Citation Nr: 21013513 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 14-25 866 DATE: March 9, 2021 ORDER The application to reopen a previously denied claim of service connection for a left ankle disability is granted. REMANDED Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a left foot disability, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for a blood disorder, to include as a result of in-service exposure to herbicide agents, is remanded. FINDINGS OF FACT 1. In an unappealed October 2008 rating decision, the Agency of Original Jurisdiction (AOJ) continued prior denials of service connection for a left ankle disability. 2. The additional evidence received since the October 2008 rating decision relates to an unestablished fact and raises a reasonable possibility of substantiating the claim of service connection for a left ankle disability. CONCLUSIONS OF LAW 1. The October 2008 rating decision continuing prior denials of service connection for a left ankle disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.1103. 2. The criteria for reopening the previous denied claim for service connection for a left ankle disability have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1969 to April 1971. The Veteran requested a hearing before the Board. The requested hearing was conducted by a Veterans Law Judge (VLJ) in September 2018. A transcript of the hearing is associated with the file. Since then, however, the VLJ who presided over the hearing retired. The law requires that the VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal. See 38 U.S.C. § 7102; 38 C.F.R. § 20.707. In a January 2021 letter, the Board notified the Veteran of the unavailability of the VLJ who had presided over the September 2018 hearing. The Veteran was provided an opportunity to testify at a hearing before a current VLJ. The Veteran was informed that, if he did not respond within 30 days, the Board would assume that he declines another hearing and would proceed with the appeal. Id. As the Veteran did not respond within 30 days of the letter, the Board will proceed with adjudication of his appeal. Whether new and material evidence has been received sufficient to reopen the previously disallowed claim for service connection for a left ankle disability Rating decisions that have not been timely appealed are binding and final based on the evidence on the record at the time of the prior decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 20.1103. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). “New” evidence is evidence not previously submitted or considered by the agency decision makers. “Material” evidence is evidence which, either by itself or in conjunction with other previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can neither be cumulative or redundant of the evidence at the time of the last prior final denial of the claim, and must raise a reasonable possibility of substantiating a claim. 38 C.F.R. § 3.156(a). For the purposes of determining whether new and material evidence has been received to reopen a prior final disallowance of a claim, the recently submitted evidence will be presumed credible, unless the evidence is inherently false or untrue or, if in the nature of a statement or assertion, it is beyond the competence of the person making the assertion. Justus v. Principi, 3 Vet. App. 510, 513 (1992); see also Duran v. Brown, 7 Vt. App. 216 (1995). VA must review the evidence submitted since the last final disallowance of the claim on any basis to determine whether a claim may be reopened based on new and material evidence. See Hickson v. West, 12 Vet. App. 247, 251 (1999). Initially, in an August 1971 rating decision, the AOJ denied service connection for a left ankle disability. The AOJ notified the Veteran of the decision and of his appellate rights in an August 1971 letter. The Veteran did not initiate an appeal by filing a NOD, nor did he submit new and material evidence within one year of the notification of the August 1971 rating decision. Thus, the August 1971 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. In June 1981, the Veteran filed a request to reopen the finally disallowed claim of service connection for a left ankle disability. In a June 1981 rating decision, the AOJ denied this claim. The AOJ notified the Veteran of the decision and of his appellate rights in the July 1981 letter. The Veteran did not initiate an appeal by filing a NOD, nor did he submit new and material evidence within one year of the notification of the June 1981 rating decision. Thus, the June 1981 rating decision became final. In May 1990, the Veteran filed a request to reopen the finally disallowed claim of service connection for a left ankle disability. In a June 1990 letter, the AOJ denied reopening the claim based on new and material evidence not being submitted. The Veteran did not initiate an appeal by filing a NOD, nor did he submit new and material evidence within one year of the June 1990 notification letter. In June 2008, the Veteran filed a request to reopen the finally disallowed claim of service connection for a left ankle disability. In an October 2008 rating decision, the AOJ denied reopening the claim. The AOJ notified the Veteran of the decision and of his appellate rights in a November 2008 letter. The Veteran did not initiate an appeal by filing a NOD, nor did he submit new and material evidence within one year of the notification of the October 2008 rating decision. Thus, the October 2008 rating decision became final. In May 2012, the Veteran filed his current request to reopen the finally disallowed claim of service connection for a left ankle disability. In the currently appealed December 2012 rating decision, the AOJ reopened the claim but denied the underlying issue on its merits. Notwithstanding the AOJ’s actions, the Board has the legal duty to determine whether new and material evidence has been presented to reopen the finally disallowed claim of service connection for left ankle condition. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The relevant evidence considered at the time of the October 2008 rating decision consisted of service treatment records and post-service medical records. The service treatment records documented the complaints, diagnosis, and treatment of a left ankle sprain, which occurred in January 1971. Post-service medical records document ongoing treatment of the Veteran’s left ankle. At the time of this last final disallowance in October 2008, the AOJ declined to reopen the claim based on its finding that the evidence of the record did not show a relationship between the Veteran’s current left ankle condition and his service. Accordingly, the Board finds that new and material evidence would consist of evidence suggesting a nexus between the Veteran’s left ankle condition and his service. In this regard, the Boardf acknowledges that the evidence received since the October 2008 rating decision consists of treatment records and the October and December 2012 VA examination reports. After a thorough consideration of the evidence submitted, the Board determines that this additional evidence is new, as it was not considered at the time of the October 2008 rating decision. The evidence is also material, as it relates to an unestablished fact. Indeed, the newly received evidence consists of examination reports that provide more insight regarding the etiology of the Veteran’s left ankle and whether it is related to service. The information provided in the December 2012 VA examination report also triggers the duty to assist, as will be explained further in the remand section below. Shade v. Shinseki, 24 Vet. App. 110 (2010). The newly received evidence, taken together with the evidence of the prior record, does, in fact, raise a reasonable possibility of substantiating a claim. Id. Accordingly, as new and material evidence has been received since the October 2008 rating decision, the application to reopen the previously denied claim for service connection for a left ankle disability is granted. REASONS FOR REMAND After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the Veteran’s claims for service connection a left ankle disability, a left foot disability, and a blood disorder. Service connection for a left ankle disability The Veteran contends that his left ankle condition is due to his service, specifically an in-service injury sustained to this joint. He has a current diagnosis of a left ankle disability—specifically degenerative joint disease (arthritis). Medical records also show that he has chronic osteomyelitis involving his ankle and foot. The service treatment records show that he sprained his left ankle after falling off a roof in January 1971. The December 2012 VA examiner opined that it was less likely than not that the Veteran’s current left ankle condition is related to his in-service injury. The examiner stated that, while the Veteran sustained a left ankle injury in service, the injury appeared to have healed, and he went on to re-injure the ankle in 1977. The examiner continued that the Veteran had a job which required standing on his feet for long periods of time. If one of the diseases enumerated in 38 C.F.R. § 3.309(a) is shown to be chronic in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). The examiner stated that the Veteran “re-injured” his ankle. This raises the question of whether the Veteran’s post-service injury and occupational duties were either an aggravation of his in-service injury or an intercurrent event. Based on the evidence as discussed herein, the Board finds that a remand is necessary to obtain an addendum opinion that addresses whether the Veteran's post-service injury and occupational duties aggravated his in-service ankle injury or was an intercurrent cause or event. Service connection for a left foot disability, to include as secondary to a service-connected disability The Veteran seeks service connection for a left foot disability. Evidence of record reflects left foot treatment. Specifically, medical evidence notes that the Veteran burned his left lower leg, ankle, and foot. Treatment of his left foot has also been noted in conjunction with the treatment of his left ankle. Chronic osteomyelitis involving the ankle and foot is noted under the problem list in VA treatment records. The December 2012 VA examiner determined that the Veteran had a foot ulcer. The examiner discussed the Veteran’s in-service left ankle sprain when providing the negative nexus opinion. Currently, it is unclear the exact diagnosis of the Veteran’s left foot condition—and specifically whether he has a left foot disability that is separate and distinct from his left ankle condition. Therefore, on remand, an opinion needs to be obtained that clarifies the diagnosis of a left foot condition and its etiology. Service connection for a blood disorder, to include as a result of in-service exposure to herbicide agents The Veteran contends that he developed a blood disorder due to his service, specifically from in-service exposure to herbicide agents. Evidence of record establishes that the Veteran has a current diagnosis of a blood disorder, diagnosed as idiopathic thrombocytopenia purpura and immunoglobulin deficiency. The Veteran has verified service in Vietnam from June 1970 to September 1970. Therefore, the Veteran is presumed to have been exposed to herbicide agents. This blood disease is not among one of the diseases enumerated in 38 C.F.R. § 3.309 (e) regarding presumptive service connection based on herbicide agent exposure. However, service connection can still be established on a direct basis due to exposure to herbicide agents. Here, there has been no opinion obtained regarding whether the Veteran’s presumed exposure to herbicide agents contributed in any way to the development of his blood disorder. Therefore, on remand, an opinion must be obtained to determine the nature and etiology of the Veteran’s blood disorder. Accordingly, these matters are REMANDED for the following action: 1. Provide the Veteran an opportunity to identify any pertinent treatment records. The AOJ should secure any necessary authorizations. Copies of all available private and VA documents should be associated with the Veteran’s claims folder. If the records are unavailable, inform the Veteran of such and of the efforts made to obtain them. The Veteran should also be notified that he may submit any such records himself. All efforts should be recorded in the claims folder. 2. Then, accord the Veteran an appropriate VA examination(s) to determine the nature and etiology of his left ankle, left foot, and blood disorders. His claims file should be made available to the examiner(s) in conjunction with the examination(s). Any testing deemed necessary should be conducted. After record review and/or examination, the VA examiner(s) should offer his or her opinion with supporting rationale as to the following inquiries, as clearly and precisely as possible: Left Ankle Disability Is it at least as likely as not (50 percent or greater probability) that the Veteran's current left ankle disability was incurred in, caused by, or etiologically related to the Veteran's service, specifically the in-service sprain? In rendering the opinion, the examiner must address whether the Veteran's post-service left ankle injury and/or post-service employment caused his current left ankle disability—or otherwise aggravated the pre-existing left ankle disability that had resulted from the in-service injury to this joint. Left Foot Disability (a) Provide the diagnosis(es) of any left foot disability found to be present during the pendency of this appeal. If there are different diagnoses than those currently of record, the examiner should attempt to reconcile the diagnoses with the evidence of record. The examiner should determine whether the Veteran has a left foot disability separate and distinct from his left ankle disability. (b) If a left foot disability is found to be present during the applicable appeal period, is it at least as likely as not (a 50 percent or greater probability) that such disability onset in, or is otherwise related to the Veteran's service? (c) Is it at least as likely as not (a 50 percent or greater probability) that any diagnosed left foot disability was caused by the left ankle disability? (d) Is it at least as likely as not (a 50 percent or greater probability) that any diagnosed left foot disability was aggravated (i.e., worsened beyond the natural progress) by the left ankle disability? If the examiner finds that the Veteran’s left foot disability is aggravated by his left ankle disability, the examiner should report the baseline level of severity of the condition prior to the onset of aggravation. If some of the increase in severity of the left foot condition is due to the natural progress of the disease, the examiner should indicate the degree of such increase in severity due to the natural progression of the disease. [Causation and aggravation are independent concepts. The examiner must provide separate findings and rationales for causation and aggravation.] Blood Disorder Is it at least as likely as not (50 percent or greater probability) that the Veteran's blood disorder onset in, or is otherwise related to his active duty, including his conceded in-service exposure to herbicide agents? The Board acknowledges that there is no presumption of service connection for a blood disorder due to exposure to herbicide agents. The examiner cannot base his/her opinion solely on the fact that the disability is not recognized as a presumptive disease due to herbicide agent exposure. Rather, the examiner must consider the likelihood that the blood disorder is related to the Veteran’s conceded in-service exposure to herbicide agents, given his medical history, family history, absence or presence of other risk factors, etc. The examiner must not solely rely on the absence of in-service documentation of a blood disorder. In rendering these opinions, the examiner(s) is(are) advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If the Veteran’s reports are discounted, the examiner should provide a reason for doing so. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history, pertinent lay evidence, and the relevant medical literature or studies as applicable to this case, which may reasonably explain the medical analysis in the study of this case. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Then, review the record, conduct any additional development deemed necessary, and readjudicate the claims. If any benefit sought remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC). The Veteran and his representative should be afforded the appropriate time period to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Middleton, 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.