Citation Nr: 20005535 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 15-34 773 DATE: January 23, 2020 ORDER New and material evidence having been received, the application to reopen the previously denied claim for service connection for a right ankle disability, to include a right ankle sprain with degenerative joint disease, is granted. Entitlement to service connection for a right ankle disability, to include a right ankle sprain with degenerative joint disease, is granted. FINDINGS OF FACT 1. In a September 2000 decision, the Board denied service connection for a right ankle condition. 2. Evidence submitted since the September 2000 Board decision is neither cumulative nor redundant of the evidence previously of record, it addresses an unestablished fact necessary to decide the claim, and therefore raises a reasonable possibility of substantiating the claim of service connection for a right ankle disability. 3. The competent and probative evidence is at least evenly balanced as to whether the Veteran has a current right ankle disability that is related to an in-service injury. CONCLUSIONS OF LAW 1. The September 2000 Board decision is final. 38 U.S.C. § 7104; 38 C.F.R. §§ 3.156 (b), 20.1103. 2. As new and material evidence has been received since the Board’s September 2000 decision, the previously denied claim of service connection for a right ankle disability, to include a right ankle sprain with degenerative joint disease, is reopened. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156. 3. Resolving all doubt in the Veteran’s favor, the criteria for entitlement to service connection for a right ankle disability have been met. 38 U.S.C. §§ 1101, 1111, 1131 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1984 to December 1988. This case is before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO granted the Veteran’s petition to reopen the previously denied claim for service connection for a right ankle sprain with degenerative joint disease, also claimed as a right ankle condition, but denied the claim on the merits. The Veteran timely appealed. In October 2019, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of that testimony is of record. New and Material 1. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for a right ankle disability, to include a right ankle sprain with degenerative joint disease Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § § 7105 (c). Board decisions are final when issued, unless the Board Chairman orders reconsideration. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. However, under 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § § 3.156 (a). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The provisions of 38 C.F.R. § 3.156(a) create a low threshold for finding new and material evidence, and view the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Shade, 24 Vet. App. 110 (2010). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). As noted above, the September 2000 Board decision denied the claim of service connection for a right ankle disability. The basis for the denial was that the record did not show that the Veteran had a current right ankle disability. As there was no Order for reconsideration issued, the Board decision is final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100 The evidence of record at the time of the September 2000 Board decision consisted of service treatment records and post-service treatment records through 1995. The evidence received since the September 2000 Board decision consists of a November 2012 VA MRI report of the right ankle, a March 2013 VA examination Disability Benefits Questionnaire (DBQ), private treatment records dated October 2019, and testimony provided at an October 2019 Board hearing. This evidence shows that the Veteran has a current right ankle disability, which he asserts has caused pain in his right ankle ever since an in-service injury. Presuming its credibility, the evidence submitted since the September 2000 Board denial is new and material. It is new as it was not previously of record. It is material because it addresses a current right ankle disability, the reason for the prior denial. As the evidence received since the September 2000 Board decision is neither cumulative nor redundant; and, relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim, it is new and material and the previously denied claim of service connection for a right ankle disability, to include a right ankle sprain with degenerative joint disease, is reopened. See Shade, 24 Vet. App. at 110. Service Connection 2. Entitlement to service connection for a right ankle disability, to include a right ankle sprain with degenerative joint disease The Veteran asserts that he has a right ankle disability that is related to an in-service injury. Specifically, the Veteran contends that he sprained his right ankle while playing basketball during service and that he has a current right ankle disability that is related thereto. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). A veteran is presumed to be in sound condition when examined and accepted into service except for defects or disorders noted at that time. 38 U.S.C. § 1111. The presumption is rebutted where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. "[T]he Government must show clear and unmistakable evidence of both a preexisting condition and a lack of in-service aggravation to overcome the presumption of soundness..." Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); see VAOPGCPREC 3-2003 (July 16, 2003) (cited at 69 Fed. Reg. 25,178 (May 5, 2004)). The Veteran’s service treatment records (STRs) show that the Veteran was sound at entry. There were no complaints or findings of right ankle pain or a right ankle disability. The Veteran was treated for right ankle pain in October 1988. The assessment was ankle tendinitis. In November 1988, the Veteran continued to report right ankle pain. The examiner noted that the Veteran had a sprained ankle prior to service, apparently based on the Veteran’s self-reported history. As noted above, the other STRs, and the entrance examination in particular, are silent as to any pre-existing ankle injury. There was no indication that the Veteran entered service with a pre-existing right ankle disability. Examination of the right ankle in November 1988 was normal, although there was minimal tenderness at the medial malleolus. No such pre-existing condition was noted at entry. The Veteran’s entry physical was negative for findings, complaints or a diagnosis of any right ankle disability. Notably, however, at the time of discharge, the Veteran reported on his October 1988 discharge examination that he had ankle problems through the years. He did not specify the onset of his ankle problems, and the examiner found that he had full range of motion of the lower extremities. Post-service medical records include a VA treatment record from March 1994, noting that the Veteran continued to report throbbing right ankle pain. A November 1995 VA progress note indicates a history of an in-service right ankle injury that continues to hurt from time to time. In an April 1998 lay statement, the Veteran clarified that the examiner in November 1988 misunderstood the Veteran’s self-reported history about an ankle sprain prior to service. The Veteran was not asserting that his current in-service injury was related to a pre-existing ankle sprain; rather, he explained that he was just indicating that he had sprained his ankle once prior to service. Additionally, the Veteran referred to his service entrance examination to support that notion, and indicated that his physical examination at entry was extensive and no problems with the right ankle joint were noted at entry. A November 2012 VA MRI report of the right ankle indicates an impression of (1) a large osteochondral lesion of the lateral talar dome with overlying cartilage and cortex irregularity; a fatty lesion deep to the osteochondral lesion within the talus body likely secondary to associated incidental intraosseous lipoma; (2) mild chronic thickening of rhe plantar fascia origin with adjacent spurs; (3) advanced tibiotalar and Lisfranc joint degenerative changes; (4) small joint fluid; and (5) mild tendinopathy of the Achilles tendon. These findings were also noted in a March 2013 VA Examination report; see also private treatment records dated October 2019. However, the record contains conflicting medical opinions as to whether the current right ankle disability is related to service. In a March 2013 VA examination report, the examiner opined that the Veteran had a right ankle condition that clearly and unmistakably pre-existed service but was not aggravated beyond its natural progression due to service. The report indicates that the Veteran reported a pre-service ankle sprain. The examiner’s rationale cited (i) the absence of evidence that a pre-service ankle sprain was chronically aggravated during service and (ii) the absence of records showing ankle complaints between 1988 and 1995. First, the record does not show, and the examiner does not cite, a medical diagnosis of an ankle sprain prior to service or point to any objective findings of a pre-existing right ankle disability. The examiner’s mere notation that the Veteran sprained his ankle prior to entry into service, without anything further, is not enough to find clear and unmistakable evidence of a pre-existing ankle disability given that the absence of any pre-existing ankle disability on the entrance examination report which suggests that any ankle sprain incurred prior to service was acute and transitory, and resolved before entry into service. Furthermore, the Veteran clarified in the April 1998 statement that he was merely noting that he had sprained his ankle prior to service, but that his in-service injury was not the same condition. He also testified at his October 2019 Board hearing that he had sprained his right ankle once playing high school football, but that injury was fully healed at the time of entry into service. See Transcript, pp. 3-4. More importantly, the Veteran’s ankle tested within normal limits upon entrance and no ankle sprain or any other pre-existing right ankle disability was noted at entry. There is no other medical evidence of record showing treatment for a pre-service sprained ankle or indicating the extent of any pre-service ankle injury. Accordingly, the evidence suggesting a pre-existing right ankle disability is not clear and unmistakable, and therefore the Veteran is entitled to the presumption of soundness at entry. Because the Veteran is presumed sound at entry, the March 2013 VA opinion is not probative. The Veteran submitted a private opinion by A.A., D.O., a specialist of physical medicine and rehabilitation as well as pain management, in October 2019. Dr. A.A. diagnosed right ankle pain, chronic right ankle sprain and degenerative joint disease. Dr. A.A. reviewed the Veteran’s pertinent in-service and post-service medical records as documented in his October 2019 report. Dr. A.A. opined that the Veteran’s right ankle disability is most likely caused by the injury sustained during service. In so opining, Dr. A.A. cited a March 1984 entrance examination which shows no mention of any issues or ankle pain; and, noted that the Veteran reported periodic flare-ups of pain throughout his life since service. The examiner stated that chronic ankle sprains can lead to development of early degenerative joint disease. The examiner stated that the Veteran denied any pain or issues with his right ankle prior to his injury during service, and found that the Veteran had no other known risk factors that may have precipitated his current condition. Notably, Dr. A.A. opined that the Veteran’s subjective complaints were supported by the objective findings. Additionally, the VA treatment records consistently show that the Veteran relates his right ankle pain to the injury in service, and there is nothing in the record to support another etiology. As shown above, the Veteran has evidence of an in-service injury, a current right ankle disability, and a competent and probative medical nexus linking the two that was provided with a sound rationale based on a review of the entire record and medical expertise. Accordingly, and with resolution of all doubt in the Veteran’s favor, service connection for a right ankle disability is warranted. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. KAYS HUKILL The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.