BVA9507721 DOCKET NO. 93-15 608 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a low back disability secondary to the service-connected residuals of a fracture of the right fibula. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Melissa F. Marquez, Associate Counsel INTRODUCTION The appellant had active service from July 1974 to October 1975. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from a February 1992 rating decision of the Houston, Texas, Regional Office (hereinafter RO), of the Department of Veterans Affairs (hereinafter VA), which held no new and material evidence had been submitted to reopen the appellant's claim for entitlement to service connection for a low back disability secondary to the service-connected residuals of a fracture of the right fibula. Subsequently, the appellant submitted a May 1992 statement from Paul Wakim, D.O., as well as an April 1991 notice of decision from the Social Security Administration. Following a December 1992 personal hearing and pursuant to the hearing officer's decision, the aforementioned evidence was found to be new and material in order to re-open the appellant's claim, however, it was determined insufficient to establish service connection. A supplemental statement of the case was therefore provided, and the appeal was forwarded to the Board. The Board agrees that the aforementioned private medical records and reports are new and material evidence to reopen the appellant's claim for entitlement to service connection for a low back disability. As such, adjudication will ultimately be on the merits of the issue following de novo review. See Manio v. Derwinski, 1 Vet.App. 140 (1991). REMAND Service medical records indicate the appellant injured his right leg in May 1975, resulting in a non-displaced transverse fracture of the right fibula. Subsequent service medical records indicated a well-healed right fibula fracture with good callus formation. There were no complaints, findings or diagnosis of a back disability at this time, or at any other time during active service, including an examination upon separation from active service. By a November 1977 rating decision, service connection for residuals of a healed right fibula fracture was granted with a noncompensable evaluation assigned therewith. By rating decision of February 1979, a 10 percent rating was assigned. Such 10 percent evaluation was reduced to noncompensable in a December 1980 rating decision, effective April 1981 and was subsequently confirmed, in part, in an April 1990 Board decision. In July 1988, the appellant submitted an initial application requesting, in part, entitlement to service connection for a back disability secondary to his service-connected fracture of the right fibula. At that time, VA outpatient treatment (OPT) reports including x-ray dated from since November 1978, as well as a January 1979 VA examination, indicated complaints of low back pain but with no back pathology found. Entitlement to service connection for a low back disability was then denied in an August 1988 rating decision. The appellant expressed disagreement with such decision that month. Subsequently, the appellant submitted additional VA OPT reports including a June 1988 report of a CT scan of the lumbar spine indicating mild spinal canal stenosis at L3-4 with mild disc bulging, a probable pars defect on the right side, and a mild disc bulge at L4-5 with no herniations. Such VA OPT reports indicated an August 1988 finding of mild pronation and pes planus of the right foot, an increased wear on the right medial aspect of the sole of his shoe, and an abnormal gait with increased stress on the pelvis and low back. It was also noted that the appellant walked with a cane, and used a prescribed TENS unit for pain. However, no radiculopathy was seen upon accompanying EMG and nerve conduction testing. During a February 1989 VA examination, the appellant reported right leg pain which radiated up to his back upon exertion. Upon examination, the orthopedic examiner indicated that the pelvis was level, and the appellant was able to walk on heels and toes, inner and outer borders of the feet, and was able to perform deep knee bends. All reflexes and strength in the lower extremities were reported normal, however, there was no finding as to the appellant's gait. Examination of the right lower extremity revealed no swelling, instability or deformity, with an audible pop upon extreme motion and diffuse tenderness on palpation of the right ankle. Examination also revealed limitation of motion and tenderness of the lumbosacral spine. Accompanying x-rays indicated minor degenerative changes and sclerosis at many levels of the lumbosacral spine, and a healed old fracture of the proximal third of the shaft of the fibula with good alignment. The examiner then diagnosed, in part, low back pain with an osteophyte on the inferior portion of the body of the L3 and possible slight wedging of this vertebra which was unrelated to the fibular fracture. By an April 1990 Board decision, service connection for a low back disability secondary to a service-connected fracture of the right fibula was denied. Such decision held that the evidence then of record, including VA OPT reports 1979 to 1989, a February 1989 VA examination, and a December 1988 statement from Paul E. Wakim, D.O. indicating current low back treatment, did not establish an etiological relationship between residuals of the fracture of the right fibula and the appellant's current low back disorder diagnosed as mild spinal stenosis , a probable pars defect and a mild disc bulge, and as such, service connection on a secondary basis was not warranted. In January 1992, the appellant applied to reopen his claim for entitlement to service connection for a low back disability secondary to service-connected residuals of a fractured right fibula, and submitted an April 1990 statement from Dr. Wakim in support thereof. Such statement indicated that the appellant has a possible pars defect on the right, which causes leg pain and an impaired gait. By a rating decision dated in February 1992, such claim was denied on the basis that Dr. Wakim's statement did not constitute new and material evidence to reopen the claim. The appellant expressed disagreement with that decision in June 1992, and submitted a May 1992 statement from Dr. Wakim in support thereof. Such May 1992 statement expressed an opinion that the appellant's current back disability is proximately due to gait impairment due to the fracture of the right fibula. Following a December 1992 personal hearing during which the appellant submitted an April 1991 notice of decision from the SSA, the hearing officer held that while Dr. Wakim's May 1992 statement constituted new and material evidence to reopen the appellant's claim, such evidence, when considered in conjunction with all other evidence of record, did not establish service- connection for such disability on a secondary basis. Such 1991 report from SSA indicated a November 1990 orthopedic diagnosis of right gluteal strain with secondary back and leg pain. Moreover, such report contained a reported employment history as a laborer consisting of lifting and carrying weights over 50 pounds. The VA has a duty to assist a veteran in developing facts pertinent to a potentially well grounded claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. §§ 3.103, 3.159 (1994). That duty includes obtaining medical records and medical examinations where indicated by the facts and circumstances of an individual case. See Murphy v. Derwinski, 1 Vet.App. 78 (1990); Littke v. Derwinski, 1 Vet.App. 90 (1990). See also Murincsak v. Derwinski, 2 Vet.App. 363 (1992). It is unclear from the conflicting medical evidence of record as to the nature and etiology of the appellant's current back disability. In part, there is a question as to whether the veteran's problems with ambulation are due to the residuals of the fibula fracture, or rather, are caused by the back pathology. As such, the Board agrees with the appellant's representative that a new VA examination in necessary in order to evaluate any relationship between reported gait impairment, and a current back disability. Moreover, there are no contemporaneous clinical records indicating relevant objective findings associated with any of Dr. Wakim's statements, nor any medical records associated with the April 1991 SSA determination, currently a part of the claims folder. While this case was pending at the Board, the Court of Veterans Appeals held that the term "disability" as used in 38 U.S.C.A. § 1110 and thus, 38 C.F.R. § 3.310(a) should refer to "any additional impairment of earning capacity resulting from an already service connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service connected condition." Allen v. Brown, No. 93-245 (U.S. Vet. App. Mar. 17, 1995), slip op. at 16; See also, Tobin v. Derwinski, 2 Vet.App. 34 (1991) and Leopoldo v. Brown, 4 Vet.App. 216 (1993). Consequently, the Court affirmed its holding in Tobin by concluding that service connection is currently warranted when aggravation of a nonservice-connected condition is proximately due to or the result of a service connected condition. Id. Such decision clearly presents a change in the interpretation of the applicable law, which previously required a causal and etiological relationship between a service connected disability and a subsequently developed "secondary disability" in order to warrant service connection for the latter. Leopoldo, 4 Vet.App. 216 (1993). As the case is otherwise in need of additional development, the RO will have a chance to readjudicate service connection of a low back disability secondary to a service connected disability mindful of this interpretation so as to prevent prejudice to the appellant. Bernard v. Brown, 4 Vet.App. 384 (1993). Accordingly, the case is REMANDED for the following development: 1. After obtaining the necessary signed authorization for release of information form, the RO should contact Paul E. Wakim, D.O. and attempt to obtain all relevant medical records, including any x-ray films and/or reports. Dr. Wakim's last known address was 4141 Gollihar, Corpus Christi, Texas, 78411 or 1711 West Wheeler, Aranas Pass, Texas, 78336. All pieces of correspondence, as well as any medical or treatment records obtained, should be made a part of the claims folder. If such private treatment records are not obtained, the appellant and his representative should be provided with information concerning the negative results, and afforded an opportunity to obtain the records. 38 C.F.R. § 3.159 (1994). 2. The RO should obtain from the appellant necessary information for obtaining medical records from the Social Security Administration (SSA) and any other governmental agencies from which the he may be receiving disability income. Records requested should include information concerning the decision made and the evidence, particularly any medical evaluations and opinions, used in reaching any decision. A copy of the April 1991 notice of award letter from the SSA should be submitted with such request to the SSA. 3. The RO should contact the appellant to determine the names, addresses, and dates of treatment of any physicians, hospitals or treatment centers (private, VA or military) who provided him any additional relevant post-service treatment not already reported. After obtaining the appropriate signed authorization for release of information forms from the appellant, the RO should contact each physician, hospital, or treatment center specified by the appellant to obtain any and all medical or treatment records or reports relevant to the above mentioned claim. All pieces of correspondence, as well as any medical or treatment records obtained, should be made a part of the claims folder. If private treatment is reported and those records are not obtained, the appellant and his representative should be provided with information concerning the negative results, and afforded an opportunity to obtain the records. 38 C.F.R. § 3.159 (1994). 4. The RO should schedule the appellant for a complete orthopedic examination to determine the nature and etiology of any back disability currently manifested. If chronic back impairment is found, an opinion as to whether it is etiologically or causally related to, or was aggravated by, residuals of the appellant's service- connected right fibula fracture should be entered. If it is determined that the appellant's current back disability was aggravated by his service-connected disability, an opinion as to the degree of disability over and above the degree of disability existing prior to such aggravation is requested. If it is determined that gait impairment and other problems are related to disc or other pathology of the low back, without regard to the residuals of the fibula fracture, that information should also be clearly set out. All indicated tests and studies should be done, including appropriate x- rays. If these matters cannot be medically determined without resort to mere conjecture, this should be commented upon in the report. The examiner is further requested to adequately summarize all of the relevant history, including relevant treatment, previous diagnoses and x-ray findings, as well as all current objective clinical findings and subjective complaints, and describe in detail the reasons for all medical conclusions. The examination should be conducted and reported in accordance with the guidelines set forth in the VA Physician's Guide for Disability Evaluation Examinations. The claims folder must be made available to the examiner for review purposes prior to the examination, and the complete examination report, including any x-ray films, should be associated with the claims folder. 5. Thereafter, the RO should re-adjudicate the issue of entitlement to service connection for a low back disability In order to avoid undue delay in this case, the RO should make certain that the instructions contained in the REMAND decision, detailing the requested developments, have, in fact, been substantially complied with. When these developments have been completed, and if the benefit sought is not granted, the case should be returned to the Board for further appellate consideration, after compliance with appropriate appellate procedures, including issuance of a supplemental statement of the case. It is requested that this statement specifically set forth the reasons and bases for the decision. No action by the appellant is required until he receives further notice. The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this claim, pending completion of the requested developments. MICHAEL D. LYON 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).