Citation Nr: 1338652 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 11-03 831 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a right ankle disability and, if so, whether service connection is warranted for the claimed disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Turner, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1965 to August 1969, and from October 1975 to January 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas that in relevant part denied reopening of the claim for service connection for a right ankle injury. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. In February 2011, the Veteran requested a Board hearing. In March 2012, the Veteran was notified of his scheduled hearing in May 2012. In March, the Veteran withdrew his request for a Board hearing. In August 2011, the Veteran raised a claim of service connection for a left ankle disability. This issue is not currently on appeal and is referred to the agency of original jurisdiction for appropriate action. The issue of entitlement to service connection for right ankle disability addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. An October 1981 rating decision initially denied the Veteran's claim of entitlement to service connection for a right ankle disability; the Veteran did not enter a notice of disagreement within one year of notice of this decision, and it became final. 2. An August 1986 rating decision confirmed that initial denial of the Veteran's claim; the Veteran did not enter a notice of disagreement within one year of notice of this decision, and it became final. 3. Evidence received since the August 1986 rating decision is new to the claims file, and relates to an unestablished fact necessary to substantiate the claim of whether the Veteran has a current right ankle disability. CONCLUSIONS OF LAW 1. The August 1986 rating decision, denying the claim of service connection for right ankle disability, is final. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. § 20.1103 (2013). 2. New and material evidence has been submitted for the claim of entitlement to service connection for right ankle disability; the claim is reopened. 38 U.S.C.A. §§ 5108 , 7105 (West 2002); 38 C.F.R. § 3.156(a)(2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As to the claim of whether new or material evidence has been received sufficient to reopen a claim of entitlement to service connection for a low back disability, that claim has been granted, as discussed below. As such, the Board finds that any error related to the duties to notify or assist on that claim is moot. See 38 U.S.C. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Mlechick v. Mansfield, 503 F.3d 1340 (Fed. Cir. 2007). II. New and Material Evidence In August 1980, the Veteran claimed service connection for a right ankle disability claimed as a foot condition. The claim was denied in a October 1981, which found there was no current disability. The claim was again denied in a August 1986 rating decision, which found that though there was a current disability, there was no nexus between the disability and service. The Veteran was notified of the decision in September 1986. The Veteran did not respond. The Board concludes that the August 1986 rating decision became final. 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 20.302, 20.1103 (2013). Under 38 U.S.C.A. § 5108, VA may reopen a previously and finally disallowed claim when "new and material" evidence is presented or secured with respect to that claim. 38 C.F.R. § 3.156(a) defines "new and material evidence"; "new evidence" is evidence not previously submitted to agency decision makers, while "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. The 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. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The service connection for right ankle disability was denied in August 1986 for lack of a nexus between the current disability and service. To reopen, new and material evidence must be received showing that the current disability is related to service. In a November 2010 VA examination, the Veteran reported persistent symptoms since service. The Board finds that the evidence is both new and addresses the grounds of the prior final denial, raising a reasonable possibility of substantiating the claim. The Board concludes that reopening is warranted. See 38 C.F.R. § 3.156(a). ORDER Reopening of a claim for service connection for a right ankle disability is granted; the appeal is granted to this extent only REMAND The Board must remand the reopened issue of service connection for the right ankle disability for additional development due to an inadequate medical examination. The Board finds the November 2010 medical opinion is of limited probative value because it is based on incomplete factual assumptions. A new VA examination and opinion are needed. The duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). If VA provides a claimant with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). In this case, the Veteran was treated in September 1981 and February 1986 for his right ankle disability. He complained of pain and swelling of the ankle and was diagnosed as having chronic ankle pain. The Board finds that these medical records relating to the current disability tend to weigh in favor of the claim, and must be addressed in an adequate medical opinion. The examiner rendering the November 2010 medical opinion did not address the September 1981 and February 1986 treatment records at all while offering his purported opinion; in fact, the examiner specifically stated that the Veteran had no complaints regarding his right ankle between the time of the in-service injury in September 1978, and January 1999. Therefore, the opinion is not based on a full and accurate history. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based on an inaccurate factual basis is of no probative value). Finally, on remand, records of any relevant VA treatment records, not already associated with the claims folder , should be associated with the claims folders, either physically or electronically. 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992). Any additional private treatment records concerning the Veteran's claim not already included in the claims folder should also be associated with the claims file. For the foregoing reasons, the Board finds that a new VA examination should be issued concerning the Veteran's claim for right ankle disability. The examiner should offer an opinion as to whether the current right ankle disability is related to service. All lay and medical evidence should be considered, to include any assertions of continuity of symptomatology that may be made by the Veteran. In this regard, the Board notes that the Veteran is competent to report observable symptomatology, and the lack of contemporaneous medical records does not, in and of itself, render such lay evidence not credible. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (2006). However, this may be weighed against other lay and medical evidence of record. Accordingly, the case is REMANDED for the following action: 1. Any additional VA treatment records concerning the Veteran's claim, not already in the claims folder, should be obtained and associated with the claims folder. 2. The Veteran should be asked to identify any additional medical providers who have treated him for a left knee disorder. After receiving this information and any necessary releases, contact the named medical providers and obtain copies of the related treatment records which are not already in the claims folder. 3. Schedule the Veteran for an appropriate VA examination with medical opinion to assist in determining the etiology of his currently diagnosed right ankle disability. Any and all indicated history, evaluations, studies, and tests deemed necessary by the examiner should be accomplished, and a rationale for any opinion expressed should be provided. The relevant documents in the claims file should be made available to the examiner for review of the history in conjunction with the examination, and the examination report should reflect that such review was accomplished. The entire claims file including the additionally requested materials in this remand, and a copy of this remand should be made available to the examiner for review, and such review should be noted in the opinion report. The examiner should specifically state whether it is at least as likely as not (i.e., at least a 50-50 probability) that the Veteran's current right ankle disability is related to service, including the ankle injury and/or complaints he had in service. The examiner should also specifically state whether it is at least as likely as not (i.e., at least a 50-50 probability) that the Veteran had arthritis of the right ankle within one year of his service discharge. If the examiner cannot provide the requested opinions without resort to speculation, the examiner should give a complete rationale for such conclusion. The examiner's rationale should include what information is needed in order to give an opinion and/or whether they do not have the medical knowledge required to address the questions asked. 4. Then, the AMC should readjudicate the claim. If the benefit sought is not granted, the appellant and his representative should be furnished a SSOC and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter 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. 2013). ______________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs