Citation Nr: 21030260 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-16 582 DATE: May 18, 2021 ORDER New and material evidence having been received, the request to reopen a claim for entitlement to a left ankle disability is granted. New and material evidence has not been received to reopen a claim for entitlement to a right ankle disability; the claim is denied. REMANDED Entitlement to service connection for a left ankle disability is remanded. Entitlement to a rating greater than 20 percent for a back disability is remanded. FINDINGS OF FACT 1. A July 2001 rating decision denied the Veteran's service connection claim for a left ankle disability. The Veteran did not submit additional evidence or appeal that decision. Thus, the July 2001 rating decision became final. 2. The evidence added to the record since the July 2001 rating decision raises a reasonable possibility of substantiating the claim of entitlement to service connection for a right knee disability. 3. A July 2001 rating decision denied the Veteran's service connection claim for a right ankle disability. The Veteran did not submit additional evidence or appeal that decision. Thus, the July 2001 rating decision became final. 4. The evidence added to the record since the July 2001 rating decision does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for a right knee disability. CONCLUSIONS OF LAW 1. The criteria for whether new and material evidence has been received to reopen a claim for a left ankle disability have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. The criteria for whether new and material evidence has been received to reopen a claim for a right ankle disability have not 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 October 1997 to November 1999. He testified before the undersigned at a March 2021 Board hearing. A transcript of that hearing is attached to the file. New and Material Regardless of the determination by the Agency of Original Jurisdiction (AOJ) to reopen the claim, the Board must adjudicate the new and material issue to determine the Board's jurisdiction to reach the underlying claim and to adjudicate it de novo. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The Veteran's initial claims for service connection for a left and right ankle disabilities were denied in a July 2001 rating decision because there was no evidence of a right ankle disability in service and no current diagnosis of a left ankle disability. The Veteran did not initiate an appeal or submit new and material evidence during the appeal period and that decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b); 20.302, 20.1103. 1. Whether new and material evidence has been received to reopen a claim for a left ankle disability The question before the Board is whether new and material evidence has been submitted to reopen the claim. The Board finds that there has, and the claim should be reopened. Since the July 2001 rating decision, the Veteran added a December 2017 Disability Benefits Questionnaire (DBQ) from his VA treating podiatrist suggesting there may be a link in between his current left ankle disability and sprains incurred during active service. The Veteran also testified that he incurred several sprains beyond what is documented in his service treatment records (STRs). The Veteran also submitted treatment records for a December 2017 surgery to his left ankle to remove a bone spur. The "new" in that it had not been previously submitted. Moreover, the evidence is "material" because it relates to an unestablished fact necessary to substantiate the claims. The July 2001 denial was based on the no evidence of a current diagnosis or a nexus to service. The evidence submitted is neither cumulative nor redundant of the evidence of record at the time of the July 2001 rating decision and raises a reasonable possibility of substantiating the claims. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). The left ankle disability claim is reopened. 2. Whether new and material evidence has been received to reopen a claim for a right ankle disability The question before the Board is whether new and material evidence has been submitted to reopen the claim. The Board finds that although the evidence submitted since the July 2001 rating decision is new, the evidence is not material in that there it does not raise a reasonable possibility of substantiating the claim. There is still no evidence of a right ankle disability during service. At the hearing, Veteran testified that he did not know why the claim was initiated and that he does not have any issues with his right ankle. He specifically said that "it is fine." Absent new and material evidence, the claim to reopen must be denied. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Shade, 24 Vet. App. at 110 REASONS FOR REMAND 1. Entitlement to service connection for a left ankle disability is remanded. The claim is remanded for an adequate medical opinion. 38 C.F.R. § 3.159 (c)(4). VA opinions in the record, including from June 2018, base the negative opinion on the fact that the Veteran had one documented episode pertaining to a left ankle sprain in service, that resolved. The Veteran has testified that he experienced multiple sprains during active service that he did not seek treatment for and he had continuous problems since service. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). 2. Entitlement to a rating greater than 20 percent for a back disability is remanded. The claim is remanded for a new examination. At his March 2021 Board hearing, the Veteran testified that his back is "much worse" since his June 2015 VA examination. The Veteran also testified to experiencing some neurological manifestations to his lower extremities as well. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) with an appropriate examiner, to determine the nature and likely etiology of any diagnosed left ankle disability. Copies of all pertinent records must be made available to the examiner. After reviewing the record, the examiner is asked to answer the following questions: (a) Is it at least as likely as not (50 percent probability) that any currently diagnosed left ankle condition was incurred in or is otherwise related to service? The examiner is asked to consider and discuss (i) the Veteran's credible statements that he incurred several sprains during service that he self-treated, and; (ii) the Veteran's multiple medical treatment records since service documenting complaints of left ankle pain following his injury in service. The examiner is advised that the Veteran is competent to provide evidence of symptomatology readily apparent to him, regardless of whether the symptoms are noted in the service medical records or on the date of examination. The examiner may NOT rely on the absence of a medical record or evidence of medical treatment as the sole rationale for any negative medical nexus opinion. A complete rationale must be provided for all opinions, citing to supporting factual data and medical literature, as appropriate. If the examiner cannot provide an opinion without resort to speculation, the examiner must state why and note what, if any, additional evidence would permit such an opinion to be made. 2. Schedule the Veteran for the appropriate VA examination to assess the severity of his service-connected back disability. Copies of all pertinent medical records should be made available to the examiner for review. All necessary diagnostic testing should be performed using the appropriate DBQ if available. The examiner should also specifically identify and assess any corresponding neurological manifestations associated with his back disability. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. G. Perkins, 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.