Citation Nr: 21076730 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 17-33 460 DATE: December 27, 2021 ORDER Whether new and material evidence has been received to reopen a claim for service connection for a left ankle disability is granted. REMANDED Entitlement service connection for a left ankle disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for left upper extremity neuropathy is remanded. Entitlement to service connection for right upper extremity neuropathy is remanded. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. Entitlement to service connection for a disability of the thoracolumbar spine is remanded. Entitlement to service connection for left lower extremity neuropathy is remanded. Entitlement to service connection for right lower extremity neuropathy is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a right foot disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. Entitlement to service connection for the cause of the Veteran's death is remanded. FINDINGS OF FACT 1. 1. In an unappealed July 2002 Board decision, the Board denied service connection for a left ankle disability based on a finding that there was no evidence of inservice incurrence of a left ankle disability. 2. The evidence added to the record since the July 2002 Board decision, when viewed by itself or in the context of the entire record, relates to an unestablished fact that is necessary to substantiate the claim of service connection for a left ankle disability. CONCLUSIONS OF LAW 1. The July 2002 Board decision that continued a prior denial of service connection for a left ankle disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. 2. With respect to the Appellant's claim for service connection for a left ankle disability, new and material evidence has been received since the July 2002 denial. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As an initial matter, the Board expresses its sympathy to the Appellant for the loss of her husband and recognizes the years of excellent service he provided to the country during his service in the United States Army. The Veteran served on active duty in the United States Army from August 1960 to July 1963. The Veteran died in November 2015; the Appellant is his surviving spouse. It appears that there was a claim for Death Pension filed on December 21, 2015 which has not been adjudicated by the Regional Office (RO). This claim was filed after the Appellants claim for accrued benefits and dependency and indemnification on December 14, 2015. The Board has notes that the Appellant in a December 2015 correspondence raised the concern that the Veteran's claims file may include irrelevant evidence from another Veteran. Upon an exhaustive review of the claims file, the Board has not found any misfiled documents. In addressing the Appellant's particular concern, about VA treatment records which were collected and associated with the claims file from the Salt Lake City VA Medical Center, the Board has found that these treatment records were optometry telehealth (virtual) treatment records limited to eight imaging screenings in September 2006, September 2007, January 2009, June 2010, June 2011, June 2012, April 2013, and March 2014. Importantly, these screening treatment records were limited to the Veteran's eyes. New and Material Evidence Initially, the Board notes that whenever a claim to reopen is filed, regardless of how it was characterized by the agency of original jurisdiction, the Board must make a de novo determination as to whether new and material evidence has been received. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996) (whether new and material evidence has been submitted must be asked and answered by the Board de novo whenever a claim to reopen is filed). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). 1. Whether new and material evidence has been received to reopen a claim for service connection for a left ankle disability The Veteran was denied service connection for a left ankle disability in a July 2002 Board decision, in part, because there was no evidence that the Veteran's disability was incurred in service. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, consideration need not be limited to consideration of 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, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. 38 C.F.R. § 3.156(a); Shade v. Shinseki, supra. The Appellant's August 2014 statement that he had symptoms of a left ankle injury while on active duty is new in that it was not previously of record. It is also material because it relates to unestablished facts necessary to substantiate the Veteran's claim for service connection for a left ankle disability. Specifically, due to the prior lack of evidence showing of treatment during the Veteran's service, this new evidence is material because it relates to an element that was previously not shown, an in-service incurrence. See Shade, supra. Accordingly, the Board finds that new and material evidence has been submitted, and the claim for service connection for a left ankle disability is reopened. 38 U.S.C. § 5108. REASONS FOR REMAND 1. Entitlement service connection for a left ankle disability is remanded. 2. Entitlement to service connection for a right ankle disability is remanded. 3. Entitlement to service connection for a neck disability is remanded. 4. Entitlement to service connection for a left shoulder disability is remanded. 5. Entitlement to service connection for a right shoulder disability is remanded. 6. Entitlement to service connection for left upper extremity neuropathy is remanded. 7. Entitlement to service connection for right upper extremity neuropathy is remanded. 8. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. 9. Entitlement to service connection for a disability of the thoracolumbar spine is remanded. 10. Entitlement to service connection for left lower extremity neuropathy is remanded. 11. Entitlement to service connection for right lower extremity neuropathy is remanded. 12. Entitlement to service connection for a left knee disability is remanded. 13. Entitlement to service connection for a right knee disability is remanded. 14. Entitlement to service connection for a right foot disability is remanded. 15. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. 16. Entitlement to service connection for the cause of the Veteran's death is remanded. Regrettably, the Board has determined that further evidentiary development is required to comply with both the previous March 2019 Board Remand and VA's duty to assist. In particular, the Board finds that adequate action has not been taken to obtain and associate the Veteran's service treatment records, service hospital records, and VA treatment records. The Board attention in particular is drawn to the Veteran's October 2015 correspondence where the Veteran detailed his treatment while he was stationed in Germany, on a vessel, and on his return to the continental United States, at Fort Dix, New Jersey. The Veteran points out, in this October 2015 correspondence, that implicit evidence of medical treatment can be found by comparing his entrance and separation examination which shows that his upper teeth were all removed in the course of his active duty service. Additionally, upon review of the Veteran's military personnel records, there is a notation of "misconduct" around the time of the Veteran's contended injury 1963; however, there is no other documentation of adverse personnel action taken against the Veteran or a description of what "misconduct" is referring to. An effort should be made to determine if there were any military personnel records surrounding this "misconduct" notation. Any effort should include submitting a request for any information to the U.S. Department of Army, Records Management and Declassification Agency (RMDA) (formerly the Joint Services Records Research Center (JSRRC)). In the Board previous March 2019 Remand, particular attention was drawn to any hospital records from the U.S. Army Hospital in Heidelberg, Germany; Mannheim Germany; and Fort Dix, New Jersey. Upon review of action taken to obtain these records, the Board observes that the Regional Office noted in an October 2019 "Report of General Information" that the Mannheim, Germany military hospital had been closed and was uncertain how to proceed. No action was thus taken. The Board also recognizes that the VA dispatched a November 2019 correspondence to the Appellant detailing that they received a negative response concerning the Veteran's military records; however, upon review, the Board cannot find the documentation of these responses in the claims file. The Board is obligated by law to ensure that the AOJ complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). Furthermore, in an effort to comprehensively search for the Veteran's service records, the Board notes that the Veteran's reserve unit was XXI Corps which were historically headquartered in Indiantown Gap, Pennsylvania. To date, there has been no request from this reserve unit to determine if the Veteran's records may reside at this facility. Last, upon review, the Board notes that there is also evidence of outstanding VA treatment records. The Veteran in a January 2015 correspondence noted that he received VA treatment from a Butler, Pennsylvania VA outpatient facility starting in 1990. However, the claim file only contains VA treatment records starting in April 1998. Moreover, this April 1998 VA treatment record includes a notation of a "review of orders" thus implying that the Veteran received prior VA care and by extension that there are outstanding VA treatment records. VA's duty to assist the Appellant particularly applies to relevant evidence known to be in the possession of the Federal Government. See 38 C.F.R. § 3.159(c). The matters are REMANDED for the following action: 1. The AOJ should ensure that all military personnel records, service treatment records and service hospital records from verified active duty service have been associated with the claims file. In particular, the Board is interested in any details surrounding the Veteran's January 17, 1963 misconduct while stationed with the 535th Engr Co dtd. The AOJ should contact the U.S. Department of Army, Records Management and Declassification Agency (RMDA) to obtain any outstanding records. Board is also interested in medical records from U.S. Army Hospital in Heidelberg, Germany, in 1963, as well as his reported follow-up care at that facility in 1963; at a hospital in Mannheim, Germany; aboard a military transport ship; and at Fort Dix, New Jersey. Additionally, the Veteran was injured while stationed Grafenwoehr, Germany in 1963, and this military base included the U.S. Army Health Clinic at Vilseck, Germany. As such, a request should be made to this facility to ensure a comprehensive effort. Additionally, an effort should be made to obtain any service treatment records and service hospital records which may be stored at the Veteran's last assignment reserve unit, the XXI USA Corps Con GP, which was historically headquartered in Indiantown Gap, Pennsylvania If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. If the records are unavailable, notify the Veteran in accordance with 38 C.F.R. § 3.159. 2. Contact the Appellant and request that she identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated the Veteran for his disabilities. The Appellant should be requested to sign any necessary authorization for release of medical records to VA, and appropriate steps should be made to obtain any identified records. Regardless of the Appellants response, VA treatment records should be collected from the Butler, Pennsylvania VA Health Care System and all associated outpatient center and clinics. In particular, the AOJ should retrieve VA treatment records from January 1990 to April 1998Any archived records should be retrieved from storage. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. If the records are unavailable, notify the Appellant in accordance with 38 C.F.R. § 3.159. 3. After completing the requested actions and any additional notification and/or development deemed warranted, readjudicate the issues on appeal. If the benefit sought on appeal is not granted, the Appellant must be furnished a supplemental statement of the case and afforded the appropriate time period for response. GAYLE E. STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Acosta, 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.