Citation Nr: 18140703 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 16-08 046 DATE: October 5, 2018 ORDER New and material evidence having been received, the claim for service connection for a bilateral ankle disability is reopened. Service connection for a bilateral ankle disability is denied. FINDINGS OF FACT 1. An August 2002 rating decision denied service connection for a bilateral ankle disability; the Veteran was notified of the rating action and of his appellate rights. The Veteran did not perfect an appeal on this issue, and new and material evidence was not submitted within one year of the decision. 2. The evidence received since the August 2002 denial relates to an unestablished fact necessary to substantiate the claim for service connection for a bilateral ankle disability and raises a reasonable possibility of substantiating the claim. 3. The weight of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a bilateral ankle disability. CONCLUSIONS OF LAW 1. The August 2002 rating decision that denied service connection for a bilateral ankle disability is final. 38 U.S.C. § 7105(c) (2000); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2002). 2. New and material evidence has been received to reopen the previously denied claim for service connection for a bilateral ankle condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. The criteria for service connection for a bilateral ankle condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107A; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1971 to January 1993. The Board notes that the Veteran submitted written statements in support of his claim suggesting that his ankle symptoms may be related to a foot condition. However, the Veteran is not service-connected for a foot condition, nor has he filed a claim seeking service connection for a foot condition. To the extent he wishes to have a claim for service connection for a foot condition adjudicated, he may file such a claim with the regional office. However, the issue of service connection for a foot condition is not before the Board at this time, and is not addressed in this decision. 1. New and Material Evidence Generally, a final decision issued by the agency of original jurisdiction may not thereafter be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105 (c), (d)(3). However, if evidence is presented or secured with respect to a claim that has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. “New evidence” is evidence that has not previously been reviewed by VA adjudicators. “Material evidence” is 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 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). In determining whether evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The Board must review all of the evidence submitted since the last final disallowance of the claim on any basis in order to determine whether the claim may be reopened. Hickson v. West, 12 Vet. App. 247 (1999). The claim for service connection for a bilateral ankle disability is based on the same factual basis as the previously denied claim for service connection for a bilateral ankle disability. That claim was denied in an August 2002 rating decision on the basis that there was no medical evidence that the Veteran had a current diagnosed bilateral ankle condition. The Veteran submitted service treatment records that he believed supported his claim in March 2003, and a July 2003 rating decision continued the August 2002 denial and stated that the records submitted by the Veteran were not new and material evidence. The Veteran did not perfect an appeal on this issue, and he did not submit new and material evidence within one year following the August 2002 rating decision. Thus, the August 2002 decision became final. Accordingly, new and material evidence must be received to reopen the claim of entitlement to service connection for a bilateral ankle disability. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. The pertinent evidence received since the August 2002 denial became final includes a March 2013 written statement submitted by the Veteran that he was being treated for a current bilateral ankle condition at a VA Medical Center. Because the credibility of newly presented evidence is presumed when determining whether it constitutes new and material evidence, this statement by the Veteran pertained to him having a current bilateral ankle disability, which relates to an unestablished fact necessary to substantiate the claim. Thus, as it was also not previously reviewed by adjudicators, the Veteran’s statement of treatment for a current condition constitutes both new and material evidence. Thus, new and material evidence has been received, particularly pertaining to evidence of a current disability, and the claim for service connection for a bilateral ankle disability is reopened. The Veteran has asserted that VA did not have all his service treatment records when it rendered the August 2002 rating decision. In such situations, new and material evidence is not needed to reopen a final decision if VA receives new relevant official service department records that existed but were not in the claims file at the time of the prior final decision. 38 C.F.R. § 3.156(c). Here, however, the Board finds the Veteran’s assertion to be unfounded. The service treatment records associated with the claims file at the time the August 2002 rating decision was rendered include all of the records the Veteran stated were missing. Further, the records that the Veteran submitted with his assertion were not relevant to his claim for service connection for a bilateral ankle condition, as those records did not include a single treatment note for ankle symptoms or complaints. As such, 3.156(c) is not triggered and new and material evidence is needed to reopen the claim. Regardless, the Board finds that new and material evidence has been submitted on other grounds and the claim is reopened. 2. Service Connection for a Bilateral Ankle Condition Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Veteran has claimed that he is entitled to service connection for a bilateral ankle disability, as such was first manifested during active service. A review of the Veteran’s service treatment records shows that he experienced multiple ankle injuries in service. He even noted on a separation report of medical history in August 1992 that he had a history of recurring right and left ankle sprains for which he wore an ankle brace. As such, the in-service element of the Veteran’s claim is not at issue here. Rather, the Veteran’s claim is lacking another critical element needed for service connection, that of a current disability. Post-service medical records provide no indication that the Veteran has ever sought treatment for any ankle condition since he separated from active service, despite him having alluded to such treatment in statements he made when filing his claim to reopen. Even statements the Veteran has submitted in support of his claim focus on the fact that he experienced multiple ankle sprains in service, but do not clearly allege a current bilateral ankle condition exists. The only issue the Veteran has alleged as an ongoing problem with his ankles is that they are easily injured now and he has to be very careful stepping down to prevent sprains or twists. However, while the Veteran may be competent to describe his experience that his ankles seem more prone to sprains and twists since separating from service, he lacks the medical training and expertise to provide a complex medical opinion, such as diagnosing a chronic bilateral ankle disability. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Here, the probative value of the Veteran’s statements about his current ankle symptoms are outweighed by the complete lack of medical treatment sought post-service for any ankle symptoms. As described above, the Veteran clearly experienced multiple ankle sprains/strains during service. However, there is no indication that any in-service ankle injury resulted in a chronic bilateral ankle disability. Rather, his in-service ankle issues appeared to have resolved completely. In this regard, the Veteran was afforded a VA examination for his ankles in November 2015. The VA examiner noted that the Veteran had been diagnosed with bilateral ankle strains in service in the 1980s and 1990s, but he also noted that these strains had resolved. The Veteran disclosed to the examiner that his ankles would twist and injure easily post-service, but he denied any other current ankle issues. The examiner reported that the examination of the Veteran’s ankles was normal, with normal strength, range of motion, and stability. Thus, the examiner concluded that the Veteran did not have a current diagnosis associated with his claimed bilateral ankle disability. As such, following service, there is no mention of any ankle treatment in the Veteran’s extensive VA treatment records, and no ankle disability was found on VA examination in November 2015. Of note, the Veteran did seek treatment for other orthopedic conditions, including spine and shoulder issues, suggesting that if he had a chronic ankle disability, he would have sought treatment for it, as well. In the absence of competent evidence that the Veteran currently has a bilateral ankle disability, there can be no award of service connection for such a claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Consequently, service connection for a bilateral ankle disability is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Davidoski, Associate Counsel