Citation Nr: 18160637
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 16-10 353
DATE:	December 27, 2018
New and material evidence having been submitted, the claim for service connection for left ankle disability is reopened.
Service connection for left ankle disability is granted.
1. In February 1986, the Veteran was notified that his left ankle service connection claim could not be granted, as he did not attend a scheduled VA examination.  The Veteran did not present himself for examination within one year of the notification, and the decision became final.  The Veteran filed to reopen his claim in April 2015, after which new and material evidence has been received.
2. The Veteran’s left ankle disability is related to his in-service left ankle injuries.
1. New and material evidence has been received sufficient to reopen the claim for service connection for a left ankle condition.  38 U.S.C. 5108; 38 C.F.R. § 3.102, 3.156(a), 3.159 
2. The criteria for entitlement to service connection for left ankle disability are met.  38 U.S.C. §§ 1112, 1113, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b).
The Veteran served on active duty in the United States Navy from January 1984 to October 1985.
The Veteran attended a videoconference hearing in November 2018 before the undersigned Veteran’s Law Judge (VLJ).  As this case is being decided under the one touch initiative, a hearing transcript will be associated with the file at a later date.
1. New and material evidence having been submitted, the claim for service connection for left ankle disability is reopened
Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record.  38 U.S.C. §§ 7104, 7105.  However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. 
New evidence is defined as existing evidence not previously submitted to agency decision makers.  Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  38 C.F.R. § 3.156(a).  New and material evidence can be 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 must raise a reasonable possibility of substantiating the claim.  In determining whether evidence is new and material, the credibility of the new evidence must be presumed.  Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 
The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low.  See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received 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.  Shade, 24 Vet. App. at 118 (2010).
If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence.  Justus, 3 Vet. App. at 512 (1992).  Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513.
The Veteran was notified in February 1986 that his claim could not be granted as he did not attend a scheduled examination.  The letter stated, “No further action will be taken unless we receive notification of willingness to report for examination.  If you do so, an examination will be re-scheduled and the claim will be reconsidered…”  The Veteran did not notify VA of his willingness to report for examination, and the decision became final.  The Veteran filed to reopen his claim in April 2015.   In connection with his claim, the Veteran was afforded a VA examination in August 2015, which he attended.  In addition, the Veteran has submitted private treatment records and lay evidence.  
The evidence received since the February 1986 denial includes evidence that is both new and material to the claim.  See 38 C.F.R. § 3.156.  The Board finds that this evidence is not cumulative or redundant, it relates to unestablished facts necessary to substantiate his claim, and raises a reasonable possibility of substantiating the claims.  Accordingly, the Veteran’s claim is reopened.
2. Service connection for left ankle disability
Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303. 
Generally, to prove service connection, the record must contain evidence concerning: (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 a disease or injury incurred or aggravated during service.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  In certain cases, competent lay evidence may demonstrate the presence of any of these elements.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 
Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service.  38 C.F.R. § 3.303(d).
Alternatively, service connection may be established either by showing that a chronic disability or disease was incurred during service and later manifestations of such chronic disability or disease are not due to intercurrent cause(s) or that a disorder or disease was incurred during service and there is evidence of continuity of symptomatology which supports a finding of chronicity since service.  38 C.F.R. § 3.303(b).   
The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability, see also 38 U.S.C. § 7104(a).  Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  Further, the Board has “the authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence.”  Madden, 125 F.3d at 1481.
As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran, and the Veteran’s demeanor when testifying at a hearing, if relevant.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table decision).
When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C. § 5107(b).
As an initial matter, the Veteran has a diagnosis of status post left ankle sprain with lateral ligament incompetence/instability.
The Veteran asserts that the injuries to his left ankle while on active duty are the root cause of his current left ankle condition.  He stated in his Notice of Disagreement that since his injuries in service, “my ankle rolls easily on even slightly uneven surfaces.”  In his Substantive Appeal, he wrote that he was treated for his ankle injuries while on active duty and, “After discharge, I continued to re-injure my left ankle and self-treated using the treatment that was used while still on active duty; I would ice, elevate and wrap the ankle until the swelling reduced and I could walk comfortably.”  He noted that he re-injured his ankle in 2004, and stated that injury was only as severe as it was because of his previous ankle sprains, first in the Navy and since discharge.
Turning to the service treatment records (STR), the Board notes that several ankle sprains are documented.  In April 1984, the Veteran suffered a left ankle inversion injury.  He was assessed with a second-degree sprain and lateral ankle instability.  Immobilization was deemed necessary and he was put in a cast for one month.  In October 1984, the Veteran suffered trauma to the left ankle, assessed as, “Left ankle sprain type II.”  In a follow-up note, the treatment record noted that the Veteran was experiencing pain and swelling since the injury and, “Has not had time to elevate and place ice because of excess work.”
The Veteran was afforded a VA examination in August 2015. The examiner provided a diagnosis of left ankle lateral collateral ligament sprain (chronic/recurrent).  The examiner concluded that the Veteran’s diagnosed left ankle condition was less likely as not incurred in or caused by an in-service injury.  In support of his conclusion, the examiner noted the Veteran’s in-service injuries as two acute events, noted an October 1985 physical examination wherein the Veteran reported “foot trouble” and the examiner’s report of “history of left ankle sprain, recurrent – NCD (No current disease),” and noted no other evidence of a foot condition until 1999 and the August 2004 “occupational inversion injury with rupture of the Lateral Collateral ligament of the left ankle.”
The Board finds that the VA examiner’s conclusion is less probative evidence as it did not address the severity of the Veteran’s left ankle injuries in service, did not address why a “chronic/recurrent” injury was not related to the documented injuries in service, and did not address the Veteran’s lay assertion that his left ankle sprains have been recurrent since service.
Competent and credible lay evidence has been received from the Veteran’s father and brother.  The Veteran’s father wrote that upon discharge, the Veteran lived with his parents.  The father wrote that he observed that the Veteran continued to have problems with his left ankle, that he sprained his ankle multiple times, and had to wrap his ankle two or three times a year.  The brother wrote, “I recall [the Veteran] as complaining of an ankle injury while on active duty in the Navy.  Over the years, he has had recurring problems with it.” 
The Board finds that the preponderance of the competent, credible, and probative evidence of record shows that the Veteran’s current left ankle disability has been recurrent since his time in the Navy.  The Veteran testified and reported left ankle sprains since service.  While the Veteran as a lay person has not been shown to be capable of making medical conclusions, the Veteran is competent to establish the presence of observable symptomatology, such as pain, sprains, and rolling his ankle.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature); see also Layno v. Brown, 6 Vet. App. 465, 469-470 (1994) (finding lay testimony competent when it concerns features or symptoms of injury or illness); but see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). 
Thus, the Board finds that the probative evidence of record reflects that the Veteran has a diagnosis of chronic/recurrent left ankle lateral collateral ligament sprain; that the Veteran suffered severe left ankle sprain injuries in service; and that the Veteran, as well as his father and brother, credibly reported recurrent left ankle sprains and symptomology since service.  In sum, the Board concludes that service connection is warranted for the Veteran’s left ankle disability.  38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	L. Nelson, Associate Counsel

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