Citation Nr: 21070914 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 17-63 726 DATE: November 26, 2021 ORDER The petition to reopen the previously denied claim of entitlement to service connection for left ankle disability, to include degenerative joint disease (DJD), is granted. Entitlement to service connection for left ankle disability, to include DJD, is granted. The appeal of claim of entitlement to service connection for back injury has been withdrawn. The appeal of claim of entitlement to service connection for neck injury has been withdrawn. FINDINGS OF FACT 1. The regional office (RO) denied service connection claim for left foot (ankle) disability in an April 1989 rating decision. 2. The evidence received since the April 1989 rating decision is new and material and relates to an unestablished fact necessary to substantiate the claim for service connection of left ankle disability, to include DJD. 3. Resolving reasonable doubt in favor of the Veteran, his left ankle disability is related to his active duty military service. 4. On July 20, 2019, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran's representative that a withdrawal of his claims of entitlement to service connection for back and neck injuries are requested. CONCLUSIONS OF LAW 1. Evidence received since the April 1989 rating decision is new and material and the claim for service connection for left ankle disability, to include DJD, is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for entitlement to service connection for left ankle disability, to include DJD, have been met. 38 U.S.C. §§ 1131, 5103; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for withdrawal of a claim of entitlement to service connection for back injury by the appellant (or his or her authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for withdrawal of a claim of entitlement to service connection for neck injury by the appellant (or his or her authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1985 to March 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision of a Department of Veterans Affairs (VA) RO. Though it appears that the RO has reopened the claims for service connection for left ankle disability, to include DJD, the Board must determine on its own whether new and material evidence has been submitted to reopen the claim. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In August 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ); a transcript is of record. For the purpose of more accurately reflecting the scope of the Veteran's claim, the issue of service connection for left ankle disability has been recharacterized as shown on the title page. 1. Whether new and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for left ankle disability, to include DJD The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). 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. Id. The evidence need only relate to one unestablished fact necessary to substantiate the claim to be material. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). 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. 38 C.F.R. § 3.156(a). When determining whether the submitted evidence meets the definition of new and material, VA must consider whether the new evidence, when considered with the evidence of record, at least triggers VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Shade, supra. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service connection for left foot condition (ankle disability) was denied in an April 1989 rating decision on the basis that there was no permanent disability incurred or aggravated in service. The Veteran did not initiate an appeal of that decision and thus, it became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. No evidence was constructively or physically of record within one year of the April 1989 determination. 38 C.F.R. § 3.156(b); see also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). In determining whether new and material evidence is required to reopen a claim, the focus must be on whether the evidence amounts to a new claim "based upon distinctly diagnosed diseases or injuries" from the claim considered in the prior final decision. Velez v. Shinseki, 23 Vet. App. 199, 204 (2009); Boggs v. Peake, 520 F.3d 1330, 1335-36 (2008). In the instant case, the present claim for service connection for left ankle disability, to include DJD, is based on the same symptoms and etiology reported by the Veteran in connection with his previous claim for service connection for left foot condition. In fact, in the April 2016 rating decision, the RO specifically addressed the Veteran's foot condition when denying service connection for left ankle injury. Thus, the left ankle disability, to include DJD claim presently on appeal is a continuation of the Veteran's previous claim for service connection for left foot condition and new and material evidence is required. At the time of the April 1989 rating decision, the pertinent evidence of record included service treatment records (STRs), VA treatment records, April 1986 VA examination and statement from the Veteran. Since the April 1989 rating decision, additional VA treatment records with radiographic studies, additional STRs and Dr. J. K.'s opinion have been added. As this evidence was not before the VA or considered in the prior denial, it is new. This evidence is also material as it relates to an unestablished fact necessary to substantiate the claim, namely, evidence of a present disability and a potential link between the Veteran's disability and his active military service. As such, since new and material evidence has been received, the request to reopen the prior denial is warranted. 38 C.F.R. § 3.156. The Board will adjudicate the claim on the merits and given the disposition below, there is no prejudice to the Veteran. 2. Entitlement to service connection for left ankle disability, to include DJD For the reasons that follow, resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for his left ankle disability, to include DJD, is warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to establish service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307, so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may be established for chronic diseases, to include arthritis, manifesting to a certain degree within a year after service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). Additionally, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. In order to rebut the presumption of soundness at service entry, there must be clear and unmistakable evidence showing that the disorder pre-existed service and there must be clear and unmistakable evidence that the disorder was not aggravated by service. The Veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGPREC 3-2003 (July 16, 2003); Jordan v. Principi, 17 Vet. App. 261 (2003); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). As an initial matter, the Board notes that evidence of record has potentially raised an issue regarding the presumption of soundness related to the Veteran's left ankle disability. The Veteran was medically discharged in March 1986 due to a left ankle disability. On his January 1986 Physical Evaluation Board Proceedings, a tarsal coalition of left foot was noted. It was also noted that the Veteran's condition was not permanently aggravated by service. As an aside, it is noted that another medical report recorded an impression that the disorder existed prior to service with service aggravation/exacerbation. Nonetheless, with regard to the presumption of soundness, the Board notes that no left ankle condition was noted on the Veteran's enlistment examination in April 1985. See April 1985 Enlistment Examination and Medical Report of History. Additionally, the records merely show a history of a prior ankle condition which is insufficient to establish that the Veteran's condition existed prior to service. Accordingly, the Board finds that there is not clear and unmistakable evidence that the Veteran's current left ankle disability pre-existed service and thus, the presumption of soundness at service entrance is not rebutted. When the presumption of soundness is not rebutted, the case converts to one for direct service connection. See Wagner, 370 F.3d at 1096. Turning to the elements for direct service connection, the Veteran has been diagnosed with DJD of the left ankle. See December 2016 VA treatment record. Thus, the first element of service connection is met. At the August 2021 Board hearing, the Veteran testified that he injured his left ankle when he stepped into a hole during night marching in the military. The Board finds the Veteran's statements credible as they are consistent with the following evidence of record. The Veteran's STRs show a left ankle injury in October 1985. The STRs also show continuous complaints and treatment of left ankle pain and decreased range of motion. See e.g., October 1985, November 1985, and December 1985 STRs. The Veteran's DD Form 214 shows that his military occupational specialty (MOS) was infantryman. Additionally, as noted above, the Veteran was medically discharged in March 1986 due to his left ankle disability. Based on the foregoing, the Board finds that the in-service incurrence element of service connection has been established. Turning to the third element of service connection, a causal nexus, when resolving all reasonable doubt in favor of the Veteran, the Board finds this element also has been established. The Veteran has generally contended that he has had issues with his left ankle since service. See August 2021 hearing transcript. The Veteran also reported that he has been receiving treatment for his left ankle disability since separation from his active duty service. As noted, the Veteran was medically discharged from the military for his left ankle disability. Subsequently, he sought entitlement to service connection for his left ankle disability in June 1985. The Veteran underwent a general VA examination in April 1986. At that time, the Veteran reported increased pain in his left ankle. No opinion was rendered. In October 1988, the Veteran sought continuous treatment for his left ankle pain and lack of mobility. His medical discharge due to left ankle disability was noted at that time. In October 2016, a VA treatment record shows that the Veteran has had ongoing episodes of sharp pain in his left ankle for over 30 years. In December 2016, a radiographic study of the left ankle showed ostearthritis. In November 2020, a radiographic study of the left ankle showed mild dorsal talonavicular joint degenerative change. The Veteran also has been receiving ongoing treatment for his left ankle disability at the VA medical center with Dr. J. K. In July 2020, Dr. J. K. diagnosed the Veteran with posttraumatic advanced degenerative arthritis in the left ankle, resulting from his injury while on active duty. Dr. J. K. opined that it is more likely than not that the Veteran's arthritis of his left ankle is due to his injury in service. In light of the foregoing, the Board will resolve all reasonable doubt in favor of the Veteran and find that service connection is warranted. The probative evidence of record shows that the Veteran injured his left ankle in service. He has credibly reported experiencing left ankle issues since service and has consistently been seeking treatment since his separation from service. His post-service treatment records also are devoid of any evidence of a post-service left ankle injury. Multiple physicians diagnosed the Veteran with an ongoing left ankle condition and Dr. J. K. attributed the Veteran's current left ankle disability to his service. Accordingly, resolving all reasonable doubt in favor of the Veteran, service connection for left ankle disability is granted. Withdrawal An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55. In a July 2019 signed statement to the Board, the Veteran's former representative requested to withdraw his claims pending before the Board, to include entitlement to service connection for back and neck injuries. The Veteran's former representative further requested to continue his claim of entitlement to service connection for left ankle disability. The statement was clear and unambiguous. As the Veteran's representative, on behalf of the Veteran, has indicated that he wishes to withdraw his claims of entitlement to service connection for back and neck injuries, no allegation of error of fact or law remains before the Board for appellate consideration as to these issues. See 38 C.F.R. § 19.55(c). (Continued on the next page) Accordingly, the issues of entitlement to service connection for back and neck injuries are dismissed. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Kuzniar, 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.