Citation Nr: 21032431 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 17-59 031 DATE: May 27, 2021 ORDER The application to reopen the claim of entitlement to service connection for a left ankle disorder is granted. Entitlement to service connection for left ankle avascular necrosis and osteochondral necrosis of the medial talar dome with osteoarthritis is granted. FINDING OF FACT 1. The RO denied service connection for a left ankle disorder in a February 2009 rating decision. The Veteran did not appeal this rating decision, nor did he submit new and material evidence within one year of the rating decision. 2. The evidence received since the February 2009 rating decision relates to an unestablished fact necessary to substantiate the Veteran's service connection claim for a left ankle disorder. 3. Left ankle avascular necrosis and osteochondral necrosis of the medial talar dome with osteoarthritis is attributable to wartime service. CONCLUSION OF LAW 1. The February 2009 rating decision denying service connection for a left ankle disorder is final. New and material evidence has been received and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. Left ankle avascular necrosis and osteochondral necrosis of the medial talar dome with osteoarthritis was incurred in wartime service. 38 U.S.C. §§ 1110, 1154(b); 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1980 to October 2007. He testified before the undersigned Veterans Law Judge at a January 2020 Travel Board hearing. 1. The application to reopen the claim of entitlement to service connection for a left ankle disorder Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New and material evidence is defined as evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration; such new and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156 (a) as creating a low threshold. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159 (c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." See id. The Veteran filed a compensation claim for a left ankle disorder in November 2007. This claim was denied in a June 2008 rating decision and a subsequent February 2009 rating decision. The Veteran was notified of this denial but did not appeal nor submit evidence within the one-year appeal period. The February 2009 decision was, therefore, final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.156 (b), 20.1103. The Veteran filed an application to reopen the compensation claim in November 2016. After a review of the evidence of record, the Board concurs with the RO's determination in the August 2017 Statement of the Case that new and material evidence has been submitted sufficient to reopen the case. There is evidence that cures a prior evidentiary defect which was not previously substantiated in the February 2009 rating decision. Accordingly, reopening of the claim of service connection for a left ankle disorder is warranted. 2. Entitlement to service connection for left ankle avascular necrosis and osteochondral necrosis of the medial talar dome with osteoarthritis Veterans are entitled to compensation if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service -the so-called 'nexus' requirement." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Relevant here, the Veteran asserts that his left ankle was injured during combat. Thus, 38 U.S.C. § 1154(b) is pertinent. Section 1154(b) cannot substitute for competent evidence linking a current disorder to service. "Section 1154(b) deals with the question whether a particular disease or injury was incurred or aggravated in service - that is, what happened then - not the questions of either current disability or nexus to service, as to both of which competent medical evidence is generally required." Caluza v. Brown, 7 Vet. App. 498, 507 (1995). Here, it is conceded that the Veteran injured his left ankle and experienced relevant symptoms during combat. Even if not in combat, 1154(a) would be applicable to the service overseas. The Veteran was treated for left ankle pain in service, documented in July 1991 and October 1998 treatment notes. In both instances, he was assessed with a left ankle sprain. X-rays at the time of the October 1998 injury were normal. Clinical evaluation upon retirement in August 2007 documented normal lower extremities. The Veteran did report left ankle pain upon retirement in an accompanying Report of Medical History. The Veteran filed a November 2007 compensation claim for a left ankle disorder, shortly after retirement. At a December 2007 VA examination, he was diagnosed with a left ankle strain. X-rays were again normal. The Veteran submitted a November 2016 Disability Benefits Questionnaire completed by a private podiatrist. The podiatrist noted a diagnosis of osteoarthritis of the left ankle and concluded that "the left ankle injuries he sustained while in the military service has contributed to his current condition that required surgery." A VA examination was afforded in July 2017. The examiner diagnosed left ankle avascular necrosis and osteochondral necrosis of the medial talar dome status post arthrosporic debridement and microfracture with grafix. The examiner concluded that the Veteran's left ankle disorder was less likely than not related to service, citing a normal separation examination and the lack of a chronic in-service left ankle disability. The Veteran testified at his January 2020 Travel Board hearing that he experienced left ankle pain and discomfort throughout service, the result of nearly 28 years as an infantryman. He also testified that he repeatedly experienced left ankle pain while in combat situations and that he has experienced a continuity of symptoms from service. He explained that he had experienced the same symptoms in-service and post-service. Here, there is a diagnosis of left ankle strain within two months of separation from service. This is coupled with positive findings in 1991 and 1998 with a report of pathology at separation. The Veteran was later diagnosed by a July 2017 VA examiner with left ankle avascular necrosis and osteochondral necrosis of the medial talar dome. While this examiner noted that the Veteran did not have a diagnosis of osteoarthritis, this determination was made after reviewing March 2016 x-rays. VA treatment records document a May 2016 diagnosis of left ankle arthritis. In addition, a November 2010 treatment note reported "beginnings of degenerative arthritis." The Veteran testified that he experienced the same symptoms continuously from the in-service manifestation to current day (obviously with some natural fluctuations in the severity of such symptoms). Ultimately, there were in-service manifestations and a diagnosis of a left ankle disorder. The Veteran was diagnosed with a left ankle disorder two months after separation. The Veteran has now been diagnosed with two additional left ankle pathologies. He testified that he experienced the same the symptoms from service and the Board finds such statements to be credible. The Board acknowledges the VA medical opinion of record, however, in this instance, it finds that the Veteran's lay statements with respect to an onset of symptoms to be most probative. In addition, the Board notes the private medical opinion of record linking his current left ankle disorders to service. The discrepancy between in-service and post-service diagnoses does not negate the Veteran's competent and credible testimony in this instance. Accordingly, service connection for left ankle avascular necrosis and osteochondral necrosis of the medial talar dome with osteoarthritis is granted. In reaching this determination, the Board has specifically considered his character of service and the absence of a true intervening cause involving the precise prior location of complaint. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. R. Stephens, 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.