Citation Nr: 20021561 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 18-43 232 DATE: March 26, 2020 ORDER New and material evidence has been received to reopen a previously denied claim to establish service connection for a left ankle disability. REMANDED Entitlement to service connection for a left ankle disability is remanded. FINDINGS OF FACT 1. An unappealed January 2015 rating decision denied service connection for a left ankle disability; no new and material evidence regarding that matter was received within a year of that determination. 2. Evidence received since the January 2015 rating decision raises a reasonable possibility of substantiating service connection for a left ankle disability. CONCLUSIONS OF LAW 1. The January 2015 rating decision that denied service connection for a left ankle disability became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103. 2. New and material evidence has been received, and the claim of service connection for a left ankle disability may be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 2003 to September 2006 and was awarded the Combat Action Badge. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from a June 2016 rating decision by the Department of Veterans Affairs (VA), Veterans Benefits Administration, Regional Office (RO). Whether new and material evidence has been received to reopen service connection for a left ankle disability. A January 2015 rating decision denied the Veteran service connection for a left ankle disability based on a finding that there was not a diagnosed condition. The Veteran did not appeal this decision, and no relevant evidence regarding that matter was received with a year of that determination. As such, the January 2015 rating decision became final with respect to the issue of service connection for a left ankle disability. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103. A final decision shall be reopened if new and material evidence is presented. 38 U.S.C. § 5108. New evidence means existing 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). Pertinent evidence of record in January 2015 consisted of the Veteran’s service treatment records (STRs), VA treatment records, a December 2014 VA examination report that did not include a diagnosis of a left ankle disability, and the Veteran’s general assertion that a left ankle disability is related to service. Evidence received by VA since the January 2015 rating decision includes a May 2016 VA treatment record that shows the Veteran complained of left ankle pain. A likely ankle strain was assessed, and the treatment provider noted a history of trauma to the left ankle in the military. A June 2016 VA treatment record shows chronic left ankle sprains and left ankle ligamentous laxity were assessed. While the VA treatment providers did not specifically opine whether the left ankle disability was incurred in service or caused by the claimed in-service injury, the May 2016 treatment provider’s findings suggest it could be related to service. Accordingly, the Board finds that this new evidence received relates to an unestablished fact necessary to substantiate the claim for service connection for a left ankle disability and raises a reasonable possibility of substantiating such claim. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (finding that the standard of whether new and material evidence raises a reasonable possibility of substantiating a claim is a “low threshold”). The claim is therefore reopened and addressed on the merits in the remand below. REASONS FOR REMAND The Board regrets additional delay but finds after careful consideration of this matter that a remand is necessary to ensure that the Veteran is accorded full compliance with VA’s statutory duty to assist. While the Veteran underwent a VA ankle examination in December 2014, the examiner did not opine whether a left ankle disability is related to service. Remand is therefore necessary to arrange for an opinion as to direct service connection. See McLendon v. Nicholson, 20 Vet. App. 79, 8186 (2006). The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records from July 2018 to the present. 2. Thereafter arrange for the Veteran to be examined by an appropriate clinician to determine the nature and likely etiology of his claimed left ankle disability. The examiner should obtain a history from the Veteran, review his entire VA record (to specifically include this remand, his STRs, and his postservice treatment records), and provide opinions that respond to the following: (a) Please identify (by diagnosis) each left disability found, to include chronic left ankle sprains and left ankle ligamentous laxity. (b) What is the most likely etiology for each left ankle disability diagnosed? Specifically, is it at least as likely as not (a 50% or better probability) related to an in-service injury, event, or disease? The examiner must explain the rationale for all opinions. William A. Skowronski Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. DeBoer, 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.