Citation Nr: 18148868 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-06 325 DATE: November 8, 2018 ORDER New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for a right ankle disorder is granted. REMANDED Entitlement to an initial compensable rating for a left knee disorder based upon instability prior to November 21, 2015, and in excess of 10 percent thereafter, is remanded. Entitlement to a rating in excess of 10 percent for a left knee disorder based upon limitation of motion prior to November 21, 2015, and in excess of 30 percent thereafter, is remanded. Entitlement to service connection for a right ankle disorder is remanded. Entitlement to service connection for a right foot disorder is remanded. FINDINGS OF FACT 1. In a June 2007 rating decision, the claim of entitlement to service connection for a right ankle disorder was denied because new and material had not been received since the last prior final denial. 2. The evidence added to the record since the June 2007 rating decision relates to an unestablished fact that is necessary to substantiate the claim of service connection for a right ankle disorder. CONCLUSIONS OF LAW 1. In a June 2007 rating decision, the claim of entitlement to service connection for a right ankle disorder was denied because new and material had not been received since the last prior final denial. 2. The evidence added to the record since the June 2007 rating decision relates to an unestablished fact that is necessary to substantiate the claim of service connection for a right ankle disorder. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1998 to February 1999. The Board observes that the Veteran withdrew his request for a Board hearing in a September 2018 correspondence. The Board notes that the Veteran has requested that the Board wait the full 90 days under 38 C.F.R. §§ 20.1304 prior to issuing a decision. However, given that the Board is deciding only one issue on appeal, which is a full grant of the benefits sought on appeal, and remanding the remaining issues, there is no prejudice to the Veteran by not granting the Veteran’s request. New and Material Evidence Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a right ankle disorder In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999); Manio v. Derwinski, 1 Vet. App. 140 (1991). Under the relevant regulation, “new” evidence is defined as 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. If it finds that the submitted evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low, and consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied. Rather, consideration should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). In this case the Veteran is claiming entitlement to service connection for a right ankle disorder. The Veteran’s claim was previously denied by the RO in June 2007 on the basis that new and material evidence was not added to the record since the last prior final denial. He did not appeal this decision, nor did he submit any new and material evidence within a year of receiving the decision. See Buie v. Shinseki, 24 Vet. App. 242 (2011). This represents the last final denial of the claim. After a review of the evidence submitted since the June 2007 rating decision became final, the Board determines that the claim should be reopened. The evidence now includes new medical evidence, including a new VA examination and medical treatment records, which raises the possibility that his right ankle disorder is related to his active duty service. Not only is this evidence “new” in that it was not of record prior to the last final denial of the claims, it is also “material,” as it relates to an unestablished fact necessary to support the claim. Namely, it shows that there may be a nexus between his right ankle disorder and the Veteran’s active duty service. Therefore, the claim should be reopened on this basis. REASONS FOR REMAND 1. Entitlement to service connection for a right ankle disorder is remanded. 2. Entitlement to service connection for a right foot disorder is remanded. In December 2015 VA examination, the examiner opined that the Veteran’s right ankle and right foot disorders were not related to his service-connected bilateral knee disabilities. However, he did not offer any opinions as to whether these disorders were directly caused by or otherwise etiologically related to service. As such, these opinions are inadequate and a new addendum opinion is necessary to determine if the Veteran’s right ankle and right foot disorders are directly related to service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 3. Entitlement to an initial compensable rating for a left knee disorder based upon instability prior to November 21, 2015, and in excess of 10 percent thereafter, is remanded. 4. Entitlement to a rating in excess of 10 percent for a left knee disorder based upon limitation of motion prior to November 21, 2015, and in excess of 30 percent thereafter, is remanded. The Veteran was afforded a VA examination in September 2018 to assess the nature and severity of his service-connected bilateral knee disabilities. Nevertheless, this examination was not considered by the RO in its most recent January 2016 statement of the case (SOC). Similarly, medical treatment records have been obtained since January 2016 and have not been considered by the RO. Therefore, as the Veteran did not waive initial RO consideration of this evidence, a remand is required in order for the RO to consider the evidence and for the issuance of an appropriate supplemental statement of the case (SSOC). 38 C.F.R. § 20.1304 (c). The matters are REMANDED for the following action: 1. Obtain any and all treatment records from the VA Medical Center in Long Beach, California, since June 2018, and any other VA facility from which the Veteran has received treatment. If the Veteran has received additional private treatment, he should be afforded an appropriate opportunity to submit them. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his left knee disorder. The claims folder must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. Specifically, the examiner should address in detail the additional functional impairment and range of motion loss due to factors such as pain, weakened movement, excess fatigability, incoordination, and flare-ups. The examiner must estimate any additional loss of motion to the best of his or her ability. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. 3. Schedule the Veteran for an examination by an appropriate clinician to determine to nature and etiology of his right ankle and right foot disorders. The examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s right ankle and right foot disorders are etiologically related to the Veteran’s period of service. The examiner should also provide an opinion as to whether it is at least as likely as not that the right ankle and right foot disorders were caused or aggravated by service-connected disability. (Continued on the next page)   4. If the examiner cannot provide the requested opinion without resorting to mere speculation, he or she should provide a complete explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Meyer, Associate Counsel