Citation Nr: 0005319 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 96-28 133 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for a bilateral knee disability. 2. Entitlement to service connection for a bilateral ankle disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. K. Enferadi, Associate Counsel INTRODUCTION The veteran had active service from August 1982 to June 1985. This matter arises before the Board of Veterans' Appeals (Board) from an April 1996 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that determined that the veteran's service connection claims were not well grounded. FINDINGS OF FACT 1. The veteran has bilateral knee and ankle problems. 2. The veteran was seen for bilateral knee and ankle problems during service. 3. The veteran has submitted medical evidence of a nexus between service and the veteran's current bilateral knee and bilateral ankle disabilities. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for bilateral knee disability is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). 2. The claim of entitlement to service connection for bilateral ankle disability is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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. § 5107(a), the Department of Veterans Affairs (VA) has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the United States Court of Appeals for Veterans Claims (Court or CAVC) issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). Once a veteran has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well grounded, the veteran's initial burden has been met, and VA is obligated under 38 U.S.C. § 5107(a) to assist the veteran in developing the facts pertinent to the claim. Accordingly, the threshold question that must be resolved in this appeal is whether the veteran 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 in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Epps, 126 F.3d at 1468; Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). 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 postservice continuity of symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). In this veteran's case, service medical records include an orthopedic clinic record dated in February 1983 that reveals an injury to the right ankle from a fall six days earlier. The examiner noted tenderness and treated the injury as a sprain. Medical entries dated in March 1983 reveal decreased swelling and a resolving right ankle sprain and a record dated in September 1983 discloses dermatitis and cellulitis of the right knee. In April 1984, the veteran was seen for left ankle pain; the assessment rendered was a sprained ankle. Also, the veteran complained of left knee pain at that time. The left knee examination was normal. In another entry dated in April 1984 and an x-ray study, the examiner noted mild patellar crepitus in the left knee. Also indicated in April 1984 is questionable mild chondromalacia of the left knee. In a clinical record dated in November 1984 related to complaints of left knee pain, the assessment was mild chondromalacia and exogenous obesity. An examination report dated in December 1984 is silent for any pertinent findings. In March 1985, the veteran was treated for complaints of right ankle pain; the diagnosis was a sprained ankle. There is no separation examination of record. From April 1995 to March 1996, the veteran was seen on an outpatient basis both by VA examiners and private medical doctors. In VA medical record dated in April 1995, the veteran was treated for complaints of severe pain in the left knee. The veteran's history of a fall in service was noted. The assessment was arthralgia in the left knee. In September 1995, the veteran was seen by a private orthopedist for his knees and ankles. Included in a recitation of the veteran's past medical history is the veteran's parachute jump in service that resulted in injury to his ankles and knees. The diagnoses rendered were degenerative meniscus disease in the bilateral knee joints, patellofemoral chondromalacia bilaterally, old partial tear posterior cruciate ligament of the left knee joint, and residuals of a sprained left ankle with possible old healed cortical fracture posterior left tibia. The doctor further remarked that the veteran's service medical records were not available at the time of examination, but that if his military records validated the incidents as reported by the veteran, it would seem reasonable that his left knee and left ankle problems were related to service. Also, the doctor noted that the veteran's weight as he reported at the time of the inservice fall was approximately 220 to 225 pounds, and that given such weight, landing stresses could be expected to have been fairly severe. During VA examination conducted in September 1995, the examiner noted the veteran's report of several inservice incidents that resulted in injury to his knees and ankles. The veteran reported that at separation from service, he was told that there was nothing further that could be done for his injuries. Also, the veteran had no apparent problems for the nine-year period following service until he was first treated in 1994. The diagnoses rendered were pain in both knees, worse on the left and in the left ankle, following trauma, "as alluded to in the history." X-ray studies conducted of the ankles revealed possibility of old ligament injuries involving both ankles. In a private medical examination dated in October 1995, the doctor concluded that the veteran was primarily a chronic pain patient. The doctor further remarked that with respect to causation, it was a difficult call in that given the post traumatic arthritis in the left ankle, it sounded as if it might be related to a previous injury. As to the knees, the doctor noted no definite abnormalities other than pain. The doctor stated that it was more difficult to attribute the veteran's knee problems to his service given the lack of degenerative changes. In a letter from a private doctor dated in December 1996, the doctor recited the veteran's past medical history that included the inservice incidents. The doctor noted that the veteran presented with chronic pain in his knees and ankles, but that the degree of disability seemed out of proportion to the veteran's injuries. Further, the doctor stated that as to the connection between the veteran's current disabilities and service, the veteran's injuries in service probably had a causative role, but that a major contributing factor to the progression of the veteran's disabilities was his morbid obesity. Thus, in light of the above-noted evidence, this veteran has presented a plausible claim, and as such, has established a well grounded claim with respect to his bilateral knee and bilateral ankle disabilities. The evidence reflects current knee and ankle disability, presence of ankle and knee problems in service, and medical evidence of a nexus between inservice events and current disability. Thus, the VA has a duty to assist the veteran in furthering the development of his claims. 38 U.S.C. § 5107(a). ORDER The claim of entitlement to service connection for bilateral knee disability is well grounded. To this extent only, the appeal is granted. The claim of entitlement to service connection for bilateral ankle disability is well grounded. To this extent only, the appeal is granted. REMAND Because the claim of entitlement to service connection for both bilateral knee disability and bilateral ankle disability is well grounded, VA has a duty to assist the veteran in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1999); Murphy v. Derwinski, 1 Vet. App. 78 (1990). Specifically, the Board remands these matters for the following directives: 1. The RO should obtain the names and addresses of all medical care providers who treated the veteran for his bilateral knee and bilateral ankle disabilities since separation from service in June 1985. After securing the necessary releases, the RO should obtain these records. 2. The RO should then request an appropriate examination of the veteran's knees and ankles to determine the extent of current disability. Further, the examiner should comment on the relationship, if any, of the veteran's current disabilities to his period of service. Specifically, the examiner should remark on whether the veteran's current knee and ankle disabilities are medically related to the parachute jumps and falls as documented in the veteran's service medical records that occurred while in service. The veteran's claims file, or copies of the data therein, must be made available to the examiner in conjunction with the requested review. Any necessary tests or laboratory studies required for a determination in this case should be so conducted. The examiner should provide a complete rationale for any conclusion reached. Further, the RO should ensure that any additional information required to formulate the requested opinion should be requested and obtained. 3. The RO should then review the veteran's claim. All pertinent law and regulations should be considered. If the veteran's claim remains denied, he and his representative should be provided with a supplemental statement of the case, which should include, but not be limited to, any additional pertinent law and regulations and a complete discussion of the action taken on the veteran's claim. Applicable response time should be allowed. 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 veteran has the right to submit additional evidence and argument on the 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 or by the Court 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. V. L. Jordan Member, Board of Veterans' Appeals