Citation Nr: 21076743 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 16-50 798 DATE: December 27, 2021 ORDER New and material evidence has been received sufficient to re-open a claim for entitlement to service connection for a left ankle disorder is granted. The appeal is allowed only to this extent. Entitlement to service connection for a left ankle disorder is denied. FINDINGS OF FACT 1. A May 2013 rating decision denied the Veteran's claim of entitlement to service connection for a left ankle disorder. The Veteran was notified of his appellate rights but did not submit new and material evidence within one year nor complete an appeal of the rating decision. The denial was continued by a March 2015 unappealed rating decision. 2. Additional evidence received since the May 2013 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for a left ankle disorder, and raises a reasonable possibility of substantiating the claim 3. The preponderance of the evidence of record is against finding that the Veteran has had a left ankle disorder at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The May 2013 rating decision denying service connection for a left ankle disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103. 2. New and material evidence has been received to reopen the Veteran's claim for service connection for a left ankle disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for a left ankle disorder are not met. 38 U.S.C. §§ 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. Army from September 1993 to July 1994. This matter comes to the Board of Veterans Appeals (Board) from an appeal of a May 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In the September 2016 VA Form 9, the Veteran requested a live video conference hearing before the Board. The hearing was scheduled for October 2019, and the Veteran was deemed a no-show for the hearing. The Veteran has not provided evidence of good cause for the failure to show. As such, the Veteran's hearing request is withdrawn. 38 C.F.R. § 20.704 (d). 1. New and material evidence has been received sufficient to re-open a claim for entitlement to service connection for a left ankle disorder The Board notes that by the October 2015 rating decision, the RO reopened the Veteran's claim of entitlement to service connection for a bilateral foot disability, to include pes planus. The Board must make its own determination as to whether any newly submitted evidence warrants a reopening of the claims. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460 (2007). The Veteran's claim of service connection for a left ankle disorder was originally denied by May 2013 rating decision. The RO notified the Veteran of its decision, and of his appellate rights. The Veteran did not appeal the decision, nor was any new and material evidence actually or constructively received within a year following the decision; therefore, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. In a March 2015 rating decision, the RO denied re-opening the Veteran's claim for service connection for a left ankle disorder for lack of new and material evidence. The RO notified the Veteran of its decision and of his appellate rights. The Veteran did not appeal the decision; however, new and material evidence was actually or constructively received in September 2015, which is within one year following the March 2015 rating decision; therefore, this decision did not become final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. A claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. "New" evidence means existing evidence not previously submitted to agency decisionmakers. "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. 38 C.F.R. § 3.156(a). 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. Id. When determining whether a claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). The May 2013 decision denied the claim of service connection for a left ankle disorder based on a finding that the Veteran did not offer evidence that the condition occurred during or is related to service. Evidence added to the record since May 2013 rating decision includes a September 2015 VA examination. This evidence is new in that it was not previously of record and it is not cumulative or redundant of the evidence of record at the time of the May 2013 rating decision. It is also material in that it relates to an unestablished fact necessary to substantiate the claim for service connection for a left ankle disorder and raises a reasonable possibility of substantiating the claim. Since the evidence is both new and material, the claim of service connection for a left ankle disability is reopened. 2. Entitlement to service connection for a left ankle disorder The Veteran contends that he injured his left ankle during his active military service and he seeks service connection. His appeal form stated he had not received any treatment over the years because he lacked insurance. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Establishing service connection generally requires competent evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after separation when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Turning to the record, the Veteran's service treatment records include a Report of Medical History from prior to the time of enlistment in March 1993 in which the Veteran reported a history of painful joints and wrote "football." The physician's summary showed that the clinician wrote "break leg (sic) injuries playing football 3 years ago. No residuals." Further, additional service treatment records reveal that in November 1993, the Veteran was seen for a swollen right ankle. At the time of the encounter, he denied any trauma to the right ankle. He was diagnosed with cellulitis on the right ankle. Later, in November 1993, the Veteran returned to the clinic complaining of a swollen right ankle. The provider noted that the Veteran had an abnormal gait and there was noted erythema. An assessment of cellulitis was noted. In the Veteran's 2015 notice of disagreement, he stated he had an injury to the left ankle in October 1993. In September 2015, the Veteran was afforded a VA examination in connection with his claim. At the time of the examination, the examiner determined that the Veteran did not have a current diagnosis associated with any claimed ankle disorder. The Veteran reported that he fell on his left ankle during his active military service. He reported that the next day he experienced swelling in his left ankle. He reported that he currently has pain on each side of his left ankle. Further, he noted that he had recently begun to experience pain in his right ankle. Range of motion testing was normal bilaterally. Muscle strength testing was normal bilaterally. No evidence of muscle atrophy or ankylosis. Joint stability testing was negative. Diagnostic testing showed no acute osseous abnormality. The examiner opined that it was less likely than not that an ankle disorder was related to his active service. In support of this conclusion the examiner explained that there was no diagnosable physical condition present in the Veteran's ankles at the time of the examination. As the Veteran was focused on the left ankle, the examiner referenced the service treatment records as referring to a left ankle injury, however, the Board finds the service treatment records clearly show treatment for the right ankle only twice, in November 11 and November 12, 1993 service treatment records. In light of the evidence as discussed above the Board concludes that the Veteran does not have a current diagnosis of a left ankle disorder and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In particular, the medical evidence of record establishes that the Veteran's left ankle is reported as having a range of motion within the normal limits and there is no objective evidence of a physical disorder. Moreover, while the Veteran was seen in-service for an ankle disorder, those encounters pertained to the Veteran's right ankle and were repeatedly assessed as cellulitis and not the result of any in-service injury. Equally, although the Veteran reported a history of painful joints prior to the time of enlistment, there was not a diagnosis indicating left ankle pain during the Veteran's active military service. The Board has considered Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), in which the Federal Circuit held that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity." Id. at 1367-69. However, there is no indication that any pain to the Veteran's left ankle has had any functional impairment of earning capacity for the Veteran. Indeed, the VA examiner found that the Veteran did not have any pain in his left ankle upon physical examination. In adjudicating this claim, the Board must assess the competence and credibility of the Veteran and probative value of the evidence of record in its whole. See Washington v. Nicholson, 19 Vet. App. 362 (2005), 38 C.F.R. § 3.159(a)(2) (Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person). In determining whether documents submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). While the Veteran is competent to report that he had a left ankle injury in service, the Board finds the STRs show that an issues were with the right ankle, not the left. The Board assigns the statements asserting injury to the left ankle in service and other remembrances of service less weight. (Continued on the next page) The Veteran was given a VA examination in September 2015, which is fully adequate because it included file review and is fully responsive to the question at issue; which here is the presence of a current disability. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Although the examiner also referred to the left ankle, the Board finds this is not fatal as the opinion still showed no current disability. The Board assigns this report greater weight. The benefit of the doubt doctrine is not for application and the claim is denied. See generally Gilbert, 1 Vet. App. at 54; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Scanlan, Associate 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.