Citation Nr: 21008844 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 16-23 853 DATE: February 18, 2021 ORDER New and material evidence having been submitted, the claim of service connection for a psychiatric disability is reopened. New and material evidence having been submitted, the claim of service connection for a left ankle disability is reopened. Service connection for a psychiatric disability is granted. REMANDED Service connection for a left ankle disability is remanded. FINDINGS OF FACT 1. The Veteran’s claim for service connection for depressive disorder not otherwise specified (also claimed as mood disorder with anxiety) was denied in an August 2008 rating decision on the basis that the evidence failed to establish a nexus to service. He was notified of this decision, did not timely disagree with it or submit new and material evidence within one year of it, and it became final. 2. Evidence received since the August 2008 rating decision raises a substantial possibility of substantiating the claim of service connection for a psychiatric disability. 3. The Veteran’s claim for service connection for a left ankle condition was denied in an October 1998 rating decision on the basis that the evidence failed to establish a nexus to service. He was notified of this decision, did not timely disagree with it or submit new and material evidence within one year of it, and it became final. 4. Evidence received since the October 1998 rating decision raises a substantial possibility of substantiating the claim of service connection for a left ankle disability. 5. The probative evidence of record is at least in equipoise as to whether the Veteran’s psychiatric disability was aggravated by his service-connected right ankle disability. CONCLUSIONS OF LAW 1. The August 2008 rating decision is final with regard to the issue of service connection for depressive disorder not otherwise specified. New and material evidence sufficient to reopen the claim of service connection for a psychiatric disability has been received. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 19.52, 20.1103 (2020). 2. The October 1998 rating decision is final with regard to the issue of service connection for a left ankle condition. New and material evidence sufficient to reopen the claim of service connection for a left ankle disability has been received. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 19.52, 20.1103. 3. With resolution of reasonable doubt in the Veteran’s favor, the criteria for a grant of service connection for a psychiatric disability have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from December 1986 to September 1989 and from March 1991 to April 1992. The Veteran testified before the undersigned Veterans Law Judge during a December 2020 hearing and a transcript is of record.  These matters are on appeal from a February 2012 rating decision. A motion to advance this appeal on the Board’s docket was raised by the Veteran’s representative in December 2020. The undersigned is granting the motion and advancing the appeal on the docket based upon the Veteran’s liver transplant. 38 C.F.R. § 20.900(c)(2020). The Veteran’s claims for service connection for depression, posttraumatic stress disorder (PTSD), and anxiety have been recharacterized as a psychiatric disability, to include depression, PTSD, and anxiety.  See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009).  New and Material Evidence In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured to that 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 is neither cumulative nor redundant of evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). However, evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343, 1347 (Fed. Cir. 2000). In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is generally “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Until the Veteran meets his threshold burden of submitting new and material evidence sufficient to reopen his claim of entitlement to service connection, the benefit of the doubt doctrine does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring the submission of new and material evidence. 38 C.F.R. § 3.156(c). In the context of 3.156(c)(1), “[i]n order to be ‘relevant,’ a record must speak to a matter in issue, in other words, a matter in dispute.” Kisor v. Wilkie, 969 F.3d 1333, 1336 (Fed. Cir. 2020). In September 2011, VA received the Veteran’s service personnel records. However, reconsideration is not warranted because the records do not reference his psychiatric or left ankle disabilities. Submission of new and material evidence is necessary to reopen the claims. 1. Psychiatric Disability – New and Material Evidence The Veteran contends that he has a psychiatric disability that is etiologically related to his active duty service. The Veteran was denied service connection for depressive disorder not otherwise specified (also claimed as mood disorder with anxiety) in an August 2008 rating decision. The basis for the August 2008 denial was a lack of evidence of a nexus to service or to his service-connected right ankle condition. He did not submit a Notice of Disagreement (NOD). The Veteran received VA treatment within one year of the August 2008 rating decision, mostly for disabilities other than a psychiatric disorder. The VA treatment records that do not pertain to mental health or do not contain references to mental health or note psychiatric symptoms are irrelevant to the claim and therefore are not new and material. In September 2008, the Veteran reported being separated from his wife. In November 2008, the Veteran’s former spouse called VA to ask for information about the Veteran’s psychiatric medications and noted that he attempted to kill himself and pointed a gun at her while he was taking Xanax. The VA representative informed her that the information was confidential and could not be released to her. In November 2008, he reported that he did not think his antidepressant medication was working well. In February 2009, the Veteran reported anxiety, poor sleep, and depressed mood at a therapy appointment. He also reported anxiety and depression. In March 2009, he reported poor sleep and depression. In a March 2009 mental health outpatient note, he reported depression, marital strife, inability to feel pressure, and witnessing stressful events in his post service job as a firefighter. In June 2009, the Veteran attended a VA Therapeutic Work Group where he worked on soft vocational skills. He discussed his inability to tolerate other people in workplace settings. He also expressed anger over not being selected for an interview for a job. He discussed psychiatric symptoms such as insomnia and depression. He also received treatment for depression in June 2009. The VA medical treatment received within one year of the August 2008 rating decision was constrictively in VA’s possession. Lang v. Wilkie, 971 F.3d 1348 (2020). However, it is not new and material. It notes the Veteran’s psychiatric symptoms and discusses his medication. However, it does not address the reason that his claim was denied. The evidence provides no information regarding whether his psychiatric disability is related to his period of active service or was caused or aggravated by his service-connected right ankle disability. Therefore, the August 2008 rating decision is final. 38 U.S.C. § 7105(b)(1); 38 C.F.R. §§ 19.52, 19.55, 20.1103 (2020). The question is thus whether the Veteran has submitted or VA has otherwise received evidence that was not before the adjudicator in August 2008, that is neither redundant nor cumulative, and that raises a reasonable possibility of substantiating a claim that the Veteran currently has a psychiatric disability as a result of active duty service. The evidence that was of record at the time of the August 2008 rating decision included the Veteran’s service treatment records, VA treatment records, and a VA examination report. Since the August 2008 rating decision, the Veteran has testified in his December 2020 hearing regarding the relationship between his psychiatric disability and his active duty service. As the record now contains more evidence pertinent to the issue of a nexus to service than it did in August 2008, the Board finds that new and material evidence has been received which pertains to previously unestablished facts necessary to support the claim. As this evidence raises a reasonable possibility of substantiating the claim, satisfying the criteria of 38 C.F.R. § 3.156(a) for new and material evidence, the claim is reopened. 2. Left Ankle Disability – New and Material Evidence The Veteran contends that he has a left ankle disability that is etiologically related to his active duty service. The Veteran was denied service connection for a left ankle condition in an October 1998 rating decision. He did not submit a Notice of Disagreement (NOD) or new and material evidence within one year of the rating decision. Therefore, the October 1998 rating decision is final. 38 U.S.C. § 7105(b)(1); 38 C.F.R. §§ 19.52, 19.55, 20.1103. The basis for the October 1998 denial was a lack of evidence of a nexus to service. The question is thus whether the Veteran has submitted or VA has otherwise received evidence that was not before the adjudicator in October 1998, that is neither redundant nor cumulative, and that raises a reasonable possibility of substantiating a claim that the Veteran currently has a left ankle disability as a result of active duty service. The evidence that was of record at the time of the October 1998 rating decision included the Veteran’s service treatment records, VA treatment records, and a VA examination report. Since the October 1998 rating decision, a February 2003 VA treatment record notes a diagnosis of a chronic sprain of the left ankle. The Veteran’s in-service left ankle injury was a sprain. As the record now contains more evidence pertinent to the issue of a nexus to service than it did in October 1998, the Board finds that new and material evidence has been received which pertains to previously unestablished facts necessary to support the claim. As this evidence raises a reasonable possibility of substantiating the claim, satisfying the criteria of 38 C.F.R. § 3.156(a) for new and material evidence, the claim is reopened. 3. Psychiatric Disability – Service Connection The Veteran contends that his psychiatric disability is etiologically related to his active duty service. Specifically, he contends that his service-connected right ankle disability caused or aggravated his psychiatric disability. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran was afforded a VA examination in November 2007. The clinician diagnosed depressive disorder not otherwise specified. The clinician opined that, “to a reasonable degree of professional certainty,” the Veteran’s depression was not caused by or a result of residuals of an in-service fracture. However, in a July 2008 VA examination report, the same clinician further opined that it was at least as likely as not that the Veteran’s depression was aggravated by his service-connected ankle injury. A VA clinician opined in July 2008 that the Veteran’s psychiatric disability was aggravated by his service-connected right ankle disability. The record contains no medical opinion to the contrary. In light of the totality of the circumstances, and after resolving all reasonable doubt in his favor, the evidence of record supports a finding that it is at least as likely as not that the Veteran’s psychiatric disability was aggravated by his service-connected right ankle disability. Accordingly, the Board finds that granting service connection for a psychiatric disability is the decision that is the most consistent with VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts of the case. 38 C.F.R. § 3.303(a). REASONS FOR REMAND 1. Service connection for a left ankle disability is remanded. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran has been afforded multiple VA examinations that discussed his left ankle symptoms, but none of them included an opinion with regard to the etiology of any left ankle disability. For this reason, a remand for a nexus opinion is warranted. In addition, a veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disabilities noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C. § 1111 (2012). If a condition is noted on an entrance examination report, the presumption of soundness does not attach - the only benefits that can be awarded are for aggravation of such condition by application of 38 U.S.C. § 1153 (2012) and 38 C.F.R. § 3.306 (2020). Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). However, a history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1) (2020). The March 1991 entrance examination report for the Veteran’s second period of active duty service notes the Veteran’s lower extremities as normal, with the exception of a surgical scar on the right ankle. For this reason, the presumption of soundness attaches with regard to this issue for that period. The Veteran’s service treatment records note a left ankle sprain in June 1988. The record therefore raises the possibility that his left ankle symptoms were present prior to that period of service. The opinion on remand should therefore include opinions as to whether the Veteran’s left ankle disability predated his second period of active duty service and was not aggravated by it. The Veteran’s service treatment records note hospitalization for, among other conditions, a left grade II lateral ankle sprain at Gorgas ACH in the Republic of Panama from June 1, 1988 to September 19, 1988. Although the Veteran’s service treatment records have been associated with the claims file, it is not clear whether these records include the full records of this inpatient hospitalization. On remand, the Agency of Original Jurisdiction should attempt to obtain these records, which are sometimes stored separately from service treatment records. The matters are REMANDED for the following action: 1. Obtain any records of the Veteran’s inpatient treatment for a left grade II lateral ankle sprain at Gorgas ACH in the Republic of Panama from June 1, 1988 to September 19, 1988. Make as many requests as are necessary to obtain relevant records and only end efforts to do so if the records sought do not exist or further efforts to obtain those records would be futile. All negative responses must be documented. If no records are available, the claims folder must indicate this fact and the Veteran should be notified; this notice should advise the Veteran to submit any copies of these records he might have in his possession. 2. Arrange for an opinion by an appropriate clinician for the purpose of determining the etiology of the Veteran’s left ankle disability. The entire claims file and a copy of this remand must be made available to the clinician for review. A new physical or telehealth examination is only required if deemed necessary by the clinician. The clinician is advised that, even if there is no diagnosable pathology of the left ankle, he or she must consider pain to constitute a disability if it has caused functional impairment during the period on appeal. The clinician is advised that VA received the Veteran’s claim on September 6, 2011. With regard to the Veteran’s period of active service from December 1986 to September 1989, the clinician must provide opinions as to the following:  a. Whether it is as likely as not (a probability of 50 percent or greater) that any current left ankle disability began in service, or; was caused by service, or; if arthritis is diagnosed, had its onset within one year of the Veteran’s separation from active duty, or; is otherwise related to the Veteran’s active service. b. Whether it is as least as likely as not that any current left ankle disability was caused by the Veteran’s service-connected right ankle disability.  c. Whether it is as least as likely as not that any current left ankle disability was aggravated beyond its natural progression by the Veteran’s service-connected right ankle disability.  With regard to the Veteran’s period of active service from March 1991 to April 1992, the clinician must provide opinions as to the following: a. Whether the Veteran’s left ankle disability clearly and unmistakably existed prior to this period of active duty service. b. If the answer to a) is yes, whether the Veteran’s left ankle disability was clearly and unmistakably not aggravated (i.e., not permanently worsened beyond the natural progression) during or as a result of service. c. If the answer to a) or b) is no, the clinician must provide the same opinions with regard to the March 1991 to April 1992 period of active duty service as for the December 1986 to September 1989 period of active duty service above. Although an independent review of the claims file is required, the Board calls the clinician’s attention to the following: a. Service treatment records from June 1988 to September 1988 regarding inpatient treatment for injuries including a left grade II lateral ankle sprain. b. The Veteran’s report during a May 1998 VA examination of compensatory effects from the right ankle to the left ankle. c. A February 2003 VA treatment record diagnosing a chronic sprain of the left ankle. d. A June 2004 VA examination report including x-rays showing an avulsion fracture involving the medial malleolus of the left ankle. e. An October 2009 VA examination report including x-rays showing an accessory ossicle at the tip of the medial malleolus of the left ankle. f. The Veteran’s testimony during a December 2020 hearing regarding the onset and continuity of his symptoms. The rationale for any opinion expressed should be provided. Note that a lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the clinician should so state and provide reasoning as to why this is so. 3. Ensure that the directives specified in this remand have been implemented. If they have not, appropriate corrective action must be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 4. Then, readjudicate the claims. If any decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ryan Frank, 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.