Citation Nr: 0000826 Decision Date: 01/11/00 Archive Date: 01/27/00 DOCKET NO. 98-02 055A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to secondary service connection for a low back disability. 2. Entitlement to an increased rating for residuals of a right ankle fracture, currently evaluated as 10 percent disabling. WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD D. A. Saadat, Associate Counsel INTRODUCTION The veteran had active military service from December 1962 to December 1965. The issues on appeal come before the Board of Veterans' Appeals (Board) from an August 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. By this rating decision, the RO, in pertinent part, denied service connection for a low back condition as secondary to service connected residuals of a right ankle fracture, and also confirmed a 10 percent rating for the service connected residuals of a right ankle fracture. The veteran perfected his appeals concerning both claims. In February 1998, the veteran testified at the RO before a local hearing officer. On July 19, 1999, a hearing was held in Los Angeles before Iris S. Sherman, who is a member of the Board rendering the final determination in these claims and who was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C.A. § 7102 (West Supp. 1999). As an initial matter, the Board notes that in a July 1997 letter, the veteran appeared to raise a claim concerning service connection for a disability of the thoracic spine around the cervical area as secondary to the service connected residuals of right ankle fracture. Since this matter has not been developed or certified for appeal, and inasmuch as it is not inextricably intertwined with the issues now before the Board on appeal, it is referred to the RO for initial consideration. The veteran's claim concerning service connection for a low back disability as secondary to service connected residuals of a right ankle fracture is discussed in the decision section. The claim concerning an increased rating for residuals of a right ankle injury is discussed in the remand section below. FINDING OF FACT There is no medical evidence linking the veteran's low back disability to his service connected right ankle disability; the claim for secondary service connection for a low back disability is not plausible. CONCLUSION OF LAW The veteran's claim concerning service connection for a low back disability as secondary to a right ankle disability is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background Service medical records reflect, in pertinent part, that the veteran was examined for enlistment purposes in November 1962. Prior to the examination, he denied, in pertinent part, any history of arthritis or rheumatism, bone, joint, or other deformity. He did report having a history of minor joint injuries in football. Upon examination, the veteran's spine and "other musculoskeletal" were normal. In September 1965, the veteran injured his right ankle while playing football. Physical examination revealed a slight tenderness of the lateral malleolus with possible increased motion of the ankle. The veteran was examined for separation purposes in October 1965. His spine was normal, although a fracture of the right tibia, in cast, was noted. In January 1966, the veteran filed a claim concerning service connection for his right ankle condition. He did not reference any back symptoms. The veteran underwent a VA examination in March 1966. The veteran had no complaints regarding his back. The examination revealed that the veteran's back was symmetrical, with no muscle spasm or scoliosis. He did not walk with a limp. By a March 1966 rating decision, the RO, in pertinent part, granted service connection for residuals of fracture of right ankle, and assigned a 10 percent rating effective from December 1965. The veteran underwent another examination for VA purposes in March 1967. The veteran had no complaints concerning his back, which was clinically negative upon examination. In December 1996, the veteran filed a written statement in which he sought, in pertinent part, service connection for a back condition as secondary to his service connected right ankle disability. The veteran asserted that the right ankle disability had caused severe pain that had affected his back. The veteran was unable to bend his back without pain. In April 1997, the veteran submitted a letter in which he asserted that because of his right ankle condition, he had lost calcium and bone, causing pulling on the right side and severe back pains which he had tolerated for over 30 years without complaint. The veteran asserted that he had never injured his back, and that his back problems stemmed from his original right ankle injury. In May 1997, medical records from Kaiser Permanente, in Woodland Hills, California, were associated with the claims file. These records reflect, in pertinent part, that in November 1992, the veteran sought treatment and physical therapy for a two month history of low back pain. There had been no specific injury or trauma. The veteran had had a history of chronic, intermittent backaches for years, but these had not really been a problem. The pain started on the right side and then centered and spread to the left side. There was no radiation of the pain to the lower extremities. The pain increased with activity, lifting, bending, prolonged sitting, or running. The veteran was a marathon runner and usually ran 45 miles a week. He had had a history of similar problems since 1982 intermittently, but the recent symptoms seemed to have been the most prolonged and intense. The veteran had lumbar spine films which revealed probable spondylolysis at L5 on the right side without spondylolisthesis and spina bifida occulta at the same level. Following an examination, the impression was acute low back strain, rule out stress fracture of the pars interarticularis from running. The veteran continued to seek treatment for his back pain into December 1992. The veteran was examined for VA purposes in July 1997. The veteran reported that he had fractured his right ankle in 1964 in a training accident. He was treated with a cast and then a boot, although he continued complaining about his ankle. Around 1975, he apparently had a myelogram at the VA medical facility in Sepulveda, California, due to back symptoms. He stated that the onset of the back problem may have been a couple of years before. An X-ray revealed a slight narrowing at the L5-S1 disc space with spondylolysis at L5 - S1. The diagnosis was lumbar spine spondylolysis, L5. The examiner further noted in his report that the onset of the back symptoms was unrelated to the veteran's military service, and that there was "certainly no connection regarding his low back and any problems he had with his ankle." In a July 1997 letter, the veteran asserted that his VA examination may have been incomplete because no measurement was made of his right leg from hip to heel. This measurement, according to the veteran, might have shown that the right leg was shorter than the left, based on residual loss of bone from the fracture. The veteran believed that the loss of bone had pulled the right hip lower and caused severe right back problems. By an August 1997 rating decision, the RO, in pertinent part, denied service connection for a low back condition. The RO concluded that the evidence did not show that the low back condition was related to the residuals of a right ankle fracture, nor was there any evidence of this disability during military service. The RO also noted in the rating decision that the veteran's back pain was apparently caused by congenital anomalies which were not subject to service connection. In his August 1997 notice of disagreement, the veteran asserted, in pertinent part, that his medical history was inconsistent with the conclusion that his low back problems had a congenital etiology of spina bifida. Even if the back condition were originally due to spina bifida, the veteran asserted, the RO had not determined that the fracture of the lower leg did not aggravate the condition. Finally, the veteran suggested that he had been treated at VA for his back condition on the assumption that it had been caused or aggravated by the right ankle fracture, and that, therefore, VA had waived "the service connection defense." The veteran testified before a local hearing officer in February 1998. He stated that, because of the expense involved, he had been unable to obtain an independent orthopedic examination or additional medical records in support of his claim. The veteran had been told, when he was first discharged from the service, that a shortness in his right leg would cause "structural . . . problems for the spinal area." The veteran did not pay much attention to this at the time because he was not in that much pain. The veteran denied having had any problems with his back prior to service. In 1975, the veteran apparently went to a VA hospital in Sepulveda because of severe back pain. The veteran was treated rudely and this left a lasting impression. The veteran was determined not to return to a VA hospital as a result, and he did not want to call the Sepulveda facility for records. However, by August 1996, his symptoms were preventing him from walking. The veteran challenged the conclusion that he had the congenital defect of spina bifida, and showed a document reflecting the results of a 1990 chromosome analysis of him and his late wife. The veteran did not want to formally submit this document to protect the confidentiality of his late wife, but did note that it showed that he had no spina bifida genes. The veteran denied having any sort of back problem in his childhood or in service. The back pain only began after he injured his right leg. The veteran estimated that his back problem most probably began in the 1970s. The veteran had spoken to his brother, a physician, who apparently stated a broken ankle could lead to calcium loss which would alter the skeletal structure and cause pain. Subsequent to the local hearing, the veteran submitted an additional typewritten statement, in which he reiterated that there was no history of spina bifida in his family, and that no such spina bifida had been found on medical examination in service. The veteran also asserted that assuming, arguendo, that he did have spina bifida, there had been no medical evidence presented showing that this condition had not been, in fact, been aggravated by the right ankle condition. The veteran also asserted that no medical evidence had been submitted which precluded a causal relationship between his spondylolysis and his right ankle disability. The veteran also challenged the accuracy of his medical history as documented in the July 1997 VA examination report. In a March 1998 supplemental statement of the case, the RO continued to deny service connection for a low back disability as secondary to service connected residuals of right ankle fracture. In July 1999, the veteran testified at the RO before the undersigned Board member. He essentially restated his contention that his back condition was aggravated by his service connected right ankle disability. The veteran suggested that the RO should have produced evidence and/or argumentation to prove that there was no connection between the right ankle disability and his back symptoms. The veteran stated that he had been told by medical staff either at Kaiser or at VA that there was no connection between the two conditions. The veteran testified that he first began to experience back pain approximately two to three years after his discharge in 1965. It was slight pain, but it gradually increased until the 1970s, when he visited a VA doctor. The veteran could not remember what the diagnosis was at that time, but he remembered that a myelogram was performed and that the visit was a negative experience. To the veteran's best recollection, the myelogram was negative. The veteran denied having had any back injuries after service. At the time of the hearing, the undersigned granted the veteran 90 days to submit medical evidence of a nexus. The veteran did not submit any additional evidence following the Travel Board hearing. II. Analysis A claim for secondary service connection must be granted when a disability "is proximately due to or the result of a service-connected disease or injury. " 38 C.F.R. § 3.310(a) (1999). Secondary service connection may also be granted when aggravation of a nonservice-connected condition is proximately due to or the result of a service-connected condition. In such case, a veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). Like all claims, a claim for secondary service connection must be supported by "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) (West 1991). 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 [section 5107(a)]." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Generally, for a claim to be well grounded, a claimant must submit each of the following: (1) a medical diagnosis of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in- service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the in-service injury or disease and the current disability. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). With regard to a claim for secondary service connection, a claimant must provide competent evidence that the secondary condition was caused or aggravated by the service-connected condition. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The credibility of the evidence is presumed when determining whether a claim is well grounded. See Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995); King v. Brown, 5 Vet. App. 19, 21 (1993). However, the presumption of credibility does not apply where a fact asserted is beyond a person's competency or where the evidence is inherently false. See id. The Board finds that the veteran's claim of secondary service connection for a low back disability is not well grounded within the meaning of 38 U.S.C.A. § 5107. The key question in this case center on the relationship of the current low back disability and the service connected residuals of right ankle fracture. Such relationships are not susceptible to informed lay observation and, for there to be credible evidence of such relationship, competent medical evidence is required. The veteran has submitted no medical evidence linking any current low back disorder to his service connected right ankle disability. Indeed, a VA physician in July 1997 specifically concluded that there was no relationship between the veteran's low back condition and either his period of active duty or his right ankle disability. Moreover, despite being afforded a specific period of time in which to submit medical evidence of a nexus, such evidence was not forthcoming. The veteran has argued that the RO has failed to establish that his back condition was not aggravated by his service connected right ankle condition. However, as was explained during the veteran's hearing, the onus is on the veteran to provide the medical evidence required to well ground a claim of secondary service connection. Once this is provided and the veteran has established a well grounded claim, then the RO must fulfill its duty to assist. In this case, the veteran has not provided the required evidence. There also appears to be some confusion as to whether the veteran has a congenital back disability (i.e., spina bifida). Irrespective of the diagnosis of any back disability, the veteran has not provided medical evidence of a nexus between any current back disability and a service connected disability. The Board also notes that the veteran has suggested that treatment records from the VA hospital in Sepulveda, apparently reflecting treatment of his back condition in the 1970s, are missing and should be obtained. Even if such records could be obtained, there have no been allegations by the veteran that such records would contain the needed medical nexus between any back disability and a service connected disability. Based on the veteran's description, the VA records would merely reflect that he sought treatment for back pain in the 1970s (at least several years after his discharge), and that a myelogram performed at that time was negative. In summary, there is nothing in the veteran's allegations to lead the Board to conclude that a Remand to obtain such records is needed in order to arrive at an equitable decision in this case. Thus, any error in not attempting to locate these records would be harmless. In conclusion, the veteran's claim concerning service connection for a low back disability as secondary to a service connected right ankle disability is not well grounded. If a claim is not well grounded, the Board does not have jurisdiction to adjudicate it. Boeck v. Brown, 6 Vet. App. 14 (1993). As a claim that is not well grounded does not present a question of fact or law over which the Board has jurisdiction, the claim concerning service connection for a low back disability as secondary to a service connected right ankle disability is denied. ORDER Entitlement to service connection for a low back disability as secondary to service connected residuals of a right ankle fracture, is denied. REMAND The veteran's claim of entitlement to an evaluation in excess of that currently assigned to his service-connected residuals of right ankle fracture is well grounded. A claim for a higher evaluation is well grounded if the claimant asserts that a condition for which service connection has been granted has worsened. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). In this case, the veteran has asserted that the symptoms of his residuals of right ankle fracture are worse than currently evaluated, and he has thus stated a well grounded claim for increased rating. VA therefore has a duty to assist him in developing the facts pertinent to his claims. 38 C.F.R. § 3.159 (1999); Littke v. Derwinski, 1 Vet. App. 90 (1990). The Board further notes that in DeLuca v. Brown, 8 Vet. App. 202 (1995), 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") held that in evaluating a service-connected disability involving a joint, the Board erred in not adequately considering functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. The Court in DeLuca held that Diagnostic Codes pertaining to range of motion do not subsume 38 C.F.R. § 4.40 and § 4.45, and that the rule against pyramiding set forth in 38 C.F.R. § 4.14 does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including use during flare-ups. The Court remanded the case to the Board to obtain a medical evaluation that addressed whether pain significantly limits functional ability during flare-ups or when the joint is used repeatedly over a period of time. The Court also held that the examiner should be asked to determine whether the joint exhibits weakened movement, excess fatigability or incoordination. If feasible, these determinations were to be expressed in terms of additional range of motion loss due to any pain, weakened movement, excess fatigability or incoordination. Although the veteran underwent a joints examination for VA purposes in July 1997, the Board finds that the examination report failed to adequately describe whether the veteran's residuals of a right ankle fracture significantly limited his functional ability during flare-ups or when the ankle was repeatedly used over time. There was also no mention as to whether the right ankle exhibited weakened movement, excess fatigability, or incoordination. Therefore, the Board concludes that a new orthopedic examination of the veteran's right ankle is necessary to comply with the mandates set forth in DeLuca, 8 Vet. App. 202 (1995). The Board stresses to the veteran that, although the VA has a duty to assist the veteran with the development of the evidence in connection with his claim for an increased rating, the duty to assist is not always a one-way street. 38 U.S.C.A. § 5107(a) (West 1991); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Federal regulations also state, in pertinent part, as follows: § 3.655 Failure to report for Department of Veterans Affairs examination. (a) General. When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, action shall be taken in accordance with paragraph (b) or (c) of this section as appropriate. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. For purposes of this section, the terms examination and reexamination include periods of hospital observation when required by VA. (b) Original or reopened claim, or claim for increase. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(a), (b) (1999) The most recent medical treatment records pertaining to the veteran were associated with the claims file in May 1997. To ensure that the veteran's claim will receive a fully informed evaluation, clinical data taking into account the condition of the veteran's right ankle, since May 1997, should be obtained and reviewed. 38 C.F.R. §§ 4.1, 4.2 (1999). Under the circumstances described above, this case is REMANDED, for the following actions: 1. Any pertinent VA medical records documenting treatment of the veteran's right ankle, subsequent to May 1997, which have not already been associated with the claims file, should be obtained and made part of the record. 2. The RO should contact the veteran and ask him to furnish the names and addresses of private sources of any treatment he has received for his service connected right ankle disability since May 1997. After obtaining the appropriate releases, copies of the records should be obtained and associated with the claims folder. 3. Upon completion of the above development, the RO should schedule the veteran for a VA orthopedic examination of the right ankle. The provisions of 38 C.F.R. § 3.655 should be adhered to if the veteran fails to report for the examination without good cause. 4. The veteran should thereafter be afforded a VA orthopedic examination of the right ankle. The claims folder must be made available to the examiner and reviewed by him/her before the examination. A copy of this Remand decision must be provided. Such tests as the examiner deems necessary should be performed. a. The examiner should note the ranges of motion of the right ankle. The examiner should also specifically reference the normal ranges of motion for the right ankle. If there is ankylosis of the ankle, the examiner should note the position of plantar or dorsiflexion in degrees. If ankylosis is present, the examiner should note whether there is an abduction, adduction, inversion or eversion deformity. b. The examiner should be asked to determine whether the veteran's right ankle exhibits weakened movement, excess fatigability, or incoordination attributable to the service- connected disability; and, if feasible, these determinations should be expressed in terms of the degree of additional range of motion loss or ankylosis due to any weakened movement, excess fatigability, or incoordination. c. The examiner should also be asked to express an opinion on whether pain could significantly limit functional ability during flare-ups or when the right ankle is used repeatedly over time. This determination should also, if feasible, be portrayed in terms of the degree of additional range of motion loss or ankylosis due to pain on use or during flare-ups. d. If the examiner finds that it is not feasible to answer a particular question or follow a particular instruction, he or she should so indicate and explain the reason. 5. Upon receipt of the examination report, the RO should review it to ensure that it is adequate for rating purposes. If the examination is inadequate for any reason, the RO should return the examination report to the examining physician and request that all questions be answered. 6. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 7. Following the completion of the foregoing, the RO should review the issue of the rating to be assigned the residuals of right ankle fracture. If any benefit sought on appeal remains denied, the veteran and any representative should be furnished a supplemental statement of the case, to include discussion of DeLuca and the provisions of 38 C.F.R. § 3.655, if appropriate, and the veteran and his representative (if any) should be given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The veteran need take no action until otherwise notified, but he may furnish additional evidence and argument while the case is in remand status. Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992); Booth v. Brown, 8 Vet. App. 109 (1995). The purpose of this remand is to obtain additional medical information and ensure due process. No inference should be drawn regarding the final disposition of the veteran's claim as a result of this action. 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. Iris S. Sherman Member, Board of Veterans' Appeals