Citation Nr: 0007409 Decision Date: 03/20/00 Archive Date: 03/23/00 DOCKET NO. 98-07 816 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to service connection for residuals of a left ankle injury. 3. Entitlement to an increased rating for disk herniation, L4-5 and L5-S1, with sciatica, post-operative, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Missouri Veterans Commission WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The veteran served on active duty from November 1978 to November 1996. This matter comes on appeal from an April 1997 rating decision by the St. Louis VA Regional Office. FINDING OF FACT The claims for service connection for a right shoulder disability and the residuals of a left ankle injury are plausible. CONCLUSION OF LAW The claims for service connection for a right shoulder disability and the residuals of a left ankle injury are well- grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION As to the issues currently before the Board, the threshold question which must be resolved is whether the veteran's claims are well grounded. See 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1998); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A well-grounded claim is a plausible claim, meaning a claim which appears to be meritorious. See Murphy, 1 Vet. App. 81. A mere allegation that a disability is service connected is not sufficient; the veteran must submit evidence in support of his claim which would "justify a belief by a fair and impartial individual that the claim is plausible." 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1998); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In order for a claim to be well grounded, there must be competent evidence of current disability (medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of an nexus between the inservice injury or disease and the current disability (medical evidence). See Caluza v. Brown, 7 Vet. App. 498 (1995); see also Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997); Heuer v. Brown, 7 Vet. App. 379 (1995); Grottveit v. Brown, 5 Vet. App. 91 (1993). The second and third elements of this equation may also be satisfied under 38 C.F.R. § 3.303(b) (1998) by (a) evidence that a condition was "noted" during service or during an applicable presumptive period; (b) evidence showing post service continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post service symptomatology. See 38 C.F.R. § 3.303(b) (1998); Savage v. Gober, 10 Vet. App. 488 (1997). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of (i) the existence of a chronic disease in service or during an applicable presumptive period and (ii) present manifestations of the same chronic disease. Ibid. For the purpose of determining whether a claim is well grounded, the credibility of the evidence in support of the claim is presumed. See Robinette v. Brown, 8 Vet. App. 69 (1995). Here, service medical records show that the veteran sustained right shoulder and left ankle injuries in 1979 and 1980, respectively. At a personal hearing before the undersigned member of the Board in January 2000, he testified that he has experienced chronic residuals of these injuries since his service separation in November 1996 and asserted that a proper examination of these conditions was not provided by VA. Accordingly, the Board finds that the criteria for well- grounded for service connection for right shoulder and left ankle disabilities has been essentially satisfied. Caluza. ORDER The claims for service connection for a right shoulder disability and the residuals of a left ankle injury are well- grounded. REMAND As the claims of service connection for a right shoulder disability and the residuals of a left ankle injury are well- grounded, and as the veteran has asserted an increase in severity of the service-connected low back disability, the VA has a duty to assist him in the pursuit of his claims. 38 U.S.C.A. § 5107. To ensure that the Department of Veterans Affairs (VA) has met its duty to assist the claimant in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is REMANDED to the regional office (RO) for the following development: 1. The RO should contact the veteran and request that he identify specific names, addresses, and approximate dates of treatment for all health care providers, private and VA, from whom he has received treatment since February 1999 for the disabilities at issue. When the requested information and any necessary authorization have been received, the RO should attempt to obtain copies of all pertinent records, to include those from Cox Health Systems and the Fayetteville VAMC. 2. Thereafter, the RO should schedule the veteran for a VA examination to determine the current extent and severity of the service-connected low back disability, as well as the nature and etiology of any current right shoulder and left ankle pathology. All necessary tests and studies should be accomplished, and all clinical manifestations should be reported in detail. The examiner should identify the limitation of activity imposed by the disabling condition, viewed in relation to the medical history, considered from the point of view of the veteran working or seeking work, with a full description of the effects of disability upon his ordinary activity. An opinion should be provided regarding whether low back pain significantly limits functional ability during flare-ups or with extended use. Voyles v. Brown, 5 Vet. App. 451, 453 (1993). It should be noted whether the clinical evidence is consistent with the severity of the pain and other symptoms reported by the veteran. The examiner also should indicate whether there is weakened movement, excess, fatigability, or incoordination. Lathan v. Brown, 7 Vet. App. 359 (1995); DeLuca v. Brown, 8 Vet. App. 202 (1995). With respect to the right shoulder and left ankle, the examiner should state whether it is more likely than not that any current pathology is the consequence of inservice injuries sustained by the veteran or otherwise related to military service. The claims file, including a copy of this remand, should be made available to the examiner before the examination, for proper review of the medical history. The examination report is to reflect whether such a review of the claims file was made. Any opinion expressed should be accompanied by a written rationale. 3. After the development requested above has been completed to the extent possible, the RO should again review the record. If the benefit sought on appeal remains denied, the veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. 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. WAYNE M. BRAEUER Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1999).