Citation Nr: 21074536 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 16-40 586 DATE: December 15, 2021 ORDER New and material evidence having been received, the application to reopen the claim of entitlement to service connection for a left ankle disability is granted. REMANDED Entitlement to service connection for a left ankle disability is remanded. FINDINGS OF FACT 1. In a June 2007 decision, the RO denied the Veteran's claim of entitlement to service connection for ankle problems. He did not appeal the decision nor was new and material evidence received within one year. 2. The evidence received since the June 2007 decision includes evidence which relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for a left ankle disability and, if presumed credible, raises a reasonable possibility of substantiating that claim. CONCLUSIONS OF LAW 1. The June 2007 rating decision denying the claim of entitlement to service connection for ankle problems is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received to warrant reopening of the claim of service connection for a left ankle disability. 38 U.S.C. §§ 5107, 5108, 7104; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1974 to February 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran's claim to reopen the matter of entitlement to service connection for a left ankle disability. He filed a notice of disagreement (NOD) in September 2013. A statement of the case (SOC) was issued in July 2016, which reopened and denied the Veteran's claim. The Veteran perfected a timely appeal in August 2016. In December 2020, the Veteran presented sworn testimony during a virtual hearing, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims file. Although the RO reopened the Veteran's claim, the question of whether new and material evidence has been received is one that must be addressed by the Board, notwithstanding a decision favorable to the appellant that may have been rendered by the RO. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (before considering a previously adjudicated claim, the Board must determine that new and material evidence was presented or secured for the claim, making RO determination in that regard irrelevant); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (the Board has a jurisdictional responsibility to consider whether it was proper for the RO to reopen a previously denied claim). As such, the Board will first consider whether new and material evidence has been received sufficient to reopen the claim. 1. Whether new and material evidence has been received to reopen the matter of entitlement to service connection for a left ankle disability. In general, decisions of the RO that are not appealed in the prescribed time period are final. 38 U.S.C. § 7105(c); 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 with respect to that claim. For claims filed on or after August 29, 2001, 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 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. To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the credibility of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist. Id. at 118. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 16533 (Fed. Cir. June 3, 2021); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In a June 2007 rating decision, the RO denied the Veteran's original claim of entitlement to service connection for ankle problems. He did not appeal the decision. As new and material evidence was not received within one year of the decision, it became final as to the identified claim. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1100; Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). Under these circumstances, the RO's June 2007 rating decision is not subject to revision on the same factual basis. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. The Veteran now seeks to reopen his claim of entitlement to service connection for a left ankle disability. As noted above, despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Thus, the Board has reviewed the entire record, with attention to the additional evidence received since the last final decision identified above. After reviewing the record, the Board finds that the additional evidence received is new and material within the meaning of 38 C.F.R. § 3.156 warranting reopening of the claim. The evidence associated with the Veteran's claims file at the time of the last final denials included service treatment and personnel records, private treatment records, and statements of the Veteran. Without the need to discuss every piece of newly received evidence in detail, the Board finds that new and material evidence has been received regarding the request to reopen the Veteran's claim of entitlement to service connection for a left ankle disability. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Namely, at the December 2020 Board hearing, the Veteran testified to continuing left ankle symptoms dating from his active duty service. Additionally, treatment records have been added to the claims file, which document diagnoses of left posterior tibial tendonitis and tendonitis of the Achilles tendon. See the private treatment records dated November 2012. Critically, this evidence relates to the previously unestablished elements of in-service injury as to the claims of entitlement to service connection for a left ankle disability. Accordingly, the standards under 3.156(a) have been met and the claim is reopened. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); Shade, supra. REASONS FOR REMAND 1. Entitlement to service connection for a left ankle disability is remanded. The Veteran asserts entitlement to service connection for a left ankle disability, which he contends was incurred during his active duty service. Service treatment records dated in December 1975 noted that the Veteran twisted his left ankle while playing basketball. No additional ankle complaints were documented in the Veteran's service records. Post-service treatment records show that the Veteran was seen for complaints of ankle swelling in October 2009. A July 2010 MRI report noted a sprain of the deep layer of the deltoid ligament of the left ankle. Private treatment records dated in November 2012 document diagnoses of left posterior tibial tendonitis, tendonitis of the Achilles tendon, and tarsal tunnel syndrome. At the December 2020 Board hearing, the Veteran offered testimony concerning pain in his left ankle, which he contends occurred dating from his active duty service. The Veteran has not been afforded a VA examination or medical opinion as to his left ankle claim. As such, the Board finds that this matter must be remanded in order to afford the Veteran a VA examination to address the etiology of the claimed disability. See Charles v. Principi, 16 Vet. App. 270 (2002); see also 38 C.F.R. § 3.159(c)(4) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). The Board additionally notes that, at the December 2020 Board hearing, the Veteran indicated he has received treatment for his left ankle disability from four private treatment providers, Dr. E., Dr. R., Dr. L., and Dr. W. He further testified that he continues to receive treatment at the VA outpatient clinic in Fort Worth, Texas. See the Board hearing transcript dated December 2020. As such, prior to arranging for the Veteran to undergo further VA examination, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain all pertinent outstanding VA and private records. The matters are REMANDED for the following action: 1. After obtaining the appropriate release of information forms where necessary, undertake appropriate efforts to procure any records of outstanding private treatment (including the treatment records Dr. E., Dr. R., Dr. L., and Dr. W, referenced above) and VA treatment that the Veteran has received, which are potentially pertinent to the pending claim. All such available documents should be associated with the claims file. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed left ankle disability. All indicated tests and studies should be conducted. The contents of the electronic claims file must be made available to the examiner for review in connection with the examination. (a). With respect to any diagnosed left ankle disability, the examiner should render an opinion, with supporting rationale, addressing whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset in service or is otherwise medically related to in-service injury or disease. (b). In providing the opinion and rationale, the examiner should consider the relevant evidence of record, particularly (1) the Veteran's service treatment records; (2) the post-service VA treatment records described above; and (3) the Veteran's December 2020 hearing testimony regarding his symptoms. (c). If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? The Board has made no credibility determination pending the examiner's opinion. In this regard, the examiner should note that the absence of evidence of treatment for a claimed disability in the Veteran's service treatment records should not serve as the sole basis for a negative opinion. All examination findings/testing results (if any), along with complete, clearly-stated rationale for the conclusions reached, must be provided. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. K. Buckley, 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.