Citation Nr: 20033023 Decision Date: 05/12/20 Archive Date: 05/12/20 DOCKET NO. 15-14 404A DATE: May 12, 2020 ORDER New and material evidence having been submitted, the claim for service connection for a left ankle disorder is reopened. Entitlement to service connection for a left ankle disorder, diagnosed as ankle sprain, anterior talofibular ligament tear with ossicle, peroneal brevis tear, and peroneal tenosynovitis status-post ankle reconstruction, is granted. REMANDED Entitlement to service connection for a left foot disorder is remanded. FINDINGS OF FACT 1. In an April 2005 rating decision, the Regional Office (RO) denied a claim for service connection for a left ankle disorder. The Veteran was notified of that decision and of his appellate rights, but he did not appeal or submit new and material evidence within the one-year period thereafter. 2. The evidence received since the April 2005 rating decision relates to an unestablished fact and raises the reasonable possibility of substantiating the claim for service connection for a left ankle disorder. 3. The Veteran’s left ankle disorder, diagnosed as ankle sprain, anterior talofibular ligament tear with ossicle, peroneal brevis tear, and peroneal tenosynovitis status-post reconstruction, is related to his active service. CONCLUSIONS OF LAW 1. The April 2005 rating decision that denied the Veteran’s claim for service connection for a left ankle disorder is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 2. The evidence received since the April 2005 rating decision is new and material, and the claim for service connection for a left ankle is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. A left ankle disorder, diagnosed as ankle sprain, anterior talofibular ligament tear with ossicle, peroneal brevis tear, and peroneal tenosynovitis status-post reconstruction was incurred in active service. 38 U.S.C. § 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1976 to May 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from May 2012 rating decision. In December 2016, the Veteran requested a hearing before the Board; however, he subsequently withdrew that request. Therefore, the Board deems the hearing request withdrawn. See 38 C.F.R. § 20.704(e). The Board notes that, in May 2019, The American Legion indicated that the Veteran wished to withdraw his appeal for all of the issues on appeal. In May 2019, the Agency of Original Jurisdiction (AOJ) also sent the Veteran a notice letter stating that his appeals had been withdrawn based on the May 2019 statement. However, the Board finds that the May 2019 correspondence does not satisfy the criteria for a withdrawal of an appeal. In this regard, the record reflects that the Veteran was previously represented by The American Legion; however, he revoked that representation in July 2013 when he appointed Disabled American Veterans (DAV) as his representative. In July 2019, the Board sent a letter to the Veteran to verify his appointed representative. In February 2020, the Veteran confirmed that he appointed DAV as his representative. As such, the Board finds that the May 2019 correspondence was not filed by the Veteran’s authorized representative. Moreover, the May 2019 correspondence was not signed by the Veteran, and the record contains no other written statement indicating that he wanted to withdraw his appeals. Therefore, the Board finds that the Veteran’s appeal for the issues of entitlement to service connection for a left foot disorder and whether new and material evidence has been submitted to reopen a claim for service connection for a left ankle disorder have not been withdrawn. Law and Analysis Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist with regard to the issues decided herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). New and Material In order to reopen a claim which has been denied by a final decision, a claimant must present new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (regardless of action taken by Regional Office (RO), the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial). New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For the purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, “credibility” of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The United States Court of Appeals for Veterans Claims (Court) has held that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist. Id. at 118. In an April 2005 rating decision, the RO denied service connection for a left ankle disorder, finding that there was no evidence of a current disability. The Veteran was notified of the decision and of his appellate rights; however, he did not file a notice of disagreement or submit new and material evidence within one year of receiving notice of the decision. Therefore, the April 2005 rating decision is final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In making this determination, the Board notes that, prior to expiration of the appeal period, VA medical records were associated with the claims file in January 2006. When new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. See 38 C.F.R. § 3.156(b). However, a review of that evidence reveals that it is cumulative or not relevant to the Veteran’s claim for service connection for a left ankle disorder. Therefore, the Board finds that new and material evidence was not received within one year of the April 2005 rating decision. The Board also notes that the electronic claims processing system indicates that service treatment and personnel records were received after the April 2005 rating decision. However, the Board finds that service treatment records were associated with the claims file at the time of the April 2005 rating decision. In this regard, the April 2005 rating decision referenced the Veteran’s service treatment records, including a January 2004 report of medical history. The Board also notes that many of the service treatment and personnel records are date stamped as having been received prior to the April 2005 rating decision. Moreover, to the extent that any additional service treatment or service personnel records were associated with the claims file after the April 2005 rating decision, these records are not relevant to the Veteran’s claim for service connection for a left ankle disorder. Indeed, the records do not reference a left ankle disorder or the Veteran’s reported in-service injury. Therefore, the Board finds that 38 C.F.R. § 3.156(c) does not apply in this case, and new and material evidence is required to reopen the claim. The evidence received since the April 2005 rating decision includes VA medical records, Social Security Administration (SSA) records, and lay statements. In particular, an October 2010 VA medical record noted assessments of left peroneal tenosynovitis, a peroneal brevis tear, and a remote ankle strain. This evidence relates to previously unestablished facts necessary to substantiate the claim. Thus, the Board finds that the evidence is both new and material, and the claim for service connection for a left ankle is reopened. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that service connection for a left ankle disorder is warranted. The Veteran has contended that his current left ankle disorder is due to an in-service injury. Specifically, he reported that he injured his left ankle when he attempted to quickly descend from a 5000-gallon refueler on a ladder during a hazard alarm. The Veteran stated that he informally reported the injury to a squadron surgeon who informed him that he had an acute ankle sprain. However, he did not receive any formal treatment during service. He stated that he continued to live with the pain until the condition became so severe that he required reconstructive surgery. The Veteran’s DD Form 214 reflects that his primary specialty was motor transport maintenance officer. His March 1976 enlistment examination showed a normal clinical evaluation of all relevant body systems, and he denied having any relevant symptoms on an associated report of medical history. In a January 2004 report of medical assessment, the Veteran reported that he was unable to stand on his feet for more than half an hour at a time. A January 2004 examination noted an abnormal clinical evaluation of the lower extremities; however, a military physician indicated that the Veteran’s lower extremity problems were located in his thigh, groin, and patella tendon. In a March 2004 report of medical history, the Veteran reported having bone, joint, or other deformities. He also reported having impaired use of his arms, legs, hands or feet. However, a military physician identified the Veteran’s foot problem as chronic skin peeling. Moreover, although the military physician noted that the Veteran had an extensive history of musculoskeletal problems, he did not identify any ankle disorders. The post-service medical evidence shows that the Veteran reported having left ankle pain less than one year after his separation from service. During a November 2004 VA general examination, he indicated that he had constant left ankle pain that he attributed to previous strains. The examiner diagnosed the Veteran with arthralgia and noted that x-ray findings revealed bony ossicles of the lateral malleoli. A physical examination also revealed at least some limitation of range of motion for the left ankle. The Veteran’s private treatment records dated in 2005 document that physical evaluations revealed good range of motion in the ankles with no pain, crepitus, or deformity. However, an August 2006 VA mental health record noted that the Veteran was reluctant to admit to having pain or weakness. It was noted that he had several untreated injuries over the years that were now contributing to his physical problems. It was also noted that the Veteran did not seek medical treatment at times because he did not want to be considered a “sick bay commando.” A May 2010 VA medical record indicated that x-ray findings showed a bony ossicle near the Veteran’s left lateral malleolus from remote trauma. A September 2010 VA magnetic resonance imaging (MRI) report noted an impression of a remote left anterior talofibular ligament tear with ossicle in the anterolateral gutter. In October 2010, a VA orthopedist diagnosed the Veteran with left peroneal tenosynovitis, a peroneal brevis tear, and remote ankle sprain. In January 2011, the Veteran underwent reconstructive surgery for his left ankle. Thereafter, a June 2012 VA x-ray report noted an impression of a complete tear of the peroneus brevis tendon just below the lateral malleolus that may be related to an old injury. The Veteran’s VA medical records also continued to document complaints of left ankle pain and assessments of a left ankle sprain, anterior talofibular ligament tear with ossicle, peroneal brevis tear, and peroneal tenosynovitis status-post ankle reconstruction. The Board notes that the Veteran, his family, and friends are competent to report observable symptoms and events. Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds little reason to doubt the credibility of the lay statements other than a lack of contemporaneous evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Indeed, the Veteran’s statements regarding his in-service injury have been consistent throughout the appeal and are corroborated by the lay statements submitted in support of his claim. In this regard, in May 2015, M.D.C. (initials used to protect privacy) stated that, when the Veteran returned home from service, he told his family and friends that he injured his left ankle descending from a fuel truck during a hazard alarm. M.D.C. also stated that he witnessed the Veteran’s left ankle pain and swelling when he separated from service. In May 2015, J.K., a combat medic, stated that the Veteran told him that he reported his in-service injury to a squadron surgeon. J.K. stated that no entries were made in the Veteran’s records because the squadron surgeon took a casual quick look at his injured ankle without a formal sick call visit. He stated that it was not unusual for medical personnel in combat and deployment environments to take a quick look at nonlife-threatening injuries. In support of his claim, the Veteran also submitted statements from two registered nurses. In a May 2015 statement, M.C., stated that she knew the Veteran both prior to and after his military service. She reported that the Veteran had no injuries prior to his enlistment in the United States Marine Corps and that she was aware that he injured his left ankle during service. She also stated that the Veteran suffered tremendously as a result of his injury and that his injury continued to deteriorate, which resulted in reconstructive surgery to the left ankle. In a May 2015 statement, D.O. stated that, as a registered nurse, she observed the Veteran’s injured ankle both before and after his reconstructive surgery. She stated that there was no other explanation for the Veteran’s left ankle injury due to the fact that he started his military service at the young age of 17 and ended his career when he was 46 years old. D.O. further stated that, in her professional opinion and based on conversations with the surgeon who performed the Veteran’s reconstructive surgery, his injuries were in fact old injures that could only have occurred during his years of active duty. She also stated that the only medical explanation for the Veteran’s left ankle injury was that it was service-connected, as he had no known injuries prior to his enlistment in the United States Marine Corps. The Board finds that the May 2015 statements from the registered nurses are probative on this matter, as they considered the Veteran’s reported medical history. In particular, in reading the May 2015 statement from D.O. in the context of the evidence of record, the Board finds that her determination, which addressed the central medical issue in this case, was based on her personal knowledge of the Veteran’s medical history and current medical understanding, and is therefore entitled to probative weight. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (providing that an examination is not rendered inadequate where the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion”); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (stating that medical reports must be read as a whole and in the context of the evidence of record). Her opinion is also consistent with the VA x-ray and MRI reports of record that noted findings of remote trauma. In this regard, the November 2004 VA examiner noted that x-ray findings revealed bony ossicles of the lateral malleoli. A May 2010 VA medical record also indicated that x-ray findings showed a bony ossicle near the lateral malleolus from remote trauma. A September 2010 MRI report further document an impression of a remote left anterior talofibular ligament tear with ossicle in the anterolateral gutter. In addition, a June 2012 VA x-ray report noted an impression of a complete tear of the left peroneus brevis tendon that may be related to an old injury. Moreover, there is no medical opinion to the contrary. Based on the foregoing and resolving any reasonable doubt in favor of the Veteran, the Board finds that service connection for a left ankle disorder, diagnosed as a left ankle sprain, anterior talofibular ligament tear with ossicle, peroneal brevis tear, and peroneal tenosynovitis status post ankle reconstruction, is warranted. REASONS FOR REMAND Regarding the claim for service connection for a left foot disorder, the Veteran has not been afforded a VA examination. The Veteran has reported that he injured his left foot descending from a ladder during service. In a January 2004 report of medical assessment, the Veteran indicated that he was unable to stand on his feet for more than half an hour at a time. In support of his claim, the Veteran also submitted statements from two registered nurses. However, the statements did not address the medical evidence that noted normal evaluations of the Veteran’s left foot. For example, in a December 2009 VA general examination report, the examiner concluded that there were no abnormal findings for the Veteran’s left foot. It was also noted that the Veteran denied having any left foot symptoms. Therefore, a remand is necessary to afford the Veteran a VA examination and medical opinion. The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for a left foot disorder. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records. 2. After any additional records are associated with the claims file, the Veteran should be afforded a VA examination to determine the nature and etiology of any left foot disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The Veteran reported that he injured his left foot when he attempted to quickly descend from a 5000-gallon refueler on a ladder during a hazard alarm. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should identify all current left foot disorders (excluding his now service-connected left ankle disability). If any previously diagnosed left foot disorders are not found on examination, the examiner should address whether they were misdiagnosed or have resolved. For each diagnosis identified, the examiner should provide an opinion as to whether it is at least as likely as not that the disorder manifested in or is otherwise causally or etiologically related to the Veteran’s military service, to include any injury or symptomatology therein. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. The AOJ should review the examination report to ensure that it is in compliance with this remand. If the report is deficient in any manner, the AOJ should implement corrective procedures. 4. The AOJ should conduct any other development as may be indicated. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Wulff, 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.