Citation Nr: 20039924 Decision Date: 06/11/20 Archive Date: 06/11/20 DOCKET NO. 15-01 414 DATE: June 11, 2020 ORDER New and material evidence has been received and the claim of entitlement to service connection for a right ankle disability is reopened. REMANDED Entitlement to service connection for a right ankle disability is remanded. FINDINGS OF FACT 1. An unappealed August 1994 Board of Veterans’ Appeals (Board) decision denied service connection for a right ankle disability. 2. Evidence received since the August 1994 Board decision is not cumulative or redundant and raises a reasonable possibility of substantiating the Veteran’s claim of service connection for a right ankle disability. CONCLUSIONS OF LAW 1. The August 1994 Board decision that denied entitlement to service connection for a right ankle disability is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received and the claim of entitlement to service connection for a right ankle disability is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1989 to February 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision issued by the Department of Veteran’s Affairs (VA) Regional Office (RO). In a December 2018 decision, the Board denied, in pertinent part, the Veteran’s petition to reopen the claim of entitlement to service connection for a right ankle disability. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (“CAVC” or “the Court”) and a Joint Motion for Partial Remand (JMPR) was filed. In August 2019, CAVC issued an order which vacated the Board’s December 2018 denial of the aforementioned claim and remanded the Veteran’s appeal for action consistent with the JMPR. Specifically, the JMPR directed that a new examination or medical opinion be obtained regarding the nature and etiology of the Veteran’s right ankle disability. 1. Whether new and material evidence sufficient to reopen the claim of entitlement to service connection for a right ankle disability has been received. Generally, a claim which has been denied in an unappealed Board decision or an unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104, 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with the 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 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). The determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of what is new and material evidence rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). New evidence raises a reasonable possibility of substantiating the claim if, when considered with the evidence already in the record, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran’s claim of entitlement to service connection for a right ankle disability was denied initially by an unappealed August 1994 Board decision. The decision was based on a finding that there was no evidence of post service residuals of a right ankle disability. In reaching that determination, the Board noted that while the Veteran had in-service complaints of a right ankle disorder, he had failed to appear for a VA examination and there were no indicia of chronic right ankle residuals in his treatment records. The Veteran did not appeal the August 1994 Board decision or submit new and material evidence within one year of that decision; therefore, it is final. Since the August 1994 rating decision, evidentiary submissions have included the Veteran’s lay statements, a January 2013 VA examination and both VA and private treatment records. In particular, the Veteran’s post-service VA treatment records documented that he has right ankle pain from an active duty injury. See November 2013 Primary Care Note, Beckley VA Medical Center (VAMC). The Veteran reported that he has dull pain all the time, but he is used to it. Id. Furthermore, at the January 2013 VA examination the Veteran indicated that he gets flareups of his right ankle which caused him to limp. Notably, in April 2018, the Federal Circuit issued a precedential decision, holding that pain alone, even without an underlying pathology or diagnosis, can constitute a disability under VA law where such pain results in functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Having reviewed the evidentiary submissions, the Board finds that new and material evidence has been received to reopen the claim of service connection for a right ankle disability. The evidence received contains medical treatment notes and lay statements relevant to the nature of the Veteran’s disability which are new and not previously been considered. This evidence is also material because it relates to an unestablished fact that is necessary to substantiate the claim. Specifically, it may establish a current disability, which was the basis of the prior final denial. Accordingly, the Board finds that the additional evidence received is new and material within the meaning of 38 C.F.R. § 3.156, warranting reopening of the claim for entitlement to service connection for a right ankle disability. REASONS FOR REMAND Entitlement to service connection for a right ankle disability is remanded. Remand is necessary to comply with the instructions set forth in the September 2019 JMPR. In particular, the January 2013 VA examination and opinion were determined to be inadequate because it was inappropriately premised on an instruction the Veteran’s right ankle disorder existed prior to active duty service. Further the examiner did not offer an opinion addressing direct service connection. In addition, the Board notes as stated above, in April 2018, the Federal Circuit issued a precedential decision, holding that pain alone, even without an underlying pathology or diagnosis, can constitute a disability under VA law where such pain results in functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Accordingly, a remand is necessary to determine the nature and etiology of any currently diagnosed right ankle disability, even if only diagnosed as right ankle pain with functional impairment. The matters are REMANDED for the following action: Obtain a medical opinion from an appropriate examiner to determine the nature and etiology of the Veteran’s right ankle disability. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner. If an in-person examination of the Veteran is deemed necessary, it shall be provided. All findings must be reported in detail. After reviewing the relevant evidence, the examiner is asked to provide answers to the following: (Continued on the next page)   (a.) Does the Veteran have a right ankle disability? The examiner is reminded that pain alone, even without an underlying pathology or diagnosis, can constitute a disability under VA law when it results in functional impairment. The examiner is asked to elicit from the Veteran the history of his symptoms and statements as to how his right ankle disability impacts his activities. In other words, identify the functional limitations caused by any right ankle pain. (b.) For each right ankle disability identified, is at least as likely as not (50 percent or better probability) that it had its onset in service or is otherwise etiologically related to his service? Why or why not? Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Alexander 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.