Citation Nr: 21008256 Decision Date: 02/12/21 Archive Date: 02/12/21 DOCKET NO. 19-02 821 DATE: February 12, 2021 ORDER New and material evidence sufficient to reopen the issue of entitlement to service connection for residuals of a back injury has not been received. New and material evidence sufficient to reopen the issue of entitlement to service connection for residuals of a head injury has not been received. Entitlement to service connection for a lateral collateral ligament sprain, left ankle (hereinafter left ankle disability) is granted. FINDINGS OF FACT 1. Evidence added to the record since the previous final denial does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for residuals of a back injury. 2. Evidence added to the record since the previous final denial does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for residuals of a head injury. 3. After resolving reasonable doubt in favor of the Veteran, the left ankle disability, had its onset in service. CONCLUSIONS OF LAW 1. The criteria for new and material evidence sufficient to reopen the issue of entitlement to service connection for residuals of a back injury has not been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 2. The criteria for new and material evidence sufficient to reopen the issue of entitlement to service connection for residuals of a head injury has not been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. The evidence is in relative equipoise as to whether the Veteran’s left ankle disability is related to service. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1959 to May 1962. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2020 the Veteran testified at virtual hearing before the undersigned Veterans Law Judge. A transcript is included in the claims file. New and Material Evidence Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing 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). In determining whether the evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board is required to consider all the evidence received since the first denial of the claim in light of the totality of the record. See Hickson v. West, 12 Vet. App. 247, 251 (1999). In this regard, the United States Court of Appeals for Veterans Claims (Court) has held that the language of 38 C.F.R. § 3.156 (a) creates a low threshold, and the Court has viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110 (2010). Further, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason 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 VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The record shows that a July 2014 rating decision denied the Veteran’s claim of service connection for residuals of a head injury and residuals of a back injury because the evidence submitted is not new and material. Moreover, additional evidence was not added to the claims file in the first year after the July 2014 rating decision. 38 C.F.R. § 3.156 (b). Accordingly, the Board finds that the July 2014 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Veteran filed a new claim in March 2018 that was denied again in September 2018 because the evidence submitted was not new material. The rating action was appealed. Relevant evidence after the previous final denial for the Veteran’s head and back disability include statements by the Veteran during his July 2020 hearing. The evidence submitted after the previous final denial is new in that it was not of record at the time of the prior denial. However, the evidence is not material because it does not relate to the unestablished facts necessary to substantiate the Veteran’s claims and does not address the basis for the prior denial. The evidence does not show the Veteran’s head and back injury was incurred in or due to service. The Board acknowledges the Veteran’s arguments that the Veteran’s head injury happened while deployed during a car accident and that his back started hurting during service. See July 2020 Hearing Transcript. However, those hearing transcript statements, while “new” since the previous final denial, are not material because they, in of themselves, do not show the Veteran’s head and back injury were incurred in or otherwise due to his time in service. The records regarding the car accident were from more than 50 years ago and cannot be located. Furthermore, records regarding the Veteran’s head injury after service are not associated with the claims file until decades later. See October 2018 PC Physician Assistant Note. The Veteran is simply making the same contention and filing the same claim. The standard to reopen a claim is low, but it is still a standard that must be met. The newly submitted objective evidence does not relate to an unestablished fact necessary to substantiate the claim as it does not show the Veteran’s head and back injury were incurred during his time in service. The Board cannot reopen a denied claim based on previously detailed lay statements. Therefore, because none of the evidence submitted from the previous final denial is not material, the Veteran’s claim to reopen this issue will be denied. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. At the outset, the Board notes that the Veteran has a current diagnosis of a left ankle disability. See April 2018 Radiology Interpretation. Additionally, and more importantly, the Veteran’s service treatment records confirm that he sprained his left ankle in October 1961 and was later re-taped for that same injury three days later. The Veteran was afforded a VA examination in April 2018. The examiner found that x-rays of the left ankle demonstrated an old healed medial malleolar avulsion chip fracture that aligns with a history of a lateral sprain. However, the examiner opined that it was less likely than not that the Veteran’s current condition was caused by an in-service injury, event or illness. The examiner’s rationale consisted of noting the Veteran’s 1961 diagnosis was acute only. A May 2018 Addendum medical opinion stated there was no documentation to substantiate a chronicity of care and therefore no nexus can be established. The Board cannot afford the April 2018 VA Exanimation and May 2019 Addendum much probative weight, as the opinions contradict the examiner’s additional statement that Veteran’s left ankle x-rays demonstrated an old healed medial malleolar avulsion chip fracture that aligned with his history of a lateral sprain. The Veteran’s probative lay statements establish both the onset of his left ankle disability during service and the continuity of his left ankle symptomatology since service. See 38 C.F.R. § 3.303.3 (b); see also Walker v. Shinseki, 708 F.3d 1331, 1338-1339 (Fed. Cir. 2013). Although an April 2018 VA examiner opined that the Veteran’s left ankle condition was less likely than not related to his military service, the Veteran has consistently reported that the symptoms manifested by his left ankle condition, to include chronic pain and swelling, have persisted ever since service. See September 2018 Correspondence. The Board finds that the Veteran is competent to describe the observable non-medical symptoms and treatment of his left ankle disability, such as chronic pain, and that his statements have been consistent with each other and with the evidence of record. Accordingly, the Board finds the Veteran’s lay statements to be competent and credible, and therefore entitled to probative weight. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Accordingly, in light of the foregoing, the Board finds the evidence of record to be in relative equipoise as to whether the Veteran’s current left ankle disability is at least as likely as not due to his in-service left ankle injury, as his lay statements regarding the onset of his symptoms are entitled to significant probative weight due to their consistency and credibility. Therefore, resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection for a left ankle disability is granted. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 3.303(b), 3.309. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura Cochran, 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.