Citation Nr: 0003733 Decision Date: 02/14/00 Archive Date: 02/15/00 DOCKET NO. 95-14 042 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUE Entitlement to service connection for peripheral vascular disease of the left leg. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James L. March, Counsel INTRODUCTION The veteran served on active duty from August 1944 to January 1946. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 1994 decision of the RO. In addition to the issue listed hereinabove, the veteran also appealed the denial of an increased rating for residuals of a gunshot wound to the left leg. In a December 1998 rating decision, however, the RO determined that there had been clear and unmistakable error in a March 1948 rating decision which had reduced the rating for the veteran's service- connected gunshot wound residuals from 30 percent to 10 percent. The RO assigned a 30 percent evaluation, the highest schedular rating for the disability, effective on May 29, 1948. Thus, this issue is no longer in appellate status. FINDING OF FACT The veteran's claim of service connection for peripheral vascular disease of the left leg is plausible. CONCLUSION OF LAW The veteran has submitted evidence of a well-grounded claim of service connection for peripheral vascular disease of the left leg. 38 U.S.C.A. §§ 1110, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.310 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION Initially, one who submits a claim for benefits under a law administered by VA has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a). Only when that initial burden has been met does the duty of the Secretary to assist such a claimant in developing the facts pertinent to the claim attach. Id. The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) has further defined a well-grounded claim as a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). It has also held that where a determinative issue involves a medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible is required. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In order for the claim of service connection to be well grounded, there must be competent evidence of: (1) a current disability; (2) an in-service injury or disease; and (3) a nexus between the current disability and the in-service injury or disease. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. The regulations also provide that service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). When aggravation of a veteran's nonservice-connected condition is proximately due to or the result of a service-connected condition, the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). The veteran alleges that he has peripheral vascular disease of the left leg which he attributes to his gunshot wound. In a December 1998 letter, the veteran's private physician, Joel A. Daniel, M.D., stated that the veteran had severe left leg arterial insufficiency. He noted that there was a marked difference between the left and right leg vascular disease that could only be due to the prior trauma of the left leg. The right leg, he stated, had only minimal vascular changes. He concluded that the veteran had "left leg vascular insufficiency due solely to the wound he suffered to his left leg." Inasmuch as the private medical evidence shows that the veteran currently has peripheral vascular disability which is attributed to the veteran's service-connected disability, the Board finds that the claim is well grounded. ORDER As the claim of service connection for peripheral vascular disease of the left leg is well grounded, the appeal to this extent is allowed, subject to further action as discussed hereinbelow. REMAND As the veteran has submitted a well-grounded claim, VA's duty to assist requires that he be afforded an examination to determine the etiology of his peripheral vascular disease of the left leg. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Any pertinent treatment records also should be obtained for the purpose of review in connection with the examination. In light of the foregoing, the Board is REMANDING this case for the following: 1. The RO should ask the veteran to identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for peripheral vascular disease of the left leg since service. After obtaining any necessary authorization from the veteran, the RO should attempt to obtain copies of all pertinent treatment records identified by the veteran in response to this request, which have not been previously secured. 2. Then, the RO should arrange for a VA examination to determine the nature and etiology of the veteran's vascular disease. The claims folder must be available to, and reviewed by, the examiner prior to the requested study. The examiner should provide an opinion as to the likelihood that the veteran has current peripheral vascular disease of the left leg that was caused or worsened by the service-connected gun shot wound he suffered in service. The examiner should specifically address the December 1998 letter of Dr. Daniel. A complete rationale must be provided for any opinion expressed. The examiner's report should be associated with the claims folder. 3. After undertaking any additional necessary development, the RO should review the issues on appeal. Due consideration should be given to all pertinent laws and regulations. If the benefit sought on appeal is not granted, the veteran and his representative should be issued an appropriate Supplemental Statement of the Case and given a reasonable opportunity to reply. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran need take no further action until he is otherwise notified, but he may furnish additional evidence and argument while the case is in remand status. Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992); Booth v. Brown, 8 Vet. App. 109 (1995). In taking this action, the Board implies no conclusion as to any ultimate outcome warranted. 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. STEPHEN L. WILKINS Member, Board of Veterans' Appeals