Citation Nr: 18145924 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 16-34 705 DATE: October 30, 2018 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for a right and left foot disability, and the appeal is granted to this extent only. New and material evidence has been received to reopen the claim of entitlement to service connection for a right and left ankle disability, and the appeal is granted to this extent only. REMANDED Service connection for a right foot disability, to include degenerative joint disease and gout, is remanded. Service connection for a left foot disability, to include degenerative joint disease and gout, is remanded Service connection for a right ankle disability, to include gout, is remanded. Service connection for a left ankle disability, to include gout, is remanded. FINDINGS OF FACT 1. A March 2002 rating decision denied service connection for bilateral ankle sprains and bilateral foot sprains. The Veteran did not appeal this determination. 2. Evidence received since the March 2002 rating decision with respect to the claim of entitlement to service connection for a bilateral foot disability includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claim of entitlement to service connection. 3. Evidence received since the March 2002 rating decision with respect to the claim of entitlement to service connection for a bilateral ankle disability includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claim of entitlement to service connection. CONCLUSIONS OF LAW 1. Evidence received since the March 2002 rating decision that denied the claim of entitlement to service connection for bilateral foot sprains is new and material and the claim is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156 (a). 2. Evidence received since the March 2002 rating decision that denied the claim of entitlement to service connection for bilateral ankle sprains is new and material and the claim is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156 (a).   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from November 1976 to February 1998. New and Material Evidence Prior unappealed decisions are final. However, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that, when “new and material evidence” is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). VA law requires that in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). Where a claim has been finally adjudicated, a claimant must present new and material evidence in order to reopen the previously denied claim. See 38 U.S.C. § 5108; 38 C.F.R. §3.156(a); see also Wakeford v. Brown, 8 Vet. App. 239-40 (1995). New evidence is that which was not previously submitted to agency decisionmakers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA’s duty to provide a VA examination is triggered. There must be new and material evidence as to at least one of the bases of the prior disallowance to warrant reopening. Shade, 24 Vet. App. at 117-20. 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for bilateral foot and bilateral ankle disabilities The Veteran’s claim for service connection for a bilateral foot and bilateral ankle disabilities, characterized as sprains, was initially denied by the Agency of Original Jurisdiction (AOJ) in a March 2002 rating decision. He did not timely appeal that decision and it is final. The AOJ found the service treatment records noted multiple right and left foot sprains, as well as bilateral ankle sprains; however, there was no current finding of a bilateral foot or bilateral ankle injury. Since the last prior final decision, medical and lay evidence has been added to the record. A September 2003 medical treatment note indicated that the Veteran complained of a swollen right foot and the diagnosis was to rule out gout. In June 2007, the Veteran was diagnosed with gout of the bilateral ankles. In a September 2013 statement, the Veteran noted that he experienced gout flare-ups in his lower extremities multiple times a year since his active duty service. Occasionally, the pain from the flare-ups cause the Veteran to visit the emergency room for relief. The Veteran has restricted his diet and taken medication in an attempt to control his gout; however, he noted that his uric acid levels have been rising. In June 2014, the Veteran was diagnosed with left foot gout. The Veteran noted that his foot was swollen and painful. In June 2016, the Veteran noted that he continued to experience gout attacks in his bilateral ankles and feet that were manifested by pain and poor ambulation. Also, he submitted copies of in-service laboratory tests that showed uric acid levels. In April 2017 and August 2017, the Veteran was diagnosed with gout. The reason for the prior final denial was that there was no evidence establishing the Veteran was diagnosed with a bilateral foot disorder or a bilateral ankle disorder. In other words, the current diagnosis element was missing. This recent evidence suggests that the Veteran’s bilateral foot and ankle disorders were caused by or related to his active duty service. In this case, the medical evidence suggests a basis for service connection. That evidence raises a reasonable possibility of substantiating the claim. The Board finds that new and material evidence has been received since the March 2002 rating decision. Therefore, the claim of entitlement to service connection for bilateral foot and bilateral ankle disabilities is reopened and remanded. REASONS FOR REMAND 3. Service connection for bilateral foot and bilateral ankle disabilities is remanded. In October 2014, a VA examiner opined that the Veteran’s bilateral ankle sprains and foot sprains were less likely as not incurred in or caused by his injuries during active duty service. The VA examiner inaccurately based his opinion on there being only a recording of a single left foot condition in the Veteran’s service medical records, when, in fact, the Veteran’s medical records are replete with reports of bilateral foot and ankle pain. Further, the Veteran was diagnosed with probable gout in December 1994. In September 2003, more than one year after his separation from service, the Veteran had a diagnosis to rule out gout as his right ankle and foot were painful and swollen without sustaining trauma. In June 2005, the Veteran was diagnosed with gout and the diagnosis was confirmed in April 2017 and August 2017. As such, a medical addendum is needed. The matters are REMANDED for the following action: 1. Obtain a VA medical addendum opinion from the October 2014 VA examiner or a similarly qualified individual. The examiner should review the record, including in-service reports/diagnoses of bilateral foot and ankle pain. The examiner should provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that a current disability of either the left or right foot, and/or the left or right ankle, including gout and/or degenerative joint disease, had its clinical onset: (a) during service, (b) within one year of service for degenerative joint disease, or gouty arthritis, if diagnosed, or (c) is related to any in-service disease, event, or injury, to include bilateral foot and ankle pain, as well as swelling, reports/diagnoses made in March 1979, November 1987, June 1995, and December 1997. The examiner should specifically address the Veteran’s lay statements, notably a September 2013 statement in which the Veteran noted that he experienced gout flare-ups in his lower extremities multiple times a year since his active duty service. A complete rationale for all expressed opinions should be provided by the examiner. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Costello, Associate Counsel