Citation Nr: 21026471 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 17-66 300 DATE: May 3, 2021 ORDER As new and material evidence has been received, the claim of entitlement to service connection for a right ankle disability is reopened; the appeal is granted to this extent only. Entitlement to service connection for a right ankle disability is granted. FINDINGS OF FACT 1. An August 2015 rating decision denied the Veteran's claim for entitlement to service connection for a right ankle disability. The evidence received since the August 2015 rating decision is neither cumulative nor redundant, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for a right ankle disability. 2. The evidence is at least in relative equipoise as to whether the Veteran's right ankle disability is related to his active service. CONCLUSIONS OF LAW 1. New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for right ankle disability. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. 2. The criteria for service connection for a right ankle disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 2007 to October 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, the Veteran appeared at a hearing before the undersigned. A transcript of the hearing is of record. The Veteran submitted additional evidence, in the form of medical treatment records, after the November 2017 statement of the case (SOC). A waiver of initial RO review of additional evidence submitted by the Appellant is automatic in substantive appeals filed after February 2, 2013, unless the claimant or claimant's representative requests in writing that the RO initially review such evidence. See 38 U.S.C. § 7105(e). As the Veteran's substantive appeal was submitted in December 2017, and he did not explicitly ask for AOJ review of the new evidence, no waiver is necessary, and the Board shall consider the newly submitted evidence in the first instance. New and Material Evidence A rating action from which an appeal is not perfected becomes final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing, and after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. In order to reopen a claim which has been denied by a final decision, new and material evidence must be received. 38 U.S.C. § 5108. New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). 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 (2010). Moreover, in determining whether that low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why 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. In an October 2014 rating decision, the RO denied the Veteran's claim for service connection for a right ankle sprain, finding that, although service records showed treatment for his right ankle, the Veteran did not have a current right ankle disorder. The evidence of record included service treatment records (STRs), military personnel records (MPRs), and VA post-service treatment records dated through September 2014. The Veteran was notified of the rating decision in October 2014, and he filed a request to reopen his previously denied claim in May 2015. In an August 2015 rating decision, the RO reopened and denied the Veteran's claim, finding that while new and material evidence had been received, there was no evidence that an ankle sprain was incurred in or caused by service or within any applicable presumptive period. The recently added evidence of record included updated post-service VA treatment records dated through December 2014 and a July 2015 VA examination. The Veteran was notified of the rating decision in August 2015, but the Veteran took no further action. Therefore, the October 2014 decision is final with regard to this issue. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.156(b), 3.160(d), 20.302, 20.1103. Since the August 2015 rating decision became final, the Veteran testified that he has experienced right ankle pain and problems since an in-service injury; additionally, he was afforded a new VA examination in October 2016, and two VA medical opinions have been obtained, dated October 2016 and August 2017. The Board finds that the low threshold requirement for new and material evidence is satisfied with respect to the Veteran's claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). When considering the new evidence in conjunction with the evidence already of record, it raises a reasonable possibility of substantiating the claims. Thus, the Board finds that new and material evidence has been submitted and the petition to reopen the claim of entitlement to service connection for a right ankle disability must be granted. Entitlement to service connection for a right ankle disability is granted. The Veteran contends that his current right ankle disability is due to an injury incurred during active service. Establishing service connection generally requires (1) evidence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. Savage v. Gober, 10 Vet. App. 488 (1997). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service treatment record (STRs) note treatment for a rolled right ankle in September 2009. Subsequent STRs are silent for any complaints, treatment, or diagnosis related to the right ankle; however, his separation examination, dated in June 2010 notes that the Veteran was seen in the emergency room for a right ankle sprain. A July 2015 VA examination indicates diagnoses of lateral collateral ligament sprain (chronic/recurrent) and deltoid ligament sprain (chronic/recurrent). The examination notes that the Veteran reported that his right ankle condition began in 2009 or 2010 when he injured it running. He indicated that his symptoms had gotten worse. The examiner opined that the Veteran's right ankle disability was less likely than not proximately due to or the result of his PTSD because there is no correlation between PTSD and ankle sprains. No direct service connection opinion was provided. A February 2016 VA treatment record notes that the Veteran sought treatment for bilateral ankle pain, which he had experienced for "years". He reported experiencing this pain five to six times per year. He reported that he twisted his ankles weekly and experienced feelings of weakness in his ankles. He also indicated that he injured both ankles in service. In pertinent part, he indicated that he twisted his right ankle when he stepped in a pothole while running in 2009; the x-ray was negative, and he was put in an air splint for two weeks. Although noting a negative January 2016 ankle x-ray, based upon the Veteran's reports, the provider found that the Veteran had recurrent ankle sprains, most likely the ATF ligament. An October 2016 VA examination notes diagnoses of lateral collateral ligament sprain (chronic/recurrent), deltoid ligament sprain (chronic/recurrent), and tendonitis. The examination notes that the Veteran reported injuring his ankle during service during a run and the condition has gotten worse. The examiner opined that his right ankle disability was less likely than not incurred in or caused by active service because there was no documentation of a right ankle injury in his service records. An August 2017 VA opinion provided by different VA examiner notes that, upon review of the Veteran's STRs including the September 2009 treatment for his right ankle and his separation examination, the Veteran's right ankle disorder was less likely than not incurred in or caused by active service because there is no documentation to suggest a chronic right ankle condition due to active service; his separation examination showed no abnormalities. At his November 2020 Board hearing, the Veteran testified that he injured his right ankle during service when he fell into a pothole while running, rolling his ankle. He reported that he was told he had a bad ankle sprain at the time of his emergency room visit; his ankle was placed in an air case and he was placed on a physical profile for three to four weeks. He testified that he has continued to have pain and problems with his ankle since service. After carefully reviewing and weighing the competent evidence of record, the Board is satisfied that the evidence is at least in approximate balance as to whether the Veteran's right ankle disability is directly related to service. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The evidence reflects that the Veteran has a current right ankle disability consistently diagnosed as chronic or recurrent ankle sprain. Thus, the element of a current disability is met. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, as STRs demonstrate an in-service injury and diagnosis of right ankle sprain, the second element is also satisfied. Id. With regard to the final element, the Veteran's treating provider found that the Veteran had a current diagnosis of recurrent ankle sprains based on the Veteran's reports of ongoing symptoms of right ankle weakness and recurrent twisting since his injury during active service. Although the Veteran's June 2010 separation examination did not note any abnormalities relating to the Veteran's right ankle, STRs are positive for a right ankle injury. Additionally, the Board finds that the Veteran is competent to identify and report his feelings of right ankle weakness and twisting. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, the Board finds his assertion that his symptoms began during service and have continued since his right ankle injury in service is both competent and credible, and thus is positive evidence that supports a finding of nexus in this case. This supporting evidence places the pertinent record in relative equipoise. The Board acknowledges that none of the VA examiners provided a positive direct service connection opinion. However, the July 2015 examiner only addressed secondary service connection, the October 2016 VA examiner failed to consider the Veteran's in-service right ankle injury, and the August 2017 seemingly failed to consider the Veteran's reported symptoms of ongoing right ankle problems since service. Accordingly, resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for a right ankle disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. (Continued on the next page) As the Board finds that the grant of service connection is warranted for the Veteran's right ankle disorder on a direct basis, further analysis addressing secondary service-connection is not necessary. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Hite, 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.