Citation Nr: 21074061 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 18-44 129 DATE: December 14, 2021 ORDER New and material evidence having been submitted, the claim of service connection for a left ankle disability is reopened. Service connection for a left ankle disability is granted. FINDINGS OF FACT 1. The Veteran's claim for service connection for a left ankle disability was denied in a July 2001 rating decision on the basis of a lack of evidence of a current disability and a nexus to service. He was notified of this decision, did not timely disagree with it or submit new and material evidence within one year of it, and it became final. 2. Evidence received since the July 2001 rating decision raises a substantial possibility of substantiating the claim of service connection for a left ankle disability. 3. The probative evidence of record is at least in equipoise as to whether the Veteran's left ankle disability is etiologically related to his active duty service. CONCLUSIONS OF LAW 1. The July 2001 rating decision is final with regard to the issue of service connection for a left ankle disability. New and material evidence sufficient to reopen the claim of service connection for a left ankle disability has been received. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 19.52, 20.1103 (2021). 2. With resolution of reasonable doubt in the Veteran's favor, the criteria for a grant of service connection for a left ankle disability have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from July 1982 to October 1998. The Veteran testified before the undersigned Veterans Law Judge during a July 2021 hearing and the transcript is of record. This matter is on appeal from a July 2017 rating decision. The Board notes that, in the July 2017 rating decision, the Agency of Original Jurisdiction (AOJ) granted the Veteran's request to reopen his claim for service connection for a left ankle disability and then denied it on the merits. The Board, however, must decide initially whether evidence to reopen a claim has been received without deference to any AOJ decision concerning reopening. See Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996). Accordingly, the issue of reopening is reflected on the title page. 1. Left Ankle Disability New and Material Evidence The Veteran contends that he has a left ankle disability that is etiologically related to his active duty service. In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured to that claim. 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 is neither cumulative nor redundant of evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). However, evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343, 1347 (Fed. Cir. 2000). In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is generally "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Until the Veteran meets his threshold burden of submitting new and material evidence sufficient to reopen his claim of entitlement to service connection, the benefit of the doubt doctrine does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). The Veteran was denied service connection for a back disability in a May 2000 rating decision on the basis that the claim was not well grounded. Due to a change in the law, VA revisited this decision and denied the Veteran's claim again in a July 2001 rating decision. He did not submit a Notice of Disagreement (NOD) or new and material evidence within one year of the rating decision. Therefore, the July 2001 rating decision is final. 38 U.S.C. § 7105(b)(1); 38 C.F.R. §§ 20.204, 20.302, 20.1103 (2021). The basis for the July 2001 denial was a lack of evidence of a current disability or a nexus to service. The question is thus whether the Veteran has submitted or VA has otherwise received evidence that was not before the adjudicator in July 2001, that is neither redundant nor cumulative, and that raises a reasonable possibility of substantiating a claim that the Veteran currently has a left ankle disability as a result of active duty service. The evidence that was of record at the time of the July 2001 rating decision included the Veteran's service treatment records and an October 1999 VA examination report. Since the July 2001 rating decision, the Veteran has provided a September 2018 medical opinion by his treating VA podiatrist. The podiatrist described the Veteran's current left ankle disability and opined that it is at least as likely as not that that disability "is related to past military duties." As the record now contains more evidence pertinent to the issue of a current disability and a nexus to service than it did in July 2001, the Board finds that new and material evidence has been received which pertains to previously unestablished facts necessary to support the claim. As this evidence raises a reasonable possibility of substantiating the claim, satisfying the criteria of 38 C.F.R. § 3.156(a) for new and material evidence, the claim is reopened. 2. Left Ankle Disability Service Connection The Veteran contends that his left ankle disability had its onset during active duty service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A June 1984 service treatment record notes the Veteran's report of twisting his left ankle while playing basketball. The treatment provider diagnosed a mild ankle sprain. A February 1986 service treatment record notes the Veteran's report of intermittent left leg pain that he attributed to shin splints. The treatment provider was unsure whether to diagnose shin splints or stress fractures. The Veteran submitted a claim for service connection for a left ankle disability in August 1999, less than one year after his separation from active duty service. The Veteran was afforded a VA general medical examination in October 1999. The Veteran reported that he had had multiple ankle sprains and that they both sprained easily, but the left was worse than the right. On examination, then ankles had no areas on tenderness and no limitation of motion. A left ankle x-ray in connection with this examination was negative. The clinician did not diagnose a left ankle disability. During an October 2012 VA treatment appointment, the Veteran reported left ankle pain. The treatment provider expressed suspicion that the affected area was the soft tissue. During a December 2013 VA treatment appointment, the Veteran reported that his left ankle pain had increased. The treatment provider again expressed suspicion that the affected area was the soft tissue. An x-ray at the time of this appointment showed old trauma to the medial malleolus and minimal reactive change from that old injury. During a June 2014 VA treatment appointment, the Veteran reported left ankle arthralgia. The treatment provider diagnosed osteoarthritis of the left ankle with arthralgia and pes cavus and placed an order for an ankle brace. The Veteran was afforded a VA examination for ankle conditions in April 2017. The Veteran reported a history of falls and pain since his 1984 injury. The clinician diagnosed traumatic arthritis of the left ankle and opined that it was less likely than not incurred in or caused by active duty service because the October 1999 x-ray was negative, and the Veteran did not seek treatment until 2012. Because the October 1999 x-ray was negative and the December 2013 x-ray showed an old injury, the clinician opined that there must have been an injury in the intervening time. Because this opinion is based on the assumption that there was no disability in October 1999 without addressing the Veteran's report of symptoms at the time of the October 1999 VA examination, it is inadequate. An August 2018 VA MRI of the Veteran's left ankle shows an osteochondral lesion involving the medial talar dome and mild tenosynovitis involving the medial tendons of the ankle. The Veteran has submitted a September 2018 medical opinion by his treating VA podiatrist, who noted that the Veteran had "chronic and worsening left ankle pain which has remained recalcitrant to conservative care." The podiatrist opined that the MRI findings "corroborate[d]" the Veteran's reports of a history of left ankle trauma and that, after reviewing the service treatment records, "his current condition is related to past military duties." In a September 2018 statement, the Veteran reported that he had continued symptoms during his active duty service but was not given treatment after the initial visits. During the July 2021 hearing, the Veteran testified that he initially injured his ankle in 1984, reinjured it in 1986, and tolerated the symptoms until his retirement, at which point he submitted his initial claim. He testified that his symptoms had worsened over the years. He opined that his injuries were not apparent on the October 1999 x-ray because x-rays only show injuries to bone and that they were apparent on the August 2018 MRI because that form of imaging shows injuries to ligaments. The Veteran also testified that he has been a CT technician for the past 32 years and that he was an instructor in the radiology field during his active duty service, which his service personnel records also reflect. For these reasons, the Veteran is competent to provide a medical opinion. The record contains three medical opinions with regard to this claim: one from a VA examiner, one from the Veteran's treating VA podiatrist, and one from the Veteran himself. As stated above, the VA examiner's opinion, which is unfavorable to the Veteran's claim, is inadequate. The treating podiatrist and the Veteran both provided opinions that were favorable to the claim and have provided adequate rationales for their opinions. In light of the totality of the circumstances, and after resolving all reasonable doubt in the Veteran's favor, the evidence of record supports a finding that it is at least as likely as not that the Veteran's left ankle disability was incurred in or caused by injuries during his active duty service. Accordingly, the Board finds that granting service connection for a left ankle disability is the decision that is the most consistent with VA's policy to administer the law under a broad and liberal interpretation consistent with the facts of the case. 38 C.F.R. §§ 3.303 (a). D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ryan Frank, 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.