Citation Nr: 21028665 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 18-26 745 DATE: May 11, 2021 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for a left ankle disorder. Entitlement to service connection for left ankle arthritis is granted. FINDINGS OF FACT 1. In an October 1972 rating decision, the RO denied the Veteran's claim of entitlement to service connection for a left ankle disorder. The Veteran did not appeal that decision, and new and material evidence was not received within one year of notice of its issuance. 2. Evidence received more than one year since the October 1972 rating decision relates to an unestablished fact that raises a reasonable possibility of substantiating the claim of entitlement to service connection for a left ankle disorder. 3. The Veteran's left ankle arthritis is etiologically related to his active duty service. CONCLUSIONS OF LAW 1. The October 1972 rating decision that denied the claim of entitlement to service connection left ankle disorder is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a left ankle disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for left ankle arthritis are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1966 to September 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in May 2021. 1. New and material evidence has been received to reopen the claim of entitlement to service connection for a left ankle disorder. An October 1972 rating decision denied entitlement to service connection for a left ankle disorder as there was no evidence of a current diagnosis. The Veteran did not appeal that determination, and new and material evidence was not actually or constructively received within one year of the issuance of the decision. Thus, the October 1972 rating decision is final. See 38 U.S.C. § 7105 ; 38 C.F.R. § 20.1103. A final claim may be reopened if new and material evidence is submitted. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Evidence associated with the record more than one year after the issuance of the October 1972 rating decision includes an April 2016 VA examination report, which includes diagnoses of left ankle arthritis, tendonitis, and Achilles' tendon rupture. As this evidence had not been previously submitted and because it relates to an unestablished fact necessary to substantiate the Veteran's claim, it is considered new and material, and the claim is reopened. 2. Entitlement to service connection for a left ankle arthritis is granted. The Veteran asserts that he is entitled to service connection for left ankle arthritis because the disorder originated during his active duty service. The Board agrees. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection on a direct basis requires evidence demonstrating: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the claimed in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Here, the Veteran has a current diagnosis of left ankle arthritis. See April 2016 VA Examination Report. Accordingly, the first element necessary to establish service connection has been demonstrated. In this regard, the Board notes that the Veteran also has diagnoses of tendonitis of the left Achilles, peroneal, and posterior tibial, and Achilles' tendon rupture. See April 2016 VA examination report. However, the Veteran does not assert, nor does the evidence of record otherwise reflect, that his Achilles tendon disorder is related to or caused by service or a service-connected disability. See October 2016 Dr. T.R. medical opinion; May 2018 VA Form 9. Indeed, the Veteran specifically requested to limit the issue on appeal to left ankle arthritis during his hearing before the Board. Therefore, the Veteran's left Achilles disorders are not part of the instant claim before the Board, and the instant decision only addresses left ankle arthritis. Regarding element two, the Veteran sprained his left ankle in August 1972 during a basketball game, which notably occurred after his March 1972 separation examination. He was treated with a short leg walking cast for three weeks. Thus, the second element of service connection is also established. Regarding the final element, nexus, the Veteran has reported that after his left ankle cast was removed in 1972, his ankle was susceptible to "twist and snap." See February 2016 statement. He further reported and testified that he self-treated with ace bandages and over the counter medication to account for his pain. Id. In June 1997, the Veteran ruptured his left Achilles' tendon and underwent surgical repair. He does not assert, and the evidence does not otherwise reflect, that this is a service-related disability. Regarding the final element, nexus to service, in April 2016, a reviewing VA physician opined that the Veteran's left ankle disorder was less likely than not incurred in or caused by military service. In support of his conclusion, the examiner determined that the Veteran was treated for a minor ankle sprain that was treated and resolved without sequela. The Board notes, that in reaching the negative opinion, the April 2016 VA examiner cited to the Veteran's March 1972 separation evaluation and the Veteran's report of being in excellent health. However, the documented in-service injury occurred after the separation examination. Thus, the Board finds that the April 2016 VA medical opinion has no probative value, as it relies on an inaccurate factual premise. Reonal v. Brown, 5 Vet. App. 458, 460 (1993). In October 2016, Dr. T.R., the Veteran's treating physician, opined that the Veteran's in-service ankle injury more likely than not caused the Veteran's current left ankle arthritis. In support of his conclusion, Dr. T.R. indicated that it is "characteristic of a severe ankle sprain to develop into degenerative ankle arthritis but this process usually takes upwards of 40 years to occur." Dr. T.R. also noted that the Veteran's left ankle arthritis would require total ankle replacement with ankle stabilization (which occurred in November 2016). There is no contrary competent medical opinion of record. Accordingly, all necessary elements are met, and service connection for left ankle arthritis is warranted. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Forde, 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.