Citation Nr: 18144356 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 15-06 668 DATE: October 24, 2018 ORDER New and material evidence was submitted; thus, the petition to reopen a claim for entitlement to service connection for a right ankle disorder is granted; the appeal is granted to this extent only. Entitlement to service connection for a right ankle disorder is denied. REMANDED Entitlement to a rating in excess of 10 percent for seizures is remanded. Entitlement to service connection for major depressive disorder with alcohol dependence, claimed as severe anxiety, to include as secondary to service-connected seizure disorder, (psychiatric disorder), is remanded. FINDINGS OF FACT 1. The July 2004 rating decision denying the Veteran’s claim of entitlement to service connection for a right ankle disorder is final; new and material evidence has been received to reopen the claim. 2. A right ankle disorder is not etiologically related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. New and material evidence has been received and the claim of entitlement to service connection for a right ankle disorder is reopened. 2. The criteria for service connection for a right ankle disorder have not been met. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 2000 to September 2003. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in a July 2018 videoconference hearing. A transcript of that hearing is of record. Case law provides that a claim for a mental health disability includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record. Brokowski v. Shinseki, 23 Vet. App. 79 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1 (2009). The record reflects mental disorders other than major depressive disorder, including posttraumatic stress disorder (PTSD). Thus, pursuant to the holding in Clemons, the Board has more broadly characterized the psychiatric claim on appeal. Following the certification of the case to the Board, appellant submitted additional evidence. Although the record does not contain a waiver of initial RO consideration of this additional evidence, the Board notes that the appeal was certified after February 2, 2013. Absent an express request from the appellant, the Board is able to proceed with consideration of this evidence in the first instance. See Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide for an automatic waiver of initial Agency of Jurisdiction (AOJ) review of evidence submitted to the AOJ or to the Board at the time of or subsequent to the submission of a substantive appeal filed on or after February 2, 2013, unless the claimant or claimant’s representative requests in writing that the AOJ initially review such evidence). As such, the Board will proceed with the adjudication of the claims before it. New and Material Evidence Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200 (2017). Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108 (2012). The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). New evidence means existing evidence not previously submitted to agency decision-makers. 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a) (2017). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273, 283 (1996). The Veteran has claimed entitlement to service connection for a right ankle disorder. This claim was previously denied in a July 2004 rating decision because there was no evidence that the Veteran experienced a right ankle disorder. In a March 2014 rating decision, a right ankle disorder was shown to exist, but VA decided that there was no medical evidence that the disorder was in any way related to his active service, or any incidents therein. The evidence received since the July 2004 rating decision, which is the last final denial, includes VA and private medical treatment records, which include a diagnosis of a right ankle disorder. See Ortho Center Mexicali, August 3, 2018. The presented evidence speaks directly to an element which was not of record, mainly a diagnosis of a right ankle disorder. See Kent v. Nicholson, 20 Vet. App. 1, 10 (2006) (finding that “the question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied”). Accordingly, presumed credible, new and material evidence has been received and the claim for a right ankle disorder is reopened. Service Connection 1. Right Ankle Disorder The Veteran asserts that his right ankle disorder should be service-connected. Specifically, the Veteran asserts that he hurt his ankle while in active service, and that his current right ankle disorder is related to that in-service injury. See Hearing Transcript, July 2018. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2017). Service connection may be presumed for some chronic disorders, including arthritis, if shown to a compensable degree within 1 year following separation from service. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). At the outset, the Board notes that the Veteran was not entitled to presumptive service connection, as he has not been diagnosed with right ankle arthritis. Furthermore, as the Veteran does not have arthritis, continuity of symptomatology is not applicable here. See Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (only those chronic diseases listed in 38 C.F.R. § 3.309 are subject to service connection by continuity of symptoms described in § 3.303(b)); 38 C.F.R. § 3.309(a) (including “arthritis” as a chronic condition for which service connection may be established by continuity of symptoms). The Veteran has a current diagnosis of a right ankle disorder. See Ortho Center Mexicali, August 4, 2018. Thus, the first element of service connection is met. The question for the Board is whether the Veteran’s right ankle disorder began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of a right ankle disorder, the preponderance of the evidence weighs against finding that the Veteran’s diagnosed right ankle disorder began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d) (2017). As to the issue of in-service incurrence, the Veteran’s service treatment records (STRs) show that the Veteran sprained his ankle in March 2002. His August 2000 entrance examination shows that the Veteran did not report any right ankle issues or problems. A March 2003 general medical examination showed a history of right ankle sprain, with a normal physical examination with no limitation and an X-ray within normal limits. His September 2003 separation examination showed no reports of right ankle issues. Those were the only ankle-related issues noted in the STRs. In sum, none of the Veteran’s STRs showed any ankle problems or a diagnosis of a right ankle disorder. See STRs. As such, the second prong of service connection has not been satisfied. As to the third prong of service connection, the Veteran’s post-service private medical records show that the Veteran experiences chronic pain in his right ankle, as well as dislocation of peroneal tendons with lateral and anterior trajectory to the external malleolus. See private treatment records, See Ortho Center Mexicali, August 4, 2018. The records do not speak to the etiology of the disorder. The Veteran underwent a VA right ankle examination in March 2014. See VA examination, March 2014. The examiner opined that it was less likely than not that his current ankle disorder was related to his in-service ankle sprain. The examiner noted that the Veteran sprained his ankle playing soccer in March 2002 while in active service, and that a March 2003 examination showed a history of right ankle sprain but a normal physical exam with no limitation and an X-ray within normal limits. The examiner noted that the Veteran presented with right ankle pain with movement and an X-ray demonstrated lateral swelling. The examiner opined that the swelling was attributed to a newer injury sustained after military service. The examiner reasoned that the March 2003 examination, which was one year after the Veteran’s ankle injury, did not demonstrate any functional limitation and presented with a normal X-ray. Based on a review of the evidence, the Board finds that service connection for a right ankle disorder is not warranted. While the Veteran has a diagnosis of a right ankle disorder, there is no medical evidence which would tie the disorder to his active service. In sum, while the Veteran’s claim meets prong (1) a current disability, and prong (2) an in-service occurrence, it fails at prong (3), as there is no nexus between the Veteran’s current right ankle disorder and his active service. In reaching this determination, the Board has also considered the lay assertions of record, including the contentions of the Veteran in support of medical nexus. As a lay person, the Veteran is competent to report observable symptoms. See Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (holding that, “[a]s a layperson, an appellant is competent to provide information regarding visible, or otherwise observable symptoms of disability”); see also Barr v. Nicholson, 21 Vet. App. 303 (2007) (Lay testimony is competent to establish the presence of observable symptomatology); Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence may be competent on a variety of matters concerning the nature and cause of disability. Jandreau, 492 F.3d at 1377 n.4. However, he is not competent to provide a diagnosis of a right ankle disorder in this case, or determine that his diagnosed disorder is somehow related to his active service. This issue is medically complex, as it requires specialized medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the medical evidence in this case. Crucially, the evidence of record does not show that the Veteran’s right ankle disorder is in any way related to his active service. It is important for the Veteran to understand that no medical professional has tied his right ankle disorder to his active service. Accordingly, service connection for a right ankle disorder is not warranted because the Veteran has not satisfied the third requirement of service connection, i.e., a nexus. In reaching the above conclusion, the Board has considered the benefit-of- the-doubt doctrine. However, as the preponderance of the evidence is against the claim of entitlement to service connection for a right ankle disorder, that doctrine does not apply. 38 U.S.C. § 5107 (b) (2012). The claim of entitlement to service connection for right ankle disorder is denied. REASONS FOR REMAND 1. Seizure Disorder The Veteran asserts that a rating in excess of 10 percent is warranted for his service-connected seizure disorder. At the July 2018 videoconference hearing, the Veteran stated that he received regular treatment for his seizures from Dr. Nayialy Medina and Dr. Marel Meza who practice in Mexico. These treatment records are not in evidence, and should be obtained before the Board can adjudicate the issue on appeal. 2. Psychiatric Disorder The Veteran asserts that his psychiatric disorder should be service-connected. Specifically, the Veteran asserts that his psychiatric disorder is related to his active service. In the alternative, the Veteran asserts that his psychiatric disorder developed as a result of his service-connected seizure disorder. The Veteran underwent a VA psychiatric examination in March 2014. See VA examination, March 2014. The examiner opined that the psychiatric disorder was less likely as not related to his active service, as the Veteran did not report any psychiatric symptoms at the time of his separation, and no psychiatric problems were noted until about 2013. The examiner did not opine whether the Veteran’s psychiatric disorder developed as a result of his service-connected seizure disorder. The examiner did mention that the psychiatric difficulties were not noted to be related to a seizure disorder, per November 21, 2013, treatment notes. However, the examiner did not address the Veteran’s claims that he was depressed since active service as a result of his seizure disorder, that he self-medicated with alcohol as a result of his seizure disorder, and that this resulted in his current psychiatric disorder. As such, an addendum opinion should be obtained from the March 2014 examiner, if available, to address the claims that the Veteran reported. The matter is REMANDED for the following action: 1. Ask the Veteran to either provide any outstanding relevant private treatment records, to include Dr. Nayialy Medina and Dr. Marel Meza who practice in Mexico, or complete a release for any private providers; if any releases are returned, attempt to obtain the identified records. VA must exhaust all efforts to attempt to obtain said records. If any records requested are not ultimately obtained, notify the Veteran pursuant to 38 C.F.R. § 3.159 (e) (2017). 2. Return the claims file to the examiner who conducted the March 2014 VA psychiatric examination for an addendum opinion, if available. A complete and detailed rationale should be given for all opinions and conclusions expressed. The examiner should once again review the claims file, examine the Veteran (if a physical examination is deemed necessary), and provide an addendum opinion. The examiner should specifically consider the Veteran’s July 2018 testimony that he was depressed since active service as a result of his seizure disorder, that he self-medicated with alcohol as a result of his seizure disorder, and that this resulted in his current psychiatric disorder. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Lech, Counsel