Citation Nr: 18159798 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 16-60 631 DATE: December 20, 2018 ORDER The petition to reopen the previously denied claim for service connection for residuals of a left ankle injury is denied. Service connection for a left foot condition is denied. REMANDED The claim for service connection for a right shoulder condition is remand. The claim for service connection for a neck condition is remanded. FINDINGS OF FACT 1. Service connection for residuals of a left ankle injury was previously denied in a July 2013 rating decision. 2. Evidence submitted since the July 2013 rating decision is new, however, the evidence is not material as it fails to raise a reasonable possibility of substantiating the claim for residuals of a left ankle injury, and would not trigger VA’s duty to assist where the claim reopened. 3. The preponderance of the evidence weighs against finding that the Veteran experienced an in-service event, injury, or disease related to his left foot separate and apart from his left ankle. CONCLUSIONS OF LAW 1. The criteria for reopening a previously denied claim for service connection for residuals of a left ankle injury have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5108, 7105; 38 C.F.R. §§ 3.156(a), 3.159, 20.1103. 2. The criteria for entitlement to service connection for a left foot condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1974 to October 1978. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Service connection can also be established on a secondary basis for a disability that is proximately due to, or the result of, a service connected disease or injury. 38 C.F.R. § 3.310(a). 1. Whether new and material evidence exist to reopen a claim for service connection for residuals of a left ankle injury The Veteran asserts that new and material evidence has been presented to reopen his claim for residuals of a left ankle injury. The Veteran filed an initial claim for service connection in October 2012. The claim was denied in a June 2013 rating decision. The regional office (RO) found that evidence was insufficient to establish a causal relationship between the Veteran’s claimed disability and his military service. The Veteran submitted a new claim for service connection in October 2014. The October 2014 claim simply identified the claimed disability, and standing alone, cannot be reasonably construed as expressing disagreement with the RO’s determination and a desire for appellate review. Gallegos v. Principi, 283 F.3d 1309 (Fed. Cir. 2002). The October 2014 submission simply requests service connection with no accompanying statements or assertions related to appeal or disagreement. Based on the information provided, the Board finds that the Veteran did not file a notice of disagreement, or submit any new and material evidence within the one-year appeal period, and that the June 2013 decision became final. The Veteran submitted a new application for service connection for a left ankle disability in October 2015, which was treated as request to reopen the previously denied claim. Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). An exception to the general rule allows for reopening where new and material evidence exists. 38 U.S.C. § 5108; Shade v. Shinseki, 24 Vet. App. 110 (2010). The evidence of record at the time of the June 2013 rating decision included service treatment records, one VA examination, and one VA examination opinion. The Veteran’s service treatment records indicate injury to his left ankle in 1976. In June 1976, the Veteran was assessed with soft tissue swelling without evidence of fracture or dislocation; x-rays were normal. In November 1976, the Veteran was noted to have sprained his left ankle while playing football. At that time, he demonstrated limited range of motion, without swelling, dislocation, or disfigurement. The March 2013 VA examination noted that the Veteran experienced a left ankle sprain as a result of playing basketball in 1976 during active service. He was noted to currently experience occasional sharp pain and limited activity. The Veteran was assessed with 35 degrees of plantar flexion and 15 degrees of dorsiflexion. These ranges of motion were without objective evidence of painful motion and were unchanged after three-time repetitive use testing. The Veteran did not experience functional loss or abnormal image studies (x-rays) with regard to the left ankle. The limited activity was noted as limited walking due to a painful right ankle condition. The June 2013 VA examination opinion found that the Veteran’s left ankle condition was less likely than not causally related to his military service. As rationale for the opinion, the examiner noted that the Veteran’s in-service injury was several decades prior and that the Veteran did not currently experience residuals of injury. Further the examiner noted that the Veteran’s left ankle was clinically normal as demonstrated by x-rays. Pertinent evidence received since the June 2013 rating decision includes VA treatment records and a written statement from the Veteran. An October 2008 VA treatment record indicates that the Veteran complained of a gout flare up in his left ankle. The Veteran was assessed with minor pain on dorsiflexion and plantar flexion. He was given a steroid injection to address his complaints. A January 2016 VA treatment record indicates that the Veteran has chronic pain with degenerative joint disease in multiple joints. The ankle is listed as one of the joints, but the record makes no distinction between the left or right ankle. In a December 2015 notice of disagreement, the Veteran stated disagreement with the denial finding and indicated that VA examination findings were conflicting because one exam found degenerative arthritis in his left ankle and the other found the left ankle was clinically normal. However, regardless of whether there is a current disability, the fact remains that there is no competent evidence even suggesting that the Veteran’s current ankle problems either began during or was otherwise caused by his military service. Moreover, both examinations were of record at the time the Veteran’s claim was previously denied, as such, this argument should have been raised in prosecuting that appeal. The Board finds that the evidence submitted since the June 2013 rating decision is new as it had not been previously considered. However, the evidence is not material. Neither the treatment records nor the Veteran’s lay assertions relate to an unestablished fact necessary to substantiate the claim. The current record contains neither medical nor lay evidence sufficient to establish a causal relationship between the Veteran’s claimed disability and his in-service left ankle injuries. While the new evidence is neither cumulative, nor redundant, it fails to raise a reasonable possibility of substantiating the Veteran’s claim. Accordingly, the previously denied claim of entitlement to service connection for a residuals of a left ankle condition remains closed. 2. Entitlement to service connection for a left foot condition. The Veteran is seeking service connection for a left foot condition. Service treatment records are silent for complaints or treatment for a left foot problem. Similarly, the Veteran’s entrance and separation examinations are silent for complaints or treatment for a left foot problem. Notably, the Veteran did not self-report any foot problems on the entrance and separation examinations, but does report other injuries. The first indication that the Veteran experiences a left foot problem is in October 2015 when the Veteran filed his claim for service connection. However, it was not until January 2016 written correspondence, that the Veteran asserted that he experienced left foot pain. The Board has carefully reviewed the evidence of record but finds that the absence of in-service complaints or treatment for a foot condition weighs against service connection. While the Veteran believes that his current left foot condition is related to service, he is not competent to provide an opinion in this case. The issue is medically complex, requiring knowledge of the body systems and medical diagnostic procedures. The Veteran has not been shown to possess the training or knowledge necessary to make a medical determination in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The evidence of record indicates that the Veteran did not experience an onset of left foot problems in service. Neither the objective medical record, nor the Veteran’s lay assertions indicate that he experienced left foot problems in service or consistently since his separation from service. Rather, the evidence of record indicates that the earliest that the Veteran experienced an onset of a left foot condition was October 2015, approximately thirty-seven years after separation from service. Such a significant delay in disability onset also weighs against service connection. Consequently, the Board gives more probative weight to the medical evidence of record to include service and VA medical records. Further, while the Veteran asserts entitlement to a VA examination, the record does not support such. The duty to assist includes providing an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability; the record indicates that the disability or signs and symptoms of disability may be associated with active service; but the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In this case, the evidence fails to establish an in-service event, injury, or disease. The record is silent for an indication based on signs of symptoms that the Veteran’s sensory neuropathy of the left lower extremity is associated with active service. As such, a VA examination is not warranted. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Based on the foregoing, the Board finds that service connection for a left foot condition is not warranted. REASONS FOR REMAND A July 1978 service treatment record notes a right shoulder and neck injury eight months prior. VA treatment records from 2012 and 2015 indicate complaints of right shoulder and neck pain. Additionally, a January 2016 VA treatment record indicates that the Veteran has degenerative joint disease of multiple joints and lists the shoulder and neck. The evidence of record indicates that the Veteran has a current disability and experienced an in-service injury of the right shoulder and neck, but no VA examiner has opined about the nature and etiology of the Veteran’s current disabilities. The matters are REMANDED for the following action: Obtain a VA examination to determine the nature and etiology of any right shoulder and neck disabilities. The examiner should determine whether the Veteran has a current neck and/or right shoulder disability, and if so should opine as to whether it is at least as likely as not (50 percent or greater) that the disabilities (a right shoulder condition and a neck condition) either began during or was otherwise caused by his military service include as a result of in-service treatment for a right shoulder and neck injury and in-service complaints of right shoulder and neck pain. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. I. Sims, Associate Counsel