Citation Nr: 20023032 Decision Date: 04/02/20 Archive Date: 04/02/20 DOCKET NO. 17-01 608 DATE: April 2, 2020 ORDER The appeal to reopen a claim of entitlement to service connection for residuals of a torn ligament of the left foot and a left ankle fracture is granted. REMANDED Entitlement to service connection for left foot and/or left ankle disability, to include residuals of a torn ligament of the left foot and a left ankle fracture, is remanded. FINDINGS OF FACT 1. Unappealed May 1981 and October 1981 rating decisions denied service connection for residuals of a torn ligament of the left foot and a left ankle fracture based on a November 1980 VA examination that determined there were no residuals; no appeal was taken from the October 1981 rating decision, and new and material evidence was not received within the one-year appeal period. 2. A final December 2011 Board decision denied an appeal to reopen a claim for service connection for residuals of a torn ligament of the left foot and a left ankle fracture. 3. Evidence received since December 2011 Board decision relates to an unestablished fact necessary to substantiate the claim for service connection for residuals of a torn ligament of the left foot and a left ankle fracture and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. May and October 1981, and June 1991 rating decisions that denied the claim of entitlement to service connection for residuals of a torn ligament of the left foot and a left ankle fracture are final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. The December 2011 Board decision declining to reopen the claim of entitlement to service connection for residuals of a torn ligament of the left foot and a left ankle fracture is final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. 3. New and material evidence having been received, the criteria to reopen the previously denied claim for entitlement to service connection for residuals of a torn ligament of the left foot and a left ankle fracture, have been met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(a), 20.1105. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1978 to September 1980. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). New and Material Evidence In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Decisions of the Board are final on the date it is stamped. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. An exception to this rule is provided in 38 U.S.C. § 5108, which states that 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. Kightly v. Brown, 6 Vet. App. 200, 204 (1994). The Board is under a statutory obligation to conduct a de novo review of a new and material issue. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The requirement for the submission of new and material evidence is a jurisdictional prerequisite for a claimant to obtain review of a previously denied and final decision. 38 U.S.C. §§ 5108, 7404(b). New evidence is existing evidence not previously received by 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). Even where the RO determines that new and material evidence has not been received to reopen a claim, or that an entirely new claim has been received, the Board is not bound by that determination and must nevertheless consider whether new and material evidence has been received. See Jackson, 265 F.3d at 1370. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Additionally, the law should be interpreted to enable reopening of a claim, rather than to preclude it. Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). By way of background, in a May 1981 rating decision, the RO denied the Veteran’s claim for entitlement service connection for residuals of a left ankle fracture and torn ligaments of the left foot. The RO based its denial on a November 1980 VA examination that determined there were no residuals of the Veteran’s left foot and ankle injuries that occurred in service. An October 1981 rating decision confirmed and continued the denial of the Veteran’s claim. The Veteran did not file a Notice of Disagreement (NOD) and no new and material evidence was received within one year of issuance of notice of that decision. 38 C.F.R. § 3.156(b); see Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). Thus, the May 1981 and October 1981 rating decisions are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Subsequently, the Veteran attempted on multiple occasions to reopen his claim for service connection for a left foot and ankle disability. Most recently, in December 2011, the Board issued a decision finding that new and material evidence had not been received to reopen the claim. The December 2011 Board decision determined the evidence submitted was redundant or cumulative and did not relate to an unestablished fact necessary to substantiate the claim. The Veteran did not appeal the Board’s December 2011 decision and it became final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. In January 2016, the Veteran submitted another claim to reopen the issue, and the RO denied reopening the Veteran’s claim in the April 2016 rating decision on appeal. The Board denied reopening the Veteran’s claim in a June 2018 decision. However, the Veteran appealed the Board’s June 2018 decision to the United States Court of Appeals for Veterans Claims (CAVC). An October 2019 CAVC Memorandum Decision set aside and remanded the issue of the Veteran’s appeal to reopen his claim for entitlement to service connection for residuals of a left foot torn ligament and left ankle fracture, noting inadequate reasons and bases in the decision. Specifically, the CAVC noted the Board did not address whether April 2016 VA treatment records and Social Security Administration (SSA) records submitted since the Board’s December 2011 Board decision suggested a nexus between the Veteran’s current left foot/ankle condition and his military service. The Board finds that new and material evidence sufficient to warrant reopening the Veteran’s claim for entitlement to service connection for residuals of a torn ligament of the left foot and a left ankle fracture has been received. In that regard, the Board notes the additional SSA medical records were associated with the claims file in April 2014. Though the SSA records include duplicates of previously associated VA treatment records, the SSA records also include a November 1995 private medical record that includes an assessment stating “the history of left foot pain with ligament injury in the past appears to be stable despite the pain…” The Board finds this private medical record is new evidence. This evidence is material as it relates to an unestablished fact, evidence of a nexus between the Veteran’s current left foot condition and his left foot injury that occurred while on active duty service. See 38 C.F.R. § 3.156(a). As the private medical records are sufficient to reopen the Veteran’s claim, the Board does not need to determine whether the Veteran’s statements in his April 2016 VA treatment records are new and material. Accordingly, the Board finds that new and material evidence has been received to reopen the Veteran’s claim for entitlement to service connection for residuals of a torn ligament of the left foot and a left ankle fracture. REASONS FOR REMAND Entitlement to service connection for left foot and/or left ankle disability, to include residuals of a torn ligament of the left foot and a left ankle fracture, is remanded. Having reopened the Veteran’s claim of entitlement to service connection for left foot and/or left ankle disability, to include residuals of a torn ligament of the left foot and a left ankle fracture, the Board finds that the claim must be remanded for additional development before a decision on the merits can be rendered. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran was last afforded a VA examination in November 1980, approximately 40 years ago. The VA must provide a medical examination or obtain a 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 or establishing that certain diseases manifested during an applicable presumptive period for which the veteran qualifies; (3) an indication that the disability or persistent recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability; but (4) there is insufficient competent medical evidence on file for VA to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The Veteran’s August 1980 separation examination noted a left heel fracture in July 1978 with achilles tendinitis and left ankle inversion trauma in March 1980 requiring a cast during active duty. The November 1980 VA examiner determined the Veteran did not have any residuals of a torn ligament of the left foot and a left ankle fracture that occurred while on active duty service. See November 1980 VA examination. However, the Veteran has been assessed with multiple left foot and ankle conditions since the November 1980 VA examination, including an assessment for left foot sprain with subsequent exostosis over navicular, left foot pain, chronic left ankle pain, and minimal arthritis. See November 2017, December 2007, February 2007, July 2006, May 2004, and July 1995 VA treatment records. As such, the November 1980 VA examination is inadequate for decision making purposes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Moreover, as noted, the Veteran’s SSA medical records received in April 2014 include a November 1995 private medical treatment record indicating the Veteran’s left foot symptoms, a history of pain, may be related to his in-service left ankle injury noted in his separation examination. Additionally, an April 2002 VA treatment record notes “history of chronic pain of the left ankle – rt old trauma.” Additionally, the Board notes that while pain alone may not constitute a disability, pain may rise to a level of functional impairment that impacts earning capacity, which would then qualify pain as a disability. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In this case, there is competent evidence of chronic left ankle pain, and therefore potential presence of a disability under Saunders that is related the Veteran’s in-service left ankle injury. In light of the above, the Board finds that the low threshold for providing a VA examination is met. See McLendon, 20 Vet. App. at 79. Accordingly, a remand is warranted so that the Veteran may be afforded a new VA examination to determine the nature and etiology of any residuals of a left foot and ankle injury that occurred in service. The matters are REMANDED for the following action: 1. Obtain and associate with the claim file all updated VA treatment records for the Veteran. 2. Then, schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of each left ankle and left foot disability demonstrated of record proximate to, or during the appeal. Provide a copy of this remand and the record to the examiner for review. Any and all tests and evaluations deemed necessary by the examiner should be performed. The examiner must indicate review of all medical evidence of record. The examiner must address the following: (a.) Provide a diagnosis for each left foot and left ankle disability demonstrated of record during, or proximate to, the appeal. (b.) The examiner must provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that any diagnosed left foot and/or left ankle disability, to include residuals of a torn ligament of the left foot and a left ankle fracture, had its onset in, or is otherwise related to, the Veteran’s active duty service. A complete rationale should be given for all opinions and conclusions expressed. 3. After completion of the above, adjudicate the reopened claim of entitlement to service connection for left foot and/or left ankle disability, to include residuals of a torn ligament of the left foot and a left ankle fracture. If the benefit sought is not granted, then the Veteran and his representative should be furnished with a Supplemental Statement of the Case and afforded an opportunity to respond before the record is returned to the Board for further review.   The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. P. Moore, 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.