Citation Nr: 1340194 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 09-43 146 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a left ankle disability, to include as secondary to the service-connected residuals of a right ankle fracture. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and his son. ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from November 1960 to October 1964. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which, in pertinent part, found that new and material evidence had not been submitted to reopen a claim for service connection for a left ankle disability. Jurisdiction over the claims file is currently held by the RO in Boise, Idaho. In July 2011, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO. A transcript of this hearing is of record. The Board remanded the case for further action by the originating agency in January 2012. The case has now returned to the Board for further appellate action. During the July 2011 hearing, the Veteran and his son testified that the Veteran left his employment as a truck driver due to his service-connected right ankle disability. An informal claim for entitlement to a total disability rating due to individual employability resulting from service-connected disability (TDIU) has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The claim for service connection for a left ankle disability was initially denied in an unappealed November 1986 rating decision, to include consideration of whether service connection was warranted as secondary to the service-connected residuals of a right ankle disability. . 2. The Veteran made several attempts to reopen the claim and was most recently denied in a February 2007 rating decision. 3. The evidence received since the February 2007 rating decision is cumulative and redundant of the previous evidence of record and does not raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has not been received to reopen the claim for entitlement to service connection for a left ankle disability, to include as secondary to the service-connected residuals of a right ankle fracture. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION In a November 1986 rating decision, the RO denied entitlement to service connection for a left ankle disability. The evidence of record, including service treatment records and an August 1986 VA special orthopedic examination, did not establish any substantial injury to the left ankle during service or a nexus between the disability and service or the service-connected right ankle. The Veteran did not appeal the November 1986 denial of the claim and the rating decision became final. 38 U.S.C.A. § 7105 (c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013). A claim which has been finally denied in an unappealed rating decision or Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 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 which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. 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 Veteran made several attempts to reopen the claim for service connection for a left ankle disability and was most recently denied in a February 2007 rating decision. In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The evidence received since the February 2007 rating decision includes statements from the Veteran, a copy of the July 2011 hearing transcript, records from the Reno VA Medical Center (VAMC) and the Veteran's private physicians, and a February 2012 VA examination report. The records and letters from the Veteran's private doctors are duplicates of evidence submitted in support of the previous claims for service connection. They are therefore not new and are not material. With respect to the VA treatment records and February 2012 VA examination report, the evidence is new as it was not of record at the time of the February 2007 rating decision, but it is not material. The VA treatment records merely document ongoing treatment for various disabilities and do not specifically address the Veteran's left ankle condition. The records do not relate to an unestablished fact necessary to substantiate the claim as they do not contain competent medical evidence of a link between the left ankle disability and service or a service-connected disability. The February 2012 VA examination report, while addressing the etiology of the Veteran's left ankle arthritis, includes a medical opinion weighing against the claim. After reviewing the claims file, including the Veteran's lay statements, the VA examiner concluded that it was less likely as not that the Veteran's left ankle arthritis was related to any incident of active duty service or caused or aggravated by the service-connected right ankle fracture. As the February 2012 VA examiner's findings do not raise a reasonable possibility of substantiating the claim, the examination report is not material. The record also contains statements and testimony from the Veteran linking his left ankle arthritis to an in-service motor vehicle accident or in the alternative, an altered gait caused by the service-connected residuals of a right ankle fracture. Additionally, the Veteran testified in July 2011 that he has experienced left ankle weakness since the in-service accident and incurred recurrent sprains when walking over uneven ground. The credibility of the Veteran's statements is presumed for the purposes of determining whether they are new and material evidence, but the statements are cumulative and redundant of statements previously of record. See Justus v. Principi, 3 Vet. App. 510 (1992). The Veteran has consistently related his left ankle disability to an in-service accident and service-connected right ankle fracture since his initial claim was received in February 1986. He also previously reported experiencing weakness and pain in his left ankle since service. Thus, his statements and testimony are not material evidence and are not sufficient to reopen the claim for service connection. The claim to reopen entitlement to service connection for a left ankle disability is denied. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)) defined VA's duties to notify and assist a veteran in the substantiation of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in a June 2008 letter. The Veteran also received notice regarding the disability-rating and effective-date elements of the claim in the June 2008 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In claims to reopen, the duty to notify requires that the Secretary look at the bases for the denial in the prior decision and respond with a notice letter that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. See Kent v. Nicholson, 20 Vet. App. 1 (2006). In the June 2008 letter, the Veteran was provided notice of the criteria necessary for reopening a previously denied claim. In addition, he was informed of the reason for the prior denial of service connection for a left ankle disability. VA has therefore substantially fulfilled its specific duties to notify with regard the Veteran's claim to reopen. VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, records of VA treatment, records from the Social Security Administration (SSA), and private medical records. Additionally, the Veteran was provided a proper VA examination and medical opinion in February 2012. VA has also complied with the January 2012 remand orders of the Board. In response to the Board's remand, the Veteran was provided a VA examination of his left ankle in February 2012. The VA examiner provided the medical opinion requested by the Board and addressed whether the left ankle condition was etiologically related to any incident of active duty service (including the July 1964 motor vehicle accident) or whether it was caused or aggravated by the service-connected residuals of a right ankle fracture. The case was then readjudicated in a May 2012 supplemental statement of the case (SSOC). Therefore, VA has complied with the remand orders of the Board. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. ORDER New and material evidence not having been received, reopening of the claim for entitlement to service connection for a left ankle disability, to include as secondary to the service-connected residuals of a right ankle fracture, is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs