Citation Nr: 0006035 Decision Date: 03/07/00 Archive Date: 03/14/00 DOCKET NO. 96-13 599 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for bilateral foot and ankle disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. M. Casula, Associate Counsel INTRODUCTION The veteran had active service from November 1987 to November 1991. This matter comes before the Board of Veterans' Appeals (Board) from a January 1996 rating decision of the Pittsburgh, Pennsylvania Regional Office (RO) of the Department of Veterans Affairs (VA) which denied service connection for flat feet and found that there was no evidence of clear and unmistakable error in the July 1992 rating decision denying service connection for bilateral ankle and foot conditions. In November 1991 the veteran filed a claim for service connection for ankle and foot problems. By rating action in July 1992, the RO denied service connection for bilateral foot and ankle pain. In August 1992 the veteran filed a notice of disagreement with that decision and in September 1992 the RO issued a statement of the case, but the veteran failed to perfect his appeal. In January 1996 the veteran's representative essentially claimed that clear and unmistakable error had been committed in the July 1992 rating action, and requested corrective action pursuant to 38 C.F.R. § 3.104(a). By rating action in January 1996, the RO found that the July 1992 decision to deny service connection for bilateral ankle and foot conditions was not clearly and mistakably erroneous and also denied service connection for flat feet. The record reflects that in August 1999, the RO certified for appeal the veteran's claim of clear and unmistakable error in the July 1992 rating decision; however, for reasons which will be discussed later in this decision, the question of CUE is not for consideration. Accordingly, the Board has recharacterized the issue on appeal as entitlement to service connection for bilateral foot and ankle disabilities, as the veteran initially claimed service connection for ankle and foot problems in November 1991. FINDINGS OF FACT 1. During service, the veteran was treated on several occasions for bilateral foot pain. 2. X-rays taken in August 1991 showed that the veteran had mild degenerative joint disease of the feet. 3. The veteran complained of foot troubles on his separation examination and he submitted a claim for disability compensation based on foot and ankle problems immediately after his discharge from service in November 1991. 4. A VA examination was performed in January 1992, which did not include x-ray examination of the feet; the diagnosis was recurrent ankle soreness, rule out ankle strain. CONCLUSION OF LAW The claim of entitlement to service connection for bilateral foot and ankle disabilities is well grounded; VA has not complied with the duty to assist in the development of his claim. 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied, 524 U.S. 940 (1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 U.S.C. § 5107(a), the Department of Veterans Affairs (VA) has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the United States Court of Appeals for Veterans Claims (Court or CAVC) issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). Once a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well-grounded, the claimant's initial burden has been met, and VA is obligated under 38 U.S.C. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. Accordingly, the threshold question that must be resolved in this appeal is whether the appellant has presented evidence that the claim is well grounded; that is, that the claim is plausible. In order for a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Epps, 126 F.3d at 1468; Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). Where the determinative issue involves medical causation or etiology, or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Epps, 126 F.3d at 1468. Further, in determining whether a claim is well-grounded, the supporting evidence is presumed to be true and is not subject to weighing. King v. Brown, 5 Vet. App. 19, 21 (1993). In regard to establishing a well-grounded claim, the second and third Epps and Caluza elements (incurrence and nexus evidence) can also be satisfied under 38 C.F.R. § 3.303(b) (1999) by (1) evidence that a condition was "noted" during service or during an applicable presumption period; (2) evidence showing postservice continuity of symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Savage, 10 Vet. App. at 496. Moreover, a condition "noted during service" does not require any type of special or written documentation, such as being recorded in an examination report, either contemporaneous to service or otherwise, for purposes of showing that the condition was observed during service or during the presumption period. Id. at 496-97. However, medical evidence of noting is required to demonstrate a relationship between the present disability and the demonstrated continuity of symptomatology unless such a relationship is one as to which a lay person's observation is competent. Id. at 497. In the case of a disease only, service connection also may be established under section 3.303(b) by (1) evidence of the existence of a chronic disease in service or of a disease, eligible for presumptive service connection pursuant to statute or regulation, during the applicable presumption period; and (2) present disability from it. Savage, 10 Vet. App. at 495. Either evidence contemporaneous with service or the presumption period or evidence that is post service or post presumption period may suffice. Id. Service medical records showed that in October 1988 the veteran reported that he had jumped off a 6 to 7 foot bin, landed on his feet, and felt his arch on the left foot break. The assessment was foot strain related to the fall and fasciitis of the left foot. He was subsequently seen on several occasions for pain in both feet, that was variously diagnosed as flat feet, minor floxidis, fallen arches, structural deformity of both feet. X-rays of the feet taken in 1988 and 1989 showed no abnormalities. On examination in September 1991 he reported having bilateral ankle pain and a history of sprains. His foot type was noted to be within normal limits, and x-rays showed slight degenerative joint disease. On his Report of Medical History prepared in conjunction with his separation examination in September 1991, he responded "yes" to having foot trouble, and in an attachment indicated that when he was running his ankles would swell and become painful. No abnormalities of the feet were noted on separation examination. On VA examination in January 1992, it was noted that the veteran's feet appeared normal on inspection with no obvious swelling and deformity. The diagnosis was recurrent bilateral ankle tenderness, rule out ankle strain, exercise related. The Board finds that there is competent medical evidence that tends to show that the veteran had an onset of mild degenerative joint disease of the feet during service. Degenerative joint disease or arthritis is generally recognized as a chronic disease. See 38 C.F.R. § 3.309. There is also evidence showing that he was treated on several occasions for foot and ankle pain during service, and that he reported having foot trouble on his separation examination, claiming that his ankles swelled and became painful. Thus, his claim for service connection for bilateral foot and ankle disabilities is well-grounded. In July 1992, the RO denied service connection for foot and ankle problems and the veteran was notified of that decision and of his right to appeal. Unappealed decisions are generally final and will not be revised in the absence of clear and unmistakable error. 38 C.F.R. §§ 3.104, 3.105. A claim of CUE is a collateral attack that can only be made on a final RO or Board decision. 38 C.F.R. § 3.104(a) It appears, however, that an exception to this rule of finality has recently been carved out. In a recent decision, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) dealt with a similar case involving a procedural error -- the VA's breach of the duty to assist -- and a subsequent claim of clear and unmistakable error. In Hayre v. West, 188 F.3d 1327 (1999), the Federal Circuit held that where there is a breach of the duty to assist in which the VA made a single request (and failed to obtain) pertinent service medical records, specifically requested by the veteran, and failed to provide the veteran with notice explaining the deficiency, the claim did not become final for purposes of appeal. The Federal Circuit went on to conclude in Hayre that the RO's breach of the duty to assist was not an error of the sort that should be contemplated in the clear and unmistakable analysis because the original rating decision was not final for purposes of appeal (due to the RO's breach of the duty to assist). The Federal Circuit also noted that in cases of "grave procedural error" the Court of Appeals for Veterans Claims has consistently held that RO or Board decisions are not final for purposes of direct appeal. Hayre, supra, at 1333. The Federal Circuit went on to conclude that the VA's failure to obtain pertinent service medical records specifically requested by the veteran, and failure to provide him notice explaining the deficiency, was a procedural error of, at least, comparable gravity that vitiates the finality of an RO decision. Based on the Federal Circuit's decision in Hayre, the Board finds that in this case, as more fully explained below, there has been a significant procedural error (involving a breach of the VA's duty to assist), which has rendered the July 1992 rating decision not "final" for appellate purposes. As noted by the Federal Circuit in Hayre "The duty to assist does not end upon the RO's submission of requests for records. Where the record does not adequately reveal the current state of a veteran's disability and the claim is well-grounded, fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination." Hayre, supra at 1332. In this case, the veteran was diagnosed with degenerative joint disease of the feet by x-ray examination shortly before his discharge from service. The VA examiner referenced this diagnosis on the report of examination in early 1992, but inexplicably never pursued the matter further either by way of diagnosis, nor by x-ray examination. This was clearly a crucial omission in the development of the record that was for all practical purposes determinative of the outcome in the veteran's claim at that time. Given such a grave procedural error, the decision by the RO is not considered final and therefore, the RO's decision in 1992 is not considered final. ORDER The claim of entitlement to service connection for bilateral foot and ankle disabilities is well grounded. To this extent only, the appeal is granted. REMAND Because the claim of entitlement to service connection for foot and ankle disabilities is well grounded, VA has a duty to assist the veteran in developing facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999); 38 C.F.R. § 3.159 (1999); Murphy v. Derwinski, 1 Vet. App. 78 (1990). The U.S. Court of Appeals for Veterans Claims (Court) has held that the duty to assist the veteran in obtaining and developing available facts and evidence to support his claim includes obtaining medical records to which he has referred and obtaining adequate VA examinations. The Court also stated that the Board must make a determination as to the adequacy of the record. Littke v. Derwinski, 1 Vet. App. 90 (1990). The duty to assist the veteran includes the obligation to obtain ongoing treatment records while a claim is pending. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Thus, any additional relevant medical records should be secured on remand. In November 1991 the veteran filed a claim for service connection for ankle and foot problems. He reported that he was unable to run without swelling in his ankles and pain in the arches, and that he had to wear an ankle support and arch support. He claimed that he constantly sprained his ankles throughout his military career. As indicated above, x-rays taken during service, in August 1991, showed that the veteran had mild degenerative joint disease of the feet. There were apparently no x-rays taken at the veteran's separation examination in November 1991 to either confirm or deny the presence of degenerative joint disease of the feet, nor were x-rays taken on the subsequent VA examination in 1992. The Board therefore finds that the VA examination in 1992 was not adequate, as it did not address the issue as to whether the veteran had degenerative joint disease of the feet. The RO's failure to obtain an adequate VA examination, including x-rays, was a breach of the RO's duty to assist. Littke, supra, at 92. As noted above, the Federal Circuit dealt with a similar case involving procedural error (RO's breach of the duty to assist by making only a single request for service medical records) and a subsequent claim of clear and unmistakable error. Hayre, supra. The Federal Circuit also noted that the duty to assist did not end upon the RO's submission of requests for records, and that where the record did not adequately reveal the current state of a veteran's disability and the claim was well-grounded, fulfillment of the statutory duty to assist required a thorough and contemporaneous medical examination. Hayre, supra, at 1332. In Hayre, the Court further noted that it was "well established by the Court of Appeals for Veterans Claims that breaches of the duty to assist on direct appeal require a remand to permit the [RO] the opportunity to make a reasonable attempt to fulfill the duty to assist". Hayre, supra, at 1334. Thus, in light of the Hayre case, and in keeping with the spirit of the "pro- claimant adjudicatory system" as dictated by the Federal Circuit in Hayre, the Board finds that this matter must be remanded in order to schedule the veteran for a VA orthopedic examination, with x-rays, to determine whether any current disability of his feet or ankles is related to service. Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO should contact the veteran and request that he submit the names and addresses of all health care providers, VA or private, who have treated him for either foot or ankle disabilities since his discharge from service. After securing the necessary releases, the RO should request copies of any previously unobtained medical records for association with the claims folder. 2. The veteran should then be afforded a VA orthopedic examination, including x- rays, to determine the nature and probable etiology of any ankle or foot disabilities. Specifically, it must be ascertained whether the veteran does have degenerative joint disease involving the feet/ankles. The claims folder must be available for review by the examiner prior to evaluating the veteran. The examiner should express an opinion as to whether it is at least as likely as not that any current foot or ankle disability is related to the symptoms noted in service. The examiner should explain the rationale for any opinion expressed. 3. Following the completion of all requested development, the RO should review the veteran's claim on the basis of all evidence of record and all applicable law and regulations. If action taken remains adverse to the veteran, he and his representative should be provided a supplemental statement of the case and a reasonable period for response thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The appellant need take no action until otherwise notified. Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992); Booth v. Brown, 8 Vet. App. 109 (1995). The appellant 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). The purpose of this REMAND is to obtain additional information and to ensure due process of law. No inference should be drawn regarding the final disposition of the claim as a result of this action. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. C. W. SYMANSKI Member, Board of Veterans' Appeals