Citation Nr: 1337479	
Decision Date: 11/18/13    Archive Date: 11/26/13

DOCKET NO.  11-03 281	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to service connection for a left little finger disability. 

2.  Whether new and material evidence has been received to reopen a claim of service connection for residuals of a right ankle sprain.  


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

Megan C. Kral, Associate Counsel  
INTRODUCTION

The appellant is a Veteran who served on active duty from March 1969 to January 1971.  This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the San Juan, Puerto Rico Department of Veterans Affairs (VA) Regional Office (RO).  The Veteran's claims file is now in the jurisdiction of the Winston-Salem, North Carolina RO. In December 2011, a videoconference hearing was held before the undersigned.  A transcript of the hearing is associated with the Veteran's claims file.  

The issues of service connection for left little finger disability and for residuals of a right ankle sprain (on de novo review) are being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the Veteran if further action on his part is required.


FINDINGS OF FACT

1.  An unappealed May 1971 rating decision denied the Veteran service connection for residuals of a right ankle sprain, based on a finding that an ankle injury in service with residual disability was not shown.

2.  Evidence received includes the Veteran's December 2011 hearing testimony that explains events in service; relates to the unestablished fact necessary to substantiate the claim of service connection for residuals of a right ankle injury; and raises a reasonable possibility of substantiating such claim.


CONCLUSION OF LAW

New and material evidence has been received and the claim of service connection for residuals of a right ankle sprain may be reopened.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2013).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties 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, 3.326(a).  The VCAA applies to the instant claim to reopen.  Inasmuch as this decision grants in full that portion of the claim that is being addressed, there is no reason to belabor the impact of the VCAA on the matter, as any notice or duty to assist omission is harmless.

Legal Criteria, Factual Background, and Analysis

A May 1971 rating decision denied the Veteran's claim of service connection for residuals of a right ankle sprain based on a finding that an ankle injury in service with residual disability was not shown.  The Veteran did not appeal the decision (or submit new and material evidence in the year following) and it became final.  38 U.S.C.A. §  7105.  

Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered.  38 U.S.C.A. §  7105.  However, a claim on which there is a final decision may be reopened if new and material evidence is submitted.  38 U.S.C.A. § 5108.

"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).  When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed.  Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992).
The United States Court of Appeals for Veterans Claims (Court) has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold.  The Court interpreted the language of 38 C.F.R. § 3.156(a) and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  See Shade v. Shinseki, 24 Vet. App. 110 (2010). 

The pertinent evidence of record at the time of the May 1971 rating decision included the Veteran's service treatment records (STRs) and a March 1971 VA examination which produced a diagnosis of residuals of a right ankle sprain.  

Evidence received since the May 1971 rating decision includes the Veteran's service personnel records, confirming service in Vietnam; VA treatment records from August 2007 to November 2010, which show treatment for right ankle pain and a diagnosis of right ankle instability; statements from the Veteran; and his December 2011 hearing testimony, explaining the circumstances of his ankle injury in service.

The evidence received since the May 1971 rating decision was not before agency decision-makers at that time, is new, and directly addresses an unestablished fact necessary to substantiate the Veteran's claim of service connection for residuals of a right ankle sprain.  Specifically, at the December 2011 hearing, the Veteran described an ankle injury in service.  The undersigned observed that the claim at separation from service (in February 1971) tended to support the Veteran's accounts.  Furthermore, VA treatment records show treatment for right ankle pain and in June 2009 right lateral ankle pain and give away were diagnosed with a notation that the Veteran had an old sprain in service.  Right ankle instability was also diagnosed in July 2010.  

As the new evidence indicates the Veteran had an ankle injury in service and suggests that his current right ankle disability is etiologically related to such injury, it pertains to an unestablished fact necessary to substantiate the claim of service connection for a right ankle disability, and raises a reasonable possibility of substantiating such claim.  Thus, the additional evidence received is both new and material, and warrants reopening of the claim.

De novo review of the claim is discussed in the remand below.  


ORDER

The appeal to reopen a claim of service connection for residuals of a right ankle sprain is granted. 


REMAND

The Veteran contends that his STRs and service personnel records associated with the record are incomplete.  He asserts that records of treatment he received at the hospital in Long Binh, Vietnam are outstanding.  He also asserts that he was placed on a light duty profile which should be documented in his service records.  The current record does not include such evidence.  VA's duty to assist mandates development to secure such evidence. 

The reopening of the Veteran's claim of service connection for residuals of a right ankle sprain has also triggered the VA's duty to assist the Veteran by arranging for an examination to secure a medical nexus opinion.  Under 38 C.F.R. § 3.159(c)(4), an examination or opinion is necessary if the evidence of record: (A) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (B) establishes that the veteran suffered an event, injury or disease in service; (C) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service, but (D) does not contain sufficient medical evidence for the Secretary to make a decision on the claim.  Here, right ankle instability with pain was diagnosed, an injury in service is suggested by the record, and the Veteran has provided evidence suggesting that the two are related.  Accordingly, an examination to secure a medical nexus opinion is necessary.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

Furthermore, at the December 2011 hearing the Veteran testified that in the past year a left hand disability (to include of the left little finger) was diagnosed.  A June 2009 VA treatment record notes that the Veteran reported he had surgery on his left hand in service.  There are no records of such surgery in the current record.  If any STRs or service personnel records received pursuant to the development requested show a left little finger abscess or surgery/treatment of the left little finger, an examination and opinion to determine whether the Veteran's current left little finger disability is etiologically related to the treatment in service would be necessary.  

Finally, the record indicates the Veteran receives ongoing treatment at the VA medical center (VAMC) in Salisbury, North Carolina.  The most recent VA treatment report of record is dated in November 2010.  Updated records of treatment for a left little finger or right ankle disability may contain pertinent information and must be secured.  38 C.F.R. § 3.159(c)(2).

Accordingly, the case is REMANDED for the following action:

1. The RO should arrange for exhaustive development to secure for the record complete copies of the Veteran's service personnel records and STRs, to specifically include (a search for alternate source) records of the Veteran's reported hospitalization in Long Binh, Vietnam and any personnel records corroborating that he was placed on light/limited duty profiles.  The Veteran should be asked to submit for the record complete copies of any STRs/service personnel records in his possession, and to certify that he has no further records in his possession.  If it is determined that any of the Veteran's STRs or service personnel records have been lost or destroyed, he should (in accordance with 38 C.F.R. § 3.159(e)) be so advised.
2. The RO should obtain copies of all records of VA treatment the Veteran received for a left little finger and/or a right ankle disability (at the Salisbury, North Carolina VAMC) from November 2010 to the present.

3. The RO should thereafter arrange for an orthopedic examination of the Veteran to determine the nature and likely etiology of his right ankle and left little finger disabilities.  The entire record must be reviewed by the examiner in conjunction with the examination.  Based on examination of the Veteran, and review of the record, the examiner must provide opinions that respond to the following:

a. Please identify (by medical diagnosis) each right ankle disability found; 

b. Please identify the most likely etiology for each right ankle disability entity diagnosed; specifically, is it at least as likely as not (a 50 percent or better probability), that such disability is related to the Veteran's service/complaints or injury noted therein?


c. If the additional STRs or service personnel records received show treatment in service for a left little finger disability: 

i. Identify (by medical diagnosis) each left little finger disability found; 

ii. As to each left little finger disability diagnosed, please identify the most likely etiology, specifically, is it at least as likely as not (a 50 percent or better probability), that such is related to the Veteran's service/complaints or injury noted therein?

The examiner must explain the rationale for all opinions, with citation to supporting factual data and/or medical literature as deemed appropriate.  

4. The RO should then review the record and readjudicate the claims (service connection for residuals of a right ankle sprain on de novo review).  If either remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond.  The case should then be returned to the Board for appellate review. 

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board 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).


______________________________________________
GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs