Citation Nr: 20022597 Decision Date: 04/01/20 Archive Date: 04/01/20 DOCKET NO. 16-37 443 DATE: April 1, 2020 ORDER The petition to reopen the claim of entitlement to service connection for a left ankle condition is granted. REMANDED Entitlement to service connection for a left ankle condition is remanded. FINDINGS OF FACT 1. In a June 2014 rating decision, the RO confirmed a previous denial of service connection for a left ankle condition. The Veteran did not appeal that decision, nor was new and material evidence received within one year of that decision. 2. Additional evidence received since the June 2014 rating decision is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The June 2014 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Evidence received since the June 2014 rating decision is new and material to the service connection claim for a left ankle condition; therefore, the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1969 to January 1970 and from August 1977 to September 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Veteran appeared before the undersigned Veterans Law Judge (VLJ) via video conference hearing. A transcript is of record. Although evidence was received following the July 2016 statement of the case, the Veteran waived AOJ consideration of the additional evidence. The Board has thoroughly reviewed all the evidence in the Veteran’s VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable the Veteran to understand the precise basis for the Board’s decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims (Court). 38 U.S.C. § 7104 (d)(1) (2012); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. 1. The June 2014 rating decision was final By way of history, the Veteran’s claim for service connection for a left ankle condition has been denied numerous times, beginning in 1978. In a January 2012 decision, the RO determined no new and material evidence had been submitted to reopen the claim. The Veteran filed a notice of disagreement on August 9, 2012 and the RO issued a statement of the case on August 16, 2013. However, the Veteran filed an untimely substantive appeal (Form 9) on October 25, 2013, outside the 60-day period, making this decision became final. See 38 C.F.R. §§ 20.200, 20.202, 20.300, 20.302. Although it appears the RO did not formally tell him the VA Form 9 was not timely, it is clear the Veteran knew it was. See October 2013 Statement in Support of Claim (“since I have missed the 60 day window for my appeal VA Form 9 . . .”). The RO accepted the untimely VA Form 9 and the accompanying statements as a claim to reopen (see letter of 5/2/14), and, in May 2014, the Veteran submitted additional medical records for review. The RO issued a rating decision denying reopening the claim for service connection for left ankle condition in June 2014. The Veteran was notified of the decision on June 23, 2014, but he did not appeal. Within one year of notification, the Veteran submitted an additional statement requesting service connection along with medical records from Rutherford Orthopaedics. This evidence was not new and material sufficient to affect the finality of the June 2014 rating decision under 38 C.F.R. § 3.156(b). The new medical evidence was duplicative as it showed continued treatment for the ankle, along with the Veteran’s reported history of an injury during service, but was not material as it did not address the question of whether the pre-existing ankle condition was aggravated by service. Therefore, with no statement indicating disagreement with the June 2014 rating decision within one year (his notice of disagreement with the 2015 decision was received in October 2015) and with no new and material evidence received within one year of that decision, it became final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Therefore, the Board concludes the June 2014 rating decision denying reopening is the last final decision, and the question is whether new and material evidence has been received since. 2. The petition to reopen the claim of entitlement to service connection for left ankle condition The VA may reopen a claim for service connection which has been previously and finally disallowed when new and material evidence has been presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996). In this regard, "new evidence" means existing evidence not previously submitted to VA. "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. Taken in combination, 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). New evidence may be sufficient to reopen a claim if it can contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998); Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). The law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). To determine whether new and material evidence has been submitted, it is necessary to consider all evidence added to the record since the last time the claim was denied on any basis in conjunction with the evidence already of record. Then the Board may proceed to evaluate the merits of the claim after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The RO last issued a rating decision in June 2014, in which the claim was denied because the evidence submitted was not new and material. The decision noted the existence of an earlier injury occurring prior to service had already been established. Therefore, the medical records noting the probability of an old injury and deterioration of the bones showing the current level of disability were not new and material evidence, as they did not address whether the condition was aggravated by, or during, military service. In March 2019, the Veteran submitted treatment records from his orthopedic surgeon, M.H., MD, who notes that he performed a “debridement of his anterior medial ankle close to two years ago” which gave him some pain relief that has since recurred; and that the Veteran’s “military service has aggravated his condition.” See March 6, 2019 EmergeOrtho treatment record. This evidence is new as it was not on the record at the time of the last final rating decision in June 2014. It is also material as it raises a reasonable possibility of substantiating the Veteran’s claim that his left ankle condition was aggravated by his military service. Therefore, the Board finds that new and material evidence is of record since the prior final denial of this claim in June 2014. Shade, 24 Vet. App. at 117. The claim of entitlement to service connection for left ankle condition is thus reopened. REASONS FOR REMAND Although the Board sincerely regrets additional delay in the adjudication of the below referenced claims, a remand is necessary for further development to ensure due process is followed and that there is a complete record upon which to decide the Veteran's claims. In January 1977, the Veteran decided to enlist again – this time in the Army. He was turned away due to his ankle condition, but he decided to get it surgically repaired with Dr. E.M.F., MD. See February 24, 1977 Treatment Record (noting March 4, 1977 surgery date). In August 1977, he was accepted into the Army with a notation on his entrance examination acknowledging a left ankle bone graft; documentation from Dr. E.M.F., MD noting a diagnosis of ununited fracture of the medial malleolus, left ankle; and an updated x-ray report citing previous non-union line still obvious. See January 1977 Medical Report of Medical History (noting rejection for existing unhealed left ankle fracture); see also August 1977 Report of Past Medical Examination/Treatment. However, the service treatment records (STRs) showed that within three weeks, he was at sick call unable to complete basic training due to his ankle (record states he was unable to sustain prolonged periods of marching, running, jumping, or standing without severe pain). See September 12, 1977 Medical Board Proceedings. Upon examination, he was diagnosed with degenerative joint disease, left ankle and deformity of the left ankle secondary to malunion of the old fracture, distal medial malleolus. A Medical Board meeting was held, and he was medically discharged once more. Id. The March 2019 treatment record with a notation by his orthopedic surgeon, M.H., MD, that the Veteran's ankle condition was aggravated by his military service appears to be restating the Veteran's assertions, rather than issuing an independent medical nexus opinion. However, this opinion is enough to trigger VA’s duty to assist in obtaining an opinion. Therefore, a remand is necessary for further development and adjudication. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from August 2017 to the present. 2. Schedule an appropriate VA examination to assess the nature and etiology of the Veteran's left ankle condition. The only condition noted as pre-existing service was the left ankle bone graft due to the ununited fracture of the medial malleolus. The September 1977 Medical Board report indicated that x-rays showed moderately severe degenerative joint disease of the left ankle with nonunion of several fragments of the distal medial malleolus. The Veteran contends he twisted his ankle in August/September 1977 and that this injury along with the other physical activities from basic training aggravated his left ankle condition. He now has post-traumatic arthritis and osteochondral defect involving the central medial talus and soft tissue impingement. See March 2019 statement from Dr. M.H. After review of the claims file, the examiner should provide an opinion which addresses the following: a. The left ankle bone graft due to the ununited fracture of the medial malleolus was clearly shown prior to service. The statement from Dr. M.H., the Veteran’s testimony, and the in-service complaints seem to indicate the condition increased in severity during service. Please address whether it is clear and unmistakable that any increase in severity in 1977 was due to the natural progress of the pre-existing left ankle condition. b. Is it clear and unmistakable that the 1977 Medical Board’s findings of moderately severe degenerative joint disease of the left ankle with nonunion of several fragments of the distal medial malleolus were due to/part of the pre-existing left ankle condition? i. If the answer to (a) is yes, is it clear and unmistakable that these conditions were NOT aggravated by the Veteran’s active service? ii. If the answer to (a) is no, is it at least as likely as not (50 percent probability or greater) that these conditions were incurred during, or were otherwise etiologically related to, his military service? c. As for the Veteran’s current diagnoses of post-traumatic arthritis and osteochondral defect involving the central medial talus and soft tissue impingement, is it at least as likely as not (50 percent or probability or greater) that these diagnoses are the result of the Veteran's military service, OR are they due to the natural progress of the pre-existing left ankle condition? The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, established medical principles, and references to the evidence of record, as appropriate. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mireya Martinez 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.