Citation Nr: 21023183 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 18-00 580 DATE: April 20, 2021 ORDER New and material evidence has been received to reopen a claim for service connection for a right ankle disability. REMANDED Entitlement to service connection for right ankle disability is remanded. FINDING OF FACT Service connection for a right ankle disability was denied in an unappealed June 2013 rating decision; evidence received since the June 2013 rating decision is new and relates to an unestablished fact necessary to substantiate the right ankle claim. CONCLUSION OF LAW The criteria to reopen the claim of service connection for a right ankle disability have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 2007 to May 2008. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2016 rating decision of a VA Regional Office (RO). In June 2020 the Veteran testified before the undersigned Veterans Law Judge at a virtual hearing. A transcript of the hearing is of record. 1. New and material evidence has been received to reopen a claim for service connection for a right ankle disability VA may reopen and review a claim, which has been previously denied, if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C. § 5108. Service connection for a right ankle disability was denied in a June 2013 rating decision. New and material evidence was not received within a year of notice of the decision. See 38 C.F.R. § 3.156 (b). The Veteran did not initiate an appeal of this decision and it became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. In June 2016, VA received an application to reopen the claim. Upon review of the record, the Board finds that new and material evidence sufficient to reopen the claim has been obtained. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. The June 2013 denial was based on a finding that the Veteran did not have a diagnosed right ankle disability. Subsequent VA treatment records note a diagnosis of right sinus tarsi syndrome. Such evidence is presumed credible solely for the purposes of determining whether to reopen a claim. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The VA treatment records provide evidence of a current right ankle disability, a previously unestablished fact needed to substantiate the claim. The appeal is reopened. REASONS FOR REMAND 1. Entitlement to service connection for right ankle disability is remanded. The Veteran seeks service connection for a right ankle disability, to include as secondary to service-connected right plantar fascia tear. In part, the Veteran contends his plantar fascia tear precluded activity and led to obesity, which caused or aggravated his right ankle disability. See June 2020 hearing testimony. The Veteran underwent a VA examination in September 2016, and an addendum opinion was provided in July 2017. The examiner opined that the Veteran’s sinus tarsi syndrome of the right ankle was not caused or aggravated by his service-connected right plantar fascia tear. The examiner noted that obesity had more to do with the Veteran’s right ankle pain than did the plantar fascia tear. A March 2017 VA treatment record noted that the Veteran had gained 60 pounds since September 2014. The VA examiner did not address obesity as an ‘intermediate step’ between the Veteran’s service-connected plantar fascia tear and his right ankle condition. See Marcelino v. Shulkin, 29 Vet. App. 155 (2018); VAOPGCPREC 1-2017 (Jan. 6, 2017). Obesity may act as an “intermediate step” between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310 (a). VAOPGCPREC 1-2017. Thus, the Board cannot make a fully informed decision on the issue of right ankle disability because a VA opinion has not been obtained in consideration of obesity as an intermediate step between his service-connected planta fascia tear and his current claim for right ankle disability. Accordingly, on remand, an addendum opinion addressing obesity as an intermediate step should be obtained. Additionally, the Board notes that the Veteran’s treating VA podiatrist, Dr. Cole, noted in July 2020 that the Veteran’s “current foot-related conditions including plantar fasciitis, sinus tarsi syndrome, ankle instability and peroneal tendonitis and all future treatment for his feet should be service connected for him as they relate to his connected flat foot deformity.” The Board notes that this statement misidentifies the Veteran’s relevant service-connected disability, which is plantar fascia tear and not flat foot. Nevertheless, the statement appears to suggest that the Veteran’s right ankle and right foot conditions may be related. An opinion addressing the statements of Dr. Cole should also be obtained. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from June 2020 to the present. 2. Obtain an addendum opinion from an appropriate clinician regarding the nature and etiology of the Veteran’s right ankle disability. a) The examiner should opine whether it is at least as likely as not that a current right ankle disability onset during service or is otherwise related to service. b) The examiner should also opine whether any current right ankle disability is either proximately due to his service-connected plantar fascia tear or aggravated beyond its natural progression by his service-connected plantar fascia tear. The examiner must provide a complete rationale for all proffered opinions. In doing so, and with respect to b) the examiner must consider the assertion that the Veteran’s service-connected plantar fascia tear caused him to become obese and became a substantial factor in causing or aggravating his right ankle disability. If the Veteran is determined to have developed obesity due to his service-connected plantar fascia tear, then the examiner must discuss whether the right ankle disability would have occurred or worsened but for such obesity. The examiner should review the July 9, 2020 statement by Dr. Cole that the Veteran’s right ankle disability should be considered service-connected. If the requested opinions cannot be provided without resorting to speculation, the examiner should provide an explanation as to why speculation is required. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. G. Mazzucchelli, 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.