the Veteran was treated for sleep apnea during service, per se, but there is a notation of frequent trouble sleeping on the Veteran's April 1995 Report of Medical History at the time of his separation from service.  In December 2008, a private physician reported the Veteran's sleep apnea and suggested that "disturbed sleep, and anxiety may be connected to his years in the service."  The Board notes that the Veteran is service-connected for a mental disorder with insomnia; however, it is unclear whether the Veteran's sleep apnea is causally connected to service, apart from any sleep impairment associated with the mental disorder, which is already compensated.  A medical examination and opinion are necessary before the Board decides this claim.

The Board also notes that the most recent VA treatment records in the claims files or Virtual VA are dated in August 2008 from the El Paso VA Healthcare System (HCS).  On remand, attempts should be made to secure and associate with the record current VA treatment records related to the claimed disabilities.

Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions:

1.  The RO or the AMC should undertake appropriate development to obtain a copy of any outstanding records pertinent to the Veteran's claims, including the VA treatment records for the period since August 1, 2008, from the El Paso VA HCS. 

2.  If any requested records related to remand instruction 1 are not available, the claims files should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e).

3.  Once the record is developed to the extent possible, afford the Veteran a VA an examination by a physician with sufficient expertise to determine the etiology of any left ankle disorder present during the period of this claim.

The claims files and any pertinent evidence in Virtual VA that is not included in the claims files must be made available to and reviewed by the examiner, and any indicated studies should be performed. 

Based on review of the record and examination of the Veteran, the examiner should state a medical opinion with respect to each left ankle disorder present during the pendency of the claim as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the disorder is etiologically related to the Veteran's active service, to include the in-service left ankle sprain in June 1990.  For purposes of the opinion(s), the examiner should assume that the Veteran is credible.

The supporting rationale for all opinions expressed must be provided.  If the examiner is unable to provide any required opinion, he or she should explain why the required opinion cannot be provided.

4.  The RO or the AMC should also afford the Veteran an examination by a physician with sufficient expertise to determine the etiology of any sleep apnea present during the period of this claim.

The claims files and any pertinent evidence in Virtual VA that is not included in the claims files must be made available to and reviewed by the examiner, and any indicated studies should be performed. 

Based on review of the record and examination of the Veteran, the examiner should state a medical opinion with respect to any sleep apnea present during the pendency of the claim as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the disorder is etiologically related to the Veteran's active service, to include related to the report of frequent trouble sleeping at the time of the Veteran's separation from service.  The examiner should distinguish any sleep apnea from the insomnia noted as part of his already service-connected mental disorder.  For purposes of the opinion, the examiner should assume that the Veteran is credible.  

The supporting rationale for the opinion must be provided.  If the examiner is unable to provide the required opinion, he or she should explain why the required opinion cannot be provided.

5.  The Veteran must be given adequate notice of the date and place of any requested examination(s).  A copy of all notifications, including the address where the notice was sent, must be associated with record if the Veteran fails to report for any examination.  The Veteran is to be advised that failure to report for a scheduled VA examination without good cause may have adverse effects on his claim.

6.  The RO or the AMC should undertake any other development it determines to be warranted. 

7.  Then, the RO or the AMC should readjudicate each of the Veteran's claims.  If the benefits sought on appeal are not granted to the Veteran's satisfaction, a supplemental statement of the case should be issued to the Veteran and his representative, and they should be afforded the requisite opportunity to respond.  Thereafter, the case should be returned to the Board for further appellate action.

By this remand, the Board intimates no opinion as to any final outcome warranted.

The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369 (1999).

This REMAND must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs