Citation Nr: 18154358 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 16-35 985 DATE: November 29, 2018 ORDER The petition to reopen the claim for entitlement to service connection for bilateral ankle disabilities is granted. REMANDED The claim for entitlement to service connection for bilateral ankle disabilities is remanded. FINDINGS OF FACT 1. The Veteran’s claim for service connection for bilateral ankle disabilities was denied by a decision of the Board of Veterans’ Appeals in March 1985, and that decision was not appealed. 2. Since the March 1985 decision, evidence was added to the record which was not previously considered by agency decisionmakers and which relates to an unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The March 1985 decision denying the Veteran’s claim for service connection for bilateral ankle disabilities is final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1103. 2. Evidence added to the record since the March 1985 decision is new and material, and the claim for entitlement to service connection for bilateral ankle disabilities is reopened. 38 U.S.C. § 5108(a); 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1979 to May 1983. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Prior to the instant claim, a March 1985 Board decision denied the Veteran’s claim for service connection for bilateral ankle disabilities. That decision was not appealed and therefore became final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1103. Generally, a claim that has been denied by an unappealed decision of the Board may not thereafter be reopened. 38 U.S.C. §§ 7104(b). Where new and material evidence is submitted regarding a claim with the same injury or disease, however, the claim must be reopened and readjudicated in consideration of the new and material evidence together with the evidence previously considered. 38 U.S.C. § 5108(a). “New” evidence means evidence not previously submitted to agency decisionmakers, 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. 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). The phrase “raises a reasonable possibility of substantiating the claim” is a “low threshold” that “must be viewed as enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). The March 1985 Board decision denied the Veteran’s claim indicating that ankle injuries in service had resolved by the time of his separation from service. Since the March 1985 Board decision, there is of record a February 2015 treatment record from a private orthopedic physician diagnosing the Veteran with bilateral ankle tendonitis. This evidence was not previously considered by agency decisionmakers, and it relates to the unestablished element of a current disability. The Board therefore finds this evidence is new and material sufficient to reopen the Veteran’s claim of service connection for bilateral ankle disabilities. Shade, 24 Vet. App. at 121; 38 U.S.C. § 5108(a). REASONS FOR REMAND Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1131. Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a nexus between the claimed in-service event, injury, or disease the present injury or disease. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.304. The Veteran contends that he suffers bilateral ankle disabilities caused by an injury in service in which a heavy drop tank unexpectedly fell. A March 1981 emergency treatment record within the Veteran’s service treatment records (STRs) documented that the Veteran presented for treatment reporting that a heavy drop tank fell on him. On objective examination, tenderness was noted over the Veteran’s left ankle. No diagnoses were made with respect to the ankles. An STR from June 1981 showed the Veteran sought treatment for a right ankle sprain incurred while playing basketball. An April 1983 separation examination evaluated the Veteran’s feet and lower extremities as normal. A July 1983 VA examination in connection with the Veteran’s original claim for service connection noted popping in the Veteran’s ankles during examination tests. The Veteran’s complaint at that time was that his ankle popped and locked when walking, and the examiner diagnosed the left ankle with residual stiffness and pain from an injury. VA treatment and outpatient records beginning in October 2015 and continuing to July 2017 show that the Veteran was treated for pain, popping, and cracking in his ankles, which he consistently attributed to the injury in service. A May 2016 VA examination in connection with the Veteran’s current claim diagnosed the Veteran with bilateral ankle sprain and calcaneal spur. The examiner reviewed the STRs, observing that the March 1981 emergency treatment record documented trauma to the left ankle but treated the Veteran only for a low back strain. Likewise, the examiner noted that while there was a June 1981 record of treatment for the Veteran’s right ankle for a sprain due to a sports injury, there were no medical records from the remainder of service or after service. Though the examiner did record a history of the Veteran’s statement that his ankles were injured by the falling drop tank and that his ankles had been painful, popping, and locking since the accident, the examiner ultimately found that “even after release from active duty there were no records that can substantiate his claim that he continued to have ankle condition[s]” and found the Veteran’s disabilities less likely than not caused by service. Private treatment records in 2015, 2016, and 2017 from the Veteran’s orthopedic physician remarked that the Veteran has experienced bilateral ankle pain for 25 years and diagnosed him with bilateral ankle tendonitis. The same physician in August 2016 opined that more likely than not these disabilities were due to service, though the opinion offered no reasoning to support its statement. The Veteran submitted a statement describing the March 1981 injury in which the drop tank fell and injured both ankles, his back, and his right hand. He related that since service his ankles have never been injured, and that the injuries he sustained in the military have worsened to the point of impairing his ability to work. The Board finds that the Veteran has a current disability in both ankles, as diagnosed by his private orthopedic physician and in VA treatment records. The Board also finds that the Veteran sustained an injury in service, as evidenced by STRs in which the Veteran detailed the drop tank incident as well as a sports injury. Unfortunately, the Board must remand for an addendum VA examination. The May 2016 VA examiner’s conclusion was based on his finding that there were no records “that can substantiate [the Veteran’s] claim that he continued to have ankle condition[s].” The Board notes that a “medical examiner cannot rely on the absence of medical records corroborating that injury to conclude that there is no relationship between the appellant’s current disability and his military service.” Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007). The Veteran is competent to report on the observable symptoms that he experiences, and a VA medical opinion should account for the Veteran’s own lay statements in rendering a nexus opinion. 38 C.F.R. § 3.159(a)(2); id. The Board acknowledges the opinion from the Veteran’s treating orthopedic physician that the Veteran’s ankle disabilities are attributable to service, but notes that the physician’s opinion is a bare conclusion without any supporting reasoning and does not indicate to what extent, if any, it considered the Veteran’s service records and post-service history. Thus, this opinion is of limited probative value as it lacks specificity and contains little rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). As a final matter, the Board notes that while the appeal was pending VA treatment records, including from the Loma Linda VAMC, as well as medical testing and opinions from the Veteran’s private doctor, Dr. A., have been newly associated with the record. The Board will direct the RO to readjudicate the Veteran’s claim after considering any new submissions, to include these. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from the May 2016 VA examiner, if available, or if unavailable from another appropriate clinician, regarding whether the Veteran’s bilateral ankle disabilities are at least as likely as not related to the in-service injuries described by the Veteran. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any provided opinion. The examiner must provide a rationale for any opinions expressed and reconcile any contradictory evidence of record. If the examiner is unable to render an opinion, he/she should so state with supporting rationale. 2. After completing the above, and any other development deemed necessary, readjudicate the Veteran’s claims based on the entirety of the evidence of record, including the evidence of record since the June 2016 statement of the case. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Davis, Associate Counsel