Citation Nr: 0005909 Decision Date: 03/06/00 Archive Date: 03/14/00 DOCKET NO. 94-31 728 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for arthritis of the right hip. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. E. Smith, Counsel INTRODUCTION The veteran had active military service from March 1966 to March 1968. This matter came before the Board of Veterans' Appeals (Board) on appeal from a determination by the Department of Veterans Affairs (VA) Columbia, South Carolina, Regional Office (RO), denying the veteran entitlement to service connection for arthritis of the right hip. In May 1998, the Board denied the veteran's claim of entitlement to service connection for arthritis of the right hip. The veteran appealed. In June 1999, the United States Court of Appeals for Veterans Claims (Court) granted a joint motion for remand and vacated the May 1998 Board decision. FINDINGS OF FACT 1. The veteran sustained multiple shell fragment wounds to the right lower extremity in service and currently has degenerative joint disease of the hip. 2. There is medical evidence of a nexus between the veteran's current degenerative joint disease on the right side of his body and his combat injuries. CONCLUSION OF LAW The claim for service connection for arthritis of the right hip is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The veteran's service medical records show that he had a normal clinical evaluation of the lower extremities at his induction examination in January 1966. They also show that he was injured in a booby trap incident in July 1967 in Vietnam resulting in multiple fragment wounds of the right arm, chest, abdomen and both lower extremities, most of which were noted to have healed without further problem. He was, however, found to have residual paralysis of the right ulnar nerve as a result of his fragment wounds and was put on a physical profile for this disability. According to the veteran's February 1968 separation examination report, the veteran had a normal clinical evaluation of his lower extremities. The report also shows that he had scars on his legs. At a VA orthopedic examination in September 1992, the veteran reported sustaining shrapnel wound injuries to various parts of the body, including his right thigh and right lower leg. He said that his most serious injuries were to his abdomen, groin and right wrist. He complained of pain in his right leg and thighs. Findings included an 8-centimeter scar over the right mid lateral thigh, and a bulging muscle herniation on standing. The left medial thigh revealed a similar laceration measuring 4 centimeters in length without muscle herniation. Another laceration measuring 4.5 centimeters in length was found on the veteran's right lower leg. Neurologic findings included some numbness in the region surrounding the laceration about the muscle herniation. The veteran was diagnosed as having shrapnel wound injury with multiple scars and muscle herniations in his right thigh and right leg with diminished sensation over the anterolateral aspect of the thigh. X-rays of the veteran's right femur and lower leg were taken in September 1992 at a VA medical facility. These X-rays revealed shrapnel overlying the lower extremity, osteoarthritic changes involving the right hip with two bony islands noted within the femoral head and neck, and shrapnel fragments without gross bony abnormality in the lower leg. Evidence of osteoarthritis involving the right hip was the diagnostic impression. The veteran was seen at a VA medical facility in September 1993 for complaints of pain and aching on the right side. It was noted that his medical history included being wounded in 1968. Findings referable to the right lower extremity included a normal gait, muscle hernias of the thigh and lower leg, and scars. An impression was given of degenerative joint disease of the hip, shoulder and wrist as well as chronic pain. The veteran was advised to return to the clinic in three months. At a hearing held at the RO in March 1994, the veteran testified that he had shrapnel interlined in his hip joint that was forming some type of arthritis. He also said that the VA examiner from 1992 told him that the arthritis might be related to the shrapnel injury and that he would just have to learn to live with it. Findings related to the veteran's right lower extremity from a May 1995 VA orthopedic examination included fascial defects with a herniated muscle. Findings also included some decreased ranges of motion. The examiner noted that radiographs of the veteran's right hip showed shrapnel over his greater trochanter as well as over his inferior pubic ramus. Degenerative changes were also noted by narrowing superiorly with cystic changes of the lateral edge of his acetabulum. The veteran was diagnosed as having multiple shrapnel wounds with fascial defects as well as tender scars. A May 1995 private medical record reflects the veteran's history of right arm and hip trauma secondary to a combat injury and degenerative joint disease in the right shoulder joint and right wrist joint. Findings included a right anterior lower extremity herniated fascial sheath. The veteran was assessed as having degenerative joint disease that was chronic on the right and secondary to combat trauma, and hernia of fascial sheaths. At a hearing held at the RO in September 1996, the veteran testified that he developed arthritis in his right hip as a result of shell fragment wounds that he sustained in service in 1967. He said that he did not experience any other injuries or wounds to his right hip following service. He said that he had not been made aware that he had right hip arthritis in service, but that the VA doctors who examined him in 1992 indicated that he had arthritis in this hip. The veteran also said that a VA physician in 1995 stated that the right hip contained shrapnel and also noted that there were degenerative changes in the right hip Pursuant to an October 1997 Board remand, the RO sent the veteran a letter in November 1997 informing him of the necessity of submitting a medical opinion establishing a link between the arthritis of his right hip and service in order to complete his application. This was in view of the veteran's testimony in March 1994 that a physician had told him that the osteoarthritic changes in his hip were related to his shrapnel injury. In response to the RO's November 1997 letter, the veteran submitted a private medical record dated in December 1997. In this record, the physician indicated that "[the veteran] had been told by the VA that his [right] hip pain/DJD [was] not on records-and [the veteran] want[ed] [him] to evaluate his [right] hip pain." The veteran was noted to have had right hip pain for years as well as a wound in the groin area in 1967 in Vietnam. Findings related to the veteran's hips revealed bilateral tenderness on internal and external rotation that was greater on the right than the left. In addition, pain was elicited in the right groin on straight leg raising. The veteran was assessed as having chronic bilateral hip pain that was greater on the right than the left of questionable etiology, but positive for degenerative joint disease of the right hip. II. Legal Analysis 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.A. § 5107(a), the Department of Veterans Affairs has a duty to assist only those claimants who have established well-grounded, (i.e., plausible) claims. More recently, the Court issued a decision holding that VA cannot assist a claimant in developing a claim that is not well grounded. Morton v. West, 12 Vet. App. 477 (1999), req. for en banc consideration by a judge denied, No. 96-1517 (U. S. Vet. App. July 28, 1999) (pro 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.A. § 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 inservice occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an inservice injury or disease and the current disability. Epps, 126 F.3d at 1468; Caluza v. Brown, 7 Vet. App. 498, 506 (1994). 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 post service continuity of symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post service 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 may also be established under § 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. The Board finds that the service connection claim is well grounded because there is medical evidence of shell fragment wound injuries to the veteran's right lower extremity, to include post service X-rays of the right hip showing shrapnel in proximity to the right hip. There is also evidence of current right hip degenerative changes. The medical nexus requirement is satisfied by the veteran's May 1995 VA examination. This examination noted, as a diagnostic assessment, that the veteran has degenerative joint disease involving his right side secondary to combat trauma. This assessment, when considered along with the recorded history of shell fragment wound injuries to the right side in service and X-ray evidence of shrapnel over the greater trochanter suggests that osteoarthritis involving the right hip may stem from trauma resulting from inservice shell fragment wound injury. Thus, the elements of a well-grounded claim have been submitted and VA's duty to assist has been triggered. ORDER The claim for service connection for arthritis of the right hip is well grounded. The appeal is granted to this extent only, subject to the following Remand. REMAND The duty to assist includes obtaining all relevant medical records and providing an adequate VA examination. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Littke v. Derwinski, 1 Vet. App. 90 (1990). "The VA's statutory duty to assist must...include issues raised in all documents or all testimony submitted prior to the BVA decision." EF v. Derwinski, 1 Vet. App. 324, 326 (1991). Although the evidence suggests that there is a connection between the shell fragment wound injuries in service and the current condition claimed, i.e., arthritis of the right hip, the legal standard for service connection is that it be shown by competent medical evidence that "it is at least as likely as not" to be related. This question has yet to be addressed by a medical professional. Under the circumstances, the Board finds that it should be determined whether it is at least as likely as not that degenerative changes involving the veteran's right hip are the result of shell fragment wounds sustained during active service. In view of the foregoing, this case is REMANDED to the RO for the following actions: 1. The RO should determine from the veteran all sources of VA and other medical treatment for the veteran's right hip since December 1997 and obtain complete records of such treatment. If no such records can be found, the RO should note that fact in the claims file. 2. The veteran should be afforded a VA examination to determine whether it is at least as likely as not that degenerative joint disease/osteoarthritis of the right hip is related to, or is the result of shell fragment wounds sustained during active service. All indicated studies should be performed and all clinical findings reported in detail. The examiner should support his or her assessments by discussing medical principles as applied to specific medical evidence in this case. In order to assist the examiner in providing the requested information, the claims folder should be made available to the examiner for review before the examination. All examination findings, along with complete rationale for opinions and conclusions expressed should be set forth in a typewritten report. 3. The RO should undertake any additional development suggested by the examiner's findings and opinions, or lack thereof. 4. Following completion of the foregoing, the RO should review the claims file and ensure that all of the above-mentioned development has been completed in full. If any development is incomplete or deficient in any manner, appropriate corrective action is to be implemented. 5. After ensuring that all requested development has been completed to the extent possible, the RO is to reevaluate the veteran's claim on the basis of all relevant evidence of record, and in light of all the applicable statutes, regulations and case law. 6. If the determination remains unfavorable to the veteran, he and his representative should then be provided with a supplemental statement of the case and afforded the appropriate period of time in which to respond. 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). 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. J. E. DAY Member, Board of Veterans' Appeals