BVA9501769 DOCKET NO. 93-05 011 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for the residuals of a left eye injury. 2. Entitlement to a compensable evaluation for the residuals of a fracture of the right tibia and fibula. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Patrick J. Costello, Associate Counsel INTRODUCTION The veteran had active military service from August 1949 to October 1953. This matter came before the Board of Veterans' Appeals (hereinafter the Board) on appeal from a July 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in St. Petersburg, Florida. A hearing was held on February 26, 1993, in St. Petersburg, Florida, before Jack W. Blasingame, who is a member of the Board section subscribing the determination in this claim, and was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 1991). A transcript of the hearing was received in March 1993, and the case was subsequently referred for appellate consideration. Upon receiving the transcript, it was our judgment that additional development was necessary prior to the issuing of a final decision. Thus, the case was remanded in September 1993 for further medical evaluations. The issue of entitlement to service connection for a right knee condition secondary to the veteran's service-connected lower right extremity disability, raised by the appellant's representative in statement to the Board, dated April 20, 1994, has not been adjudicated by the RO. Accordingly, this "issue" is not in appellate status, and is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran has been rated as noncompensable for the residuals of a fracture to the right tibia and fibula since 1954. He maintains that his condition has become more debilitating and requests that the Board overturn the RO's decision which did not find his condition more severe. He also avers that the RO erred when it failed to grant service connection for the residuals of an eye injury. He maintains that he has a corneal scar on this left eye as a result of an incident in Korea, and requests service connection for this condition. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence supports a compensable evaluation for the residuals of a fracture of the right tibia and fibula. It is also the decision of the Board that the evidence supports the veteran's claim for entitlement to service connection for a left eye disability. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the agency of original jurisdiction. 2. The veteran's service medical records were destroyed in the fire at the National Personnel Records Center in 1974. 3. The veteran's VA claims folder has been reconstructed since his original folder no longer exists. 4. A battalion aid station medical tag shows treatment of burns to the leg eye and left side of the face. 5. A VA ophthalmology examination shows a scar of the cornea. 6. Malunion of the tibia and fibula of the right leg have not been shown, but there is slight limitation of motion and pain upon movement. 7. Neither an exceptional nor unusual disability picture has been presented so as to render impractical the application of the regular schedular standards. CONCLUSIONS OF LAW 1. Evidence received since the originating agency denied entitlement to service connection for the residuals of an injury to the left eye in 1954 is new and material, and the veteran's claim for that benefit has been reopened. 38 U.S.C.A. §§ 1110, 1131, 5108, 7104 (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a) (1994). 2. The veteran's left eye injury was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1154 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1994). 3. The criteria for a 10 percent evaluation for the residuals of a fracture of the right fibula and tibia have been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, Part 4, Diagnostic Code 5262 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In accordance with 38 U.S.C.A. § 5107 (West 1991), and Murphy v. Derwinski, 1 Vet.App. 78 (1990), the appellant has presented a well-grounded claim. The facts relevant to this appeal have been properly developed and the obligation of the Department of Veterans Affairs (VA) to assist the veteran in the development of his claim has been satisfied. Id. I. New and Material Evidence In August 1971, the RO denied service connection for facial burns and an eye injury. Letter from RO, August 13, 1971. The letter stated that service connection could not be granted because there was no evidence supporting the veteran's claim. The veteran was duly notified, but did not timely appeal to the Board. This decision then became final. 38 U.S.C.A. § 7103 (formerly § 4003) (West 1991). Even though this decision is final, the claim shall be reopened, and the former disposition reviewed if new and material evidence is secured or presented. 38 U.S.C.A. §§ 5108, 7104(b), 7105(c) (West 1991). When a veteran seeks to reopen a previously denied claim based upon new evidence, a two-step analysis is required. The first step is to determine if the evidence is new and material; if so, the case is reopened and the merits of the claim must be evaluated on the basis of all of the evidence, both new and old. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). New and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which, by itself or in connection with evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (1994). To justify a reopening on the basis of new and material evidence, there must be a reasonable possibility that the new evidence, when viewed in the context of all of the evidence, both new and old, would change the outcome. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). If new and material evidence has not been submitted, the Board does not need to address the merits of the claim. Sanchez v. Derwinski, 2 Vet.App. 330 (1992). For the limited purpose of determining whether to reopen a claim, the Board must accept the new evidence as credible and entitled to full weight. Justus v. Principi, 3 Vet.App. 510 (1992). This presumption no longer attaches in the adjudication that follows reopening. Id. The veteran petitioned to reopen his claim in July 1991. Upon receipt of the petition, it was necessary for the RO to reconstruct the veteran's claim folder. This included requesting information from the National Personnel Records Center in St. Louis, Missouri, and asking the veteran to supply any documents he might possess which would indicate previous VA actions. In addition to the documents provided by the veteran, personal statements, current medical records, and a report of injury while in service were also proffered in support of the veteran's claim. Upon accepting the veteran's petition, the RO determined that the veteran had not submitted new and material evidence, and that a change in the previous decision was not warranted. The veteran then appealed that decision to the Board. Before we reach our decision concerning whether new and material evidence has been presented, we feel that it is necessary to point out a few things in this case that make it atypical. First, when the RO attempted to obtain the veteran's service medical records, the National Personnel Records Center (NPRC) informed the RO that the veteran's records were destroyed in the NPRC fire of 1973. VA Form 70-3101-4, Request for Information, forwarded from NPRC after May 12, 1992. This means that the service medical records were not available, and were not recoverable. That is, if the appellant's medical records were on file in July 1973, they would have been in the area damaged in the fire at the National Personnel Records Center, and may have been destroyed. Moreover, additional information was requested in order to make use of alternative record sources which would confirm treatment of the appellant by a military installation physician. These requests were unproductive. VA Form 21-3101, Request for Information, August 20, 1992. Second, when the veteran petitioned to reopen his claim at the St. Petersburg RO, an attempt was made to obtain his original claims file from the Atlanta RO [the location of his original request]. Like the veteran's service medical records, the claims folder was not found, and therefore, none of the previously examined documents were available for evaluation by the RO or now the Board. Letter from Director, Records Processing Center, May 11, 1992. Thus, because we lack any of the original documents that were previously examined by the RO, it is our opinion, that in order to ensure that the veteran receives due process, we consider all of the documents, testimony, and statements proffered by the veteran as new and material. The Board finds that a reasonable possibility may exist that these pieces of evidence, in the context of all of the evidence, might change the prior outcome. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991); Rabideau v. Derwinski, 2 Vet.App. 141, 143-144 (1992); 38 C.F.R. § 3.156(a) (1994). Therefore, the veteran's claim is reopened for de novo review. Because we are considering the claim on a de novo basis, and the RO considered it as a request to reopen a finally denied claim, we must address the matter of whether the appellant will be prejudiced by our consideration of the case on the merits. Bernard v. Brown, 4 Vet.App. 384 (1993). The appellant was given notice of the need to submit evidence showing that his eye disorder was incurred in service. He was afforded a personal hearing in February 1993, and the statement of the case, and supplemental statements thereafter, included discussions of the merits of the case, summarized all evidence of record and included the law and regulations pertaining to the issue of service connection and finality of decisions. Therefore, we do not believe the appellant will be prejudiced by our deciding the case on the merits. The veteran contends that he incurred an injury to his left eye as a result of service. Service connection may be established for disability resulting from personal injury or disease incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991). Regulations also provide that service connection may be established where all the evidence of record, including that pertinent to service, demonstrates that the veteran's current disability was incurred in service. 38 C.F.R. § 3.303(d) (1994). VA regulations further provide that where there is a lack of service medical records, service connection may be shown through other evidence. Smith v. Derwinski, 2 Vet.App. 147 (1992); 38 C.F.R. § 3.303(a) (1994). Moreover, per 38 U.S.C.A. § 1154(b) (West 1991), and also 38 C.F.R. § 3.304 (1994), where a veteran engaged in combat with the enemy during a period of war and now suffers from a disease or disability, service connection may be granted via testimony or lay evidence provided by the veteran. However, the information provided must be consistent with the circumstances, conditions, or hardships of said service. Moreover, it is not necessary that an official record of said disability or disease exists, and reasonable doubt will be found in favor of the veteran. The provisions of 38 C.F.R. § 3.304(d) (1994) essentially are a restatement of the statute. Because of the veteran's Korean War combat service, evidenced by his Combat Infantry Badge [see DD Form 214], the provisions of 38 U.S.C.A. § 1154(b) (West 1991) and 38 C.F.R. 3.304(d) (1994) are for consideration. The statute and regulation require "satisfactory lay or other evidence" of incurrence or aggravation. The first piece of evidence is W.D. A.G.O. Form No. 8-26, dated October 20, 1951, which states that the veteran was evacuated to a battalion aid station, near Yongong-Ni, North Korea. He was seen for first and second degree burns involving the left eye and the left side of the face. Said burns were noted to be incurred in the line of duty. The form is signed by a U.S. Army physician. Forty-two years after the veteran was treated at the battalion aid station, he underwent an ophthalmology examination at the Lake City VA Medical Center. Visual Examination, October 23, 1993. In that examination report, the ophthalmologist wrote that indeed the veteran had a corneal inferior scar in the left eye. Thus, the medical evidence before us are the report of care in Korea and the VA medical examination of 1993. Additionally, the veteran has proffered believable testimony before the Board concerning his accident in Korea. It becomes the function of the Board to weigh and analyze the evidence; and make determinations on the credibility of the evidence. 38 U.S.C.A. § 5107(b) (West 1991); Sanden v. Derwinski, 2 Vet.App. 97, 100 (1992). Where the preponderance of the evidence is for the appellant's claim or the evidence for and against the claim is in equipoise, the benefit sought is to be granted. 38 U.S.C.A. § 5107(b) (West 1991); Gilbert V. Derwinski, 1 Vet.App. 49 (1990). We conclude that the preponderance of the evidence does support the claim. That is, the evidence is satisfactory because it is consistent with the available records and the veteran's statements, and the actual record does not clearly and convincingly rebut that evidence. Therefore, based on these findings and following a full review of the record, the Board is of the opinion that the appellant does have left eye condition which may be reasonably associated with his military service. Service connection is granted. II. Increased Rating The veteran's reconstructed record also shows that in January 1954, he was granted service connection for the residuals of a fracture of the right tibia and fibula. Letter from the RO, January 21, 1954. However, because the residuals of the fracture were not found to be disabling, a noncompensable evaluation was assigned. The veteran has now come before the RO requesting that an increased rating be assigned for this condition. He maintains that he has developed arthritis in the leg and that he is restricted in the types of movements he may make. Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4 (1994). In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. §§ 4.2, 4.41 (1994). An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. 38 C.F.R. §§ 4.10, 4.40, 4.45, and 4.59 (1994). Malunion of the tibia and fibula of either lower extremity warrants a 10 percent evaluation when the disability results in slight knee or ankle disability. A 20 percent evaluation requires that the malunion produce moderate knee or ankle disability. 38 C.F.R. Part 4, Code 5262 (1994). Because the veteran's claim file has been reconstructed, we are unable to ascertain the veteran's leg condition when he was assigned the noncompensable rating in 1954. Therefore, we must depend upon the veteran's most recent VA Compensation and Pension Examination, along with his VA outpatient records, in order to determine the nature and extent of his disability. The results of the right lower extremity examination, conducted on October 23, 1993, at the Lake City VA Medical Center, are as follows: Mr. H. . . . denies any real discomfort over the fracture site. He does not mention any ankle discomfort. He has pain with ambulation and is extremely limited with regards to his activities status by the knee, hip and back discomfort. . . He ambulates with a cane for assistance. On exam, the right knee had ROM [range of motion] of 5-120 degrees of flexion. Ligamentously stable. Nontender to palpation. Patella tracks well. Crepitus with full flexion. No effusion or deformity in the joint. Lower leg reveals a well healed scar over the fracture site. No swelling or deformity at the fracture site. Clinically, the leg is straight in all planes and symmetric to the opposite side. There is no evidence of interarticular involvement in this fracture. There was no motion or instability of the fracture site. Review of radiographs, AP and lateral of the tibia show a well healed distal diaphyseal tibia and fibula fracture. Residual varus is approximately 5 degrees at the fracture site and extension is also 5 degrees. Abnormalities involving the posterior cruciate ligament, posterolateral joint capsule, and posterior horn of the lateral meniscus were not noted. The x-ray report failed to show the joint space of the knee being narrowed or malunion of the fibula or tibia, and there were no significant other findings. Mild osteoarthritis was diagnosed but it was not specifically associated with the leg injury. There is a slight limitation in the range of motion of the knee. Hence, the latest examination findings, taken together with the other evidence of record, provide a sufficient basis on which to reach a determination, and the preponderance of the evidence is for an increased disability evaluation. While the clinical findings do not exactly mirror the evaluation criteria for a 10 percent schedular disability rating, we are of the opinion that the evidence more closely approximates the higher rating versus that of a noncompensable evaluation. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 4.7, Part 4, Diagnostic Code 5262 (1994). Therefore, a 10 percent evaluation for the residuals of a fracture of the right fibula and tibia is granted. III. Extraschedular Evaluation Consideration has also been given to the potential application of the extraschedular evaluation provisions of 38 C.F.R. § 3.321(b) (1994). The evidence does not present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. Specifically, there has not been a demonstration of marked interference with employment or frequent periods of hospitalization so as to render impractical the application of the regular schedular criteria. ORDER 1. Entitlement to service connection for the residuals of an injury to the left eye is granted. 2. An evaluation of 10 percent for the residuals of a fracture to the right fibula and tibia is granted, subject to the regulations governing the disbursement of monetary benefits. JACK W. BLASINGAME 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. (CONTINUED ON NEXT PAGE) NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.