Citation Nr: 0003595 Decision Date: 02/11/00 Archive Date: 02/15/00 DOCKET NO. 96-06 186 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder as secondary to service-connected left ankle disability. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for lumbosacral degenerative disc disease with spondylolisthesis and L5-S1 herniated intravertebral disc as secondary to service-connected left ankle disability. 3. Entitlement to an increased evaluation for residuals of a left ankle sprain, status post lateral ankle stabilization, currently evaluated as 20 percent disabling. 4. Entitlement to an increased evaluation for right knee chondromalacia, currently evaluated as 10 percent disabling, based on the disagreement with the August 1996 initial award. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. J. Wells-Green, Counsel INTRODUCTION The veteran served on active duty from July 1981 to July 1989. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. At the veteran's July 1999 central office hearing before this Member of the Board, she advised that she was withdrawing her claims of entitlement to an earlier effective date for service connection for a right knee disability and for an extension of paragraph 30 benefits beyond May 1, 1995. Accordingly, these issues are no longer before the Board for consideration. The issue on the title page with respect to the veteran's service-connected right knee disorder, has been rephrased to comply with the U.S. Court of Appeals for Veterans Claims (Court) recent holding that there is a distinction between an appeal of an original rating award and a claim for an increased rating. See Fenderson v. West, 12 Vet. App. 119, 125 (1999). The Board notes that the RO has characterized the issue on appeal regarding the veteran's back disorder as entitlement to service connection for a back disorder. However, this claim was denied in March 1994 and the veteran did not submit a timely substantive appeal. The Board has a duty, under applicable law, to address the "new and material evidence" requirement in this claim. If the Board finds that no new and material evidence has been submitted, the merits of the claim may not be considered. Barnett v. Brown, 8 Vet. App. 1, 4 (1995), aff'd 83 F.3d 1380 (Fed. Cir. 1996); see also McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained. 2. The claim of entitlement to service connection for an acquired psychiatric disorder is plausible. 3. The veteran's claim for service connection for lumbosacral degenerative disc disease was denied in a March 1994 rating decision; the veteran did not timely appeal that decision. 4. The evidence received since the March 1994 denial includes evidence, which is not duplicative or cumulative of evidence previously of record and is so significant that it must be considered in order to fairly decide the merits of the claim and upon such consideration it is determined that the lumbosacral degenerative disc disease is caused by the service-connected left ankle disability. 5. The veteran's residuals of a left ankle sprain, status post lateral ankle stabilization, have resulted in no more than marked limitation of motion. 6. The veteran did not file a substantive appeal on the issue of an increased evaluation for right knee chondromalacia within one year of notice of the rating decision or within 60 days of the Statement of the Case addressing this issue. CONCLUSIONS OF LAW 1. The claim for service connection for an acquired psychiatric disorder is well grounded. 38 U.S.C.A. § 5107(a)(West 1991). 2. New and material evidence to reopen the veteran's claim for service connection for lumbosacral degenerative disc disease with spondylolisthesis and L5-S1 herniated intravertebral disc has been submitted, and the claim is reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a)(1999). 3. The veteran's lumbosacral degenerative disc disease with spondylolisthesis and L5-S1 herniated intravertebral disc has been aggravated by his service-connected left ankle disability. 38 C.F.R. § 3.310 (1999); Allen v. Brown, 7 Vet. App. 439, 448 (1995). 4. The criteria for a disability rating in excess of 20 percent for residuals of a left ankle sprain, status post lateral ankle stabilization have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 4.1-4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (1999). 5. The veteran did not file a timely appeal with the issue of an increased evaluation for right knee chondromalacia. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 19.32, 20.200, 20.202 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background The veteran's service medical records reflect 6 weeks of inpatient treatment for alcoholism beginning in May 1982. In March 1983, the she underwent individual therapy to explore unresolved family. VA outpatient treatment records reveal treatment for left sciatica in September 1983. From November 1984 through February 1985, she was seen for complaints of low back pain and gluteal strain. She was initially diagnosed with resolving lumbosacral strain and questionable minimal spondylolisthesis with spondylolysis and later diagnosed with mechanical back pain and participated in "back school." In April 1985, the veteran was prescribed a lumbosacral corset. A June 1985 progress noted improvement in the back pain. At the time of her July 1989 discharge examination, the veteran's spinal and psychiatric evaluations were normal. During her June 1990 VA examination, the veteran reported low back pain in 1984 that gradually resolved. She reported current occasional back soreness. The examiner found no tenderness or spasm, deformity or abnormal alignment in the veteran's lumbosacral spine. She had full range of motion in her lumbosacral spine. The examiner diagnosed residuals of low back injury that were occasionally symptomatic but noted that no abnormalities were noted at the time of the examination. VA treatment records, dating from June 1992 to December 1993 show treatment for depression and low back strain. June and July 1992 VA treatment records show that the veteran was treated for major depression subsequent to her recent divorce. She had been involved in an abusive relationship and her symptoms began shortly after her daughter's birth in 1989. In July 1992, major depression, since episode, was diagnosed. In October 1993, she was diagnosed with chronic back strain. A December 1993 mental health clinic progress note included the diagnosis of dysthymic disorder. A December 1993 VA orthopedic examination report indicates that the veteran gave a history of back pain inservice in 1983 that resolved. She expressed complaints of current back pain with occasional tightening of the posterior thigh on the left. X-ray studies of the low back showed grade I spondylolisthesis and disc space narrowing at L5-S1. The examiner diagnosed degenerative disc disease (DDD) with no manifestation of sciatica at that time. A March 1994 rating decision denied service connection for DDD of the lumbar spine. VA treatment records dating from March 1994 to May 1995, show that the veteran sought treatment for various complaints. March and May 1994 mental health progress notes show that she continued to seek psychiatric treatment. In December 1994, she underwent surgery to stabilize her left lateral ankle. VA X-ray studies of the veteran's left ankle, conducted in April 1995, found no evidence of fracture or dislocation at that time. From February to May 1995, she underwent physical therapy to increase the range of motion of her left ankle as well as its strength. A May 1995 progress note diagnosed with dysthymia and major depression. An April 1995 rating decision granted a 100 percent evaluation for the veteran's left ankle sprain pursuant to the provisions of 38 C.F.R. § 4.30, and effective from December 27, 1994 to March 31, 1995. Commencing April 1, 1995, the veteran's left ankle sprain rating was again resumed at the former 10 percent rating. In May 1995, the veteran submitted a notice of disagreement with the March 1994 rating decision which denied service connection for a low back disorder. At that time she also raised the issue of entitlement to an increased evaluation for her left ankle disability. In a June 1995 statement, the veteran's brother, a dentist, related that he personally noticed a significant change in her physical well being and mental attitude since 1985 after an ankle injury led to inactivity and subsequent weight gain and a progressive deterioration of her physical and mental condition which had led to lower back problems and depression. He believed that these conditions had been caused by the veteran's inservice left ankle injury. During a June 1995 evaluation at the Washington University Medical Center Orthopaedic Surgery unit, the veteran related a long history of low back pain since 1983 in service. The examiner noted a small amount of DDD at the L5-S1 level and some facet arthrosis. It was not felt that she had a disc herniation. Physical therapy was recommended. The impression was that she had low back pain. Vilary P. Blair, III, M.D., in a July 1995 evaluation, noted the veteran's December 1994 left ankle surgery and subsequent corticosteroid injections on two occasions, for temporary relief of pain. The physician also noted that the veteran had no subtalar motion and that the ankle was fixed in approximately five degrees of valgus. She had fairly normal ankle motion without evidence of tenderness, although tenderness was noted over the lateral edge of the subtalar joint and with any attempt at motion of that joint. Although X-ray evidence did not show such changes at that time, the examiner's impression was rigid subtalar joint with probable arthritic change. Dr. Blair recommended a computed tomography scan (CT) of the veteran's left ankle and subtalar joint be conducted. An August 1995 VA CT scan of the left ankle showed that the talotibial and talofibular joint spaces were well-preserved without evidence of fracture, arthritic changes or other abnormalities. The study was considered normal. The August 1995 report of a VA orthopedic examination shows that the veteran gave a history of having fallen on one occasion since her December 1994 left ankle surgery. At the time of the examination she was wearing a splint and continued to have physical therapy one time a week. Because of complaints of persistent pain, a recent bone scan showed some radioactive tracer uptake at the left lateral malleus, that the radiologist noted was normal 6-12 months post trauma or surgery. The examiner observed that the veteran walked with a left limp with and without her left ankle splint. She had some decreased elevation of the left heel. There was no evidence of crepitus or effusion. The left ankle eversion was 18 degrees. Left ankle inversion was 20 degrees and dorsiflexion 30 degrees. Plantar flexion of the left ankle was 12 degrees. The examiner diagnosed a history of recurrent left ankle sprains with ligament instability, left lateral ankle stabilization with symptomatic residuals and decreased range of motion. The veteran's claims file was not available to the examiner at the time of the examination. Although an August 1995 VA X-ray of the lumbosacral spine was normal, an August 1995 VA magnetic resonance imaging (MRI) scan of the veteran's low back shows an impression of lower lumbar spondylosis with tiny or small herniation of the L2-3, L3-4 and L4-5 discs. A September 1995 shoe clinic note included evaluation for molded shoes with a brace for left ankle stabilization. An October 1995 rating decision extended the veteran's 100 percent evaluation for convalescence to April 30, 1995 and increased her left ankle rating to 20 percent effective May 1, 1995. The January 1996 report of a VA orthopedic examination shows that the veteran's complaints with regard to her low back disability and her belief that it was secondary to her left ankle disability. The examiner noted that the claims file was not available for review. Objectively, she walked with a cane and limped on the right secondary to left ankle pain. She wore a "Swede-O" brace on her ankle and was awaiting special orthopedic shoes. She had muscle strength of 5/5 in both lower extremities. The examiner diagnosed muscle spasm of the lumbar spin and spondylosis with small herniation L2- 3, L3-4 and L4-5 disc. The examiner opined that the ankle problem did not cause the veteran's low back pain and indicated that it had a spontaneous beginning. The veteran's VA treating physician, in a January 1996 memorandum, noted that the December 1994 reconstructive left ankle surgery. The veteran's postoperative course required extensive physical therapy and prosthetic shoes. She had been responding well to the treatment plan until a December 1995 fall when she injured her right knee and reinjured her left ankle. The examiner noted that while the ankle was stable it would again require a six-week physical therapy protocol. A March 1996 VA orthopedic examiner diagnosed DDD of the lumbosacral spine with sciatica like syndrome to the left lower extremity. The examiner offered no opinion as to the etiology of the veteran's low back disability. At the time of her March 1996 VA orthopedic examination of the ankle, the veteran indicated that her left ankle easily inverted. The examiner was unable to elicit any left ankle instability in supination and pronation because of the veteran's complaints of pain. There was 7 degrees of left ankle supination and 10 degrees pronation, 20 degrees dorsiflexion and 20 degrees plantar extension. There was increased sensitivity to pin prick to the surgical scar and along the 4th and 5th metatarsal bones which the examiner opined was cutaneous neuropathy from the surgery. The examiner diagnosed residuals status post left ankle surgery and DDD of the lumbosacral spine with sciatica like syndrome to the left lower extremity. The examiner offered no opinion as to the etiology of the veteran's low back disability. During her May 1996 personal hearing, the veteran testified that subsequent to her December 1994 left ankle surgery, she continued to fall and did not believe the condition had improved. She stated that she fell approximately every two to two and a half months and that she wore a left ankle brace and special orthopedic shoes and went to physical therapy two times a week for the left ankle. She took several medications, including Percocet, for pain that left her "zoned out." She felt the March 1996 VA examination was inadequate and stated the examiner laughed at her. She believed that she had depression as a result of her left ankle injury and stated that she took Prozac and a tranquilizer to sleep at nights. A family friend, who had known her for approximately twenty years stated that she was not depressed prior to her surgery and that she had become isolated and forgetful since then. It was his opinion that she was depressed as a result of the pain and use of medications. In a June 1996 addendum to the March 1996 VA orthopedic examination, the examiner noted that the veteran was now walking without a cane and that her left ankle dorsiflexion was 30 degrees and equal to that of her right ankle. Plantar extension was 20 degrees. There were only 5 degrees of left ankle supination and 12 degrees of pronation. The examiner was unable to elicit any lateral instability or Drawer's sign. The examiner diagnosed lumbar spondylosis with herniation, L2-3, 3-4 and 4-5 and opined that it was not caused by the left ankle condition. The examiner further diagnosed status post residual injury of the left ankle with decreased plantar, extension, supination and pronation of the ankle. Service connection for right knee chondromalacia was granted at a 10 percent rating in an August 1996 rating decision. The veteran was advised of the decision and her appellate rights in a September 1996 letter. An October 1996 VA psychiatric examination report indicates that the veteran's claims folder had been carefully reviewed. The examiner diagnosed situational adjustment reaction with depressed mood by history. The examiner opined that although the veteran showed no evidence of major depression at the time of the examination, the adjustment to the polysurgery and foot problems was consistent with a reaction to chronic pain syndrome. In January 1997, the veteran submitted her notice of disagreement with the August 1996 initial evaluation of her right knee disability. That same month, the RO issued a statement of the case and advised the veteran of the necessary requirements to perfect her appeal. During her May 1997 personal hearing the veteran testified that she was first treated for low back problems inservice in 1983 and continued treatment during her service. She was given medication for back pain, a corset and sent to back school. She stated that she had flare-ups of sciatica several times during her service. She testified that she was not given a thorough discharge examination because she was eight months pregnant at the time. She testified that she was first treated for depression and nervousness in service and continued to be treated off and on. The veteran had been sober since 1982 and still experienced unrelated depression. She believed she self-medicated her depression with alcohol. She had been told that she was depressed during service due to her pregnancy. When she was first discharged from service, she sought private treatment for her depression in November or December 1989. She was given Prozac for her depression in June 1990. The veteran also believed that her service-connected left ankle, right knee and both feet disabilities affected her gait and therefore, aggravated her low back disability. VA treatment records, dated in February 1998, show that the veteran had recently injured her back and complained of pain as well as difficulty standing. She was assessed with a herniated disc In a March 1998 VA memorandum, the Chief of Orthopaedic Surgery at the VAMC in St. Louis, Missouri, indicates that the veteran was receiving treatment for left ankle instability and that her gait required intermittent use of a moon boot, crutches and occasional reliance on a wheelchair. According to her treating physicians, her ankle instability, reconstructive surgery and resulting disability had affected her gait, and adjustments in her gait had likely exacerbated her chronic low back pain. At that time her low back diagnosis was herniated disc at the lumbosacral level. The June 1998 VA orthopedic examination report shows that the veteran's left ankle symptoms improved one year after her surgery. She continued to have occasional episodes of ankle symptoms, but felt they were much better than they were prior to her surgery and that they did not occur frequently. She was sensitive to rainy or cold weather, experiencing an aching pain and was able to walk on level surfaces without her left ankle giving way. She resorted to an ankle brace occasionally; the last time was six months prior to the examination. She used orthopedic shoes for additional support of her ankles and did not walk up or down stairs because it caused swelling and throbbing pain in her lateral left ankle. The veteran had hyperesthesia over the dorsum of her left foot. She had a slight left leg limp and normal alignment of the hind foot and Achilles tendon. The examiner noted a 1-centimeter decrease in the veteran's left calf circumference. Her left ankle was 1-centimeter larger in circumference than her right ankle. Left ankle dorsiflexion was 5 degrees and plantar flexion 40 degrees. Inversion of the left hindfoot was 10 degrees and regular inversion was 20 degrees. There was a negative anterior drawer sign. The examiner diagnosed left ankle lateral ligament stabilization secondary to a chronic sprain and opined that her left ankle was stable at the time of the examination with some occurrence of symptoms compatible with the nature of her surgery. During the June 1998 VA orthopedic examination, the examiner also noted that the veteran attributed her low back pain to frequent falls, left ankle injuries and her resulting left leg limp. After reviewing the veteran's claims files, the examiner diagnosed lumbosacral DDD with Grade 1 spondylolisthesis and L5-S1 herniated intravertebral disc. The examiner opined that the veteran's lumbosacral DDD with Grade 1 spondylolisthesis was a progressive condition and was not caused by her left ankle injury, but that it was as likely as not that her recurrent falls and left leg limping could well have aggravated this low back condition producing low back pain. However, the examiner opined that her herniated intravertebral disc was not related to her left ankle disability, as the ankle had been stabilized in 1994. In a written statement of the veteran's representative, submitted in January 1999, the representative presented contentions with regard to the veteran's right knee rating. During her July 1999 central office hearing before the undersigned Member, the veteran testified that she had been treated for depression since 1992 and had not experienced any psychiatric problems before. She stated that she had been depressed in service but did not seek treatment because of the attached stigma. Her physicians have told her that her depression is associated with her physical disabilities. She further testified that she was treated for back complaints in service and that her physicians have told her that her current back condition is the same as her back condition in service and that it was secondary to her ankle condition. The veteran also testified with regard to the severity of her left ankle and right knee disabilities. She believed that her left ankle disability had worsened in the last year. She stated that her ankle gave out earlier that year and she fell and was currently in physical therapy three times a week. She testified that she currently works as a social worker with VA. VA treatment records, dated in August and September 1999 show that the veteran was treated for right knee and left ankle discomfort and for individual psychotherapy. An August 1999 psychotherapy progress note indicates that the psychologist talked with the veteran about her difficulty dealing with limitations in mobility due to her ankle, back and knee disabilities resulting in depression. Analysis New and Material Evidence - Lumbosacral Spine A rating action in March 1994 denied service connection for lumbosacral degenerative disc disease. The veteran did not appeal this decision. Therefore, the claims may not be reopened and allowed unless new and material evidence is presented. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.104(a). However, if new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition. 38 U.S.C.A. § 5108. Thus, the Board must perform a three- step analysis when a veteran seeks to reopen a claim based on new evidence. Winters v. West, 12 Vet App 203 (1999). See Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998) (overruling the test set forth in Colvin v. Derwinski, 1 Vet. App. 171 (1991), which stated that "new" evidence was "material" if it raised a reasonable possibility that, when viewed in the context of all the evidence, the outcome of the claim would change); Elkins v. West, 12 Vet App 209 (1999) (stating that, after Hodge, new and material evidence may be presented to reopen a claim, even though the claim is ultimately not well grounded). First, the Board must first determine whether the evidence is new and material. Winters. According to VA regulation, "new and material evidence" means evidence not previously submitted to agency decisionmakers 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). This definition "emphasizes the importance of the complete record for evaluation of the veteran's claim." Hodge, 155 F.3d at 1363. In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Evans, 9 Vet. App. at 283; but see Duran v. Brown, 7 Vet. App. 216, 220 (1994) ("Justus does not require the Secretary to consider the patently incredible to be credible"). Second, if the Board determines that new and material evidence has been produced, immediately upon reopening the case, the Board must determine whether, based on all the evidence of record, the reopened claim is well grounded pursuant to 38 U.S.C.A. § 5107(a). Winters. Finally, if the claim is well grounded, the Board may proceed to evaluate the merits of the claim after ensuring that VA's duty to assist has been fulfilled. Id. The additional evidence received since the March 1994 rating decision includes VA orthopedic examination reports dated in January 1996 and June 1998, as well as an examination addendum dated in June 1996 and a March 1998 VA memorandum from the veteran's treating orthopedists. These documents submit opinions with regard to the etiology of the veteran's low back disability. Upon review of the aforementioned evidence, the Board concludes that evidence submitted since the March 1994 decision is new and material within the meaning of VA regulations. 38 C.F.R. § 3.156(a). This evidence, that had not previously been submitted to agency decisionmakers, bears directly and substantially upon the specific matters under consideration. This evidence addresses the possibility that the veteran's service connected left ankle disability has either caused or aggravated the veteran's low back disorder. This newly submitted evidence is neither cumulative nor redundant, and is so significant that it must be considered in order to fairly decide the merits of the claim. Having found that new and material evidence has been submitted to reopen the claims, the Board must now determine whether the claim is well-grounded. Secondary service connection claims must be well grounded. 38 U.S.C.A. § 5107(a); Wallin v. West, 11 Vet. App. 509, 512 (1998); Locher v. Brown, 9 Vet. App. 535, 538 (1996); Jones v. Brown, 7 Vet. App. 134, 136-38 (1994). A secondary service connection claim is well grounded only if there is medical evidence to connect the asserted secondary disorder to the service- connected disability. Velez v. West, 11 Vet. App. 148, 158 (1998). A disability is service connected if it is proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310(a). In addition, secondary service connection may also be established when there is aggravation of a veteran's non-service connected condition that is proximately due to or the result of a service-connected condition. Allen v. Brown, 7 Vet. App. 439, 448 (1995); Tobin v. Derwinski, 2 Vet. App. 34, 39 (1991). In those circumstances, compensation is allowable for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. 448. Although the January 1996 VA examiner opined that the veteran's low back disability had a spontaneous onset and the June 1996 addendum found no causal connection, the June 1998 VA examiner opined that the veteran's lumbosacral DDD had been aggravated by her left ankle disability. Moreover, while the June 1998 examiner opined that her herniated intravertebral disc was not related to her left ankle disability, the March 1998 opinion of her treating VA examiners was that her herniated disc had been exacerbated by her left ankle disability. The Board finds that this evidence is sufficient to place the evidence warranting denial of the claimed benefit in relative equipoise with the evidence supporting a grant of the claimed benefit. Under these circumstances, the veteran is entitled to the benefit of the doubt. 38 U.S.C.A. § 5107(b). It is therefore, the opinion of the Board that service connection on a secondary basis is in order. 38 U.S.C.A. § 5108; 38 C.F.R. §§ 3.156(a), 3.310 (1999). Service Connection for an Acquired Psychiatric Disorder Before the Board may address the merits of the appellant's claim it must, first be established that the claim is well- grounded. In this regard, a person who submits a claim for VA benefits shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well-grounded. 38 U.S.C.A. § 5107(a). A well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of [38 U.S.C.A. § 5107]." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). If the claim is not well-grounded there is no duty to assist. Struck v. Brown, 9 Vet. App. 145 (1996). Secondary service connection claims must be well grounded. 38 U.S.C.A. § 5107(a); Wallin v. West, 11 Vet. App. 509, 512 (1998); Locher v. Brown, 9 Vet. App. 535, 538 (1996); Jones v. Brown, 7 Vet. App. 134, 136-38 (1994). A secondary service connection claim is well grounded only if there is medical evidence to connect the asserted secondary disorder to the service-connected disability. Velez v. West, 11 Vet. App. 148, 158 (1998). The Board finds that the veteran has submitted evidence of a plausible claim. In this respect, the evidence shows that she has diagnoses of depression, dysthymia and situational adjustment reaction, as well as medical evidence of a nexus or causal relationship between her service-connected left ankle disability and her situational adjustment reaction and depression. Caluza v. Brown, 7 Vet. App. 498 (1995). Increased Rating for Residuals of Left Ankle Sprain A veteran's assertion of an increase in severity of a service-connected disorder constitutes a well-grounded claim requiring the VA fulfill the statutorily required duty to assist 38 U.S.C.A. § 5107(a) (West 1991) because it is a new claim and not a reopened claim. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), and these ratings are based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155. The veteran seeks entitlement to a disability rating greater than 20 percent for residuals of a left ankle sprain. The left ankle disability is currently rated as 20 percent disabling under Code 5271, limited motion of the ankle. A 20 percent evaluation is assigned for marked limitation of motion of the ankle. 38 C.F.R. § 4.71a. Other potentially applicable diagnostic codes include Code 5262 for malunion or nonunion of the tibia and fibula and Code 5270 for ankylosis of the ankle. Neither of these codes is for application, as the medical evidence does not indicate ankylosis, fusion or malunion of the tibia or fibula. The Board notes that the evidence of record does not support application of these codes. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of diagnostic code should be upheld so long as it is supported by explanation and evidence). Where a disability rating is based on limitation of motion, the Board must also consider any functional loss the veteran may have sustained by virtue of weakness or pain on motion; however where the maximum rating for loss of range of motion is awarded, application of 38 C.F.R. §§ 4.40 and 4.45 and DeLuca is not required. See Johnston v. Brown, 10 Vet. App. 80 (1997). A review of the evidence of record indicates that the veteran does wear a brace on her left ankle, has left ankle pain and limitation of motion. However, there is no evidence of ankylosis or nonunion of her tibia and fibula. As the veteran was already rated at the highest evaluation for limitation of motion, and the other above-mentioned codes are not for application, the Board finds that a higher rating is not warranted. The Board finds that the disability is not so unusual or exceptional as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). In this regard, the Board notes that the veteran has indicated that she's receiving physical therapy three times a week for her left ankle disability. However, she also testified that she's currently employed and there is no evidence that her left ankle disability necessitates frequent periods of hospitalization and there is no objective evidence that it results in marked interference with her employment. Increased Rating for Right Knee Chondromalacia A veteran's assertion of an increase in severity of a service-connected disorder constitutes a well-grounded claim requiring the VA fulfill the statutorily required duty to assist 38 U.S.C.A. § 5107(a) (West 1991) because it is a new claim and not a reopened claim. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). A substantive appeal is timely if it is received within 1 year of the date the veteran was notified of the denial of her claim, or within 60 days after the statement of the case was issued, whichever period is later. 38 U.S.C.A. § 7105(d)(3); 38 U.S.C.A. § 20.302(b). The 60-day period may be extended for a reasonable period on request for good cause shown. 38 U.S.C.A. § 7105(d)(3). Regulations further specify that a request for such an extension must be in writing and must be made prior to expiration of the time limit for filing. 38 C.F.R. § 20.303. In this case, the RO mailed the veteran notice of the action currently on appeal on September 20, 1996. She timely submitted a notice of disagreement in January 1997. The RO issued a statement of the case on January 17, 1997. The notification letter attached to the statement of the case advised the veteran that she must submit a substantive appeal within 60 days of the statement of the case or within the remainder, if any, of the one-year period from the date of the letter notifying her of the action appealed. The RO received the representative's contentions with regard to this issue and construed to be a substantive appeal, on January 11, 1999. Because the statement of the case was issued on January 17, 1997, the veteran was required to submit her substantive appeal no later than September 20. 1997, within 1 year of the date she was notified of the decision. The RO received the appeal over a year after the deadline. The record does not contain any written request for an extension of time in which to submit the appeal. Thus, it appears that the veteran's substantive appeal was not timely and that therefore the Board would not have jurisdiction over the appeal. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.302. In October 1999, the Board advised the veteran with regard to the timeliness of her substantive appeal and provided her an opportunity to present evidence or argument on the jurisdictional issue. Marsh v. West, 11 Vet. App. 468, 471 (1998). She responded that same month that she did not have further argument to present or wished to request a hearing. Although the Board has considered the veteran's claim on a ground different from that of the RO, the appellant has not been prejudiced by the Board's decision as she has been provided an opportunity to provide evidence with regard to the procedural issue. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). ORDER The claim for service connection for an acquired psychiatric disorder is well-grounded. New and material evidence has been submitted or secured to reopen the veteran's claim of entitlement to service connection for lumbosacral degenerative disc disease with spondylolisthesis and L5-S1 herniated intravertebral disc claimed as secondary to the service-connected left ankle disability, and the claim is reopened and allowed. An increased evaluation for residuals of a left ankle sprain, status post lateral ankle stabilization, is denied. The veteran's claim for an increased rating for right knee chondromalacia is dismissed. REMAND As noted previously, the evidence of record tends to link the veteran's diagnosed depression situational adjustment reaction to her service-connected left ankle disability. In this regard, the October 1996 VA psychiatric examiner reviewed the veteran's claims file, and while not finding a current diagnosis of major depression, did diagnose situational adjustment reaction with depressed mood and linked it to the adjustment to polysurgery for her service- connected disabilities. Moreover, a VA psychologist found that the veteran's depression was a result of how she dealt with her limitation of mobility due to her service-connected disabilities. The Board finds that the veteran's claim is therefore, well grounded within the meaning of 38 U.S.C.A. § 5107(a) and that VA has a duty to assist the veteran in this claim. However, the medical evidence is unclear whether the veteran currently has a psychiatric diagnosis and other VA treatment records attribute her psychiatric disorder to intercurrent events or childhood issues. In light of the foregoing, the Board finds that the veteran should undergo a VA psychiatric examination, to include an opinion as to whether the veteran's current psychiatric disorder, if any, is attributable to her service-connected disabilities. In light of the foregoing circumstances, the case is REMANDED to the RO for the following actions: 1. The RO should obtain all treatment records for the veteran from VA Medical Center in Perry Point, Maryland, dated from June 1998 to the present and not already of record. 2. The RO should contact the appellant and obtain the names and addresses of all medical care providers, VA or private, who treated the veteran for a psychiatric disorder since May 1996. After securing the necessary release, the RO should obtain these records. 3. The veteran should also be provided a VA psychiatric examination to determine the nature and extent of any psychiatric disorder found to be present. All indicated studies should be performed. The psychiatrist should be requested to review the material in the veteran's claims file and provide an opinion, with complete rationale, as to whether any psychiatric disability was caused or chronically worsened by the veteran's service-connected disabilities. The claims files must be made available to the psychiatrist prior to the examination. Prior to the examination, the RO must inform the veteran, in writing, of all consequences of her failure to report for the examination in order that she may make an informed decision regarding her participation in said examination. 3. When the requested actions have been completed, the RO should undertake any other indicated development and then readjudicate the issue of entitlement to service connection for an acquired psychiatric disorder. If the benefit sought on appeal is not granted to the veteran's satisfaction a supplemental statement of the case containing adequate reasons and bases should be issued and the veteran and her representative provided an opportunity to respond. Thereafter, the case should be returned to the Board for further consideration, if otherwise in order. 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. RENÉE M. PELLETIER Member, Board of Veterans' Appeals