BVA9507784 DOCKET NO. 93-11 625 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington THE ISSUE Whether new and material evidence has been presented to reopen a claim of service connection for a left lower extremity disorder. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD K. E. Harrison, Associate Counsel INTRODUCTION The veteran had active military service from April 1965 to March 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1992 rating decision by the RO. The RO originally denied the veteran's claim of service connection for left ankle disorder in December 1986 and he failed to perfect an appeal CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he had a chronic ankle sprain which was diagnosed in service. He also contends that he has submitted new and material evidence in support of his claim. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that new and material evidence sufficient to reopen the claim of service connection has been submitted. FINDINGS OF FACT 1. The RO denied service connection for ankle disorder in December 1986; he did not enter a timely appeal. 2. The veteran has submitted additional evidence which is not cumulative in nature and raises a reasonable possibility of changing the outcome. CONCLUSION OF LAW As new and material evidence has been submitted, the claim of service connection for a left lower extremity disorder is reopened. 38 U.S.C.A. §§ 1110, 5107(a), 5108, 7104 (West 1991); 38 C.F.R. § 3.156(a) (1994) REASONS AND BASES FOR FINDINGS AND CONCLUSION Background. The veteran's separation examination of March 1967 noted that the veteran had a chronic left ankle sprain. The veteran submitted a claim of service connection for a left ankle condition and the RO denied his claim in December 1986. In an attempt to reopen his claim in January 1992, the veteran submitted private letters and outpatient treatment reports showing that he received treatment for his left ankle. An April 1992 rating decision held that while the additional evidence was new it was not material for the purpose of establishing service connection for a left ankle disorder. Subsequent to the April 1992 rating decision the veteran submitted service medical records dated April 1966 which showed that the veteran fell in March 1966 and injured his left foot and that he had persistent pain in the lateral fibulotalar area with no pain over cuneiform. X-ray studies showed no evidence of a fracture. The examiner's impression was recurrent chronic ankle sprain, fibulotalar ligament. There also was submitted a copy of a statement from H. D. Pass, M.D., who indicated that the veteran had a left ankle disorder which was "definitely service connected." Analysis. The law permits the reopening of a finally adjudicated claim if new and material evidence is received. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1993). The United States Court of Veterans Appeals (the Court) has held that evidence is "new and material" when it is not cumulative of evidence previously considered, when it is relevant to and probative of the issue at hand, and when, viewed in the context of all the evidence of record, it raises a possibility that the outcome of the claim would be changed. Colvin v. Derwinski, 1 Vet.App. 171 (1991); Smith v. Derwinski, 1 Vet.App. 178 (1991). If the claim is found to be reopened, a review of the merits of the claim must be made to ascertain whether all of the evidence of record, both old and new, establishes a basis for granting service connection. Manio v. Derwinski, 1 Vet. App. 140 (1991); 38 C.F.R. § 3.104(a) (1994). In determining whether new and material evidence has been submitted and the case should be reopened, the credibility of the evidence is to be presumed. Once the evidence is found to be new and material and the case is reopened, the presumption that it is credible and entitled to full weight no longer applies. Justus v. Principi, 3 Vet.App. 510, 513 (1992). The Board finds that the veteran's recently submitted evidence is new and material evidence. The document revealing treatment in service for recurrent chronic ankle sprain is relevant and, along with Dr. Pass's statement, raises a reasonable possibility of changing the outcome of the case. As new and material evidence has been submitted, the claim is reopened. The veteran is now entitled to de novo consideration of his claim. ORDER The claim of service connection for a left lower extremity disorder is reopened as new and material evidence has been submitted. REMAND Since the claim has been found to be reopened, the RO should make a determination whether all of the evidence of record both old and new supports the claim of service connection for a left lower extremity disorder. The RO should take appropriate steps in developing the claim of service connection. The RO should take appropriate steps in obtaining all recent treatment record concerning the veteran's ankle or foot. The veteran should also be afforded a VA examination to ascertain the nature and severity of any current ankle or foot disorder. In view of the foregoing, the case is REMANDED to the RO for the following action: 1. The RO should take appropriate steps to contact the veteran and ask him to identify all other physicians and/or medical facilities (hospitals or clinics) from which he received treatment for his ankle or foot. Upon proper authorization from the veteran, full documentation should be obtained. 2. The veteran should be referred for a VA examination by an orthopedist to ascertain the current nature and current severity of any ankle or foot disorder. The examination should conform to the requirements of Chapter 2 of the VA Physician's Guide for Disability Evaluation Examinations (IB 11-56, March 1, 1985). All clinical findings should be reported in detail. The claims folder must be made available for review. 3. When the foregoing development has been completed, the claim should be reviewed by the RO on a de novo basis. If the decision remains adverse to the appellant, a supplemental statement of the case should be prepared and the veteran and his representative should be given a reasonable period of time for reply. Thereafter, the claim should be returned to the Board for further appellate review, if in order. No action is required of the veteran until he receives further notice. The purpose of this REMAND is to obtain additional information. The Board does not intimate any factual or legal conclusions as to the outcome ultimately warranted in this appeal. STEPHEN L. WILKINS Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994).