Citation Nr: 21063224 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 18-48 580 DATE: October 13, 2021 ORDER The previously denied claim for entitlement to service connection for a left ankle/Achilles condition, is reopened on the basis of new and material evidence; to this extent only, the appeal is granted. REMANDED Entitlement to service connection for a left ankle/Achilles condition, to include as secondary to the service-connected disability of irritable bowel syndrome (IBS) to include ulcerative colitis, is remanded FINDINGS OF FACT 1. In a July 2015 rating decision, the Veteran was denied service connection for a left Achilles disability; the Veteran did not appeal that decision or submit new and material evidence within the year following notification of that decision. 2. Evidence received since the July 2015 rating decision includes information that was not previously considered that related to an unestablished fact necessary to substantiate the claim of service connection for left ankle/Achilles condition, to include as secondary to the service-connected disability of IBS to include ulcerative colitis. CONCLUSIONS OF LAW 1. The July 2015 rating decision, which denied the Veteran's claim for service connection for a left Achilles condition, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence has been received to reopen the previously denied and final claim of service connection for a left Achilles condition. 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 November 1980 to March 1981 and from October 1983 to May 1992, including combat service in Southwest Asia. The Veteran's decorations include the Combat Action Ribbon. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) in June 2021. New and material evidence Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. §§ 7104, 7105. However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. 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). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In determining whether that 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 consider whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA's duty to obtain a VA examination. Id. Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. Id. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The Veteran was originally denied service connection for a left Achilles disability in a July 2015 rating decision. The Veteran did not file a notice of disagreement with the decision, nor was any new and material evidence received during the remainder of the appeal period. 38 C.F.R. § 3.156(b). Therefore, the July 2015 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. § § 3.104, 20.302, 20.1103. In the July 2015 rating decision, the RO found the evidence of record did not show residuals of a left Achilles tendon rupture was related to the service-connected condition of IBS syndrome to include ulcerative colitis. The RO stated that the Veteran ruptured his Achilles in December 2010 after twisting it while walking. The RO denied the claim. The Veteran filed a claim to reopen his previously denied claim for service connection in July 2017. Since that time, the Veteran has submitted two private nexus opinions from his healthcare providers. A letter dated June 2, 2021 from Dr. A.W. was received by the VA in August 2021 and a letter dated July 1, 2021 from Dr. A.K. was received by the VA in August 2021. As this evidence was not previously before agency decisionmakers, relates to an unestablished fact necessary to substantiate the Veteran's claim, and is neither duplicative nor cumulative of evidence previously received, the Board finds it to be new and material sufficient to warrant reopening the Veteran's claim for service connection. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. The claim will be further addressed in the REMAND section of this decision. REASONS FOR REMAND The Veteran claims his Achilles injury is a result of his treatment for his service-connected IBS. In the nexus letter from Dr. A.W., he stated that he treats the Veteran for IBS and that he believed the treatment was the cause of the full tear of the Veteran's Achilles heel. In the nexus letter from Dr. A.K., she stated that the Veteran had been a patient of hers for over five years and that the Veteran has had a history of IBS which was treated for many years with various medications. Dr. A.K. went on to state that that some of the medications resulted in systemic complications affecting other organ systems. Dr. A.K. ultimately opined that it was more likely that not that the treatments for IBS contributed to the Achilles tendon rupture. Neither opinion, however, contains a detailed rationale or reflects a claims file review. The Board notes that the record does not contain any recent VA examinations or opinions regarding the Veteran's Achilles disability. The record is clear that there is competent evidence of a disability. The Veteran has also submitted evidence at shows the disability may be associated with one of the Veteran's service-connected disabilities. Additionally, the Board finds that there is insufficient evidence to make a decision. Thus, a remand is required to afford the Veteran with a VA examination to address the etiology of his left Achilles disability. The matter is REMANDED for the following action: After completing any development deemed necessary, afford the Veteran a VA examination with an appropriate medical professional. The claims file, including the June 2021 hearing transcript and the two private opinions from June and July 2021, must be made available for review by the examiner. The examiner must review the claims folder, and this fact must be noted in the accompanying medical report. The examiner must provide an opinion as to whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that the Veteran's claimed left ankle/Achilles condition (i) had its onset in service or is otherwise etiologically related to active service, or (ii) was caused or aggravated by a service-connected disability, to include the Veteran's service-connected irritable bowel syndrome to include ulcerative colitis disability. Aggravation must be addressed All opinions offered must be accompanied by a clear rationale consistent with the evidence of record. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Hetman 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.