Citation Nr: 21075459 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 17-28 042 DATE: December 20, 2021 ORDER New and material evidence sufficient to reopen a claim for entitlement to service connection for a left ankle disability has been received, and to that extent only, the claim is granted. Entitlement to service connection for a left ankle condition is granted. FINDINGS OF FACT 1. A September 1997 rating decision denied a claim for a left ankle disability. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable one-year appellate period. 2. For the left ankle disability, evidence received since September 1997 is not cumulative or redundant of the evidence previously of record, and raises a reasonable possibility of substantiating the Veteran's claim of service connection for a left ankle disability. 3. The Veteran has a left ankle disability that is, as likely as not, causally related to the Veteran's active service. CONCLUSIONS OF LAW 1. The September 1997 rating decision is final. 38 U.S.C. §§ 7104, 7105 (1996); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1996). 2. New and material evidence sufficient to reopen the claim of service connection for a left ankle disability has been received since September 1997, and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2021). 3. The criteria for service connection for a left ankle disability have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1118, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1994 to March 1997. This matter comes before the Board of Veterans' Appeals (Board) from a February 2015 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. As the Veteran is unrepresented in this case, VA has a duty to construe his claims liberally. See Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). By way of background, the Veteran originally filed a claim for service connection for a left ankle disability in March 1997, and that claim was eventually denied in a September 1997 rating decision. That decision was not appealed within one year, and thus became final. As such, then, the last final denial for the left ankle claim is the September 1997 rating decision. In September 2014, the Veteran filed a claim to reopen the left ankle disability, and this is the appeal stream now active before the Board. The Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge (VLJ) in August 2021; a transcript of that hearing is associated with the claims file. In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen before addressing the merits of the claim, regardless of whether or not the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 23940 (1995). Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2021). With respect to claims to reopen, VA is further required to provide notice of the definition of new and material evidence. Kent v. Nicholson, 20 Vet. App. 1 (2006). However, VA is no longer required to provide notice of the element or elements that were found insufficient or the information and evidence necessary to substantiate the insufficient element or elements. See 38 U.S.C. § 5103(a)(1); VAOPGCPREC 6-2014 (Nov. 21, 2014); see also Akers v. Shinseki, 673 F.3d 1352, 1358 (Fed. Cir. 2012). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct. 3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Petition to Reopen In September 1997, VA denied the original claim of entitlement for service connection for the left ankle disability, among others. The claim was originally denied because the evidence did not show a chronic injury or condition. The RO reviewed the Veteran's available service treatment records (STRs), VA treatment records, and his statements regarding the disability. The Veteran did not file a notice of disagreement (NOD) or submit new and material evidence within the one-year appeal period following those decisions. He also did not assert there was clear and unmistakable error in the rating decision. Therefore, the decision became final. 38 U.S.C. § 7105(c) (1996); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1996). The Veteran sought to reopen the claim in September 2014. The RO reviewed the Veteran's available service treatment records (STRs), VA treatment records, and his statements regarding his left ankle disability. The RO denied the claim in February 2015, and the Veteran was notified on February 25, 2015. The Veteran filed a notice of disagreement (NOD) in January 2016. VA issued a statement of the case (SOC) in March 2017. The Veteran perfected an appeal to the Board in May 2017 and the appeal was certified before the Board in September 2017. The Board is required to address new and material claims in the first instance. The Board has the jurisdiction to address a new and material issue and to reach the underlying de novo claims. If the Board determines that new and material evidence has not been received, the adjudication of the particular claim ends, and further analysis is neither required nor permitted. Any decision that the AOJ may have made with regard to a new and material claim is irrelevant. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Thus, the Board will adjudicate this new and material issue in the first instance. New evidence is defined as existing evidence not previously submitted to VA since the last final denial, and material evidence is defined as 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(a) (2020). 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, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Only evidence presented since the last, final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273, 284 (1996). The Board considers the last, final denial to be the September 1997 rating decision for the left ankle. For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). Claim Reopened The evidence of record in September 1997 consisted of service records, including personnel and medical records, and VA treatment records. The evidence of record at that time did not establish a diagnosis of a chronic left ankle disability. Since the September 1997 rating decision, the Veteran's file has additional VA and private medical records that have been attached to the claims file. Also, the Veteran provided testimonial evidence during his August 2021 hearing with the undersigned Veterans Law Judge. These VA medical records show continuing treatment for the Veteran's left ankle disability through to the present. This new evidence is not cumulative or redundant of the evidence previously of record. The Board is reminded in this regard that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade. And further, that consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied. This newly received evidence basically provides a more complete picture as to the nature of the Veteran's left ankle disability in question, and under the low threshold standard could reasonably trigger the Secretary's duty to assist. Id. at 118. Therefore, assuming its credibility for the purpose of the threshold question of whether the claim can be reopened, the newly received evidence raises a reasonable possibility of substantiating the Veteran's claim of service connection for a left ankle disability. As new and material evidence has been received, reopening of the previously denied claims of entitlement to service connection for a left ankle disability is warranted. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2021). To that extent only, the claim to reopen for service connection for a left ankle disability is granted. Service Connection for a Left Ankle Disability Legal Criteria for Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include arthritis, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For arthritis, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). Service connection can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been "shown in service," there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2020). In making that decision, the Board must determine the probative weight to be ascribed as among multiple medical opinions, and state the reasons and bases for favoring one opinion over another. See Winsett v. West, 11 Vet. App. 420, 424-25 (1998); see also Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). This responsibility is particularly important where medical opinions diverge. The Board is also mindful that it cannot make its own independent medical determinations, and that there must be plausible reasons for favoring one medical opinion over another. See Evans at 31; see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence'' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Evidence and Analysis for Left Ankle Disability The Veteran asserts he has a chronic left ankle disability dating back to active service, noting he had injured it in April 1995, and was treated for a severe sprain at the time. The Veteran has a history of left ankle problems continuing into the present day which are documented in the claims file including back pain, knee pain, and foot problems. The Veteran's service treatment records do show treatment for a left ankle severe sprain in April 1995, during the Veteran's active service. He reported to service medical treatment providers who noted a left ankle severe sprain that was extremely painful and had substantial edema and bruising at the time of the original injury. The Veteran's left ankle continuing symptoms are reported by the service examiner who documented the Veteran's separation examination in February 1997, noting that symptoms from the original injury have persisted for a year and a half since the original incident. The Veteran provided a lay statement with his January 2016 notice of disagreement that his left ankle can roll and twist at any time, and that he falls down as a result. There was "lots of crunching and popping" when he rotates his left ankle, and the ankle is in "constant 24/7" pain. The Veteran also reported he cannot stand longer than 15-20 minutes on his left ankle. The Veteran submitted private medical records from March 2016 that treated the Veteran's report of left lateral ankle pain since military service. A physician noted chronic cartilage loss in the lateral talar dome, and no osteochondral defect was seen. Mild chronic degenerative joint disease was noted at the hindfoot area at the talonavicular joint. This examiner also noted mild fluid filled distention of the tendon sheaths attached to the left ankle, and the anterior and posterior tibiofibular and talofibular ligaments appear unremarkable. VA provided an examination in March 2017 for the Veteran's left ankle. The examiner referred to the service treatment records and noted the diagnosed sprain from active service. No other comments about the examination itself were noted. This examiner made a negative opinion for service connection, stating the claimed condition was less likely than not, less than 50 percent probability, incurred in or caused by the claimed in-service injury, event, or illness. The examiner's only rationale was that the Veteran was unlikely to have any sequelae from an injury that occurred 20 years previously, because generally sprains are an acute condition and resolve over time. The Veteran provided an additional statement with his May 2017 VA Form 9, saying that his left ankle over time had gotten worse over time and hurts every day. He noted that a visual comparison of his ankles on any day shows increased swelling in the left ankle. The Veteran testified before the undersigned VLJ in August 2021. The Veteran testified under oath as to his active service experience when the original injury occurred in April 1995, and the level of pain and residual soreness, weakness, and swelling since that time into the present day. The Veteran pointed out how his symptoms have continued since service, and he complained of the limited, cursory nature of his March 2017 VA examination. The Board notes the mix of opinion but finds the VA examiner's March 2017 examination and opinion for service connection to be of lower probative value. The Board considers the examination itself to be inadequate in all respects and also notes that VA examiner's opinion indicates they either were not familiar with the disability history from the claims file and that they didn't respond to the Veteran's statements regarding his own history. While the Board notes case law that an examiner need not review the claims file to include pertinent statements prior to providing as opinion, it does require that the examiner is aware of all pertinent facts from the Veteran's history. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (Vet. App. 2008). The Board finds here that the Veteran's statements of his incidents in service were discounted, the resulting opinions by the different examiners were conclusory, and thus considers the probative value of this opinion to be low because of that. Additionally, even though the March 2017 examiner notes the claims file had been reviewed, she did not note the earlier private treatment records regarding the left ankle injury and subsequent treatment. The Board notes the March 2017 examiner's opinion relied only on an observed lack of evidence to determine that there was no nexus of the diagnosed left ankle condition back to active service. A VA opinion is inadequate where a VA examiner ignores the Veteran's lay statements of an injury/event during service unless the Board expressly finds that no such injury/event occurred. Dalton v. Nicholson, 21 Vet. App. 23 (2007). In order for the Board to rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence; the Board should ensure any such finding was well supported by the facts and data and reflects that the examiner has considered "all procurable and assembled data," by obtaining all tests and records that might reasonably illuminate the medical analysis. Jones v. Shinseki, 23 Vet. App. 382 (2010). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 18, 22 (2007). The Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case. See Stefl, supra. A medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995); see also LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (a bare transcription of lay history, unenhanced by additional comment by the transcriber, does not become competent medical evidence merely because the transcriber is a health care professional). In contrast, the Board gives substantial probative weight to the Veteran's service treatment records describing the injury and subsequent treatment, and also to the separation examiner who noted the left ankle injury as well in February 1997. The Board also finds the lay statements of the Veteran to be highly credible and probative, to include the August 2021 hearing before the undersigned VLJ and the January 2016 and May 2017 statements from the Veteran. Importantly, there is no reason to doubt the credibility of the Veteran's self-reported history of his service left ankle condition. The Board notes especially the detailed consistency of the Veteran's statements regarding his left ankle complaints and treatment experiences over time. See 38 C.F.R. § 3.159(a)(2) (lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person); see Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Smith v. Derwinski, 1 Vet. App. 235, 237-38 (1991) (credibility determinations are within the purview of the Board). See also 38 U.S.C. § 1154(a) (reflecting that due consideration is to be given to the places, types, and circumstances of a claimant's service). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board also notes the more recent precedential case of Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), where the Federal Circuit held that pain alone can qualify as a disability for VA purposes if it amounts to a functional impairment of earning capacity. Id. at 1367-68. The Board certainly acknowledges that the latter April 2018 Saunders decision came out after the February 2015 rating decision on appeal and the March 2017 statement of the case, but the Veteran's consistent statements regarding a continuity of symptomatology of his left ankle pain and other symptoms directly reflect in the continuing negative impact on the Veteran's occupation and his activities of daily living. In Saunders, the Federal Circuit noted 38 C.F.R. § 4.10 defines functional impairment as the inability of the body or a part of it "'to function under the ordinary conditions of daily life including employment'" and found that the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability." Saunders, 886 F.3d at 1363. In other words, "pain alone can serve as a functional impairment and therefore qualify as a disability," even if there is no identified underlying diagnosis. Id. at 1367. Here, VA and private physicians have diagnosed the Veteran's left ankle disabilities, and thus the Board considers the precedential holding of Saunders to be pertinent and supportive of this Board decision. The Board finds evidence of a current disability of a left ankle condition, as shown by recent VA and private treatment records as noted earlier in this decision. Thus, the first element of service connection is established. The second requirement is to establish in-service incurrence or aggravation of a disease or injury. Here, the claims file contains documentation of the Veteran's left ankle injury and subsequent chronicity of symptoms through the highly reliable and credible lay statements of the Veteran and his private treatment records. For service connection claims, lay or medical evidence can establish an in-service injury or disease or chronicity of symptoms in service. A current disability and nexus to service is generally established by medical evidence. However, the Federal Circuit has held that lay evidence is sufficient to show certain current disabilities. Although medical evidence is generally necessary for a nexus to service, lay evidence can be sufficient to show continuity of symptoms after service, as a foundation for a nexus opinion, or to link chronic in-service symptoms to the same diagnosed current disability, or as a substitute for a nexus. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). Additionally, the Board notes the guidance of the Federal Circuit with regard to lay evidence and proof of a claim for service connection, that examiners and adjudicators are required to address whether lay statements present sufficient evidence of the etiology of a claimant's condition such that his claim of service connection could be proven without contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336 fn. 1 (Fed. Cir. 2006). A lay person is competent to report observable symptomatology of an injury or illness. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). (CONTINUED ON NEXT PAGE) Here, the Board finds the Veteran's statements as to the continuity of his symptoms in and since service regarding his left ankle disability to be highly credible, and thus a continuity of symptoms since service satisfactory establishes the nexus requirement for service connection. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Thus, resolving any doubt in favor of the Veteran, the Board finds that his left ankle disability is related to service. As such, service connection for a left ankle disability is warranted. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2019); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Setter, 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.