On appeal from the Department of Veterans Affairs (VA) Regional Office in Huntington, West Virginia
THE ISSUE
Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for a
right leg and ankle disability.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
ATTORNEY FOR THE BOARD
J. A. Markey, Counsel
INTRODUCTION
The veteran served on active duty from December 1951 to
February 1952.
This matter came before the Board of Veterans' Appeals
(Board) from a June 1998 decision by the Department of
Veterans Affairs (VA) Regional Office (RO) in Huntington,
West Virginia that new and material evidence had not been
submitted sufficient to reopen a previously denied claim of
entitlement to service connection for a right leg and ankle
disability.
In December 2000, this case was advanced on the docket by
order of the Deputy Vice Chairman of the Board pursuant to
38 U.S.C.A. § 7101 (West 1991 & Supp. 2000) and 38 C.F.R. §
20.900(c) (2000).
The Board notes that in a informal hearing presentation
received in January 2000, the veteran's representative
essentially presents argument to the effect that prior Board
decisions with respect to the above claim were erroneous.
However, he specifically indicates that nothing in the
presentation should be construed as either a motion for
reconsideration of these decisions or for review of any of
them on the basis of clear and unmistakable error. As such,
no such claims are before the Board at this time.
FINDINGS OF FACT
1. The Board, in a June 1988 decision, denied the veteran's
application to reopen a previously denied claim of
entitlement to service connection for a right leg and ankle
disability. This was the last disallowance of this claim.
2. Evidence received since the June 1988 decision, reviewed
along with evidence previously submitted, is so significant
that it must be considered to fairly decide the merits of
these claims.
CONCLUSIONS OF LAW
1. A June 1988 Board decision which denied the veteran's
application to reopen a previously denied claim of
entitlement to service connection for a right leg and ankle
disability is a final decision. 38 U.S.C.A. § 7104 (West
1991 & Supp. 2000); 38 C.F.R. § 20.1100 (2000).
2. Evidence submitted in support of the veteran's attempt to
reopen his claim of entitlement to service connection for a
right leg and ankle disability is new and material, and this
claim is reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R.
§ 3.156(a) (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Applicable law provides that service connection will be
granted if it is shown a particular disease or injury
resulting in disability was incurred or aggravated during
active duty. 38 U.S.C.A. § 1110 (West 1991 & Supp. 2000);
38 C.F.R. § 3.303 (2000).
In an October 1952 decision, the Board denied the veteran's
claim of entitlement to service connection for right peroneal
paralysis, by aggravation, due to trauma, with secondary
contracture, right ankle. It was noted that the veteran was
treated by Victor L. Glover, M.D. in 1938 for acute
osteomyelitis of the right foot; and that he had had surgery
followed by peroneal palsy and drop foot. Further, it was
noted that Dr. Glover related that the veteran developed a
fairly satisfactory return of function prior to entering
service. The Board discussed the veteran's service medical
records, which reflected that he presented in December 1951
with a sprained right ankle sustained while running with his
platoon.
The Board pointed out that in January 1952, the Physical
Evaluation Board (PEB) submitted findings to the effect that
the veteran was unable to perform his duties by reason of
osteomyelitis, chronic, quiescent, and neuropathy peroneal,
following osteomyelitis; and that the disability existed
prior to service and was not permanently aggravated by
service. The Board also noted that the veteran was
hospitalized at a VA facility from February 1952 to April
1952 and was discharged with a diagnosis of paralysis, right
peroneal nerve, due to trauma and contracture, right ankle,
secondary to traumatic lesion of the right peroneal nerve.
In denying the claim, the Board determined that the evidence
established that the veteran's right lower extremity
pathology existed prior to service but did not establish that
the inservice injury resulted in permanent residual
disability. The Board also found that aggravation of the
veteran's preexisting condition was not shown on discharge
examination or during the February to April 1952
hospitalization.
Similar conclusions were reached by the Board in decisions
dated in November 1953 and in May 1957. In February 1968 and
June 1988, the Board denied service connection for a right
leg and ankle disability on the basis that a new factual
basis showing entitlement to service connection had not been
established. Evidence of record at the time of these
decisions included lay statements to the effect that the
veteran's osteomyelitis was aggravated by service, as well as
a medical opinion from Edmond J. McDonnell, M.D. that the
inservice injury contributed to his pre-service disability.
These Board decisions are final and are not subject to
revision upon the same factual basis. 38 U.S.C.A. § 7104
(West 1991 & Supp. 2000); 38 C.F.R. § 20.1100 (2000).
However, the law and regulations provide that if new and
material evidence has been presented or secured with respect
to a claim which has been disallowed, the claim may be
reopened and the former disposition reviewed. 38 U.S.C.A.
§ 5108 (West 1991); 38 C.F.R. § 3.156(a) (2000).
"New and material" evidence is evidence not previously
submitted, not cumulative or redundant, and which by itself,
or along with evidence previously submitted, is so
significant that it must be considered to fairly decide the
merits of the claim. 38 C.F.R. § 3.156 (a) (1999); Hodge v.
West, 155 F.3d 1356 (Fed Cir 1998); see also Evans v. Brown,
9 Vet. App. 273.
The United States Court of Appeals for Veterans Claims
(hereinafter the Court) has stated that in determining
whether the evidence is new and material, the credibility of
the newly presented evidence is to be presumed. Justus v.
Principi, 3 Vet. App. 510 (1992). The Board is required to
give consideration to all of the evidence received since the
last disallowance of this claim on any basis or, in this
case, since the Board decision dated in June 1988. Evans.
In February 1998, the veteran filed an application to reopen
his claim for entitlement to service connection for a right
leg and ankle disability. The relevant evidence includes a
January 2001 statement from Craig N. Bash, M.D., a neuro-
radiologist. Dr. Bash indicates that he reviewed copies of
pertinent records contained in the veteran's claims folder,
to include service and post-service medical records, and that
in his opinion, the veteran's current right ankle pathology
is directly related to his inservice injury. Among other
things, Dr. Bash noted that the medical board statement (the
Board assumes that he is referring to PEB) to the effect that
the veteran's disability was not permanently aggravated by
service was "clearly inaccurate," and that the veteran
likely injured his collateral ankle ligaments in service and
has since developed ankle instability, advanced degenerative
arthritis, and fusion.
It is not entirely clear whether Dr. Bash's opinion that the
veteran's right leg and ankle disability is related to
service is predicated on the theory that the injury
aggravated a pre-service disability (the osteomyelitis), or
whether Dr. Bash's opinion is that the inservice injury
itself caused a separate disability. The latter opinion
would present a somewhat different scenario from that
reviewed throughout the long history of this claim.
Nevertheless, the Board finds that, assuming the credibility
of the opinion as required by Justus, the veteran has
submitted new and material evidence, since a permissible
construction of Dr. Bash's statement is an opinion that the
veteran's current disability stems from inservice aggravation
caused by the injury sustained therein. This evidence is not
only new, but is also material because it provides evidence
that the veteran has a current right ankle disability that
resulted from the inservice injury. Thus, this evidence is
relevant and probative to the issue at hand and is so
significant that it must be considered in order to fairly
decide the merits of the claim. 38 C.F.R. § 3.156 (2000).
However, since the new and material evidence presents some
ambiguity as to the precise underlying theory supporting the
asserted relationship to service, the Board finds that
further development and adjudication will be needed as noted
in the REMAND below.
ORDER
New and material evidence having been submitted, the
veteran's claim of entitlement to service connection for a
right leg and ankle disability is reopened; to this extent
only, the veteran's claim is granted.
REMAND
As noted above, applicable law provides that service
connection will be granted if it is shown a particular
disease or injury resulting in disability was incurred or
aggravated during active duty. 38 U.S.C.A. § 1110 (West 1991
& Supp. 2000); 38 C.F.R. § 3.303 (2000).
Recently, Congress amended 38 U.S.C.A. § 5107 (and amended or
added other relevant provisions) to reflect that VA has a
duty assist a claimant in developing all facts pertinent to a
claim for benefits. Such duty includes requesting
information as described in 38 U.S.C.A. § 5106, as well as
the accomplishment of a medical examination when such
examination may substantiate entitlement to the benefits
sought. A claim may be decided without providing such
assistance only when no reasonable possibility exists that
such assistance will aid in the establishment of entitlement,
or the record includes medical evidence sufficient to
adjudicate the claim. See Veterans Claims Assistance Act of
2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (to be
codified at 38 U.S.C. §§ 5102, 5103, 5103A, and 5107).
In this regard, the Board is of the opinion that a VA medical
examiner should be given an opportunity to review the entire
claims folder and provide an opinion as to the nature of the
relationship, if any, between the veteran's right leg and
ankle disability and his service, to specifically include
whether the preexisting osteomyelitis was aggravated by the
December 1951 injury, discussed above.
As noted in the "Introduction" portion of this decision,
this matter was recently advanced on the docket by order of
the Deputy Vice Chairman of the Board. Essentially, such
action was based on evidence indicating that the veteran is
seriously ill and is currently hospitalized at the Winchester
Medical Center in Winchester, Virginia. The Board points
this out to ensure the expeditious treatment of this claim by
the RO to the greatest extent practicable.
In view of the above, this matter is remanded to the RO for
the following action:
1. Out the outset, it is requested that,
given the veteran's current medical
condition, noted above and in recent
documentation of record, this claim be
afforded expeditious treatment by the RO
to the greatest extent practicable.
2. The RO should have an appropriate VA
specialist review the entire claims
folder, including a copy of this REMAND,
and provide an opinion as to whether it
is at least as likely as not that the
veteran aggravated the pre-service
osteomyelitis of the right lower
extremity while in service (specifically
in December 1951 when he injured his
ankle); and/or whether any current right
lower extremity disability, as shown in
the record, resulted from the December
1951 injury. In providing such an
opinion, the examiner should specifically
comment on the opinions expressed by Drs.
Glover, McDonnell, and Bash, as well as
any other medical opinions of record,
including opinions noted in the service
medical records. The complete rationale
for all conclusions reached (to include
citation, as necessary, to specific
evidence in the record) should be set
forth.
3. The RO should review the examiner's
opinion to determine if it is in
compliance with this REMAND. If
deficient in any manner, it should be
returned, along with the claims file, for
immediate corrective action.
4. After completion of the foregoing,
and after undertaking any further
development deemed warranted by the
record, the RO should readjudicate this
claim on appeal in light of all pertinent
evidence and legal authority, to
specifically include that cited to
herein. The RO must review this claim on
the merits, and provide adequate reasons
and bases for its determinations,
addressing all issues and concerns that
were noted in this REMAND.
5. If the claim on appeal continues to
be denied, the veteran and his
representative must be furnished a
supplemental statement of the case and be
given an opportunity to submit written or
other argument in response thereto before
the claims file is returned to the Board
for further appellate consideration.
The veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
