Citation Nr: 21031462 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 18-50 640 DATE: May 21, 2021 ORDER Entitlement to service connection for jungle rot is dismissed. The application to reopen the claim for entitlement to service connection for a right ankle disability is granted. Entitlement to service connection for a right ankle disability, status post total ankle replacement, is granted. Entitlement to service connection for a left ankle disability, status post total ankle replacement, is granted. FINDINGS OF FACT 1. During the April 2021 hearing, prior to promulgation of a decision in the appeal, the Veteran withdrew the appeal for the issue of entitlement to service connection for jungle rot. 2. The Veteran's claim for a right ankle disability was denied initially in February 1981, the Veteran did not disagree with the decision, and additional evidence was not received physically or constructively within one year. 3. Evidence pertaining to the Veteran's claim for entitlement to service connection for right ankle disability since the last final rating decision of February 1981 was not previously submitted, relates to unestablished facts necessary to substantiate the claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim. 4. The Veteran sustained in service injury that resulted in posttraumatic arthritis and deformity of the right ankle. 5. A left ankle disability was caused by posttraumatic arthritis and deformity of the right ankle. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal are met for the issue of entitlement to service connection for jungle rot. 38 U.S.C. § 7105 (2018); 38 C.F.R. § 19.55 (2020). 2. The evidence received since the last final February 1981 rating decision denying service connection for right ankle disability is new and material. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.156, 20.1103 (2020). 3. The criteria for service connection for a right ankle degenerative joint disease are met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2020). 4. The criteria for service connection for a left ankle degenerative joint disease are met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1975 to January 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for jungle rot is dismissed. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55(a). Withdrawal may be made by the appellant or an authorized representative. Id. Withdrawal of an appeal will be deemed a withdrawal of the Notice of Disagreement and, if filed, the Substantive Appeal, as to all issues to which the withdrawal applies. 38 C.F.R. § 19.55(c). Withdrawal does not preclude filing a new Notice of Disagreement and, after a Statement of the Case is issued, a new Substantive Appeal, as to any issue withdrawn, provided such filings would be timely under these rules if the appeal withdrawn had never been filed. Id. During the April 2021 hearing, prior to promulgation of a decision in the appeal, the Veteran withdrew the appeal for the issue of entitlement to service connection for jungle rot. Thus, there remain no allegations of errors of fact or law for appellate consideration concerning this issue. Accordingly, the Board does not have jurisdiction to review this issue and it is dismissed. 2. The application to reopen the claim for entitlement to service connection for a right ankle disability is granted. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105(c). A claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. In a February 1981 rating decision, the RO denied service connection for a right ankle disability. The Veteran was notified of the February 1981 rating decision and his procedural and appellate rights that same month at his address of record. He did not file a notice of disagreement or additional evidence within one year of notice of the February 1981 rating decision. For these reasons, the February 1981 rating decision denial of service connection for right ankle disability became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. The RO denied the Veteran's claim but noted evidence of injury in service and treatment for right ankle disability following discharge. The RO did not obtain a nexus opinion and determined that the Veteran's treatment in service in November 1975 and his treatment following service in April 1980 were too remote to be related. Here, the evidence established injury in service and current right ankle disability, and evidence of a nexus between the two was not of record. Evidence received since the prior final February 1981 rating decision includes July 2018 and April 2021 opinions linking right ankle disability to injury in service. See July 2018 Opinion; see also April 2021 Opinion. These opinions are new to the file and contain competent evidence that attributes right ankle disability with in-service injury, addressing the grounds of the prior final denial. This evidence raises a reasonable possibility of substantiating the service connection claim for right ankle disability. The Board concludes that the criteria for reopening service connection for right ankle disability are met. 38 C.F.R. § 3.156(a). 3. Entitlement to service connection for a right ankle disability, status post total ankle replacement, is granted. 4. Entitlement to service connection for a left ankle disability, status post total ankle replacement, is granted. The Veteran contends he incurred a right ankle disability due to injury in service and asserts secondary causation for left ankle disability as due to gait imbalance and pain. See April 2021 Hearing Transcript. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1)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 in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). As an initial matter, the Board notes the Veteran has a current diagnosis of a status post bilateral total ankle replacement. See April 2021 Opinion. Accordingly, current bilateral ankle disabilities are demonstrated. As to injury in service, the Veteran was treated for in November 1975 for right ankle injury and recurrent ankle strains, a small bulge was noted on the right ankle. See November 1975 Service Record. The Board finds this establishes injury of the right ankle in service. Importantly, the Veteran underwent surgery in April 1980 for removal of a large, loose body from the anterolateral joint. See April 1980 Medical Record. Thus, in order to warrant direct service connection, the record must show a nexus between right ankle disability and injury in service. In order for secondary service connection, the evidence must show a relationship between right ankle disability and left ankle disability. In this regard, the Veteran underwent VA examination where the examiner found no ankle disability, despite evidence of recurrent right ankle sprains and right ankle deformity on examination. See November 2014 Examination. The Board affords the November 2014 examination no probative value due to the inaccurate factual basis regarding present disability, physical examination and reports indicate recurrent sprains and degenerative changes resulting in deformity. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (finding that a medical opinion "based upon an inaccurate factual premise" lacks probative value). In support of the claim, the Board notes a July 2018 VA medical records contains an opinion that the Veteran's posttraumatic right ankle arthritis was due to injury in service. As to secondary service connection, the July 2018 examiner opined that the Veteran's right ankle pain and joint degeneration resulted in left ankle pain secondary to altered gait mechanics. See July 2018 Opinion. Finally, in November 2019, the Veteran a private opinion from his treating physician linking his service injuries and his right ankle degenerative joint disease. See April 2021 Opinion. Based on the foregoing, the Board finds that the Veteran's current right ankle disability was incurred in service. Further, the Board also finds the Veteran's left ankle disability was caused by service-connected right ankle disorder, and thus service connection on a secondary basis is warranted. See Wallin, supra; 38 C.F.R. § 3.310(a). In reaching its decision, the Board finds July 2018 VA opinion and the April 2021 opinions particularly probative. The opinions are consistent with one another, offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two and addressed all the pertinent theories of entitlement. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As to the contrary medical opinion, the Board has determined the November 2014 opinion is not probative of etiology. Consequently, the Board resolves all doubt in the Veteran's favor and finds that service connection for right ankle disability as due to service and left ankle (Continued on the next page) disability as secondary to right ankle disability is warranted. See 38 U.S.C. § 5107; 38C.F.R. §§ 3.102. 3.303, 3.310. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Trickey 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.