Citation Nr: 18143066 Decision Date: 10/18/18 Archive Date: 10/17/18 DOCKET NO. 16-33 860 DATE: October 18, 2018 ORDER The service connection claims for disabilities of the bilateral feet and residuals of laceration of right ankle are reopened. REMANDED The claim for service connection for a right ankle disability is remanded. The claim for service connection for a left ankle disability, to include as secondary to a right ankle disability, is remanded. The claim for service connection for disabilities of the bilateral feet is remanded. FINDINGS OF FACT 1. Service connection claims for disabilities of the bilateral feet and residuals of laceration of the right ankle were last denied in a February 2008 rating decision, which the Veteran did not appeal. 2. New and material evidence has been received with respect to the service connection claims for disabilities of the bilateral feet and laceration injury of the right ankle. CONCLUSIONS OF LAW 1. The February 2008 rating decision is final with respect to the service connection claims for disabilities of the bilateral feet and residuals of laceration injury of right ankle. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. The criteria for reopening the claims for service connection for disabilities of the bilateral feet and residuals of laceration injury of right ankle are satisfied. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1969 to September 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated in October 2011 and September 2014 of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the September 2014 rating decision treated the Veteran’s claim for service connection for a right ankle disability as a new claim submitted in June 2014, phrasing it as service connection for a “compound fracture (claimed [as a] right ankle condition, arthritis [sic]).” It also found that the Veteran did not timely perfect an appeal regarding the issue of whether new and material evidence has been received to reopen the claims for bilateral foot disabilities, including residuals of a fracture of the right great toe and residuals of a laceration of the right ankle, which was initially denied in an unappealed February 2008 rating decision. See July 2016 Correspondence. The Board finds that claims for bilateral foot disabilities remain in appellate status, and that the claim for a right ankle disability was already on appeal from the October 2011 rating decision. Specifically, the Veteran had submitted a claim for “right foot [and] ankle injuries” in January 2011 (VA Form 21-4138). The RO characterized that claim as a petition to reopen the claims for bilateral foot disabilities, including residuals of a laceration injury of the right ankle, that were denied in the February 2008 rating decision, and denied reopening the claims in the October 2011 rating decision. The Veteran submitted a timely Notice of Disagreement in November 2011. Then, before a Statement of the Case (SOC) was issued, he submitted a statement in June 2014 (VA Form 21-4138) in which he wrote that he was filing for service connection for “aggravation of a right ankle injury, however diagnosed, to include arthritis,” and also for a left ankle disability as secondary to the right ankle condition. It is readily apparent that the Veteran’s January 2011 claim for a right ankle injury and the June 2014 claim for aggravation of a right ankle injury are synonymous. Moreover, it is also apparent that the residuals of a laceration of the right ankle—which was the RO’s own phrasing—denied in the October 2011 rating decision was in reference to the January 2011 claim for right ankle and foot injuries. Accordingly, the June 2014 claim was not a new claim with respect to the right ankle, and it was error to characterize it as such. The RO issued an SOC in December 2015, in which it continued to deny reopening the claims for bilateral foot disabilities, including the right ankle laceration injury. The Veteran did not submit a VA Form 9 in response to the December 2015 SOC. See 38 C.F.R. § 20.202 (2017). However, he did provide testimony at a Decision Review Officer (DRO) hearing in February 2016, within 60 days of the December 2015 SOC. See 38 C.F.R. § 20.302 (2017) (regarding timeframe for filing a substantive appeal). In that testimony, he provided arguments regarding his right ankle and bilateral feet. This testimony, which was reduced to writing in the form of a transcript for the record, arguably is tantamount to “correspondence” containing the “necessary information” that would be furnished in a VA Form 9, and thus constitutes a timely substantive appeal. See 38 C.F.R. § 20.202. Alternatively, even if the February 2016 hearing testimony does not satisfy the criteria for a substantive appeal, the Board finds that waiver of timeliness of the substantive appeal is warranted in this case. In this regard, the RO subsequently issued an SOC in May 2016, in which it denied the claims for bilateral ankle disabilities. For the reasons discussed in the preceding paragraphs, the Board finds that the claim for a right ankle disability addressed in the May 2016 SOC is the same claim addressed in the December 2015 SOC. The Veteran responded with a timely VA Form 9 in July 2016. Moreover, the record shows that the Veteran has consistently claimed both right ankle and bilateral foot disabilities (see, e.g., February 2016 hearing testimony and January 2011 VA Form 21-4138). (The June 2014 claim for a left ankle disability, however, was a new claim.) Significantly, the RO has adjudicated the claims for foot and ankle disabilities as one claim, as shown in the February 2008 and October 2011 rating decisions. Indeed, the RO of its own accord initially added the issue of residuals of a right ankle laceration in the February 2008 rating decision in response to the Veteran’s July 2007 claim for a “bilateral foot condition” (VA Form 21-526). Presumably, the RO found that the claim encompassed the right ankle based on the service treatment records showing a pre-service history of a right ankle injury. Thus, the Veteran has had every reason to assume that his claims for both foot and right ankle disabilities have remained in appellate status, as historically the RO addressed them as one claim. Given this confusing and complex procedural history—which included the RO’s separate but more or less concurrent processing of the same right ankle disability claim—the Board finds that even if a timely substantive appeal was not filed regarding the bilateral foot conditions or residuals of laceration of the right ankle, waiver of timeliness of the substantive appeal is warranted in this case. See Percy v. Shinseki, 23 Vet. App. 37, 44-46 (2009) (holding that a timely filed substantive appeal is not a jurisdictional bar to Board review, and it is thus within the Board's discretion to waive the issue of timeliness). Accordingly, the Board will take jurisdiction of the claims for bilateral foot disabilities, and finds that the appeal regarding service connection for a right ankle disability stems from the October 2011 rating decision.   The service connection claims for disabilities of the bilateral feet and right ankle are reopened. Law A determination on a claim by the agency of original jurisdiction of which the claimant is properly notified is final if no notice of disagreement (NOD) is filed within the prescribed time period, or an appeal is not perfected pursuant to 38 C.F.R. § 20.302. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103; see 38 C.F.R. §§ 20.200, 20.201, 20.302 (2017) (setting forth requirements and timeframe for initiating and perfecting an appeal). To reopen a previously and finally disallowed claim, new and material evidence must be submitted by the claimant or secured by VA with respect to that claim since the last final denial, regardless of the basis for that denial. See 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). VA regulation defines “new and material evidence” as follows. “New evidence” means evidence not previously submitted to agency decision makers, and “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. 38 C.F.R. § 3.156(a). To warrant reopening, the new evidence must neither be 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. Id.; see Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (holding that there is a “low threshold” for reopening). In determining whether new and material evidence has been submitted, the credibility of the evidence is to be presumed, unless it is inherently false or untrue or, if it is a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). If new and material evidence is received within one year after the date of mailing of an RO decision, it prevents that decision from becoming final and will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b); see Young v. Shinseki, 22 Vet. App. 461, 466 (2009) (holding that new and material evidence received within one year of an RO decision prevents that decision from becoming final); 38 C.F.R. § 3.400(q) (2017) (providing that, as to new and material evidence received within appeal period, “effective date will be as though the former decision had not been rendered”). Analysis Service connection for bilateral foot conditions and residuals of a laceration of the right ankle was denied in a February 2008 rating decision. The Veteran did not appeal the decision or submit new and material evidence within one year of the date of its mailing. Accordingly, that decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Since the February 2008 rating decision was issued, the Veteran submitted letters from his private treating physician, C. Kistler, D.O., dated in July 2014 and February 2016, in which Dr. Kistler opined that the Veteran’s pre-existing right ankle condition was aggravated by active service, and in turn caused problems with the Veteran’s feet due to an abnormal gait and leg length discrepancy. These letters relate to an unestablished fact necessary to support the claims. See 38 C.F.R. §§ 3.303(a), 3.304, 3.310 (2017); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). There were no positive medical opinions of record at the time of the February 2008 rating decision. Accordingly, they constitute new and material evidence, and the claims for bilateral foot conditions and right ankle laceration residuals are reopened.   REASONS FOR REMAND The claims are remanded to obtain additional medical records, if possible, and arrange for a new VA examination and medical opinion, as specified in the directives below. The August 2014 VA opinion is not sufficient to make an informed decision, as it does not account for the Veteran’s other diagnosed pathology of or near the ankle (it merely notes that there was no appreciable arthritis), and does not explain why the sole fact that the Veteran did not undergo surgery for a twisting injury during service leads to the conclusion that any pre-existing residuals of a right ankle injury were not aggravated by service. The Board notes that the Veteran has submitted favorable medical opinions from his private treating physician, Dr. Kistler. However, the Board finds that they are not sufficient to make an informed decision. The claims for service connection for left foot and ankle disabilities are also remanded as intertwined with the right ankle and foot claims. The matters are REMANDED for the following action: 1. Submit a records request using the appropriate code to the National Personnel Records Center (NPRC) via the Personnel Information Exchange System (PIES), and also to the Records Management Center if the NPRC provides a negative response, for any records of treatment of the Veteran’s feet and ankles at the following facilities: (a.) Moncrief Army Community Hospital (January 1970 through September 1971) (b.) Dwight D. Eisenhower Army Medical Center (January 1970 through September 1971) (c.) Bayne-Jones Army Community Hospital (January 1970 through September 1971) 2. Request the Veteran’s treatment records from the office of Dr. Slager, Dr. Amicon, and Dr. Meyer (see April 2016 VA Form 21-4142). A second request must be made if no response is received to the initial request. If necessary, the Veteran should be asked to submit a new VA Form 21-4142. 3. Then, arrange for a VA examination of the Veteran’s feet and ankles, as well as a medical nexus opinion, as specified below. The examiner should conduct a thorough examination of the Veteran’s feet and ankles, including a new x-ray study if deemed warranted by the examiner. After examining the Veteran and reviewing the claims file, the examiner is asked to provide the following opinions: (a.) Whether it is clear and unmistakable (obvious or manifest) that pre-existing residuals of a transverse laceration injury of the right ankle area with severance of the peroneus tendon, as well as compound fracture of the fibula (see June 1965 record) were not aggravated by service beyond their natural progression. (b.) Whether it is clear and unmistakable (obvious or manifest) that residuals of an injury sustained in February 1968 (prior to the Veteran’s period of active service) consisting of a contusion of the right foot and fracture of the base of the proximal phalanx of the great toe from dropping a magnet onto the right foot were not aggravated by service beyond their natural progression. (c.) Whether it is at least as likely as not (50% probability or more) that any current right ankle or foot pathology, including calcific enthesopathy with osteoarthritic changes, remote post-traumatic deformity of distal fibula, degenerative changes of the first metatarsophalangeal joint, and/or any tendon or other soft tissue or bone abnormality is related to the Veteran’s active service in light of his pre-service medical history, his in-service symptoms, and impacts on the foot and ankle such as from carrying heavy equipment while climbing poles or walking long distances, or intensive use of the feet and legs in basic training. In rendering the above opinions, the examiner should consider (but need not specifically discuss) the following: (a.) A June 1965 doctor letter states, with regard to the right ankle injury and treatment, that it was anticipated that at the end of two or three weeks the Veteran could return to his previous activities, and that if he had a minimal inability to raise the lateral aspect of his foot, this could be corrected by repair of the peroneus brevis tendon. (b.) The October 1969 induction examination shows that the Veteran’s feet and lower extremities were clinically evaluated as normal, excepting a scar on the right ankle. (c.) The Veteran reported pain in the feet in November 1969, shortly after entering active service. (d.) A February 1970 service treatment record shows that the Veteran had constant (or continued) foot pain, and it was noted that it involved the posterior tibial tendon with associated tenderness alon the first metatarsal shaft. A possible stress reaction was assessed. Although the record states “L/foot,” there is every indication that it was the Veteran’s right foot that was symptomatic, in light of his medical history involving the right foot and ankle, including the right great toe (i.e. first metatarsal) fracture. (e.) The Veteran’s feet and lower extremities were clinically evaluated as normal in the May 1971 separation examination report. (f.) The Veteran states that he frequently had pain and ankle swelling during service, and that he was issued an ankle wrap. See June 2014 VA Form 21-4138; February 2016 Hearing Testimony. (g.) Recently diagnosed pathology in the right ankle area includes calcific enthesopathy with osteoarthritic changes and a remote post traumatic deformity of the distal fibula (August 2014 VA x-ray), posterior tibial tendinitis, flexor hallucis longus (FHL) tendinitis, and adductovarus (October 15, 2015 VA treatment record). The examiner must provide a complete explanation in support of the conclusions reached. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Rutkin, Counsel