Citation Nr: 21067249 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 15-26 457 DATE: November 3, 2021 ORDER New and material evidence having been presented, the claim of entitlement to service connection for a right ankle and/or foot disability is reopened. To this limited extent only, the appeal of that issue is granted. REMANDED Entitlement to service connection for a right ankle and/or foot disability is remanded. FINDINGS OF FACT 1. The Veteran's claim of service connection for a bilateral ankle disability was denied in a July 2003 rating decision that was appealed, and a statement of the case was issued in August 2004; however, the Veteran did not file a substantive appeal in response to that statement of the case, nor was new and material evidence received during the 60 days after the statement of the case was issued 2. Evidence relevant to the claim for a right ankle and/or foot disability was submitted since the July 2003 rating decision, and was not previously considered by agency decision makers; is neither cumulative nor redundant of the evidence already of record; relates to unestablished facts; and raises a reasonable possibility of substantiating the Veteran's claim for service connection for a right ankle and/or foot disability. CONCLUSION OF LAW The criteria for reopening the previously denied claim of entitlement to service connection for a right ankle and/or foot condition have been met. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March to October 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified at a hearing before the undersigned. The Board notes that the issue on appeal has been reclassified based on clarification from the Veteran during the July 2021 Board hearing. New and material evidence having been presented, the claim of entitlement to service connection for a right ankle and/or foot disability is reopened. To this limited extent only, the appeal of that issue is granted. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision, a substantive appeal is filed within 60 days of the issuance of a statement of the case, or new and material evidence is received during the appeal period after the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.1103. VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). The threshold is low and does not require new and material evidence regarding each element of the claim that had not been proved in the prior final decision. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New evidence is defined as 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). The Veteran filed a claim of service connection for a bilateral ankle disability in June 2003. The Veteran was afforded a VA exam regarding this claim which also addressed his right foot. In a July 2003 rating decision, the RO denied service connection for bilateral ankle arthritis because the Veteran's service medical records were negative for complaints of bilateral ankle arthritis and there was no diagnosis of arthritis related to the Veteran's military service. The Veteran filed a timely notice of disagreement in September 2003, and a statement of the case was issued in August 2004. However, the Veteran did not file a substantive appeal in response to that statement of the case, nor was new and material evidence received during the 60 days after the statement of the case was issued. Thus, the July 2003 rating decision became final as to the Veteran's claim for a bilateral ankle disability. See 38 U.S.C. § 7105; 38 C.F.R. § 3.156(b). New and material evidence is therefore required to reopen the claim for service connection for a right ankle and/or foot disability. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Since the July 2003 rating decision, the Veteran was afforded a VA examination in July 2011 regarding his right ankle and/or foot disability. Therefore, the Board finds that new and material evidence which tends to substantiate the Veteran's claim for service connection for a right ankle and/or foot disability has been received in this case, and the claim is reopened. See 38 C.F.R. § 3.156(a). REASONS FOR REMAND Entitlement to service connection for a right ankle and/or foot disability is remanded. This matter must be remanded as it appears that not all of the Veteran's VA treatment records have been associated with the claims file. The record reflects that the Veteran received treatment from VA since the 1980s. In addition, the record contains pages from the Veteran's VA treatment records dated in 2003 and 2011, however, they do not appear to represent all of the Veteran's treatment from VA during those time periods. Accordingly, remand is warranted to ensure that all the Veteran's VA treatment records have been associated with his claims file. The record also establishes that the Veteran was approved for benefits from the Social Security Administration (SSA) in September 2011. However, there do not appear to have been any attempts to associate any potentially relevant documents from the Veteran's SSA record with the claims file. Accordingly, remand is warranted in order to do so. Finally, as the claims file appears to be missing potentially relevant medical records, the Board notes that the July 2011 VA examination is potentially inadequate. Therefore, a new VA examination is warranted on remand if additional relevant VA treatment records or SSA records are obtained. This matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. Obtain from the Social Security Administration the Veteran's relevant records regarding his disability claim, to include the underlying medical records considered. If these records are unavailable and further efforts to obtain them would be futile, this must be clearly documented in the file. 3. If additional relevant records are associated with the claims file, then obtain an opinion from a qualified clinician to determine whether any right ankle and/or foot disability found during the period on appeal is related to the Veteran's military service. If the selected clinician determines that an examination is necessary to respond to this request, such examination should be scheduled. After review of the claims file, and examination of the Veteran if deemed necessary, the clinician should identify all right ankle and/or foot disabilities found during the period on appeal. For each ankle and/or foot disability identified during the period on appeal, the clinician should opine whether it is at least as likely as not (50 percent or greater probability) that the disability began in or is otherwise caused by the Veteran's active service. The clinician should be advised that pain alone, even without an identifiable underlying diagnosis, can constitute a current disability. Therefore, if no right ankle and/or foot disability is diagnosed during any part of the appeal period, the clinician must opine as to whether the Veteran's right ankle and/or foot pain results in functional impairment. If the right ankle and/or foot pain does result in functional impairment, the clinician must opine as to whether the right ankle and/or foot pain is at least as likely as not related to the Veteran's military service. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so; however, the Veteran's history of symptoms capable of lay observation cannot be dismissed solely on the basis that they are not recorded in contemporaneous treatment records. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Elias, 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.