Citation Nr: 0001165 Decision Date: 01/13/00 Archive Date: 01/27/00 DOCKET NO. 98-21 207 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for right peroneal nerve palsy secondary to the veteran's service connected frozen feet. 2. Entitlement to service connection for diabetes mellitus secondary to the veteran's service connected frozen feet. 3. Entitlement to individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Orfanoudis, Associate Counsel INTRODUCTION The veteran served on active duty from August 1944 to August 1945. This appeal arises before the Board of Veterans' Appeals (Board) from a September 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Montgomery, Alabama. The issue of entitlement to individual unemployability will be addressed in the REMAND portion of this decision. In addition, the Board will remand for the issuance of a statement of the case the issues of the appropriate rating for service-connected frozen foot, right with osteoarthritis and hammer toe deformity currently evaluated as 30 percent disabling and the appropriate rating on for service-connected frozen foot, left with osteoarthritis and hammer toe deformity currently evaluated as 10 percent disabling. See Manlincon v. West, 12 Vet. App. 238, 240 (1999). FINDINGS OF FACT 1. Service connection is in effect for right frozen foot with osteoarthritis and hammer toe, currently evaluated as 30 percent disabling and for left frozen foot with osteoarthritis and hammer toe, currently evaluated as 10 percent disabling. 2. The right peroneal nerve palsy is causally related to the service connected right frozen foot with osteoarthritis and hammer toe. 3. The veteran's claim for entitlement to service connection for diabetes mellitus secondary to the service connected frozen feet is plausible. CONCLUSIONS OF LAW 1. The veteran's right peroneal nerve palsy is proximately due to or the result of the service connected right frozen foot with osteoarthritis and hammer toe. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.310 (1999). 2. The veteran's claim for entitlement to service connection for diabetes mellitus secondary to the service connected frozen feet is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The issue before the Board is whether the veteran is entitled to service connection for right peroneal nerve palsy secondary to the veteran's service connected frozen feet and for diabetes mellitus secondary to the veteran's service connected frozen feet. A veteran who submits a claim for benefits to VA shall have the burden of offering sufficient evidence to justify a belief by a fair and impartial individual that the claim is well grounded. See 38 U.S.C.A. § 5107(a) (West 1991). In the absence of evidence of a well- grounded claim, there is no duty to assist the veteran in developing the facts pertinent to his claim, and the claim must fail. Epps v. Gober, 126 F.3d 1464, 1467- 68 (Fed. Cir. 1997). The veteran must demonstrate three elements to establish that a claim is well grounded. First, the veteran must present medical evidence of a current disability. Second, the veteran must produce medical or, in some instances, lay evidence of an in-service incurrence or aggravation of a disease or injury. Finally, the veteran must offer medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Epps, 126 F.3d at 1468- 69. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 1991). Additionally, where a veteran served ninety (90) days or more during a period of war or during peacetime service after December 31, 1946, and certain chronic diseases (to include diabetes mellitus) become manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). I. Right Peroneal Nerve Palsy Initially, the Board finds that the veteran's claim is well grounded pursuant to 38 U.S.C.A. § 5107(a) (West 1991), in that the claim is plausible. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The Board is also satisfied that all relevant evidence is of record and the statutory duty to assist the veteran in the development of evidence pertinent to his claim has been met. Service connection may be granted for a disability which is proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310 (1998). Allen v. Brown, 7 Vet. App. 439 (1995). A review of the veteran's claims folder reveals that the veteran is currently service connected for right frozen foot with osteoarthritis and hammer toe, currently evaluated as 30 percent disabling and for left frozen foot with osteoarthritis and hammer toe, currently evaluated as 10 percent disabling. Private outpatient treatment records dated in January 1999 and February 1999 show that the veteran has been diagnosed with peroneal nerve disease secondary to frostbite. The veteran underwent a VA examination in November 1998. The examiner opined that the veteran's longstanding diagnosis of right peroneal nerve palsy with chronic recurrent lumbar radiculitis L5-S1 distribution was complicated by his frozen feet syndrome. Although the recent VA examination report had no definite opinion as to the etiology of the veteran's peroneal nerve palsy, the suggestion that the peroneal nerve palsy aggravates his frozen foot disability fulfills the standard set forth in Allen. As there is no contrary evidence, the Board finds that entitlement to service connection for right peroneal nerve palsy as secondary to the service connected bilateral frozen feet, is warranted. II. Diabetes Mellitus The veteran contends, in essence, that he has diabetes mellitus secondary to his bilateral frozen foot disability which was incurred during his period of active service. The veteran underwent a VA examination in November 1998. The diagnoses included diabetic peripheral neuropathy. The examiner opined that the veteran had a longstanding history of adult onset diabetes mellitus which is complicated by the frozen feet syndrome. The Board notes that although the examiner had no definite opinion as to the etiology of the diabetes mellitus, it is plausible that the diabetes mellitus aggravates his service connected bilateral frozen foot disability. See Allen, 7 Vet. App. at 439; Epps v. Gober, 126 F.3d 1464, 1468-69b (Fed. Cir. 1997). Accordingly, the Board finds that the claim is plausible and is, thus, well grounded. ORDER Entitlement to service connection for right peroneal nerve palsy secondary to the veteran's service connected frozen feet is granted. The claim for entitlement to service connection for diabetes mellitus secondary to the veteran's service connected frozen feet is well grounded and to this extent only, the claim is granted. REMAND Having determined that the veteran's claim for entitlement to service connection for diabetes mellitus secondary to the veteran's service connected frozen feet is well grounded, the VA has a statutory duty to assist the veteran in the development of evidence pertinent to his claim. 38 U.S.C.A. § 5107 (West 1991). As indicated hereinabove, the most recent VA examination indicated that the veteran had a longstanding history of adult onset diabetes mellitus which was complicated by the frozen feet syndrome. The record, however, is not clear as to the factors on which the examining physician based his opinion, and to the degree that the frozen feet syndrome is related to the adult onset diabetes mellitus. As such, the Board is of the opinion that additional development, to include a thorough and contemporaneous examination, is required prior to further adjudication of this matter. In light of the Board's grant of service connection for right peroneal nerve palsy and its finding that a well grounded claim for service connection for diabetes mellitus secondary to the veteran's service connected frozen feet is well grounded, the Board believes that the RO should be permitted an opportunity to rate the now service-connected right peroneal nerve palsy and readjudicate the claim for secondary service connection for diabetes mellitus before it address the issue of entitlement to a total disability rating based on individual unemployability. Further, the Board is of the view that an opinion as to the effect the veteran's service connected disabilities have on his employability is warranted. See Friscia v. Brown, 8 Vet. App. 90 (1995). Finally, a review of the record shows that in a September 1997 rating action, the RO denied the veteran's claim for service-connection for, among other disabilities, degenerative joint disease of both feet and bilateral hammertoe deformities as secondary to service-connected bilateral frozen feet. The veteran perfected an appeal from the determination. However, during the course of the appeal, the RO in a December 1998 rating action granted service connection for bilateral osteoarthritis and hammertoe deformities. The record shows that prior to this action, the veteran's service-connected frozen foot, right was evaluated as 20 percent disabling. His service-connected frozen foot, left was evaluated as 0 percent disabling. As a result of the December 1998 rating action, the veteran's service- connected disabilities were recharacterized and evaluated as follows: frozen foot, right with osteoarthritis and hammer toe deformity 30 percent disabling and frozen foot, left with osteoarthritis and hammer toe deformity currently evaluated as 10 percent disabling. After being notified of this decision, in a letter to his Congressman which was forwarded to VA in July 1999, the veteran expressed his dissatisfaction with the ratings assigned for these service-connected disabilities. The record before the Board does not reflect that an SOC has been issued regarding the appropriate ratings for the veteran's service-connected frozen foot, right with osteoarthritis and hammer toe deformity 30 percent disabling and frozen foot, left with osteoarthritis and hammer toe deformity currently evaluated as 10 percent disabling. In Manlincon supra, the U.S. Court of Appeals for Veterans Claims (Court) indicated that in a case in which a veteran expressed disagreement in writing with an RO decision and the RO failed to issue a statement of case, the Board should remand the issue to the RO, not referred it there, for issuance of an SOC. Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO should furnish the appropriate release of information forms in order to obtain copies of any additional VA and private medical records regarding current treatment for his service connected disabilities. The RO should then obtain all records, which are not on file. 2. The RO should refer the claims file to an appropriate specialist for an opinion as to whether it is as likely as not that diabetes mellitus is due to the veteran's service connected bilateral frozen foot disability. If the reviewer believes that an examination is warranted, such examination should be scheduled. 3. The veteran should also be scheduled for a VA examination of his service connected disabilities in order to determine the nature and severity thereof. The examiner is asked to express and opinion concerning the effect of that the veteran's service connected disabilities have on his employability. A complete rationale for all opinions and conclusions expressed should be provided. 4. The RO should then readjudicate the issue of entitlement to service- connection for diabetes mellitus secondary to service-connected disability and entitlement to a total rating based on individual unemployability by reason of a service- connected disability in light of all pertinent evidence and all applicable laws, regulations, and case law. If the determination made remains unfavorable, the veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration. 5. The RO should also furnish the veteran with a statement of the case as to the appropriate ratings for the veteran's service-connected frozen foot, right with osteoarthritis and hammer toe deformity 30 percent disabling and frozen foot, left with osteoarthritis and hammer toe deformity currently evaluated as 10 percent disabling. These issues should not be returned to the Board unless the veteran files a timely substantive appeal. The purpose of this REMAND is to allow for further development of the record, and to comply with the Court's decision in Manlicon v. West, 12 Vet.App. 238, 240-241 (1999). No inference should be drawn from it regarding the final disposition of the veteran's claim. The veteran 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). CONSTANCE B. TOBIAS Member, Board of Veterans' Appeals