Citation Nr: 1807385 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-25 455 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left ankle disability. 2. Entitlement to service connection for a left ankle disability. 3. Entitlement to service connection for a right ankle disability, to include as secondary to a left ankle disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. P. Keeley, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from July 1988 to January 1990. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board notes that jurisdiction of these matters has since transferred to the RO in New Orleans, Louisiana. The Board notes that the Veteran's original claims folder was lost, and a rebuilt folder was created. See June 2008 VA memorandum. The Veteran testified before the undersigned Veterans law Judge (VLJ) at an August 2017 Travel Board hearing. A transcript of that hearing has been associated with the claims file. This is a paperless appeal located on the Veterans Benefits Management System (VBMS), Virtual VA paperless claims processing system, and Caseflow Reader. The Board has reviewed the electronic records maintained these systems to ensure consideration of the totality of the evidence. The issues of entitlement to service connection for left and right ankle disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In an unappealed July 2008 rating decision, the RO denied service connection for a left ankle disability. 2. Lay statements from the Veteran in the December 2009 VA examination were not received prior to July 2008 and are neither cumulative nor redundant of the evidence at the time of the July 2008 rating decision and assuming their credibility raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW 1. The July 2008 rating decision denying service connection for a left ankle disability is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1103 (2017). 2. The evidence received for service connection subsequent to the July 2008 rating decision is new and material to reopen service connection for a left ankle disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156 (1), 3.303, 20.1105 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 C.F.R. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In this case, as to the claim of reopening for entitlement to service connection for a left ankle disability, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. New and Material Evidence Law and Analysis As stated above, the Board notes that the Veteran's original claims folder was lost, and a rebuilt folder was created. In October 2007, VA received a claim to reopen service connection for a left ankle disability from the Veteran, and in March 2008, VA notified the Veteran of such and requested copies of claims documents in his possession. In a July 2008 decision, the RO denied the Veteran's claim. VA received a claim to reopen service connection for the left ankle disability from the Veteran in September 2009. In a March 2010 rating decision, the RO reopened the Veteran's claim for a left ankle disability and denied it on the merits. Regardless of the RO's actions, the Board has jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened. See, Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c)). See also, Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92 (March 4, 1992). Accordingly, the Board must initially determine whether there is new and material evidence to reopen the issue before proceeding to adjudicate the underlying merits of the claim. If the Board finds that no new and material evidence has been provided, that is where the analysis must end. Generally, a claim which has been denied in a final unappealed rating decision, or a rating decision that was appealed but was not perfected, may not thereafter be reopened and allowed. 38 U.S.C. §§ 7105 (c), (d)(3); 38 C.F.R. § 20.1103. A previously denied claim may be reopened by the submission of new and material evidence. See 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156. 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. 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 Veteran was afforded a VA joints examination in December 2009. The Veteran reported left ankle symptoms of instability, pain above the lateral malleolus, constant effusions, and swelling. The examiner noted the Veteran has a history of left ankle sprains dating from the Veteran's active service and continuing to the present, and that the Veteran reported being seen by doctors annually for the first few years after his discharge. The Board finds that these statements by the Veteran were not previously submitted to VA before the July 2008 rating decision and are therefore "new" evidence. The Board will now turn to a discussion of whether this new evidence is "material." The Board is aware that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Pursuant to Shade, evidence is considered material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. Moreover, the Court of Appeals for Veterans Claims ("Court") explained this standard is intended to be a low threshold. Id. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The new evidence received subsequent to the July 2008 rating decision includes current symptoms of a left ankle disability as well as reports of ongoing symptoms since the Veteran's discharge. The Board finds that, assuming its credibility for purposes of deciding whether to reopen the claim, this lay evidence of record constitutes new and material evidence to reopen the claim for entitlement to service connection for a left ankle disability. This new evidence addresses a requirement of service connection that was previously denied; a nexus linking the Veteran's current left ankle disability and his in service ankle injury. Therefore, this new evidence is material and the Veteran's claim for a left ankle disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). ORDER New and material evidence having been received, the claim of entitlement to service connection for a left ankle disability is reopened. REMAND The Veteran maintains that he is entitled to service connection for his left and right ankle disabilities. The Veteran was afforded a VA joints examination in December 2009. The Veteran stated that he is unable to stand for more than a few minutes or walk more than a few yards. The Veteran reported intermittent use of a cane. The examiner diagnosed and "old" bilateral ankle sprain with no residuals. The examiner noted that no degenerative join disease was indicated on the x-rays. The examiner opined that the Veteran's bilateral ankle complaints are not caused by or a result of his military service, noting that his injuries in service were "minor ankle sprains". As a rationale, the examiner stated that "[a]s rust on a pipe indicates that a water leak is old then spurring around the joint (DID) indicates an Orthopedic problem is old and there is NO such change indicating an old injury noted on xray studies and in fact he has NORMAL xrays 20+ yrs after injuries". When VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). Here, the examiner's opinion and rationale are cursory and do not address the Veteran's reported symptoms of inability to stand or walk for longer than short distances or periods of time. As such, the examination is inadequate and these matter must be remanded for a new, adequate examination. Furthermore, the Board notes the Veteran testified at a March 2014 Decision Review Officer (DRO) hearing that he first injured his left ankle in 1989 while on active duty and had to wear a cast and was eventually medically discharged. The Veteran stated that he has had problems with his left ankle ever since and that, due to him shifting weight to compensate, his right ankle began deteriorating. On remand, the examiner should offer an opinion as to secondary causation or aggravation for any right ankle disability. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records. All records obtained must be associated with the claims file. 2. After, and only after, completion of step one above, arrange for the Veteran to undergo a VA examination with an appropriate physician to determine the nature and etiology of the Veteran's left and right ankle disabilities. The examiner must review the Veteran's claims file and elicit a full history from the Veteran regarding the symptoms of his claimed left and right ankle disabilities to determine their nature and etiologies. All necessary tests and studies should be accomplished, and all pertinent symptoms and clinical findings should be reported in detail. After the record review, and a thorough examination and interview of the Veteran, the VA examiner should offer opinions addressing the following: Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's claimed left ankle disability had its clinical onset during active service or is otherwise related to any in service disease, event, or injury. Is it clear and unmistakable (i.e. undebatable) that any left ankle disability diagnosed pre-existed active service? In that regard, the examiner is invited to consider the lay evidence, service treatment records detailing in-service treatment for a left ankle injury, and the Veteran's entrance physical. Please state upon what facts and medical principles the opinion is based. If so, state whether it is clear and unmistakable (obvious, manifest, and undebatable) that a left ankle disability WAS NOT aggravated (i.e., permanently worsened) during service or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase was due to the natural progress of the disease. Please state upon what facts and medical principles the opinion is based. Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's claimed right ankle disability had its clinical onset during active service or is otherwise related to any in service disease, event, or injury. Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any diagnosed right ankle disability is caused or aggravated by a left ankle disability. The examiner's attention is invited to the Veteran's statement that due to him shifting weight to compensate for his left ankle, his right ankle has deteriorated. The examiner's attention is invited to the Veteran's statement that he did not have any ankle injuries prior to his military service. All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. 3. If, after completing the requested actions and all additional development deemed warranted, the benefits sought remain denied, furnish to the Veteran a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs