Citation Nr: 0000835 Decision Date: 01/11/00 Archive Date: 01/27/00 DOCKET NO. 93-01 120 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for degenerative joint disease of the knees, as secondary to service-connected residuals of frostbite. 2. Entitlement to service connection for degenerative joint disease of the ankles, as secondary to service-connected residuals of frostbite 3. Entitlement to service connection for varicose veins with vascular insufficiency, as secondary to service-connected residuals of frostbite. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL The veteran, his wife and his brother ATTORNEY FOR THE BOARD M. E. Larkin, Associate Counsel INTRODUCTION The veteran served on active duty from March 1968 to March 1970. This matter was initially before the Board of Veterans' Appeals (Board) on appeal from a January 1991 rating action of the Roanoke, Virginia Regional Office (RO) of the Department of Veterans Affairs (VA). The Board previously remanded the case in August 1993 and May 1997 for additional development. During the course of this appeal, the veteran has testified at three separate personal hearings, most recently at a July 1999 hearing before the undersigned Member of the Board. Transcripts of each of those hearings are associated with the record. Service connection is currently in effect for frostbite of both feet, evaluated as 30 percent disabling. In November 1997, the veteran submitted VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. This matter is referred to the RO for action deemed appropriate. FINDING OF FACT The veteran's claims of service connection for degenerative joint disease of the knees and ankles and varicose veins with vascular insufficiency, as secondary to service-connected residuals of frostbite, are plausible. CONCLUSION OF LAW The claims of service connection for degenerative joint disease of the knees and ankles and varicose veins with vascular insufficiency, as secondary to service-connected residuals of frostbite, are well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 U.S.C. § 5107(a) (West 1991), 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) 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). 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). 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 the present case, the evidence includes a statement from Calvin H. Thigpen, MD., who opined that the veteran's varicose veins, venous insufficiency and joint disease of the ankles and knees are the result of service-connected frostbite. Under these circumstances, the Board finds that the veteran's claims are plausible and thus well grounded. ORDER The claims of service connection for degenerative joint disease of the knees and ankles and varicose veins with vascular insufficiency, as secondary to service-connected residuals of frostbite, are well grounded and to this extent the appeal is allowed. REMAND Inasmuch as the veteran has submitted well-grounded claims, VA is obligated to assist him in the development of those claims. 38 U.S.C.A. § 5107(a). Despite the fact that the case has been remanded twice previously and the resulting delay, the Board finds that the record requires further development prior to appellate disposition. It was contemplated that the medical examinations conducted subsequent to the most recent Board remand would include opinions as to whether, and to what extent, the claimed disabilities may be aggravated by the service-connected residuals of frostbite. See Allen v. Brown, 7 Vet. App. 439 (1995). The examinations included the requested opinions as they pertained to the claimed degenerative joint disease, but not the varicose veins. With regard to the claimed degenerative joint disease, the Board notes that in the report of a May 1998 VA examination, the examiner noted that there was no evidence of arthritis of the ankles or knees. An August 1998 addendum to that report included a different VA physician's comment that there was no evidence in medical or surgical literature to suggest that the disabilities such as those claimed by the veteran were the result of distant frostbite injury. In contrast, the statement submitted by the Dr. Thigpen cited a particular piece of medical literature which draws the opposite conclusion and substantiates the veteran's claim. Dr. Thigpen did not, however, provide a basis for the diagnosis of arthritis of the ankles and knees. Given the difference in medical opinions, the absence of a basis for those opinions, and the fact that the Board may not exercise its own independent judgment on medical matters, further development is required. Colvin v. Derwinski, 1 Vet. App. 171 (1991). To ensure that VA has met its duty to assist the claimant in developing the facts pertinent to the claims and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. The RO should contact Dr. Thigpen and ask him to indicate what formed the basis of the diagnosis of degenerative joint disease of the ankles and knees; specifically, whether there is x-ray evidence of degenerative changes of the ankles or knees. 2. The RO should request that the VA physicians who performed the May 1998 VA orthopedic examination and offered the August 1998 addendum provide the basis for those opinions regarding arthritis resulting from frostbite injury. Specifically, each physician should be asked to address the article cited by Dr. Thigpen in support of the veteran's assertion that the claimed disabilities are related to the service-connected frostbite. The orthopedic examiner's attention is directed to the report from Southside Regional Medical Center, pertaining to X-ray examination of the ankles, July 29, 1999, and a reported showing of left ankle minimal degenerative change. The orthopedic examiner should attempt to reconcile this report with his conclusion of no arthritis of the ankles. If those physicians are unavailable, the veteran should be afforded appropriate VA examinations for the purpose of determining whether he has a disability affecting the knees and/or ankles, to include degenerative joint disease, or varicose veins and/or a vascular insufficiency that can be attributed to service, as claimed by the veteran. The claims folder must be made available to the examiner(s) for review and all indicated testing should be conducted. The examiner(s) should comment on the medical literature noted in Dr. Thigpen's statement. In addition, the examiner(s) should express an opinion as to the medical probability that any disability affecting the knees and/or ankles or varicose veins with vascular insufficiency is secondary to the service-connected residuals of frostbite as well as a definitive statement of whether any currently demonstrated knee, ankle or venous disability-even if not service related-was aggravated by the service-connected residuals of frostbite. Attention is directed to the July 1999, X-ray report from Southside Regional Medical Center regarding minimal degenerative change of the left ankle found. Complete rationale for all opinions expressed must be provided. 3. 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, including if the requested examination does not include all test reports, special studies or opinions requested, appropriate corrective action is to be taken. Thereafter, the RO should again review the veteran's claims. If any benefit sought on appeal remains denied, the veteran and representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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. BARBARA B. COPELAND Member, Board of Veterans' Appeals