Citation Nr: 0005349 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 97-26 577 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for residuals of a right ankle fracture. ATTORNEY FOR THE BOARD C. M. Cote, Associate Counsel INTRODUCTION The veteran had active service from November 1946 to October 1949. This matter comes before the Board of Veterans' Appeals from a May 1997 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO), which denied entitlement to service connection for residuals of a fracture of the right ankle. The veteran has perfected an appeal of the May 1997 decision, which appeal is now before the Board. FINDING OF FACT The veteran has provided competent evidence of a nexus between a current right ankle disability and a disease or injury in service. CONCLUSION OF LAW The veteran has submitted evidence of a well-grounded claim for service connection of residuals of a fracture of the right ankle. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service medical records indicate that the veteran was seen and treated for a sprained ankle in May 1949. In a November 1996 letter, a VA physician stated that the veteran was treated as an outpatient for osteoarthritis of the right ankle. He was reportedly treated with non- steroidal anti-inflammatories (NSAIDs). In a statement dated in November 1996, the veteran indicated that he was injured overseas in 1947, 1948 or 1949. The veteran was afforded a VA examination in December 1996. The veteran reported that while serving in Germany in 1947, he fell out of an airplane door and fractured his right ankle. He indicated that a surgical repair was performed and his ankle was pinned. He also stated that he had as many as 5 pins in his ankle at one time. After surgery, he reportedly performed light duty until the pins were removed. He indicated that he began to suffer increased right ankle pain in the mid-1960s. He was reportedly forced to retire from his real estate work due to ankle pain on walking. He indicated that he did not receive treatment for his ankle pain until approximately 1975. His private physician prescribed aspirin at that time and he reportedly discontinued its use in 1990 after gastrointestinal bleeding. He indicated that he currently took one aspirin tablet daily and occasionally used ibuprofen. He complained of chronic right ankle pain, with increased severity during weather changes. He indicated that the pain was primarily on walking and that pain increases with dorsiflexion and plantar flexion of walking. He reported no pain when sedentary. Physical examination revealed a 5 mm x 1-2 mm well healed scar overlying the medial malleolus of the right ankle. A 6 mm well healed scar over the lateral malleolus was observed. A pin was palpable in the region of the right lateral malleolus. Hammertoes were noted in the right second through fourth digits. No swelling was noted. The right ankle joint appeared to be thickened and left malleolus appeared flattened, however. Active range of motion of the right ankle was recorded with dorsiflexion of 15 degrees, plantar flexion of 5 degrees, external rotation of 15 degrees, and internal rotation of 10 degrees. Passive range of motion was recorded with dorsiflexion of 25 degrees, plantar flexion of 10 degrees, external rotation of 15 degrees, and internal rotation of 25 degrees. Marked decrease in range of motion of the right ankle especially in plantar flexion and internal/external rotation, secondary to posttraumatic osteoarthritis, was diagnosed. A VA X-ray examination at that time revealed evidence of a healed fracture in the distal femoral shaft status post ORIF with an IM nail. Marked narrowing of the right ankle joint with subchondral sclerosis and large anterior osteophytes were found. A diagnosis of posttraumatic osteoarthritis of the right ankle was provided. In a February 1997 statement, the veteran indicated that he was unaware of "anyone still alive to substantiate [his] claim". The RO requested additional service medical records from the Office of the Surgeon General in April 1997, but none were available. The RO also made several requests for information from the veteran for information, which could assist in substantiating his claim, including a November 1997 request for the name of the hospital in which the ankle fracture was treated during service. The veteran submitted the statement of an individual with whom he served in 1947, dated in December 1997. The individual reportedly remembered the veteran informing him that he had fallen out of an airplane and been hospitalized for a broken ankle. Laws and Regulations The threshold question that must be resolved with regard to the claim is whether the veteran has presented evidence that the claim is well grounded. 38 U.S.C.A. § 5107 (a); Epps v. Brown, 9 Vet. App. 341 (1996), aff'd, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied, 118 S.Ct. 2348 (1998). A well grounded claim is a plausible claim, meaning a claim that appears to be meritorious on its own or capable of substantiation. Epps, 126 F.3d at 1468. An allegation of a disorder that is service connected is not sufficient; the veteran must submit evidence in support of the claim that would "justify a belief by a fair and impartial individual that the claim is plausible." Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In order for a claim for service connection to be well grounded, there must be a medical diagnosis of a current disability, medical or lay evidence of the incurrence of a disease or injury in service or during any applicable presumptive period, and medical evidence of a nexus between the in-service disease or injury and the current disability. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd' per curiam, 78 F.3d 604 (Fed. Cir. 1996). The second and third Caluza elements can also be satisfied under 38 C.F.R. § 3.303(b) (1998) by (a) evidence that a condition was "noted" during service or during an applicable presumption period; (b) evidence showing post-service continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Clyburn v. West, 12 Vet. App. 296 (1999); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); 38 C.F.R. § 3.303(b). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303. A lay person is not competent to make a medical diagnosis or to relate a medical disorder to a specific cause. Therefore, if the determinant issue is one of medical etiology or a medical diagnosis, competent medical evidence is generally required to make the claim well grounded. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). A lay person is, however, competent to provide evidence of an observable condition during and following service. Savage, 10 Vet. App. at 496. If the claimed disability relates to an observable disorder, lay evidence may be sufficient to show the incurrence of a disease or injury in service and continuity of the disorder following service. Medical evidence is generally required to show a relationship between the current medical diagnosis and the continuing symptomatology. See Clyburn, 12 Vet. App. at 296. If the veteran fails to submit evidence showing that his claim is well grounded, VA is under no duty to assist him in further development of the claim. See Schroeder v. West, 12 Vet. App. 184 (1999). VA may, however, dependent on the facts of the case, have a duty to notify him of the evidence needed to support his claim. 38 U.S.C.A. § 5103; see also Robinette v. Brown, 8 Vet. App. 69, 79 (1995). Determinations regarding service connection are to be based on review of the entire evidence of record. See Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991); 38 C.F.R. § 3.303 (a). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 C.F.R. § 3.102. Analysis The record contains evidence of current right ankle disability in the form of the diagnoses reported by the VA physician in November 1996, and the VA examiners in December 1996. The service medical records provide documentation of an inservice injury and a finding of right ankle strain. On the VA examination the diagnoses included post-traumatic arthritis of the right ankle. The only trauma considered by the examiner was that which the veteran reportedly experienced in service. The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") recently held that where a veteran has a current diagnosis of post-traumatic arthritis, there were service medical records showing findings referable to a pertinent injury, and the only trauma considered by the examiner diagnosing post-traumatic arthritis was that which had occurred in service the claim was well grounded. Hodges v. West, No. 98-1275 (U.S. Vet. App. Jan. 12, 2000). The circumstances of this case are similar to those reported in Hodges. Therefore the Board finds that the veteran's claim is well grounded. ORDER The claim for service connection for residuals of a fracture of the right ankle is well grounded. REMAND While the veteran was diagnosed as having post-traumatic arthritis of the right ankle on the VA examination in December 1996, it does not appear that the examiner reviewed the service medical records or other evidence prior to making the diagnosis. VA regulations provide that where "diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes." 38 C.F.R. § 4.2 (1996); see 38 C.F.R. § 19.9 (1996). Where the Board makes a decision based on an examination report which does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination.'" Goss v. Brown, 9 Vet. App 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993) The Board also notes that a VA physician has reported that the veteran was receiving treatment for a right ankle disability at a VA facility, but the records of that treatment have not been obtained. In view of the foregoing, this case is remanded for the following: 1. The RO should request that the veteran furnish the name of the facility at which he sought treatment for a right ankle disability in 1975. The RO should take all necessary steps to obtain those records, as well as all records of the veteran's treatment at the West Los Angeles VA Medical Center and associate them with the claims folder. 2. The veteran should then be afforded an appropriate examination to determine the nature and extent of any right ankle disability. The examiner should review the claims folder prior to completing the examination. The examiner should also express an opinion as to whether it is at least as likely as not that any right ankle disability found on the examination is related to an injury in service. 3. After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant and representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. 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 veteran is advised that the examination requested in this remand is necessary to adjudicate his claim, and that a failure, without good cause, to report for scheduled examinations could result in the denial of his claim. 38 C.F.R. § 3.655 (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. Mark D. Hindin Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (1999).