Citation Nr: 21070023 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 20-07 174 DATE: November 22, 2021 ORDER New and material evidence having been received, the petition to reopen the claim of service connection for a bilateral ankle disability is granted. REMANDED Entitlement to service connection for a bilateral ankle disability is remanded. FINDINGS OF FACT 1. A May 2010 rating decision denied entitlement to service connection for a bilateral ankle disability; the Veteran did not perfect an appeal, and the decision became final. 2. The evidence associated with the claims file following the May 2010 denial of the Veteran's claim for service connection for a bilateral ankle disability is new and material evidence, and the claim is thus reopened. CONCLUSIONS OF LAW 1. The May 2010 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 3.160. 2. New and material evidence has been received to reopen a claim for service connection for a bilateral ankle disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from February 1964 to February 1967. He had additional service in the Army Reserve. The Veteran died in January 2021. In March 2021, the Board of Veterans' Appeals dismissed the claim pursuant to 38 U.S.C. § 7104(a). In April 2021, within the one-year period allowed, the Appellant filed a petition to substitute; that petition was approved on April 20, 2021. The Appellant did not appear at a September 2021 hearing on this issue; as such, the hearing request is considered withdrawn. See 38 C.F.R. § 20.704 (d). New and Material Evidence VA may reopen and review a claim that has been previously denied if new and material evidence is submitted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. Material evidence is 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 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 Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Board finds that new and material evidence regarding the Veteran's claimed ankle disability has been received since the May 2010 denial, to include post-service treatment records and numerous lay statements. Furthermore, the Veteran was granted service-connection for lower extremity neuropathy and several musculoskeletal disabilities which may have had an impact on his bilateral ankle condition. This new evidence relates to an unestablished fact necessary to substantiate the claim. Accordingly, the Board finds that the threshold for reopening the claim has been met, and the claim for service connection for a bilateral ankle disability is reopened. REASONS FOR REMAND Entitlement to service connection for a bilateral ankle disability is remanded. VA's duty to assist includes providing a medical examination and obtaining an opinion when it is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159. 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 a diagnosed disability or 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). The threshold for finding a link between a current disability and service so as to require medical examination is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006). Here, post-service treatment records show that the Veteran sought treatment for bilateral ankle complaints. See October 2018 CAPRI records (complaining of ankle cramps), September 2018 CAPRI records (seeking treatment of "major illness" described as "physical pain" in ankles), and July 2015 CAPRI records (showing "vibration absent in toes and ankles" bilaterally). The Veteran participated in Airborne School during service. Specifically, the Veteran reported that he participated in several parachute jumps during service. This is consistent with his nature of service. Further, during his life the Veteran was service-connected for degenerative arthritis of the spine, bilateral pes planus, peripheral neuropathy of the lower extremities, and bilateral knee disabilities. These service-connected disabilities may have played a role in his bilateral ankle disorder. Specifically, a May 2019 VA examiner stated that the Veteran's "flatfeet can sometimes contribute to problems in your ankles and knees because the condition can alter the alignment of your legs." VA has not yet obtained a VA medical opinion to determine whether the Veteran's bilateral ankle disability was directly related to service or secondarily caused or aggravated by his service-connected disabilities. For these reasons, a remand is required to obtain a VA medical opinion addressing the nature and etiology of this disability. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: Obtain a VA medical opinion to determine the nature and etiology of the Veteran's bilateral ankle disability. The claims folder must be reviewed in conjunction with the examination and opinion. The examiner must provide separate, well-reasoned opinions for the following: (a) Is it at least as likely as not that the Veteran's bilateral ankle disability onset in service, within one year of service separation, or is otherwise related to service? In rendering this opinion, the VA examiner must discuss the Veteran's participation in Airborne School and the May 2019 VA examiner's finding that the Veteran has degenerative arthritis. (b) Is it at least as likely as not that the Veteran's bilateral ankle disability was caused by any of his service-connected disabilities, to include degenerative arthritis of the spine, bilateral pes planus, peripheral neuropathy of the lower extremities, and bilateral knee disabilities? (c) Is it at least as likely as not that the Veteran's bilateral ankle disability was aggravated by any of his service-connected disabilities, to include degenerative arthritis of the spine, bilateral pes planus, peripheral neuropathy of the lower extremities, and bilateral knee disabilities? In answering (b) and (c), the examiner must discuss the May 2019 VA examiner's statement that "flatfeet can sometimes contribute to problems in your ankles and knees because the condition can alter the alignment of your legs." A full and complete rationale for all opinions is requested. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Finelli, 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.