Citation Nr: 18144341 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 18-15 764 DATE: October 24, 2018 ORDER New and material evidence has been submitted to reopen service connection for a right ankle disability. REMANDED Entitlement to service connection for a right ankle disability is remanded.   FINDINGS OF FACT 1. An unappealed July 2010 rating decision denied service connection for a right ankle disability; July 2012 and December 2013 rating decisions continued the denial. 2. Evidence received more than one year since the December 2013 rating decision denying service connection for a right ankle disability, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim of service connection for a right ankle disability, and raises a reasonability possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The July 2010, July 2012, and December 2013 rating decisions denying the claim for service connection for a right ankle disability are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received to reopen the claim of service connection for a right ankle disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1988 to December 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran had also perfected an appeal seeking service connection for an acquired psychiatric disorder. In a July 2018 rating decision, the RO granted service connection for persistent depressive disorder, rated 70 percent disabling, effective November 21, 2014. The Veteran did not appeal. Accordingly, the matter is no longer before the Board. 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right ankle disability 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. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 C.F.R. § 5108. “New” evidence means existing evidence not previously submitted to agency decisionmakers. “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). In determining whether evidence is “new and material,” the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead one should ask whether the evidence could reasonably substantiate the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Historically, an unappealed July 2010 rating decision denied the Veteran’s claim of service connection for a right ankle disability based on findings that there was no evidence of such during service and no evidence of a right ankle disability. July 2012 and December 2013 rating decisions continued the denial. No additional evidence pertinent to this issue was associated with the claims file within the one-year appeal period after the July 2010 and December 2013 rating decisions. In addition, while pertinent evidence was received within one year after the July 2012 rating decision, the Veteran never indicated disagreement with the July 2012 rating decision, and any apparent open appeal was closed and finalized by the December 2013 rating decision. See 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Accordingly, the July 2010, July 2012, and December 2013 rating decisions are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.202, 20.1103. The instant claim for service connection for a right ankle disability was received in February 2015. Since the July 2010, July 2012, and December 2013 rating decisions, the Veteran submitted additional evidence, including an August 2017 VA examination diagnosing right ankle tendonitis. This evidence is new, in that it was not previously of record at the time of the July 2010, July 2012, or December 2013 rating decisions. Additionally, the newly submitted evidence is not cumulative or redundant of evidence already of record. Given the standard set forth in Shade, outlined above, the Board finds that the additional evidence is new and material within the meaning of 38 C.F.R. § 3.156, warranting reopening of the claim of service connection for a right ankle disability. REASONS FOR REMAND 2. Entitlement to service connection for a right ankle disability is remanded. The Veteran’s primary theory of entitlement is that during service in 1990, while conducting field training and located at the bottom of a hill, a trailer/cart at the top of the hill filled with water rolled down the hill, struck him in the back and knocked him to the ground, twisting his ankle. See September 2009 VA Form 21-526. Service treatment records are negative for complaint, finding, or diagnosis relating to the right ankle, including on November 1990 report of medical history and examination. Notably, service treatment records also include radiographs of the spine and ankle, but such radiographs are not dated, there are no findings associated with the radiographs, and the cause for such radiographs is unknown. The post-service evidence of record includes a September 2017 MRI of the right ankle revealing mild achilles tendinosis. The Veteran was also afforded a VA examination and opinion in August 2017 wherein the examiner stated that the x-rays of the right lower extremity during service lend credibility to the Veteran’s complaint regarding the right ankle during military service. However, it was opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner stated it required resort to speculation to state that the Veteran’s right ankle condition is due to military, citing the lack of reasoning and identifying information found on radiographs of the right lower extremity during service. The Board finds the August 2017 opinion to be inadequate. The examiner failed to consider the Veteran’s lay statements, which the competent evidence of right ankle pain since the injury during service. Thus, the examiner should concede the Veteran suffered a right ankle injury during service. The critical question is whether the Veteran’s current right ankle disability is related to, or consistent with, the reported injury during service, which remains unanswered. Alternatively, the Veteran is service-connected for degenerative arthritis of the lumbar spine with spondylosis, due to the Veteran’s above-reported injury during service. See March 2011 VA examination; see also July 2012 rating decision (awarding service connection for a lumbar spine disability). Inasmuch as the Veteran has stated his right ankle was injury in the same event that has been conceded by the RO, and the Veteran has established service-connection for the lumbar spine from the event, the Board finds that the theory of whether the Veteran’s right ankle disability is secondary to his service-connected degenerative arthritis of the lumbar spine with spondylosis is raised. Such theory remains has not been addressed, and should be done on remand. 38 C.F.R. § 3.310(a); El-Amin v. Shinseki, 26 Vet. App. 136 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. After completion of the above development, obtain an addendum opinion to determine the etiology of the Veteran’s right ankle disability. The entire claims file, including a copy of this remand, must be made available to the examiner, and the examiner should confirm that such records were reviewed. No examination of the Veteran is necessary, unless the examiner determines otherwise. The examiner should address the following: (a) Is it at least as likely as not the right ankle disability had its onset during service or is otherwise related to service? In answering this question, the examiner should concede the Veteran suffered a right ankle injury when a trailer/heavy cart of water hit him from behind after rolling down a hill and twisting his ankle, as well as his complaints of right ankle pain since service. (b) Is it at least as likely as not (50 percent probability or more) the right ankle disability is proximately due to his service-connected degenerative arthritis of the lumbar spine with spondylosis? (c) Is it at least as likely as not (50 percent probability or more) the right ankle disability is aggravated (worsened) by his degenerative arthritis of the lumbar spine with spondylosis? In answering these questions, the examiner is asked to consider the statements from the Veteran regarding his history. The examiner is asked to explain why his statements make it more or less likely that a current condition started during service. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran’s recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. The examiner should only rely on silence in the medical records if it can be explained: (a) why the silence in the record can be taken as proof that the symptom did not occur, (b) why the fact would have normally been recorded if present, or (c) why absence in the medical records is medically significant. C. BOSELY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Marley, Counsel