Citation Nr: 18148223 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 16-14 279 DATE: November 7, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for a right ankle disability is reopened. FINDINGS OF FACT 1. A Rating Decision was made regarding the Veteran’s right ankle injury in April 2006 and that decision was final due to lack of a notice disagreement by the Veteran submitted within one year. 2. The Veteran submitted new and material evidence in order to reopen the claim. CONCLUSIONS OF LAW 1. The Board decision made in April 2006 which denied service connection for a right ankle injury is final. 38 U.S.C. §§ 7104(b) (2012); 38 C.F.R. §§ 20.100 and 20.302 (2018). 2. As evidence received since the Board decision made in April 2006 is new and material, the criteria for reopening the claim for service connection for a right ankle injury is met. 38 U.S.C. §§ 5108 and 7105 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable service with the United States Army from January 1998 to October 2005. The Veteran appeals their rating decision from October 2013 from St. Petersburg, Florida. No hearing was requested. The Veteran submitted a VA Form 9, otherwise known as an “Appeal to the Board of Veterans’ Appeals.” On this form the Veterans indicated in the proper box that they wanted to appeal all the issues listed on the statement of the case. However, the Veteran then goes on, in specific detail, about the one issue before the Board here. Because the Veteran specifically notes one single issue versus the eleven issues listed on the statement of the case, the Board of Veterans Appeals will only consider that single issue here. VA has a duty to notify and assist a claimant in the development of a claim. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2018). Compliant VCAA notice was provided in September 2012. In addition, the Board finds that the duty to assist a claimant has been satisfied. The Veteran’s service treatment records are on file, as are various post-service medical records. VA examinations were conducted and medical opinions obtained. Service Connection 1. New and Material Evidence-Right Ankle If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108 (2012). Such “new evidence [includes] 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. 38 C.F.R § 3.156(a) (2018). A determination by the VA, in the form of a Ratings Decision from April 2006, denied the Veteran of service connection for his right ankle injury. That decision was made final when the Veteran failed to file a Notice of Disagreement within one year from the date the determination was mailed. 38 C.F.R. § 20.302 (2018). A subsequent Rating Decision from April 2008 denied reopening the right ankle claim since there was no new and material evidence. Evidence of note that was considered in April 2008 includes a failure to report for a C&P Examination from March 2008, Service Treatment Records from January 1998 to December 2005, and VA outpatient treatment records from December 2006 to February 2008. These documents did not bear new or material evidence. The Service Treatment Records note that the Veteran injured his right ankle in service. The other applicable evidence shows that the Veteran did not show up for his appointments. The Veteran was told about his duty to assist and if he had any evidence, he should submit it. No other evidence was received. The claim remained denied because the Veteran did not submit any new and material evidence. Once a decision is final, the claim can only be reopened with the introduction of new and material evidence. The May 2014 “Report of Consultation and Examination” by a private physician is one such piece of evidence. This is new evidence that was not submitted to agency decision makers by April 2008. The evidence is also material in that it relates to an unestablished fact necessary to substantiate the Veteran’s claim. The Report states that the Veteran’s ankle has given out on occasion and has caused the Veteran to fall multiple times. The failing of the ankle was not noted in medical examinations that the April 2008 Rating Decision relied on. The same doctor made an addendum in October 2014 to the Report stating that after reviewing the service records, in his professional opinion, that the right ankle condition as diagnosed is directly and causally related to the injury suffered while on active duty. The Report and its addendum are material in that it relates to a previously unestablished fact that the Veteran’s range of motion in his ankle is limited and that the ankle has given out multiple times, causing the Veteran to fall. 38 C.F.R. § 3.156 (2018). There is also a VA Examination (VAX) that is both new and material. The exam took place in September 2013 and thus post-dated the Final Rating Decision from 2008. The VAX contained material evidence of an unestablished fact that would help substantiate the claim. The Disability Benefits Questionnaire (DBQ) that was administered as part of the examination showed that the Veteran had decreased right ankle flexing and extending. The DBQ also notes that the Veteran suffers pain when flexing or extending his ankle. The VAX is new and material in that it relates to a previously unestablished fact that the Veteran’s range of motion is limited and also causes him pain with its movement. 38 C.F.R. § 3.156 (2018). Finally, a VA Examination covering a range of dates from April 2012 to January 2016, are also new as they were not available to decision makers before April 2008. The evidence within the VA Examination is also material. During a period from September-October 2014, the Veteran complained of right ankle pain for which he has been seen twice for. During the September telecare appointment, the Veteran stated that the pain has been continuing for 10 days at that point. The nurse also made note that the pain was worsening and that the Veteran should consider going to the ER. This evidence has the ability to substantiate the claim as it relates to a previously unestablished fact. 38 C.F.R. § 3.156 (2018). The Rating Decision that was made final in April 2006 is reopened in light of this new and material evidence. 38 U.S.C. § 5108 (2014); Justus v. Principi, 3 Vet. App. 510, 513 (1992). REMANDED The Veterans claim for service connection for a right ankle condition is remanded. REASONS FOR REMAND Right Ankle Condition is remanded. The Veteran claims their right ankle injury should be service connected. When considering the evidence as a whole, neither supportive nor detracting evidence bears enough weight to rule definitively on the Veteran’s claim. Therefore, the case must be remanded for further consideration. The most pertinent evidence here is a private medical opinion from May 2014. The opinion, along with its addendum from October 2014, support the Veteran’s claim that he injured his ankle in service and that he currently suffers from that injury presently. The private physician states that “[his] professional opinion[,] that it is more likely than not that the right ankle condition as diagnosed is directly and causally related to trauma as discussed during the active duty military service…” However, this physician does not give any other rationale outside of his opinion. A Disability Benefits Questionnaire (DBQ) from September 2013 is least supportive of the Veteran’s claim. The exam shows that pain did not occur until the greatest range of motion was attained; 45 degrees and 20 degrees, respectively. Furthermore, the ankle was noted to achieve a 4/5 when testing its dorsiflexion compared to a 5/5 for the left, unaffected, ankle. However, when summarizing the examination, the Examiner only notes that the “strains that occurred in 1998 were not severe enough to result in problems with the ankle joint today.” There is nothing more than a presumed rationale here to support a denial of the Veterans claim. Since there is an absence of definitive evidence to support the Veteran’s claim for service connection for their right ankle disability, the case must be remanded for further consideration. The matters are REMANDED for the following action: 1. The AOJ should undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claim. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should clearly be documented in the record and the Veteran so notified in accordance with 38 C.F.R. § 3.159(e) (2018). Once the aforementioned development is complete, schedule the Veteran for a VA Examination with an appropriate VA physician to assess the nature and etiology of any identified and acquired disorders of the ankle. The examiner must review the entire claims file, including a copy of this remand. The examiner must consider the Veteran’s lay reports of observable symptomatology. After a thorough review of the record is complete, the examiner must respond to the following: (a.) List any and all disorders of the ankle with which the Veteran is presently diagnosed. (b.) For each acquired disorder of the ankle, opine as to whether it as least as likely as not (50 percent or great probability) that the Veteran’s acquired psychiatric disorder had its onset during active duty service, is related to an incident of service, or began within one year after discharge from active service. 2. The examination report should specifically state that a review of the records was conducted. The examiner should provide a complete rationale for all opinions provided. (Continued on the next page)   3. If an opinion cannot be provided without resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case, and identify what additional evidence, if any, would allow for a more definitive opinion. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. N. P. Jochem, Associate Counsel