Citation Nr: 21062594 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 14-22 878 DATE: October 8, 2021 ORDER New and material evidence having been received, the application to reopen a claim of entitlement to service connection for a left ankle disorder, previously characterized as a left ankle sprain, is granted. REMANDED Entitlement to service connection for a left ankle disorder is remanded. FINDINGS OF FACT 1. In a final rating decision issued in October 2007, the Agency of Original Jurisdiction (AOJ) denied service connection for left ankle sprain. 2. Evidence added to the record since the final October 2007 decision is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a left ankle disorder. CONCLUSIONS OF LAW 1. The October 2007 rating decision that denied service connection for left ankle sprain is final. 38 U.S.C. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2007). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a left ankle disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on inactive duty for training from August 1989 to November 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In May 2018, the Board remanded the issue on appeal for additional development and, in October 2020, denied the Veteran's application to reopen his claim for service connection for left ankle sprain. He subsequently appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In July 2021, the Court granted the Veteran's and the Secretary of VA's (the parties') Joint Motion for Remand (JMR), which vacated and remanded the Board's October 2020 decision. The case now returns for further appellate review. 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for left ankle sprain. By way of background, VA received the Veteran's original claim for service connection for left ankle sprain in May 2007. In a September 2007 rating decision dated, the Agency of Original Jurisdiction (AOJ) considered the Veteran's service treatment records (STRs), post-service private treatment records, and his lay statements, and denied service connection for left ankle sprain. In this regard, the AOJ noted that the Veteran's STRs revealed that he injured his left ankle on September 6, 1989, when he tripped on a tent pole twisting his ankle; however, a September 13, 1989, X-ray was negative and, by September 15, 1989, his sprain was resolving and there was no further mention of his left ankle after such date. The AOJ further observed that a June 1992 retention examination was negative for any residuals of the Veteran's left ankle sprain, and his post-service private treatment records were likewise negative for any treatment referable to his left ankle. Consequently, the AOJ found that, while there was a record of treatment for left ankle sprain in service, there was no evidence of permanent residual or chronic disability subject to service connection. In October 2007, the Veteran was advised of the decision and his appellate rights; however, he did not enter a notice of disagreement as to such decision. Furthermore, no new and material evidence was physically or constructively received within one year of the issuance of such decision, and no new relevant service department records have since been associated with the record. In this regard, the Board notes that, in June 2015, duplicative service treatment records were received. However, as such were previously on file and considered in the October 2007 rating decision, they are irrelevant. Therefore, the October 2007 decision is final. 38 U.S.C. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2007). Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 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 existing evidence not previously submitted to agency decisionmakers. 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). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence received since the final October 2007 decision includes updated post-service VA and private treatment records; an internet article referenced by the Veteran's representative in his September 2020 Written Brief Presentation; an April 2011 VA examination report; and the Veteran's lay statements, to include his testimony at the June 2017 Board hearing. In this regard, in a September 2010 statement, the Veteran reported that, following the aforementioned in-service injury, he continued to experienced pain in his left ankle throughout the years. Additionally, a September 2010 private treatment record shows complaints of ankle pain on and off since service, and VA treatment records include an April 2012 X-ray showing very minimal early degenerative changes and a June 2014 X-ray reflecting mild degenerative changes. Moreover, while the April 2011 VA examiner opined that the Veteran's in-service left ankle sprain resolved and his current claimed disorder less likely as not related to his military service, (1) the aforementioned X-rays findings suggest the presence of a current left ankle disorder, identified as degenerative changes, (2) the internet article referenced by the Veteran's representative suggests that those who previously injured a joint are more likely to eventually develop arthritis, and (3) the Veteran testified that he received treatment for his left ankle symptoms from Maxwell Air Force Base in approximately 2015/2016, and his physicians at such facility indicated that they believed that his current left ankle condition was a result of his in-service injury. Consequently, the Board finds that the newly received evidence relates directly to the basis of the previously denied claim, namely a lack of evidence demonstrating residuals of an in-service injury and/or a relationship between a current left ankle disorder and his military service. Therefore, the Board finds that the evidence added to the record since the final October 2007 denial is not cumulative and redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for left ankle sprain. Thus, as new and material evidence has been received, his application to reopen such claim is reopened. REASONS FOR REMAND 2. Entitlement to service connection for a left ankle disorder. As noted previously, the Veteran contends that he has a current left ankle disorder as a result of an in-service injury that occurred when he stepped off into a hole and twisted his left ankle while at Fort Sill. In this regard, the Veteran's STRs reflect an assessment of left ankle sprain following an injury in September 1989. Also, X-rays performed in April 2012 and June 2014 reflect degenerative changes of the left ankle. However, as indicated previously, the April 2011 VA examiner opined that the Veteran's in-service left ankle sprain resolved and his current claimed disorder less likely as not related to his military service. In this regard, he acknowledged the Veteran's in-service left ankle injury, but noted that there was a 21-year absence of documentation of treatment for his left ankle. Thus, the examiner determined that there was inadequate documentation to relate the Veteran's present complaints to his in-service injury. However, the sole basis for a negative opinion cannot be based on the lack of documentation demonstrating a continuity of care, especially in light of the fact that the Veteran has reported that he experienced a continuity of left ankle symptomatology since service. See September 2010 written statement and private treatment record. Therefore, the Board finds a remand is necessary in order to afford the Veteran a new VA examination so as to determine the nature and etiology of his claimed left ankle disorder. Further, the parties to the JMR found that the Board failed to ensure that an outstanding VA treatment record, specifically a June 11, 2012, podiatry note, was obtained. Moreover, the record reflects that the Veteran submitted a VA Form 21-4142 (Authorization and Consent to Release Information to VA) in February 2012 for treatment related to his left ankle by Dr. S.W. since 2010. However, the only treatment records from such private physician on file are dated in November and December 2012. Thus, such outstanding treatment records should be obtained on remand. The matters are REMANDED for the following action: 1. After obtaining any necessary authorization from the Veteran, all outstanding records, to include the June 11, 2012, VA podiatry note, and private treatment records from Dr. S.W. from 2010 to the present, should be obtained. For private treatment records, make at least two (2) attempts from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Afford the Veteran an appropriate VA examination so as to determine the nature and etiology of his claimed left ankle disorder. The record, to include a copy of this Remand, must be made available to the examiner, and all indicated tests should be conducted. Thereafter, the examiner should address the following inquiries: (A) Identify all current left ankle disorders that have been present at any time proximate to October 2010, even if such is asymptomatic or resolved. In particular, the examiner should address the April 2012 and June 2014 X-rays demonstrating degenerative changes. If no left ankle disorder is diagnosed, the examiner should offer an opinion as to whether the Veteran's left ankle symptomatology results in functional impairment of earning capacity. If so, the examiner is advised that he or she should accept that the Veteran has a disability for the purpose of rendering the opinion requested below. (B) For each diagnosed left ankle disorder, offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such disorder had its onset in, or is otherwise related to, his military service, to include his documented left ankle sprain following an injury in September 1989. In offering such opinion, the examiner must consider the lay statements of record regarding the onset of the Veteran's left ankle disorder and the continuity of symptomatology from service to the present time. The examiner is advised that a lack of post-service treatment records demonstrating a continuity of care cannot form the sole basis of a negative opinion. Thus, if the examiner rejects the Veteran's lay statements as to onset and/or continuity of symptomatology, he or she should provide a reason for doing so beyond the mere lack of corroborating records or the fact that the Veteran is not qualified to diagnose any disability based on the reported symptomatology. A rationale for all opinions offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Koria B. Stanton, 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.