Citation Nr: 21073055 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 18-00 002 DATE: December 7, 2021 ORDER Entitlement to a left lower extremity disability, manifested by swelling, pain, numbness, and the inability to straighten the left great toe, is granted. FINDINGS OF FACT 1. The Veteran filed a substantive appeal in August 2017, and the decision on appeal is the December 2016 rating decision. 2. The Veteran's left lower extremity disability is related to his in-service diagnoses of phlebitis and anterior compartment syndrome. CONCLUSION OF LAW The criteria for service connection for a left lower extremity disability, manifested by swelling, pain, numbness, and the inability to straighten the left great toe, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1974 to October 1987 and from October 1987 to September 1993. In a December 2016 rating decision, the agency of original jurisdiction (AOJ) denied the Veteran's claim for a left leg disability. The Veteran submitted a timely notice of disagreement and perfected an appeal in May 2017 by filing VA Form 9, Appeal to the Board of Veterans' Appeals. However, in August 2017 correspondence, the Veteran indicated that he wished to withdraw the then-perfected appeal. Following the withdrawal, also in August 2017, the Veteran submitted a statement in support of claim that explained that the VA had utilized an October 2016 VA examination of his right ankle as a basis for denial for his claimed left leg disability. He clarified that his right ankle claim and left leg disability were two distinct claims and asked that his left leg claim be properly considered. The AOJ construed the Veteran's August 2017 correspondence as a new claim and issued a September 2017 rating decision denying the Veteran's left leg disability on the basis that no new and material evidence had been submitted. The Veteran then perfected a new appeal. However, pursuant to 38 C.F.R. § 19.22 and § 19.55(c), the Board finds that the Veteran's August 2017 correspondence meets the requirements to be construed as a valid Substantive Appeal (in lieu of a VA Form 9) that continues the original claim, notwithstanding any intervening statement of withdrawal. Indeed, the statement requesting VA review was timely re-filed within one year of the December 2016 rating decision. Crucially, under 38 C.F.R. § 19.55(c), withdrawal does not preclude the filing of a new Substantive Appeal as to any issue withdrawn, provided such would be timely if the appeal withdrawn had never been filed. Accordingly, because the August 2017 statement would otherwise have been timely, the December 2016 rating decision did not become final and new and material evidence was not required to be submitted by the Veteran. The decision on appeal is the December 2016 rating decision. The Veteran testified at a videoconference hearing before the undersigned in August 2021. A transcript is of record. At the hearing, the Veteran clarified that his disability manifests in the inability to straighten only his left great toe, and not all toes. Entitlement to a left lower extremity disability, manifested by swelling, pain, numbness, and the inability to straighten toes. The Veteran asserts that he has a left lower extremity disability that began in-service following a one-mile run. The Board concludes that the Veteran has a current disability that is related to active-duty service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). During service, the Veteran was seen for complaints of left leg swelling, rash, and pain and was diagnosed with phlebitis and anterior compartment syndrome. See November 1974 USAF Hospital Edwards Report. The Veteran's VA treatment provider, Dr. M.M. submitted opinions dated in August 2021 and September 2021 in support of the Veteran's claims. Dr. M.M. noted that the Veteran had a diagnosis of chronic left lower extremity edema. After review of the Veteran's provided in-service treatment records, Dr. M.M. opined that the Veteran's current lower extremity symptoms and chronic edema were "without a doubt" directly related to the Veteran's diagnoses of phlebitis and anterior compartment syndrome while in service and that these conditions were the direct cause of the Veteran's current left lower extremity disability. There are no contrary medical opinions of record, and the Board finds the opinion provided by Dr. M.M. to be of probative value. A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). (Continued on Next Page) Accordingly, the Board finds that service connection for a left lower extremity disability, manifested by swelling, pain, numbness, and the inability to straighten the left great toe, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Bristow Williams, 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.