Citation Nr: 21076687 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 17-47 200 DATE: December 27, 2021 ORDER Since there is new and material evidence, the petition to reopen the claim of entitlement to service connection for a right ankle disability is granted. Entitlement to service connection for a right ankle disability also is granted. REMANDED Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. A prior April 2006 rating decision considered and denied service connection for a right ankle disability, and the Veteran did not appeal that decision. 2. Some of the additional evidence since received, however, relates to an unestablished fact necessary to substantiate this claim, is neither cumulative nor redundant of the evidence already of record, and raises a reasonable possibility of substantiating this claim. 3. It is at least as likely as not the degenerative joint disease (i.e., arthritis) and consequent pain the Veteran now has in this ankle are from injuries he sustained to this ankle during his service. CONCLUSIONS OF LAW 1. The April 2006 rating decision earlier considering and denying service connection for a right ankle disability is final and binding based on the evidence then of record. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2018). 2. But there is new and material evidence since that decision to reopen this claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. Resolving all reasonable doubt in the Veteran's favor, the criteria are met for his entitlement to service connection for a right ankle disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U. S. Air Force from October 1976 to October 1980 and in the U. S. Army from October 1985 to March 2006. This appeal to the Board of Veterans' Appeals (Board) is from May 2015 and January 2016 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In support of these claims, the Veteran testified at a hearing at the RO in August 2021 before the undersigned Veterans Law Judge (VLJ) of the Board, i.e., at a Travel Board hearing. A transcript of the hearing is of record. Service Connection 1. Whether new and material evidence has been received to reopen the claim for service connection for a right ankle disability If a claim has been previously considered, denied, and not appealed, then the earlier decision becomes a final and binding determination based on the evidence then of record. 38 U.S.C. § 7105. There then is a requirement of new and material evidence since the decision to reopen the claim and, in turn, warrant readjudicating it on its underlying merits. 38 C.F.R. § 5108. New evidence is defined as 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(a) (2018). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed unless inherently incredible or beyond the competence of the person making the assertion. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). Moreover, in Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010), the U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) clarified that the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a "low" threshold that enables, rather than precludes, reopening. Specifically, the Court held that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. Here, an April 2006 rating decision previously considered and denied the Veteran's claim for service connection for a right ankle disability. He did not appeal or submit any new and material evidence pertaining to this claim within a year of that decision in turn, as mentioned, meaning that it became final and binding on him based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.200, 20.1103 (2018). At the time of that April 2006 rating decision, the evidence of record included the Veteran's service treatment records (STRs). However, there was no credible evidence tending to show that he had a chronic right ankle disability due to his conceded right ankle injuries in service. Since that was the last final and binding denial of this claim, it marks the "starting point" for determining whether there is new and material evidence to reopen this claim. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996) (indicating to review for newness and materiality all evidence submitted or otherwise obtained since the last final and binding denial of the claim, irrespective of whether that denial was on the underlying merits or, instead, a prior petition to reopen the claim). Additional evidence more recently received includes sworn testimony from the Veteran during his August 2021 hearing before this Board regarding his ongoing issues with his right ankle as well as a statement from his treating podiatrist regarding a correlation ("nexus") between the Veteran's current right ankle disability and his injuries to this same ankle during his service. This additional evidence, as mentioned, is presumed credible albeit just for the limited purpose of determining whether this claim should be reopened. And with this assumption it is new and material to the claim because it at least suggests he has a current right ankle disability that is chronic (meaning permanent) and related to his right ankle injuries in service. 38 C.F.R. § 3.156(a); Shade, 24 Vet. App. 110. Accordingly, this claim is reopened. 2. Entitlement to service connection for a right ankle disability Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Certain diseases including arthritis, are considered chronic, per se, and therefore will be presumed to have been incurred in service if they manifested to a compensable degree (meaning to at least 10-percent disabling) within a year of the Veterans separation from service, although this presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3309(a). Service connection may be granted for any disease initially diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection also may be established on a secondary basis for disability that is proximately due to, or the result of, or being aggravated by a service-connected disability. Establishing secondary service connection requires evidence of: (1) a current disability (for which secondary service connection is sought); (2) an already service-connected disability; and (3) indication the current disability was either (a) caused or (b) is being aggravated by the service-connected disability. See 38 C.F.R. § 3.310(a) and (b); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Board must fully consider the lay evidence of record. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). 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. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that the degenerative joint disease (arthritis) and consequent pain he now has in his right ankle are from the injuries he sustained to this ankle while in service. His STRs include multiple references to a right ankle sprain sustained in 1991 including directives to resultantly modify his exercise routine and to use the elevator instead of taking the stairs. His post-service VA medical records also document ongoing complaints of right ankle pain. In support of his claim of a correlation between his right ankle injury in service and present-day disability, the Veteran submitted a March 2020 statement from his treating VA podiatrist. This podiatrist diagnosed chronic right ankle pain and degenerative joint disease of the right ankle. He also explained the Veteran manages his symptoms with custom orthosis and Motrin as well as exercises and massage. As importantly, this commenting podiatrist surmised that the Veteran's chronic right ankle pain from the arthritis most likely was caused by his multiple right ankle sprains while in service. The Board finds this opinion highly probative since based on a long history of treating the Veteran and consequent familiarity with his medical history. There is no "treating physician rule" requiring the Board to give deference to this podiatrist's opinion. Both the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) and the U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) have specifically declined to adopt a "treating physician rule" that would give preference to statements from a treating physician. See White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001); Guerrieri v. Brown, 4 Vet. App. 467 (1993). But that said, there is no other medical opinion of record tending to refute or contradict this supporting medical opinion. Accordingly, given the positive evidence of record, as well as the Veteran's lay testimony under oath during his rather recent hearing, the Board finds that service connection for his right ankle disability is warranted especially since, based on the evidence in the file, it is as likely as not (at minimum), if not more likely than not, this disability is attributable to his injuries to this ankle during his service. In sum, when resolving all reasonable doubt in his favor, there is the required correlation ("nexus") between the Veteran's right ankle disability and his service, so the appeal of this claim is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for hypertension is remanded. The Veteran contends that his hypertension is either caused or aggravated by his service-connected Type II diabetes and/or sleep apnea, but he has not been afforded a VA compensation examination in response to this claim, and one is needed to assist in deciding this claim in terms of the posited relationship or correlation with these service-connected disabilities. Accordingly, this claim is REMANDED for the following action: Schedule the Veteran for an appropriate VA examination for a medical nexus opinion concerning the nature and etiology of his hypertension particularly in terms of whether it is as likely as not caused OR aggravated by his service-connected Type II diabetes and/or sleep apnea. To assist in making these necessary determinations, all pertinent symptomatology and findings must be reported in detail and all indicated diagnostic testing and evaluation completed. The claims file, including a complete copy of this remand, must be made available to the examiner for review and consideration of the relevant medical and other history, including the Veteran's lay testimony during his August 2021 hearing, regarding why he believes his hypertension is caused OR aggravated by these service-connected disabilities, as well as the articles he submitted that he believes tend to support this correlation. When responding, whether favorably or unfavorably, the examiner must provide explanatory rationale for all opinions expressed, preferably citing to clinical findings or other evidence in the record supporting conclusions and/or accepted medical authority. If the examiner ultimately cannot provide the requested etiology opinion without resorting to mere speculation, this not only must be so stated expressly but, as importantly, the examiner must provide the reasons why an opinion would require speculation. As examples, the examiner must indicate whether there is any further need for information or testing necessary to make an informed determination, whether an opinion cannot be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner, or whatever other reason precludes a sufficiently definitive response. In other words, merely saying he/she cannot respond will not suffice. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Baronofsky 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.