Citation Nr: 18152250 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 15-00 558 DATE: November 21, 2018 ORDER The claim for service connection for a left ankle disability is reopened. REMANDED Service connection for a left ankle disability is remanded. FINDINGS OF FACT 1. The Veteran’s claim for service connection for a left ankle disability was denied in a September 1992 rating decision; the Veteran did not perfect an appeal of that decision. 2. New and material evidence has been received since the September 1992 rating decision with respect to the claim for a left ankle disability. CONCLUSIONS OF LAW 1. The September 1992 rating decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.1103 (2017). 2. The criteria for reopening the claim for service connection for a left ankle disability are satisfied. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from August 1970 to September 1970. New and Material Evidence A determination on a claim by the agency of original jurisdiction of which the claimant is properly notified is final if no notice of disagreement (NOD) is filed within the prescribed time period, or an appeal is not perfected pursuant to 38 C.F.R. § 20.302. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103; see 38 C.F.R. §§ 20.200, 20.201, 20.302 (2017) (setting forth requirements and timeframe for initiating and perfecting an appeal). To reopen a previously and finally disallowed claim, new and material evidence must be submitted by the claimant or secured by VA with respect to that claim since the last final denial, regardless of the basis for that denial. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). New and material evidence is defined as follows. “New evidence” means evidence not previously submitted to agency decision makers, and “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). To warrant reopening, the new evidence must neither be 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 must raise a reasonable possibility of substantiating the claim. Id. In determining whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). If new and material evidence is received within one year after the date of mailing of an RO decision, it prevents that decision from becoming final. 38 C.F.R. § 3.156(b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009). Left Ankle Disability Although the RO has reopened the claim, the Board must determine independently whether new and material evidence is of record to reopen the claim as a matter of its jurisdiction. See Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). For the following reasons, the Board finds that new and material evidence has been submitted to reopen the claim for a left ankle disability. Service connection for a left ankle condition was last denied in the September 1992 rating decision. The Veteran was notified of the decision and his appellate rights in a September 1992 letter. See 38 U.S.C. § 5104 (2012); 38 C.F.R. §§ 3.103, 19.25 (2017). He submitted a timely notice of disagreement (NOD), but did not perfect the appeal following issuance of a statement of the case (SOC), which was mailed to him on August 6, 2013. See 38 C.F.R. §§ 20.200, 20.202, 20.302. In this regard, he submitted a statement received by VA on October 7, 1992, in which he wrote, in part, that he wished to reopen his case, and had further information to submit. See October 1992 VA Form 21-4138. The Board finds that this statement did not constitute a substantive appeal, or a request for an extension of the time period for submitting a substantive appeal. See 38 C.F.R. § 20.202 (2017) (required content of a substantive appeal). In October 1993, the RO sent the Veteran a letter informing him that the 60-day time period for filing a substantive appeal had ended on October 6, 1993 (i.e. 60 days from the August 2013 SOC). The letter further states that because the Veteran’s statement “which could be construed as a substantive appeal,” was received on October 7, 1993, the appeal was closed and the rating decision was final. The Veteran was informed of his appellate rights in that letter, but did not appeal this determination. The RO’s finding that the appeal period ended on October 6, 1993, rather than October 7, 1993, was likely error. See 38 C.F.R. § 20.305(b) (1993); see also 38 C.F.R. § 20.302(b) (1993). Nevertheless, as stated above, the Board finds that the Veteran’s October 1993 statement did not constitute a substantive appeal. Thus, regardless of whether the RO’s October 1993 letter was in error regarding the timeframe for submitting the substantive appeal, and therefore potentially misleading, because it was dated after the appeal period had expired, and because the Veteran had not submitted a substantive appeal by that time, any error was harmless. Finally, the Veteran did not submit new and material evidence within one year of the date of mailing of the September 1992 rating decision. See 38 C.F.R. § 3.156(b). Accordingly, the September 1992 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Since the September 1992 rating decision was issued, the Veteran has submitted additional statements and witness testimony regarding his ankle problems during and since service. This evidence is new and not merely cumulative of evidence previously of record. It relates to the issue of aggravation and, in concert with evidence previously of record, raises a reasonable possibility of substantiating the claim. Accordingly, new and material evidence has been submitted to reopen the claim for a left ankle disability. See 38 C.F.R. § 3.156(a). REASONS FOR REMAND A new VA medical opinion is warranted. The Veteran’s July 1970 entrance examination report reflects a normal clinical evaluation of the Veteran’s feet and lower extremities. In the July 1970 report of medical history, it was noted that the Veteran had a history of a fractured left ankle, which had healed. Thus, his left ankle is presumed sound at entry. See 38 C.F.R. § 3.304. In a September 1970 service treatment record, the Navy medical review board reported that the Veteran sought treatment for left ankle pain and swelling following a day of marching in August 1970. The examiner reported that the Veteran was diagnosed with disruption ankle mortise on the left, symptomatic, and probably traumatic arthritic of the left ankle. The examiner stated that, by the Veteran’s own admission, he was in good health until May 1968 when he fell from a moving vehicle and sustained a fractured ankle. The examiner noted that, following the Veteran’s convalescence, the Veteran enjoyed full range of motion of the left ankle and experienced adequate strength for ordinary ambulation; however, he avoided running and jumping since the stresses caused swelling and pain of the left foot and ankle. The examiner noted that the Veteran mentioned a previous left ankle condition at the time of enlistment. The medical board confirmed the aforementioned diagnoses, determined that the Veteran did not meet the standards of enlistment, found the Veteran unfit for further Naval service by reason of disability, and determined that the physical disability was neither incurred in, nor aggravated by, a period of active military service. The medical board noted that the Veteran had been informed of the content of the report and did not desire to submit a statement in rebuttal. In an August 1992 VA examination, the Veteran reported that he his left ankle was aggravated by basic training in military service. He also reported that it becomes painful when he walks. The Veteran also reported that the swelling has prevented him from doing several jobs which require prolonged standing, walking or climbing ladders. The examiner stated that imaging showed early spur formation demonstrated off the plantar surface of the calcaneus. The examiner also found irregular bony density, along the lateral aspect of the distal tibia which appeared to be most consistent with an-old bony injury, as there is some ectopic bone formation noted. The examiner noted that no other significant abnormalities were seen. The examiner also stated that no evidence of acute bone injury was noted. In a February 2013 lay statement, the Veteran wrote that his left ankle was aggravated in service. He pointed out that he had no pain or swelling when he arrived for service, and he was accepted into the military. The Veteran went on to note that the medical review board opinion stated that x-rays revealed derangement of the ankle mortise with widening of the talus transversely. The Veteran further noted that the medical survey officer recommended separation from service due to his medical history and the difficulty the Veteran had. A VA examination was performed in April 2013. The examiner rendered a current diagnosis of mild arthritic changes left ankle. The examiner opined that the left ankle disability, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. While the opinion is adequate regarding the pre-existence of a left ankle condition, the Board finds it is not sufficient to make an informed decision on the issue of aggravation. To rebut the presumption of sound condition, there must be clear and unmistakable evidence that the Veteran’s left ankle condition was not aggravated by active service. See 38 C.F.R. § 3.304(b). The VA medical opinion emphasizes the fact that x-ray findings during service showed arthritic changes that indicated trauma prior to service and were not evidence of an acute inflammatory or traumatic process, or consistent with an injury from a few days of marching in service. While the x-ray findings during service showed changes consistent with trauma prior to service rather than in service, according to the examiner, the opinion does not address whether the Veteran’s pain and swelling of the ankle after marching, and which was not present at entrance, indicated an aggravation of the pre-existing trauma-related changes or a distinct injury. The opinion must account for this history in determining whether it is clear and unmistakable that the pre-existing left ankle condition was not aggravated by service. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion, as specified below. The examiner is asked to provide an opinion as to whether it is clear and unmistakable (obvious or manifest) that the Veteran’s pre-existing left ankle condition was not aggravated by service. While the x-ray findings during service clearly showed pre-existing arthritic changes indicative of trauma prior to service (as found in the April 2013 opinion), the examiner must specifically address the Veteran’s pain and swelling following a day of marching, when his ankle had previously been asymptomatic, and also consider whether there was a distinct injury or condition manifested by pain and swelling incurred in service to which the Veteran’s ankle was predisposed by virtue of the prior, underlying condition. If the examiner finds that it is not clear and unmistakable that the Veteran’s pre-existing left ankle condition was not aggravated by service, or finds that there was a distinct disease or injury manifested by pain and swelling from the marching exercises, the examiner must provide an opinion as to whether there is a medical link between the Veteran’s current left ankle disability and the disease or injury incurred in service. J. Rutkin Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Ford, Associate Counsel