Citation Nr: 1325552 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 10-00 696 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for a right ankle disability. 2. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for a left ankle disability. 3. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for sleep apnea. 4. Entitlement to service connection for a right ankle disability. 5. Entitlement to service connection for a left ankle disability. 6. Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: South Carolina Office of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Evan M. Deichert, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from April 1974 to April 1978, and from September 1979 to December 1996. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in May 2008 of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in May 2011. A transcript of the hearing is in the Veteran's file. The claims of service connection for a right ankle disability, for a left ankle disability, and for sleep apnea are REMANDED to the RO via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. The Veteran first sought service connection for a right ankle disability in April 1998; the RO denied his claim in February 1999 on the basis that there was no evidence that the Veteran currently suffered from a right ankle disability. The Veteran filed a notice of disagreement and a substantive appeal, but he withdrew his substantive appeal prior to the promulgation of a Board decision. 2. The Veteran sought to reopen his claim for a right ankle disability in a December 2005 claim; in a July 2006 rating decision, the RO reopened the Veteran's claim, but denied service connection on the basis that the evidence did not indicate that his right ankle disability was related to his active service. 3. The Veteran first sought service connection for a left ankle disability in December 2005; the RO denied his claim in a July 2006 rating decision on the basis that the evidence did not indicate that his left ankle disability was related to his active service. 4. The Veteran first sought service connection for sleep apnea in a December 2005 claim; the RO denied his claim in a July 2006 rating decision on the bases that there was no evidence that the Veteran suffered from this condition during his active service or that his current condition was related to his active service. 5. The additional evidence presented since the July 2006 rating decision relates to an unestablished fact necessary to substantiate each of the Veteran's claims for service connection. CONCLUSIONS OF LAW 1. The criteria for reopening a previously denied claim of entitlement to service connection for a right ankle disability have been met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 2. The criteria for reopening a previously denied claim of entitlement to service connection for a left ankle disability have been met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. The criteria for reopening a previously denied claim of entitlement to service connection for sleep apnea have been met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. In light of the grant of the application to reopen the previously denied claims of service connection, further discussion here of VCAA compliance is not necessary. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Legal Criteria for New and Material Evidence Claims The reopening of a claim of service connection which has been previously and finally disallowed requires that new and material evidence be presented since the last final disallowance of the claim. 38 U.S.C.A. § 5108. Whether or not the RO reopened a claim is not dispositive, as it is the Board's jurisdictional responsibility to consider whether it is proper for a claim to be reopened. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). As the Veteran's current claims to reopen were received in February 2008, after the regulatory definition of new and material was last amended in August 2001, the current regulatory definition of new and material evidence applies. 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. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The presumption of credibility is rebuttable when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). In determining whether the evidence is new and material, the specified basis for the last final disallowance must be considered. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Procedural History and Evidence Previously Considered The Veteran first sought service connection for his claimed right ankle disability in an April 1998 claim. He underwent a VA examination in October 1998. The examiner reported that the Veteran's right ankle was "completely normal with no evidence of any edema or erythema and no pain on palpation of any of the right ankle joints." The RO thus denied his claim in February 1999 on the basis that there was no evidence that he currently suffered from a right ankle disability. The Veteran filed a notice of disagreement with this denial in March 1999; the RO issued a statement of the case in that same month. The Veteran then filed a substantive appeal. In February 2000, before the Board issued a decision on this claim, the Veteran withdrew his appeal. The claim thus became final. The Veteran sought to reopen his claim for service connection for a right ankle disability in December 2005; he first sought service connection for his left ankle and for sleep apnea in this same claim. In a letter accompanying his claim, the Veteran stated that he suffered from pain in his left and right ankles, and that he suffered from ankle pain during his active service. He stated that he believed that his running and training led to his current ankle pain. An August 2005 record from Beaufort Naval Hospital reflects that the Veteran complained of pain in his feet and ankles, right greater than left, that had been present for more than two years. The Veteran had no erythema in his ankles or feet, and he had full range of motion in both ankles. X-rays showed that the Veteran had mild degenerative changes in his left and right ankles. The Veteran underwent a VA examination in May 2006. The Veteran reported having no significant ankle pain until the previous year when he began experiencing pain when walking and climbing stairs. The Veteran denied any specific ankle injuries. Upon examination, the examiner reported that the Veteran's ankle examination was normal, without redness, swelling, or deformity. Both ankles were described as stable with full range of motion. The examiner stated that X-rays did show mild degenerative joint disease bilaterally, and he diagnosed the Veteran as suffering from minimal degenerative joint disease of both ankles. With regard to etiology, the examiner noted that on his 1996 separation examination, the Veteran complained of ankle pain. However, the examiner noted a lack of chronicity of these symptoms. Accordingly, the examiner concluded that it is less likely than not that the Veteran's ankle disabilities were related to his active service. With regard to sleep apnea, the Veteran submitted evidence showing that he had been diagnosed as suffering from this condition. There was no evidence establishing that the Veteran suffered from this condition during his active service, or that the Veteran's condition was related to his active service. In a July 2006 rating decision, the RO reopened the Veteran's previously denied claim for service connection for a right ankle disability. It then denied that claim, as well as the claim for service connection for a left ankle disability, on the merits. With regard to both ankles, the RO found that neither ankle disability was related to the Veteran's active service. As to his claim for service connection for sleep apnea, the Veteran the RO denied his claim on the bases that the Veteran did not suffer from this condition during his active service, and that there was no evidence that his current condition is related to his active service. The Veteran did not file a notice of disagreement with this decision, so it became final. Current Claims to Reopen and Additional Evidence In February 2008, the Veteran sought to reopen his claims for service connection for a right ankle disability, for a left ankle disability, and for sleep apnea. Though much in the way of new evidence has been submitted, only the most material evidence is highlighted here. With respect to his claims for service connection for his bilateral ankle disabilities, the Veteran submitted a June 2011 record from Beaufort Naval Hospital. In that record, the treating physician wrote that the Veteran's "degenerative arthritis of both ankles is due to progressive overuse and multiple moderate injuries over several years; related to active duty service." With respect to his claim for service connection for sleep apnea, the Veteran submitted three lay statements: one from his ex-wife, one from his sister, and one from a fellow Marine. Each of these letters describes the Veteran as snoring loudly during his active service. As none of this evidence was before VA at the time of the Veteran's previous July 2006 denials, it is new. As this evidence relates to unestablished facts necessary to substantiate his claims, it is also material. Reopening of the Veteran's claims for service connection is thus warranted. ORDER As new and material evidence has been submitted, the claim of service connection for a right ankle disability is reopened, and to this extent only the appeal is granted. As new and material evidence has been submitted, the claim of service connection for a left ankle disability is reopened, and to this extent only the appeal is granted. As new and material evidence has been submitted, the claim of service connection for sleep apnea is reopened, and to this extent only the appeal is granted. REMAND Having reopened the claims, the Board must determine whether service connection on the merits is warranted. As further development is needed before the Board can decide the claim, the claims are REMANDED for the following actions: 1. Afford the Veteran a VA examination to determine: a). Whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability of less than 50 percent) that the right and left ankle disabilities are related to an injury, disease, or events in service? b). Whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability of less than 50 percent) that the right and left ankle disabilities are caused by or aggravated by service-connected disabilities of the lumbar spine and left knee? If formulating an opinion on aggravation, "aggravation" means a permanent increase in severity, that is, an irreversible worsening of a disability as a result of a service-connected disability beyond the natural clinical course of the nonservice-connected disability as contrasted to a temporary worsening of symptoms. The Veteran's file must be made available to the VA examiner. 2. Afford the Veteran a VA examination to determine: Whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability of less than 50 percent) that sleep apnea first documented in 2003 had onset in service as evidence by loud snoring as attested to by witnesses. The Veteran's file must be made available to the VA examiner. 3. After the above development, adjudicate the claims. If any benefit sought is denied, furnish the Veteran his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the claims the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claims 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. 38 U.S.C.A. §§ 5109B, 7112. ______________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs