Citation Nr: 21007967 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 16-11 409 DATE: February 11, 2021 ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right ankle disability. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a low back strain. 3. Entitlement to service connection for a right ankle disability. 4. Entitlement to service connection for a low back strain. ORDER New and material evidence to reopen the claim for entitlement to service connection for a right ankle disability has been received; to this limited extent, the claim is granted. New and material evidence to reopen the claim for entitlement to service connection for a low back strain has been received; to this limited extent, the claim is granted. REMANDED Entitlement to service connection for a low back strain is remanded. Entitlement to service connection for a right ankle disability is remanded. FINDINGS OF FACT 1. In a March 1992 rating decision, the RO implicitly denied the Veteran’s claim of entitlement to service connection for a right ankle disability. 2. The evidence received since the March 1992 rating decision regarding the Veteran’s claim for entitlement to service connection for a right ankle disability is new and raises a reasonable possibility of substantiating the claim. 3. In June 2010 Decision, the Board denied the Veteran’s claim of entitlement to service connection for a low back strain. 4. The evidence received since the June 2010 Board Decision regarding the Veteran’s claim for entitlement to service connection for a low back strain is new and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The March 1992 rating decision denying entitlement to service connection for a right ankle disability is final. 38 U.S.C. § § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received, thus, the claim of entitlement to service connection for a right ankle disability is reopened. 38 U.S.C. § §§ 5108, 7105(c); 38 C.F.R. § 3.156. 3. The June 2010 Board Decision denying entitlement to service connection for a low back strain is final. 38 U.S.C. § § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 4. New and material evidence has been received, thus, the claim of entitlement to service connection for a low back strain is reopened. 38 U.S.C. § §§ 5108, 7105(c); 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from July 1988 to July 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. By way of background, the Veteran’s claim for entitlement to service connection for a low back strain was denied in a March 1992 rating decision, while the Veteran’s claim for entitlement to service connection for a right ankle disability was implicitly denied in that same decision. The Veteran then filed a claim to reopen his finally decided low back strain claim, which was eventually reopened by the Board in October 2004. The low back claim was then remanded, and subsequently was remanded by the Board again in May 2006. Upon returning to the Board, the Veteran’s claim of entitlement to service connection for a low back strain was denied in January 2007. The Veteran then appealed that denial to the United States Court of Appeals for Veterans Claims (the Court), which vacated the Board’s January 2007 denial, and remanded the claim to the Board. The Board then denied the Veteran’s low back claim again in June 2010. The Veteran did not immediately appeal that decision, and it became final. Subsequently, the Veteran filed a claim to reopen the finally decided low back strain claim in February 2014, along with the claim for entitlement to service connection for a right ankle disability, which again, had been finally decided by an implicit denial from March 1992. The RO denied reopening of both claims in October 2014. The Veteran then filed a timely Notice of Disagreement (NOD) in November 2014 and following the issuance of a statement of the case (SOC), the Veteran filed a VA Form 9 in March 2016, appealing his claims to the Board. The Veteran appeared before the undersigned Veterans Law Judge in a Travel Board hearing in February 2019 to present testimony on the issues on appeal. A transcript of the hearing has been associated with the Veteran’s claims file. Following the hearing, the Board decided in July 2019, in relevant part, that new and material evidence had not been received to reopen the previously denied right ankle and low back claims. The Veteran then appealed that denial to the Court, and in a Joint Motion for Partial Remand (JMPR) from July 2020, the Court vacated and remanded the Board Decision of July 2019 that had denied reopening the Veteran’s claims. As a result, the issues of whether or not new and material evidence has been received to reopen the claims of entitlement to service connection for a low back strain and a right ankle disability are each before the Board. As a result, the Board has jurisdictional responsibility to consider whether claims should be reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right ankle disability. Applicable law provides that a claim which is the subject of a prior final decision may be reopened upon presentation of new and material evidence. See 38 C.F.R. § 3.156. 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, 83 F.3d at 1383. Thus, the Board will proceed in the following decision to adjudicate new and material issues in the first instance. New evidence is defined as existing evidence not previously submitted to VA, 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). 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). 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). Turning to the evidence presented, the Veteran submitted an argument through his Attorney in March 2020 that the previous denial was March 1992 (as opposed to June 2010) and that “since then, a multitude of records and evidence have been added, such as VA treatment records, service treatment records, lay statements, private medical opinions, etc.” The Attorney also specifically cited a lay statement from August 1990, but noted that it was not received by VA until after March 1992, whereby the Veteran stated that he had “inverted my right ankle … was placed on light duty and crutches and [had] nothing for pain for two to three weeks.” They also pointed to a statement describing how the Veteran “slipped off the transfer head, hit the side of the cable and twisted [his] ankle.” They argued that these statements relate to the Veteran’s in-service ankle injury, and thus the Board should reopen the previously denied right ankle claim. The Board also notes that the Court has pointed out the previous error by the Board, insofar as the Decision from July 2019, which has since been vacated by that Court, incorrectly stated that the prior final denial for the right ankle disability was June 2010, when it was actually March 1992. The June 2010 Board Decision only denied the low back strain claim, which is discussed below – it did not deny the right ankle disability claim. As a result, the Board has now confirmed that there is approximately twenty-eight years of treatment records and lay statements that have been associated with the Veteran’s claims file since the March 1992 prior final denial. The Board is reminded that 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). Considering that the previous claim was implicitly denied in March 1992, the Board recognizes that the reasons for such denial were not overtly stated. Having said that, since that time the Veteran’s claims file has been expanded to include the additional records, as well as the lay statements cited above, one of which indicates that the Veteran injured his ankle during service, which may be the cause of his current ankle disability. These in-service injuries were also testified to by the Veteran during his February 2019 hearing. Therefore, the submitted argument is new, insofar as it was not previously submitted to the VA. The Veteran’s argument is also material, in that it goes to unestablished facts necessary to substantiate the claim. 38 C.F.R. § 3.156 (a). Therefore, affording the Veteran the benefit of reasonable doubt, the Board finds that, under the circumstances of this case, rejecting the Veteran’s request to reopen the previously denied claims would be in conflict with the principles explained in Justus and Duran. For these reasons, the claims for entitlement to service connection for a right ankle disability, will be reopened. 38 C.F.R. § 3.156(a), see Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), see further Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a low back strain. The Board incorporates its discussion from the sections above by reference. Turning to the evidence presented, the Veteran’s Attorney argued in an Appellate Brief from March 2020 that the Veteran’s low back strain was due to his active duty service, and that the Board did not incorporate all of the relevant records when considering whether new and material evidence had been received to reopen the previously denied claims. The Brief cited to private medical records from December 2014, such as those from Dr. A and Matrix Pain Management, as well as to a statement from that same month writing that these reports “reflect that his injuries are consistent with military injuries.” MRI reports have also been added to the claims file. This Brief is consistent with the reasons discussed in the Court JMPR from July 2020. In that JMPR, the Court identified private medical records that had been added to the record since the Board’s prior final denial of entitlement to service connection for a low back strain from June 2010. These records purport to demonstrate that the Veteran’s “current condition is consistent with his service injuries.” The Board has confirmed that private medical records, to include those from Dr. A, Matrix Pain Management, and MRI reports have been associated with the claims file since the prior final denial by the Board in June 2010. These records are included with a statement that indicates the Veteran’s current injuries are consistent with military injuries. All of these records are bolstered by the Veteran’s February 2019 hearing, whereby the Veteran testified that his current back strain was due to in-service injuries. Since the June 2010 prior final denial, the submitted evidence and arguments are new, insofar as they were not previously submitted to the VA. The Veteran’s evidence and arguments are also material, in that they go to unestablished facts necessary to substantiate the claim. 38 C.F.R. § 3.156 (a). Therefore, affording the Veteran the benefit of reasonable doubt, the Board finds that, under the circumstances of this case, rejecting the Veteran’s request to reopen the previously denied claims would be in conflict with the principles explained in Justus and Duran. For these reasons, the claims for entitlement to service connection for low back strain will be reopened. 38 C.F.R. § 3.156(a), see Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), see further Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Thus, the appeals for both the low back strain and the right ankle disability have been reopened, and the Veteran’s claim now turns to the questions of entitlement to service connection for a low back strain, as well as entitlement to service connection for right ankle disability on the merits. REASONS FOR REMAND The Board finds that additional evidentiary development is required before the claims on appeal are adjudicated. 1. Entitlement to service connection for a low back strain; and service connection for a right ankle disability are both remanded. The Veteran has claimed that his low back strain and his right ankle disability are each due to his active duty service. To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence 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. 38 C.F.R. § § 3.303(a). 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). As noted above, under Justus, the credibility of the Veteran’s statements was presumed for the purposes of evaluating the new and material evidence submitted. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board also recognizes that in October 2014, the RO determined that new and material evidence had not been received, and thus they denied reopening the Veteran’s claims of entitlement to service connection for a low backs train, as well as entitlement to service connection for a right ankle disability. Therefore, although the claims for have been reopened by the Board, the RO has not had a chance to readjudicate the claims on the merits. Generally, where the Board reopens a claim, but the RO did not, the case must be remanded for RO consideration. See, Hickson v. Shinseki, 23 Vet. App. 394, 399 (2010). Thus, the Board is restricted from deciding this issue on the merits, and a remand is required. In addition, the Board notes that the Veteran has not been given a VA examination to determine the etiology of his current right ankle disability. The Board also notes that the Veteran was given a VA examination in June 2006 for his low back strain, however recent private treatment records and opinions have since been added to the claims file. The Board also recognizes that the Veteran’s service treatment records include an in-service Emergency Care and Treatment report of a back injury from August 1988. Finally, the Board notes that during the Veteran’s hearing in February 2019, he testified that he was “working on a transfer … and was stripping grease off a GP5 and refueling it … when I was coming down and I hit a three-four-inch electrical cable going across the main deck and I inverted my ankle.” He testified to being on light duty “for a couple of weeks and Motrin for pain and crutches … and ever since then it’s given me problems.” As it relates to the low back strain, the Veteran testified that he was working kitchen duty and “the bow on the wall … popped off the wall … and like a corner on the door hit me right at L4 and L5 on my left side and it cut me deep.” Thus, he has testified to events which he claims occurred in service that explain his current right ankle and low back disabilities. In consideration of the above, the Board finds that the Veteran should be afforded a VA examination for both of the claimed disabilities. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (discussing circumstances under which a VA examination is required). The matters are REMANDED for the following action: 1. Obtain all VA treatment records relevant to the Veteran’s low back strain and right ankle disability. Notify the Veteran that if he has private treatment records relevant to these disabilities, he should submit them or identify them sufficiently so that the RO can obtain them with the appropriate authorization. 2. Following Step 1, schedule the Veteran for a VA examination (or telehealth interview(s), review(s) of the record, etc., if an in-person examination(s) is not feasible) with an appropriate clinician, to determine the nature and etiology of the Veteran’s right ankle disability and his low back strain. The claims file must be made available and must be reviewed by the examiners. A note that it was reviewed should be included in the report. After reviewing the claims file and examining the Veteran, the examiner should answer the following questions: As it relates to the right ankle disability (a.) Confirm the current diagnosis of a right ankle disability. For any currently diagnosed disability, provide an opinion as to whether it is at least as likely as not that the Veteran’s right ankle disability was incurred in, or otherwise related, to his time on active service? In rendering this opinion, the examiner’s attention is drawn to the Veteran’s lay statements and his February 2019 testimony, including that he inverted his right ankle and was placed on light duty and crutches for two weeks. As it relates to the low back strain (b.) Confirm the current diagnosis of a low back strain. For any currently diagnosed disability, provide an opinion as to whether it is at least as likely as not that the Veteran’s low back strain was incurred in, or otherwise related, to his time on active service? In rendering this opinion, the examiner’s attention is drawn to the Veteran’s February 2019 testimony, his VAMC and private treatment records, including private treatment records from Dr. A., Matrix Pain Management and MRI reports from December 2014 which may indicate that his back injuries were consistent with in-service military injuries. The examiner’s attention is also drawn to the Emergency Care note in the Veteran’s Service Treatment Records from August 1988. The clinician is also advised that the Veteran is competent to report his symptoms and history. Such reports by the Veteran must be acknowledged and considered in formulating any opinion. If the clinician rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The clinician is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A detailed rationale for the opinions must be provided. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. Thereafter, readjudicate the issues on appeal as noted above. If the determination remains unfavorable to the Veteran, he should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran should be afforded the applicable time period to respond. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Mulrain, 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.