Citation Nr: 18154257 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 16-25 962 DATE: November 29, 2018 ORDER New and material evidence has been received that is sufficient to reopen the service connection claim for a right ankle disability. New and material evidence has been received that is sufficient to reopen the service connection claim for a left ankle disability. REMANDED Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD), is remanded. FINDINGS OF FACT 1. In the June 2009 rating decision, the Regional Office (RO) denied the Veteran’s service connection claim for a right and left ankle disability on the grounds that he did not have a current diagnosis for either ankle. 2. The Veteran did not appeal the RO’s June 2009 rating decision within one year, nor was any new and material evidence received within one year. 3. Additional evidence received since the RO’s June 2009 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for a right and left ankle disability, and raises a possibility of substantiating the claim of entitlement to service connection for a right and left ankle disability. CONCLUSIONS OF LAW 1. The June 2009 rating decision denying entitlement to service connection for a right and left ankle disability is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2018). 2. New and material evidence has been received since the June 2009 rating decision sufficient to reopen the service connection claim for a right and left ankle disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Marine Corps Reserve from August 2000 to May 2008, with periods of active duty, including in relevant part, from August 2000 to May 2001, January 2005 to January 2006, and during the month of August 2007. In the June 2009 rating decision, the RO denied entitlement to service connection for a right and left ankle disability on the grounds that that the Veteran did not have a current disability. The Veteran did not appeal the June 2009 rating decision, nor was any new and material evidence received within one year. As a result, the June 2009 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. A claim that has been finally adjudicated, such as the June 2009 rating decision in this case, may only be reopened by submitting new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is considered “new” if it was not previously submitted to agency decision makers. “Material” evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact 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 prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In August 2013, the Veteran submitted a claim to reopen the June 2009 rating decision that denied service connection for a left and right ankle disability. See August 2013 VA Form 21-526EZ. In March 2014, the Veteran submitted private treatment records indicating a bilateral ankle disability diagnosed as joint pain. See January 2009 report from Dr. M.G. This evidence was not before adjudicators when the Veteran’s claim was denied in June 2009, and it is not cumulative or redundant of the evidence of record at the time of that decision. Additionally, it relates to the unestablished facts necessary to substantiate the claim for service connection, and raises a reasonable possibility of substantiating the claim. As new and material evidence has been received since the June 2009 rating decision, the previously denied claim of entitlement to service connection for a right and left ankle disability is considered reopened. The Board finds further development, addressed in the remand section below, is warranted before the Veteran’s claim of entitlement to service connection for a left and right ankle disability may be adjudicated. REMANDED ISSUES 1. Ankle Disability The Veteran claims entitlement to service connection for a right and left ankle disability. The Board observes the Veteran sought treatment for right ankle injuries on multiple occasions during his active service. See September 2000, September 2005 and November 2005 service treatment records. Additionally, the Board observes that the Veteran injured his left ankle while on active duty for training in August 2007, and had decreased range of motion on examination and was diagnosed with tendonitis. See August 2007 service treatment records; see also private treatment records from August and September 2007, and January 2008. The Veteran was afforded a VA ankle examination in November 2008, which found no current diagnosis for either ankle based on normal radiographic and physical findings. However, the Veteran has a history or recurrent sprains, a prior diagnosis of left ankle tendonitis, and consistently complained of pain in his right and left ankle. The Board finds that remand is appropriate given the United States Court of Appeals for the Federal Circuit holding that pain alone, without an underlying diagnosis, may be considered a disability for VA purposes if that pain contributed to functional loss. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). 2. Acquired Psychiatric Disorder The Veteran filed a claim for PTSD in August 2013. The Veteran submitted private treatment records indicating a diagnosis of PTSD; however, the providers did not report the use of any psychological testing in order to substantiate the Veteran’s diagnosis of PTSD. See October 2014 correspondence from Psychiatric-Mental Health Nurse Practitioner R.L., April 2016 correspondence from Dr. A.R., and April 2016 Psychiatric Record from Dr. E.B. The Veteran was afforded a VA examination in May 2014, and again in September 2018. Both VA examiners acknowledged that the Veteran endorsed a Criterion A stressor while in the military, but determined that he did not meet the criteria for a diagnosis of PTSD based on the clinical interview and objective personality testing under the DSM-5. The Board observes that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the Veteran’s description of the claim and reported syndromes and all other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The evidence of record indicates the Veteran has been diagnosed with Adjustment Disorder and Unspecified Depressive Disorder during the period on appeal. See August 2013 VA mental health note, May 2014 and September 2018 VA PTSD examination. Accordingly, the Board finds that it is more appropriate to characterize the Veteran’s mental health claim broadly, as a single claim of entitlement to service connection for an acquired psychiatric disorder. The September 2018 VA examiner opined that the Veteran’s current mental health diagnosis of Unspecified Depressive Disorder is not the result of an in-service stressor related event. The Board finds this medical opinion inadequate for adjudication purposes because it focuses only on whether the Veteran’s mental health diagnosis is the result of an in-service stressor related event, and does not address whether his mental health diagnoses were incurred in service. Additionally, the Board observes that the September 2018 medical opinion relies heavily on the absence of clinical evidence of a mental health condition in service, and lack of complaints or treatment following service. In this regard, a medical opinion is inadequate if it is based solely on the absence of documentation in the record and does not take into account the Veteran’s reports of symptoms and history. Dalton v. Peake, 21 Vet. App. 23 (2007). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination of the ankles. The Veteran’s claims file must be made available to, and reviewed by the examiner or examiners. The examiner(s) must take a history from the Veteran as to the progression of each claimed disability. Upon review of the record, interview and examination of the Veteran, the appropriate examiner or examiners should respond to each of the following: (a). Please identify each right and left ankle disability, recognizing that even if symptoms cannot be attributed to a particular diagnosis, if symptoms such as pain cause functional impairment of the ankle, such will still constitute a disability for VA purposes. (b). With respect to the right ankle, is it as least as likely as not (50 percent or greater probability) that any right ankle disability had onset in, or is otherwise related to the Veteran’s period of active duty service, to specifically include the right ankle injuries documented in his service treatment records from August and September 2000, and September and November 2005? (c) With respect to the left ankle, is it as least as likely as not (50 percent or greater probability) that any left ankle disability had onset in, or is otherwise related to the Veteran’s period of active duty service, to specifically include the left ankle injury documented in his August 2007 service treatment record, and private treatment records from August and September 2007, and January 2008. 2. Please identify (by diagnosis) each psychiatric disorder found to be present during the appeal period from August 8, 2013. For each psychiatric disorder found, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the psychiatric disorder had its clinical onset during active service or is otherwise related to service. Additionally, the examiner must consider the Veteran’s statements regarding the progression of his symptoms since service. Responses to the medical opinions above should be supported with a clinical explanation or rationale. 3. Readjudicate all issues on appeal with consideration of all evidence of record. If any of the claims are denied, issue a supplemental statement of the case to the Veteran and his representative. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Mask, Associate Counsel