Citation Nr: 18147119 Decision Date: 11/05/18 Archive Date: 11/02/18 DOCKET NO. 15-37 152 DATE: November 5, 2018 ORDER New and material evidence having been received, the claim of service connection for a left ankle disability is reopened. Entitlement to service connection for left ankle disability is granted. FINDINGS OF FACT 1. In an unappealed June 2008 rating decision, the Regional Office (RO) denied a petition to reopen a claim of service connection for a left ankle disability. 2. Evidence received since the final June 2008 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for a left ankle disability. 3. The weight of the evidence indicates that the Veteran’s current left ankle disability is related to service. CONCLUSIONS OF LAW 1. The June 2008 rating decision that denied the claim of service connection for a left ankle disability became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. New and material evidence has been received to reopen the claim of service connection for a left ankle disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for a left ankle disability have been met. 38 U.S.C. §§ 1110, 1131, 1154(a); 5107 (2012); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.102, 3.303; 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from November 1976 through October 1998. This matter comes before the Board from a July 2013 rating decision. The undersigned held a hearing regarding the matter in November 2016. 1. New and Material Evidence The Veteran’s claim of service connection regarding his left ankle was originally denied in a January 2000 rating decision because, despite in-service treatment there was no diagnosis of a current disability. It was further noted that CT scan findings showed a condition consistent with a developmental abnormality. This claim was not appealed and no evidence was added to the record regarding his left ankle in the requisite time period. Thus, the decision became final. The Veteran applied to reopen his claim, but the requested was denied in June 2008 because no new and material evidence had been received. The Veteran did not appeal the denial, and thus, the decision became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). When a claim is disallowed and becomes final, the claim will not be reopened unless new and material evidence is presented or secured with respect to a claim that has been disallowed. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). “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.” 38 C.F.R. 3.156(a) (2017). In addition to the evidence being “new and material,” the evidence must also raise a reasonable possibility of substantiating the claim. Id. 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, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened. Id. at 118. In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). The main piece of new evidence in the record is that the Veteran was diagnosed with degenerative joint disease in his left ankle in a February 2009 x-ray and again in a June 2013 VA examination. This diagnosis is new, as evidence of this diagnosis was not of record prior to the issuance of the June 2008 rating decision. Moreover, this evidence is material as it raises the possibility that the Veteran’s in-service ankle injuries may have caused the Veteran’s current disability. Further, because of this diagnosis, a doctor at the Foot and Ankle Institute of Colorado rendered an opinion in 2015 stating that the Veteran’s current disability was a result of his inservice ankle injury. Accordingly, the Board finds that the newly added evidence related to an unestablished fact necessary to substantiate the Veteran’s claim for service connection for a left ankle disability. 38 C.F.R. § 3.156(a) (2017). 2. Left ankle disability The Veteran is seeking service connection for his left ankle disability. He contends his disability is a result of left ankle injuries the Veteran incurred while in service. The Veteran’s claim was originally denied service connection in January 2000. This decision was based on a March 1999 examination finding that x-rays were normal and that the Veteran did not have a current diagnosed ankle disability. The Veteran was then diagnosed with an ankle disability in February of 2009. In June 2013, the Veteran was provided with a VA examination in order to ascertain whether the current left ankle disability was a result of the injuries to the left ankle that the Veteran incurred during service. The VA examiner found that it was less likely than not that the claimed condition was caused by the claimed in-service injury. The examiner opined that the ankle sprain noted during military service had resolved and that the Veteran’s current disability was a result of age and working as a letter carrier, even though the Veteran did less walking than a normal letter carrier. The Veteran appealed this decision in October of 2015. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303; 3.307, 3.309 (2017). Establishing service connection requires competent evidence of: (1) the existence of 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 present disability. Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303 (2017). The Veteran’s current disability does not meet the requirement for presumptive service connection for a chronic disease, meaning that the general three step analysis for service connection must be followed. During service, the Veteran sprained his ankle badly for the first time in September 1980. This became a recurring problem while he was in service, as noted in a December 1993 examination. Further, in a November 1997 examination it was noted that a CT scan revealed a defect in the Veteran’s left talar dome. After service, the Veteran continued to have some problems with his ankle and was eventually diagnosed with a left ankle disability, degenerative joint disease, in February of 2009. As the Veteran has an in-service injury and a current disability, the question becomes whether there is a nexus between the two. There are two conflicting opinions of record as to whether there is a nexus between the Veteran’s current left ankle disability and the left ankle injuries incurred while in service. The June 2013 VA examiner opined that the sprained ankle incurred in service had resolved and that the current disability was due to age and the Veteran’s 19 years as a letter carrier. It bears noting that the Veteran at his hearing testified that he had only been a mail carrier for 15 years at the time of the examination. However, the Veteran was also examined by a podiatrist, who was able to review the Veteran’s military records, at the Foot and Ankle Institute of Colorado in October 2015. The podiatrist opined that the Veteran’s left ankle degenerative joint disease was the result of the Veteran’s in-service ankle injuries. The podiatrist explained that the Veteran has left ankle posttraumatic arthritis with a lateral talar dome osteochondral defect. The podiatrist specifically points to the CT scan from 1997, which showed a lateral talar dome lesion and explained that the Veteran now has a palpable anterior lateral tibial exostosis with pain on range of motion of the joint and posttraumatic arthritis. Where medical opinions conflict, the Board “may favor one medical opinion over another” if it offers an adequate statement of reasons and bases. D’Aries v. Peake, 22 Vet. App. 97, 107 (2008). In assessing evidence such as medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). In some cases, the physician's special qualifications or expertise in the relevant medical specialty, or lack thereof, may be a factor. In every case, the Board must support its conclusion with an adequate statement of its reasoning of why it found one medical opinion more persuasive than the other. The initial inquiry in determining probative value to assign to conflicting medical opinions is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. Nieves-Rodriguez v. Peake, 22 Vet. App. at 303-04. The second inquiry requires the Board to assess whether the facts and information relied upon are accurate. Id. The third inquiry involves consideration of whether the medical expert provided a fully articulated opinion; a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Id. A mere conclusion without an underlying rationale is of no probative value. Miller v. West, 11 Vet. App. 345 (1998). Both the VA medical examiner and the private podiatrist reviewed the service treatment records and both examined the Veteran. Further, both opinions appear to rest on generally accurate information. However, it bears noting that the VA examiner believed that the Veteran had been a mail carrier for 19 years when the Veteran had only actually been a mail carrier for 15 years at that time. Moreover, the VA examiner simply noted that the Veteran has spent time on his feet as a mail carrier and that no degenerative joint disease was noted in service so his in-service ankle sprain must have resolved. However, the VA examiner did not specifically evaluate the Veteran’s current disability in light of the in-service CT scan showing a lateral talar dome lesion. The podiatrist at the Foot and Ankle Institute of Colorado noted both the CT scan and its connection to the Veteran’s ankle sprains. The podiatrist explained how these, along with the current condition of the Veteran’s ankle, led him to conclude that there is a nexus between the Veteran’s current disability and his in-service injury. Thus, because the private physician is a podiatrist and his opinion was more fully articulated, the Board assigns more weight to the opinion of the private physician than the VA medical examiner. Moreover, the Board is required to give the benefit of the doubt to the Veteran when the evidence is equal. (Continued on the next page)   Accordingly, service connection for left ankle disability is granted. 38 U.S.C. §§ 1110, 1131, 1154(a); 5107 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.303 (2017). Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Shelton, Law Clerk