Citation Nr: 21010313 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 19-13 217 DATE: February 24, 2021 ORDER The application to reopen a claim of service connection for a right ankle disability is granted. Service connection for a right ankle strain is granted. FINDINGS OF FACT 1. In a September 2017 rating decision, the Regional Office (RO) denied service connection for a right ankle disability. The Veteran received notice of the decision, did not appeal this decision, and new and material evidence was not received within one year after it was issued. 2. Evidence received since the September 2017 rating decision relates to an unestablished fact and raises a reasonable possibility of substantiating the claim of service connection for a right ankle disability. 3. The Veteran’s right ankle strain is related to an in-service injury. CONCLUSIONS OF LAW 1. The September 2017 rating decision that denied service connection for a right ankle disability is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 2. Since the September 2017 rating decision, new and material evidence has been received to reopen the claim of service connection for a right ankle disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for a right ankle strain are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1983 to November 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2018 rating decision of the Department of Veterans Affairs (VA) RO. In September 2020, the Veteran presented testimony before the Board. During the hearing, the Veteran’s request for the record to be held open for an additional 30 days to allow him to submit additional evidence was granted. New and Material Evidence Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). An 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, VA will reopen the claim and review it on the merits. The implementing regulation also provides that new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). 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). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that 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. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, 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 “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Regardless of whether the RO determined new and material evidence had been submitted, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board’s jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Jackson v. Principi, 265 F.3d 1366, 1369 (2001) (the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board). Whether new and material evidence has been received to reopen the claim of service connection for a right ankle disability. In a September 2017 rating decision, the RO denied service connection for a right ankle sprain on the basis that the Veteran did not have a current right ankle disability. Later that month, in a September 2017 notification letter, the Veteran received notice of the September 2017 rating decision. He did not appeal that decision and new and material evidence was not associated with the record within one year of its issuance. Accordingly, the September 2017 rating decision is final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. In September 2018, the Veteran submitted an application to reopen his previously denied claim of service connection for a right ankle disability. Relevant evidence received after the September 2017 rating decision includes a November 2018 VA examination report, a May 2019 private podiatrist report, and the September 2020 Board hearing. Specifically, the November 2018 examination report and the May 2019 private podiatrist report show a current diagnosis of a right ankle sprain. Additionally, in the May 2019 private podiatrist report, the podiatrist provided a positive nexus opinion between the Veteran’s right ankle sprain and his military service. The November 2018 examination report and the May 2019 private podiatrist report were not previously considered in the last prior final denial and such evidence relate to unestablished facts necessary to substantiate the claim and raise a reasonable possibility of substantiating the claim. See Shade, 24 Vet. App. at 117. Therefore, the criteria for reopening the claim of service connection for a right ankle disability are met. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran seeks service connection for a right ankle disability, which he asserts is related to an in-service right ankle injury and wear and tear associated with the rigors of service, namely running. See, e.g., Board hearing transcript (September 2020). The Veteran asserts that he has experienced recurrent ankle pain and a tendency to roll his right ankle since his in-service injury. See, e.g., Board hearing transcript (September 2020). For the following reasons, service connection for a right ankle strain is warranted. The medical evidence shows a current diagnosis of a right ankle strain. See VA examination report (November 2018); private podiatrist report (May 2019). Accordingly, a current disability has been demonstrated. STRs reflect that the Veteran incurred a right ankle sprain and that he sought treatment. See STR (March 1987). Therefore, the in-service disease or injury element has been met. This case turns on the remaining element of service connection, which is whether the Veteran’s right ankle sprain had its onset in service or is related to his military service. In May 2019 and September 2020, the Veteran’s treating podiatrist opined that the Veteran’s right ankle sprain is more likely than not related to his in-service ankle sprain. In the podiatrist’s September 2020 opinion, he detailed the Veteran’s in-service injuries that lead to his current disability, to include long runs and extensive training in combat boots, frequent jumping from vehicles with a loaded backpack. When coupled with the Veteran’s competent, credible report of right ankle pain and tendency to roll, the podiatrist’s opinions are highly probative evidence that relate the Veteran’s current right ankle sprain to his in-service right ankle injury. Indeed, the podiatrist was familiar with the Veteran’s pertinent medical history; her opinion is consistent with the Veteran’s report of recurrent symptoms since service; and her opinion is within the area of her expertise. See D’Aries v. Peake, 22 Vet. App. 97, 108 (2008). The Board resolve any doubt in the Veteran’s favor and finds that the Veteran’s chronic right ankle strain is related to an injury incurred during service. In reaching its opinion, the Board considered the unfavorable opinions from the November 2018 and January 2019 VA examiners. The examiners opined that the Veteran’s current right ankle sprain was not related to service. These opinions are afforded limited probative value, as they are predicated on the absence of medical treatment between the in-service injury and the recent diagnosis without regard to the Veteran’s competent, credible report of recurrent symptoms since the initial injury. Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). In sum, service connection for a right ankle sprain is warranted. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Castillo, 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.