Citation Nr: 20021592 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 16-45 294 DATE: March 26, 2020 ORDER New and material evidence having been received, the claim of entitlement to service connection for a right ankle disability (claimed as residuals of a right ankle fracture) is reopened; to that extent only, the appeal is granted. New and material evidence having been received, the claim of entitlement to service connection for a right leg disability (claimed as residuals of a right leg injury) is reopened; to that extent only, the appeal is granted. REMANDED Entitlement to service connection for a right ankle disability (claimed as residuals of a right ankle fracture) is remanded. Entitlement to service connection for a right leg disability (claimed as residuals of a right leg injury) is remanded. FINDINGS OF FACT 1. The September 2013 rating decision denied the claims of entitlement to service connection for a right ankle disability and entitlement to service connection for a right leg disability. 2. The Veteran filed a notice of disagreement (NOD) with the September 2013 rating decision insofar as it denied entitlement to service connection for a right ankle disability. 3. Additional evidence (incomplete service treatment records [STRs] and post-service VA medical records from October 2013 to February 2014) was received, and the right ankle disability claim was readjudicated and denied in a March 2014 statement of the case (SOC). 4. The Veteran did not timely appeal the September 2013 rating decision; thus, it became final. 5. In December 2015, the Veteran submitted a petition to reopen his right ankle and right leg claims. 6. Evidence associated with the claims file since the September 2013 rating decision is new and raises a reasonable possibility of substantiating the claims of entitlement to service connection for a right ankle disability and entitlement to service connection for a right leg disability. CONCLUSIONS OF LAW 1. Evidence received since the September 2013 rating decision that denied service connection for a right ankle disability, which was the last final denial with respect to this issue, is new and material; the claim is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156(a), 3.160(d), 20.200, 20.302, 20.1103. 2. Evidence received since the September 2013 rating decision that denied service connection for a right leg disability, which was the last final denial with respect to this issue, is new and material; the claim is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156(a), 3.160(d), 20.200, 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1956 to January 1958. This matter comes before the Board of Veterans’ Appeals on appeal from an April 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran testified before the undersigned at a Board hearing. A transcript of that hearing has been associated with the record. The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. The record shows that most of the Veteran’s service treatment records (STRs) were destroyed in the Records Management Center (RMC) fire in 1973. See August 2013 Formal Finding on the Unavailability of Service Treatment Records. Where STRs have been destroyed or are unavailable, VA has a heightened duty to assist the Veteran and the Board has a heightened duty to provide and explanation of reasons or bases for its findings. See O’Hare vs. Derwinski, 1 Vet. App. 365 (1991). That duty includes obtaining medical records and medical examinations where indicated by the facts and circumstances of the individual case. Littke v. Derwinski, 1 Vet. App. 90 (1990). New and Material Evidence 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a right ankle disability (claimed as residuals of a right ankle fracture). 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a right leg disability (claimed as residuals of a right leg injury). The Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim. 38 U.S.C. § 7104(b); King v. Shinseki, 23 Vet. App. 464 (2010); DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006). However, the finality of a previously disallowed claim can be overcome by the submission of new and material evidence. See 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). In determining whether evidence is new and material for purposes of deciding whether a claim should be reopened, “the credibility of the evidence is to be presumed.” Savage v. Gober, 10 Vet. App. 488 (1997); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Only in cases in which the newly submitted evidence is “inherently false or untrue” does the presumption of credibility not apply. Duran v. Brown, 7 Vet. App. 216, 220 (1994). In September 2013, the RO denied the Veteran’s claims on the basis that he did not have currently diagnosed right ankle and right leg disabilities; that the Veteran’s STRs were unavailable and that there was no evidence in the record demonstrating that the Veteran sustained an in-service injury; and that the evidence did not establish a positive relationship between his claimed disabilities and his military service. Regarding the right ankle disability claim, the Veteran filed a notice of disagreement (NOD) with the September 2013 rating decision in November 2013. Additional VA treatment records were associated with the claims file. These records showed that the Veteran had a current right ankle disability. In a March 2014 SOC, the RO readjudicated the right ankle disability claim and indicated that, although post service medical records showed a current diagnosis of a right ankle disability, the evidence of record did not demonstrate that his right ankle disability was incurred during active duty service. The Veteran was notified that he had sixty days to file a VA Form 9 substantive appeal. He did not file a VA Form 9 substantive appeal, and the decision became final on that issue. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.160(d), 20.200, 20.302, 20.1103. Regarding the right leg disability claim, the Veteran did not file a notice of disagreement with the September 2013 rating decision and did not submit any new and material evidence during the relevant period. Thus, the decision became final on that issue. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.160(d), 20.200, 20.302, 20.1103. The evidence of record at the time of the prior final rating decision included post-service private medical records; post-service VA medical records from May 2012 to May 2013; an August 2013 VA Memorandum reflecting a Formal Finding on the Unavailability of the Veteran’s service treatment records; and lay statements made by the Veteran. Evidence added to the claims file within one year of the September 2013 rating decision included incomplete STRs (which did not show any complaints, treatment, or diagnosis regarding right ankle or right leg disabilities) and post-service VA medical records (which did not show that the Veteran’s current right ankle disability was incurred or caused by his military service). Evidence received since the September 2013 rating decision (other than the evidence that was considered by the March 2014 SOC) consists primarily of photographs of the hospital where the Veteran allegedly received treatment for his right ankle/leg injury; additional post-service private medical records; additional post-service VA medical records; lay statements from the Veteran; and the January 2020 Board hearing transcript. Evidence received since the September 2013 rating decision demonstrates that the Veteran has a current right ankle disability (an October 2015 VA medical record shows an impression of “ankle arthritis”) and that he may have a current right leg disability (the post-service private and VA medical records generally show that the Veteran has pain in his right leg (which may be a separate and distinct disability or may be related to his right ankle disability)). The evidence also includes testimony and statements made by the Veteran indicating that he sustained a hairline fracture to his right ankle while serving as a Military Policeman in 1956. The Veteran’s testimony and statements indicate that he was chasing a prisoner in the dark, he stepped in a hole, and twisted his right leg. He claims that he has experienced right ankle and leg pain ever since that injury. Presuming the credibility of this evidence, this evidence is new and material because it relates to unestablished facts necessary to substantiate the claims, and with VA assistance, raises a reasonable possibility of substantiating those claims. Reopening of the Veteran’s claims for service connection for right ankle and right leg disabilities, based on the receipt of new and material evidence, is therefore warranted. Shade v. Shinseki, 24 Vet. App. 110, 121 (2011) (holding that the phrase “raises a reasonable possibility of substantiating the claim” in applicable regulation as “enabling rather than precluding reopening”). REASONS FOR REMAND 1. Entitlement to service connection for a right ankle disability (claimed as residuals of a right ankle fracture). 2. Entitlement to service connection for a right leg disability (claimed as residuals of a right leg injury). As discussed above, the evidence of record demonstrates that the Veteran has a current right ankle disability (an October 2015 VA medical record shows an impression of “ankle arthritis”) and that he may have a current right leg disability (the post-service private and VA medical records generally show that the Veteran has pain in his right leg (which may be a separate and distinct disability or may be related to his right ankle disability)). The evidence also includes testimony and statements made by the Veteran indicating that he sustained a hairline fracture to his right ankle while serving as a Military Policeman in 1956. The Veteran’s testimony and statements indicate that he was chasing a prisoner in the dark, he stepped in a hole, and twisted his right leg. He claims that he has experienced right ankle and leg pain ever since that injury. The Veteran has not received a VA examination for his claimed right ankle/right leg disabilities. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in initial service connection claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. The threshold for determining whether the evidence “indicates” that there “may” be a nexus between a current disability and an in-service event, injury, or disease is a low one. Id., at 83. The record as it stands is insufficient for the Board to render a fully informed decision with regard to these issues. Given that the Veteran’s complete STRs are unavailable and VA’s heightened duty to assist, the Board finds it necessary to obtain VA examinations of the Veteran’s claimed disabilities in order ascertain the nature and etiology of those disabilities. Accordingly, VA examinations and medical opinions are necessary to determine if the Veteran has current right ankle and right leg disabilities that are related to his military service. These matters are REMANDED for the following actions: 1. Contact the Veteran and ask him to identify whether there are any outstanding VA or private medical records reflecting treatment for his claimed right ankle and right leg disabilities. If such records are identified, then obtain those records and associate them with the electronic claims file. To expedite this action, the Veteran is encouraged to submit any additional new VA or new private medical records himself. 2. Schedule the Veteran for examinations by appropriate clinicians to determine the nature and etiology of any right ankle and right leg disabilities. After reviewing the evidence of record and evaluating the Veteran, and with consideration of the Veteran’s lay statements and hearing testimony, the examiner must opine whether the Veteran has current right ankle and right knee disabilities that are “at least as likely as not” related to an in-service injury, event, or disease, including the in-service fracture that he claims to have sustained during military service in 1956. The Board notes that the Veteran’s complete STRs are not available. Therefore, in rendering the medical opinions requested above, the examiners should consider the Veteran’s statements and testimony regarding his in-service injury to be credible. For example, the examiners should address whether the Veteran has current right ankle/leg disabilities that are consistent with a hairline fracture injury that occurred many decades ago. The examiners should be cognizant of the ruling in Saunders v. Wilkie, which found that pain alone can constitute a disability if it results in functional impairment. 886 F.3d 1356, 1368 (Fed. Cir. 2018). The examiner should provide adequate rationale for all medical conclusions reached. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael L. Marcum, 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.