Citation Nr: 21064767 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 16-16 514 DATE: October 21, 2021 ORDER New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for a right ankle disorder is granted. REMANDED Entitlement to service connection for a right ankle disorder is remanded. FINDINGS OF FACT 1. The claim of entitlement to service connection for a right ankle disorder was previously denied in an August 2010 rating decision. The Veteran did not perfect an appeal nor submit new and material evidence within one year, and that decision became final. 2. Evidence received since the August 2010 rating decision includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claim for service connection. CONCLUSION OF LAW As new and material evidence has been received since the issuance of the August 2010 final rating decision, the criteria for reopening the claim for service connection for a right ankle disorder are met. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1968 to December 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in a July 2021 hearing. NEW AND MATERIAL EVIDENCE In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). 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. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility and probative value of proffered evidence in the context of the record as a whole, and the Justus presumption of credibility no longer attaches. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Thus, evidence that is sufficient to reopen a claim may not be sufficient to grant the benefit being sought. See generally Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). 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 or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. Additionally, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156(c)(1). A claim is not reconsidered, however, where VA could not have obtained the records when it initially decided the claim because the records did not exist at that time, or because the claimant failed to provide sufficient information to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or any other official source. 38 C.F.R. § 3.156(c)(2). To establish service connection, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called nexus requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In an August 2010 rating decision, the RO denied service connection for a right ankle disorder because there was no evidence of any complaints of or treatment for a right ankle condition while in service. The Veteran did not appeal that decision nor submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Evidence of record at the time of the August 2010 rating decision includes the Veteran's VA and service treatment records (STRs). Evidence submitted after the August 2010 rating decision includes private treatment records (PTRs) noting diagnoses of various ankle disorders, lay statements from the Veteran and a fellow service member describing the in-service injury, and Board hearing testimony. The Board finds that new and material evidence has been presented. The evidence is new because it was not previously submitted to VA. The evidence is material because it relates to unestablished facts necessary to establish the claim. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. Additionally, the evidence is neither cumulative nor redundant as that evidence was not of record at the time of the prior denial. See 38 C.F.R. § 3.156(a). Further, new evidence is to be presumed credible for purposes of deciding whether a previously denied claim may be reopened. Justus, 3 Vet. App. at 513. Moreover, when considering the new evidence in conjunction with the evidence already of record, it raises a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 117. Accordingly, for all of the above reasons, the Veteran's claims of entitlement to service connection for a right ankle disorder reopened. REASONS FOR REMAND Entitlement to service connection for a right foot disorder is remanded. Remand is required for a VA examination. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA's duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The RO did not provide the Veteran with an examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Here, the Veteran asserts that their right ankle disorder is related to service. March 2012 PTRs note early ankle degenerative joint disease. July and August 2012 PTRs indicate a diagnosis of tendinitis. Numerous VA treatment records reference chronic ankle pain and instability. The Board notes that the Veteran's STRs are silent for any complaints of or treatment for right ankle pain. The Veteran denied foot and lower extremity trouble at both their November 1967 entrance examination, and December 1971 exit examination. However, in June 2010, September 2012, and February 2013 statements, and during the July 2021 Board hearing, the Veteran asserted that they injured their right ankle in service while walking onboard the deck of a ship at night, and tripping over misplaced ropes. The Veteran reports that they went to medical for treatment where the ankle was wrapped and the Veteran was given pain medication, but that the ship did not have an actual doctor, and while they received no further treatment, they were instructed to rest for two weeks. The Veteran submitted a January 2012 statement from a fellow service member corroborating the Veteran's story, stating that they recalled the Veteran being on crutches for some time, and that they commuted from Rhode Island to New York together and that the Veteran was unable to drive due to the ankle injury. Various treatment records throughout the appeal period include the Veteran's reports of the injury occurring while in service. For example, March 2012 PTRs note the Veteran's assertion of an ankle injury in 1969, and August 2012 PTRs include the Veteran's report of an injury 40 years ago that has persisted to this day. However, it appears that the treating examiners were merely describing the Veteran's lay reports of an in-service injury and were focused on treatment of the present symptoms rather than deducing the actual origin of the injury. Of importance though is a July 2010 VA x-ray of the right ankle. The examiner there noted that the imaging shows an old avulsion injury of the medial and lateral malleoli with well corticated small bony fragments beneath. Because there is evidence of currently diagnosed disabilities, an in-service event, and an indication that the current disabilities may be associated with the in-service event, remand for a VA examination is required. Remand is also required to obtain claimed missing military personnel records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim, including making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, military records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(2). As noted above, during the July 2021 Board hearing, the Veteran reported that they were instructed to rest for a week or two after being treated for their in-service ankle injury. If the Veteran was given a profile from their regular duties due to the ankle injury, this might appear in their military personnel records; however, the Veteran asserts that these are missing from the Veteran's claims file. Accordingly, remand is required to obtain any missing personnel or military medical records. Remand is required to obtain missing PTRs. VA's duty to assist claimants to obtain evidence needed to substantiate a claim includes making reasonable efforts to obtain relevant private medical records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The Board notes that during the July 2021 Board hearing, the Veteran referenced recent 2021 orthopedic records; however, none of these have been associated with the claims file. The most recent medical evidence on file remains to be VA treatment records from 2017. Accordingly, remand is required to obtain these missing records. Finally, the Board also notes that at the July 2021 Board hearing, the Veteran referenced a November 2013 affidavit indicating that the old injury was sustained during the military. A careful review of the record finds that this affidavit is not present in the claims file, and the Veteran does not appear to have submitted it following the hearing. As this matter is being remanded otherwise, the Veteran and their representative will be provided with another opportunity to provide this. By this remand the Board makes no determination, expressed or implied, concerning the credibility of any statements on file. The matters are REMANDED for the following action: 1. Obtain the Veteran's military personnel records and any other service treatment records not currently associated with the claims file. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. Ask the Veteran to identify all outstanding treatment records relevant to their right ankle claim, including the 2021 orthopedic records. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 3. Contact the Veteran and their representative to submit the November 2013 affidavit. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 4. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of the right ankle disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. (a) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the right ankle disorder had onset in, or is otherwise related to, active military service. (b) The examiner should consider the following: 1) the June 2010, January 2012, September 2012, and February 2013 statements; 2) the July 2021 Board hearing testimony; and 3) the July 2010 x-ray of the ankle noting old avulsion injury of the medial and lateral malleoli with well corticated small bony fragments beneath. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rogos 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.