Citation Nr: 0002472 Decision Date: 02/01/00 Archive Date: 02/10/00 DOCKET NO. 94-47 542 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for left knee disability, to include on a secondary basis. 2. Entitlement to service connection for left foot disability (other than service-connected residuals of a left third metatarsal fracture), to include on a secondary basis. 3. Entitlement to service connection for left ankle disability, to include on a secondary basis. 4. Entitlement to an evaluation in excess of 10 percent for residuals of a fracture of the left third metatarsal. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Alberto H. Zapata, Counsel INTRODUCTION The veteran had active duty from June to August 1990. This matter comes to the Board of Veterans' Appeals (Board) on appeal from decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. This case was remanded by the Board for further development in March 1997. The case was returned to the Board in December 1999. The issues of entitlement to service connection for left foot disability (other than residuals of a fracture of the left third metatarsal), to include on a secondary basis, and entitlement to an increased rating for residuals of a fracture of the left third metatarsal will be addressed in the remand at the end of this action. FINDINGS OF FACTS 1. An unappealed rating decision of December 1990 denied the veteran's claim for service connection for back disability. 2. The evidence added to the record since the December 1990 rating decision includes evidence which is not redundant 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. 3. The claim for entitlement to service connection for left knee disability, to include on a secondary basis, is plausible. 4. The claim for entitlement to service connection for left ankle disability, to include on a secondary basis, is plausible. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the veteran's claim for service connection for left knee disability, to include on a secondary basis. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). 2. The claim for service connection for left knee disability is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 3. The claim for service connection for left ankle disability is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Whether new and material evidence has been submitted to reopen a claim for service connection for left knee disability, to include on a secondary basis The veteran's claim for service connection for left knee pain was denied in a December 1990 rating decision. Generally, a claim which has been denied in a final rating decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c) (West 1991). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 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). New evidence will be presumed credible solely for the purpose of determining whether the claim has been reopened. Justus v. Principi, 3 Vet. App. 510, at 513 (1992). The evidence of record at the time of the December 1990 rating decision included service medical records which show no complaints of left knee pain or impairment. Also of record was the report of an October 1990 VA compensation and pension examination of the veteran. That report states that the veteran gave a history of an inservice fracture of the left third metatarsal for which a walking cast was applied. The report also states that she complained of left knee pain upon extended walking. The examiner diagnosed, inter alia, left knee pain due to the change in walking position caused by a walking cast. The evidence added to the record since the December 1990 rating decision includes a VA fee-basis examination report signed in January 1999. In that report, the examining physician opined that the veteran's left knee pain was related to the injury she suffered during the military. Thus, the Board is of the opinion that the newly submitted January 1999 examination report is so significant, when considered by itself or in connection with evidence previously of record, that it must be considered in order to fairly decide the merits of the claim. Accordingly, the Board is of the opinion that the newly submitted evidence is "new and material" and that the claim for service connection for left knee disability is reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). II. Well groundedness A claim will be considered well grounded if there are: (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. Where the determinative issue involves medical causation, competent medical evidence to the effect that the claim is plausible is required. Epps v. Gober, 126 F.3d at 1464, 1468 (Fed Cir 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). In an October 1990 report a VA examiner opined that the veteran's left knee and left ankle pain were due to the effects of wearing a walking cast for service-connected disability. In a January 1999 report, a VA examiner offered an opinion linking the veteran's left knee and ankle pain to her inservice injury. In light of these opinions, the Board has found that the veteran's claims for service connection for left knee and ankle disabilities, to include on secondary bases, are plausible and thus well grounded within the meaning of 38 U.S.C.A. § 5107(a). ORDER New and material evidence having been submitted, reopening of the claim for service connection for left knee disability is granted. Evidence of a well-grounded claim for service connection for left knee disability, to include on a secondary basis, having been submitted, the appeal is granted to this extent. Evidence of a well-grounded claim for service connection for left ankle disability, to include on a secondary basis, having been submitted, the appeal is granted to this extent. REMAND In its March 1997 remand, the Board directed the RO to obtain all treatment records noted by the veteran that were not on file. The Board requested that the RO obtain all treatment records from the VA Medical Centers in Grand Island, Nebraska, and Sioux Falls, South Dakota. Current review of the claims file fails to reveal any RO requests for further records from those facilities. According to the veteran, VA medical evidence missing from her claims file includes August and September 1990 treatment records from the VA Medical Center in Sioux Falls, South Dakota. In addition, a January 1994 memo from the VA Medical Center in Grand Island, Nebraska, states that at least one outpatient treatment note dated in July 1992 is on file with that facility. She has also claimed treatment at the Omaha, Nebraska, VA Medical Center. Given that the veteran has stated that she was treated for her service-connected disability at these VA medical facilities, these records must be obtained before a final appellate decision can be rendered concerning the issues on appeal. Bell v. Derwinski, 2 Vet.App. 611 (1992). In this regard, the Board notes that the veteran was know as "Peggy E. Morrell" at the time she filed her original claim for benefits in September 1990. Thus, the Board is of the opinion that further searches for pertinent VA medical evidence should be made using both the veteran's current and maiden names. Also in its March 1997 remand, the Board requested further VA examinations of the veteran. As mentioned in the decision above, a VA examiner opined in a January 1999 report that the veteran's left knee pain and left ankle pain were related to military service. However, in a follow-up report issued in April 1999, the same examiner stated that review of examination data did not reveal any organic disability of the left ankle or left knee. The examiner did not adequately explain the rationale for either of these conflicting opinions. Under these circumstances, the Board is of the opinion that further examination of the veteran is necessary. Further, the Board will request that additional medical examination include assessment of the veteran's service- connected residuals of a left metatarsal fracture in light of any additional medical records obtained. Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO should contact the veteran and request that she provide the names, addresses and approximate dates of treatment for all health care providers, VA and non-VA, who may possess additional records pertinent to her claim. When the requested information and any necessary authorization are received, the RO should attempt to obtain a copy of all indicated records which are not already associated with the claims file. In any event, the RO should obtain and associate with the claims file all treatment records , i.e., outpatient records and/or hospital summaries, for the veteran from the VA Medical Centers in Sioux Falls, South Dakota, Omaha, Nebraska, and Grand Island, Nebraska. The RO should request that searches be conducted under both the veteran's current name and prior name. 2. The veteran should be requested to submit medical evidence of current left foot disability (other than service- connected residuals of a left third metatarsal fracture), and evidence linking such disability to service. 3. Then, the RO should arrange a VA examination by a physician with appropriate expertise. The purposes of the examination are to determine the extent of impairment from the veteran's service-connected residuals of a left third metatarsal fracture and to determine the etiology of any current left ankle or left knee disability. All indicated studies, including an x-ray study, must be performed. The physician should identify all current residuals of the veteran's left third metatarsal fracture. Tests of joint movement against varying resistance should be performed. The extent of any incoordination, weakened movement and excess fatigability on use associated with residuals of the left third metatarsal fracture should be described. The physician should also be requested to identify any objective evidence of pain and the specific functional loss due to pain associated with residuals of the left third metatarsal fracture. The physician should also express an opinion concerning whether the residuals of a third metatarsal fracture would be productive of additional functional impairment on repeated use or during flare-ups (if the veteran describes flare-ups), and, if feasible, express this in terms of additional degrees of limitation of motion on repeated use or during flare-ups. If this is not feasible, the physician should so state. If current left knee or left ankle disability is found, the examiner should provide an opinion with respect to each such disability as to whether it is at least as likely as not that the disability is etiologically related to the veteran's military service or was caused or chronically worsened by the service-connected residuals of a fracture of the left third metatarsal. The rationale for all opinions expressed should be fully detailed. The claims file, including a copy of this remand, must be made available to and reviewed by the examiner. 4. Thereafter, the RO must review the claims file and ensure that all development actions, including the medical examination and opinions, have been conducted and completed in full. If any development is incomplete, the RO should take appropriate corrective action. 5. Then, the RO should undertake any other indicated development and thereafter readjudicate the issues on appeal. In readjudicating the increased rating issue, the RO should consider all pertinent diagnostic codes under the VA Schedule for Rating Disabilities in 38 C.F.R. Part 4 and application of 38 C.F.R. § 4.40 regarding functional loss due to pain and 38 C.F.R. § 4.45 regarding weakness, fatigability, incoordination and pain on movement of a joint. See DeLuca v. Brown, 8 Vet. App. 202 (1995). 6. If the benefits sought on appeal are not granted to the veteran's satisfaction, the RO should issue a supplemental statement of the case and provide the veteran and her representative with an appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. By this REMAND, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until she is otherwise notified by the RO. The appellant 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 case 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. SHANE A. DURKIN Member, Board of Veterans' Appeals