Citation Nr: 20021067 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 18-32 588 DATE: March 24, 2020 ORDER The claim of service connection for a left ankle condition is reopened; to this limited extent, the appeal is granted. REMANDED Entitlement to service connection for a left ankle condition is remanded. FINDINGS OF FACT 1. Service connection for a left ankle disability was denied in an unappealed May 2015 rating decision on the basis that a causal nexus was not shown. 2. Evidence received since the May 2015 rating decision was not previously considered by agency decision makers; is not cumulative and redundant of evidence already of record; relates to an unestablished fact; and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW The criteria to reopen the claim of entitlement to service connection for a left ankle condition have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1989 to December 1995. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Application to Reopen Previously Denied Claims The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). 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. Id. The RO has reopened and adjudicated the claim for a left ankle disability on the merits. Nonetheless, the Board must address whether new and material evidence has been received to reopen the claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In September 2009 the RO denied the Veteran’s claim for a left ankle disability on the basis that there was no objective medical evidence linking his left ankle condition to service. The Veteran did not initiate an appeal of this decision and it became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. New and material evidence was not received within a year of notice of the decision. 38 C.F.R. § 3.156(b). The Veteran submitted an application to reopen this claim in April 2015. In a May 2015 rating decision, the RO reopened the claim and denied service connection finding that a left ankle disability was not incurred in or aggravated by service. The Veteran did not initiate an appeal of this decision and it became final. Id. The Veteran submitted an application to reopen his claim in June 2016. The RO declined to reopen the claim in a February 2017 rating decision citing a lack of new and material evidence. The Veteran did not file a notice of disagreement (NOD), but rather submitted another application to reopen his claim in August 2017. The RO declined to reopen the claim in a December 2017 rating decision, citing a lack of new and material evidence. At the time of the last final rating decision issued in May 2015, the evidence included service treatment records, VA and private treatment records, a lay statement from the Veteran’s significant other, and the Veteran’s DD Form 214. Since the claim to reopen, additional VA treatment records were added to the file. Of note, a February 2016 VA medical opinion reflects a podiatrist’s opinion that the Veteran’s left ankle condition is related to service. This opinion is new, and also material, as it relates to causal nexus- an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. New and material evidence having been received, the request to reopen the claim for service connection for a left ankle disability is granted. REASONS FOR REMAND Entitlement to service connection for left ankle The Veteran asserts his left ankle disability is either related to service or his service-connected right and left knee conditions. Service treatment records reflect an ankle sprain in April 1993 and a non-specific left leg injury in May 1995. Post-service VA medical records reflect that in January 2009, the Veteran reported to his physician that his knees gave out and caused a left ankle sprain in February 2008. At a January 2009 VA examination, an examiner opined that it is not likely that the Veteran’s current left ankle condition is proximately caused by his service-connected bilateral patellofemoral syndrome. However, the examiner did not discuss whether the Veteran’s knee disabilities aggravate the Veteran’s left ankle disability. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). In May 2015, an addendum opinion was provided but it still does not address aggravation. The Veteran’s VA podiatrist provided positive opinions in April 2015 and in February 2016, linking the Veteran’s current left ankle disability to service; however, these opinions do not reflect a rationale. Accordingly, a remand is necessary to obtain a supplemental nexus opinion. The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician to determine the nature and etiology of the Veteran’s current left ankle disabilities. The examiner must opine whether it is at least as likely as not that the left ankle disability is related to an in-service injury or event, including his April 1993 ankle sprain and May 1995 non-specific leg injury. If arthritis is found, the examiner is asked to opine whether it (1) began during service, (2) manifested within one-year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. The examiner must also opine whether it is at least as likely as not that the Veteran’s left ankle disability is (1) proximately due to his service-connected patellofemoral syndrome of the left and/or right knee, or (2) aggravated beyond its natural progression by his service-connected patellofemoral syndrome of the left and/or right knee. A fully explained rationale should be provided for all opinions. The examiner should consider the Veteran’s contentions, to include his report that his knees gave out in February 2008 and caused his current left ankle disability. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Telamour, Associate Counsel 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.