Citation Nr: 0005324 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 96-49 408 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for left facial weakness. 2. Entitlement to service connection for flat feet. 3. Entitlement to service connection for a psychiatric disorder, including as due to or part of the service- connected residuals of a closed head injury. 4. Entitlement to an initial rating in excess of 10 percent for patellar subluxation of the left knee. 5. Entitlement to an initial rating in excess of 10 percent for patellar subluxation of the right knee. 6. Entitlement to a total disability rating for compensation based on individual unemployability, due to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARINGS ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The veteran served on active duty from July 1981 to November 1988. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a rating decision entered in May 1996 by the Columbia, South Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA) granting entitlement of the veteran to service connection for patellar subluxation of each knee, for which 0 percent ratings were assigned, and denying entitlement of the veteran to service connection for a bipolar disorder. By the same rating decision, the RO also denied claims of entitlement to service connection for a scar of the right hand, flat feet, and left facial weakness as not well-grounded. An appeal of all of the foregoing matters was initiated by the veteran by his submission of a notice of disagreement in October 1996. Received from the veteran in November 1997 was his initial application for a total disability evaluation for compensation based on individual unemployability, due to service-connected disabilities (TDIU). Such was not initially adjudicated until December 1998, followed by the veteran's initiation of an appeal as to that issue. Following a hearing before the RO's hearing officer in April 1998, the RO by rating action in April 1998 granted an increase in the initial rating assigned for subluxation of the left knee from 0 percent to 10 percent, effective from April 30, 1996, while continuing and confirming the 0 percent rating assigned for subluxation of the right knee. By further rating action in September 1998, the RO assigned an initial rating of 10 percent for patellar subluxation of the right knee, effective from April 30, 1996, and, in addition, granted service connection for residuals of a laceration of the right hand, inclusive of the veteran's scar of his right hand. The RO's grant of service connection for residuals of a laceration of the right hand constituted a full grant of the benefit (service connection) sought on appeal as to that issue, and therefore the scar of the right hand issue is no longer in appellate status. Additional testimony from the veteran was received at another hearing before the RO's hearing officer in November 1998, and in connection with a VA Form 9, filed in March 1999 to perfect his appeal as to the RO's denial of his TDIU claim, the veteran requested a hearing before the Board, sitting in Columbia, South Carolina. Such hearing occurred in August 1999, during which the veteran recharacterized the certified issue of entitlement to service connection for a bipolar disorder to that of entitlement to service connection for a psychiatric disorder, to include as due to or part of the residuals of a closed head injury. Such issue, as well as the issues of the veteran's entitlement to service connection for flat feet and left facial weakness, entitlement to initial ratings in excess of 10 percent for knee disorders, and entitlement to a TDIU, are addressed in the REMAND portion of this document. FINDING OF FACT The veteran's claims of entitlement to service connection for left facial weakness and for a psychiatric disorder, to include as due to or part of the service-connected residuals of a closed head injury, are supported by cognizable evidence demonstrating that such claims are plausible or capable of substantiation. CONCLUSION OF LAW The veteran's claims of entitlement to service connection for left facial weakness and for a psychiatric disorder, to include as due to service-connected residuals of a closed head injury, are well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION A service-connected disorder is one that was incurred in or aggravated by active service; one for which there exists a rebuttable presumption of service incurrence, such as a psychosis, if manifested to the required degree within a prescribed period from the veteran's separation from active duty; or one that is proximately due to or the result of service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 1991 & Supp. 1998); 38 C.F.R. §§ 3.307, 3.309, 3.310(a) (1999). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1999). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). The initial question which must be answered in this case, however, is whether the veteran has presented well-grounded claims for service connection for left facial weakness and for a psychiatric disorder, to include as due to or part of service-connected residuals of a closed head injury. A well- grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S.Ct. 2348 (1998); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). Specifically, 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. The nexus requirement may be satisfied by evidence showing that a chronic disease subject to presumptive service connection was manifested to a compensable degree within the prescribed period. See Traut v. Brown, 6 Vet. App. 495, 497 (1994); Goodsell v. Brown, 5 Vet. App. 36, 43 (1993). Where the determinative issue involves medical causation or etiology, or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Epps v. Gober, 126 F.3d at 1468. Furthermore, 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). The provisions of 38 C.F.R. § 3.303(b) provide a substitute way of showing inservice incurrence and medical nexus for purposes of well-grounding a claim. See Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). The chronicity provision of § 3.303(b) is applicable where evidence, regardless of its date, shows that an appellant had a chronic condition in service or during an applicable presumption period and still has the condition. Such evidence must be medical unless it relates to a condition as to which lay observation is competent. If the chronicity provision is not applicable, a claim may still be well-grounded if the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology. Id. It is the veteran's primary contention that one or more psychiatric disorders are due to or part of the service- connected residuals of a closed head injury, and, also, that left facial weakness is related to inservice head trauma. A medical examination performed at the time of enlistment in June 1981 was negative or any pertinent complaint or finding. In February 1983, medical assistance was received for a steam burn to the left facial area and the periorbital region, and such burn was noted to be resolving when seen last in February 1983. In November 1987, the veteran was involved in a motor vehicle accident in which he sustained trauma to multiple areas, including the head. A seven-day period of unconsciousness followed. Computed tomography of the head showed a right subdural hematoma, with minimal shift. Based on the injuries sustained by the veteran in the November 1987 accident (for which a grant of service connection was effected by the RO in February 1989), he was found to be unfit for retention in the military and, by action of a Physical Evaluation Board, he was placed on the Temporary Disability Retired List. Mild dynamic left facial weakness is first shown by the record in September 1995, at which time a single photon emission computer tomography showed perfusion defects of the left parietal region, the left inferior frontal region, and the posterior right temporal region. A diagnosis of post- traumatic syndrome (frontal lobe) was recorded at that time. The record likewise reflects that the veteran was hospitalized by VA in October and November 1994, primarily for memory loss of an unknown etiology. Neurological testing during that period of hospital care showed frontal lobe atrophy and decreased perfusion of the frontoparietal and occipital lobes and of the right temporal region. Neuropsychiatric testing showed circumscribed areas of weakness, primarily in spatial, tactile, perception, integration, reasoning, and memory, but it was found that the veteran's complaints of memory and attention problems were more of a reflection of continuing adjustment disorders than of neuropsychological dysfunction. Testing in January 1996 likewise culminated in a finding that the veteran's perception of memory difficulties was most likely related to anxiety and depressive symptomatology. A period of VA hospitalization followed in March and April 1996 for a bipolar disorder, manic, with psychotic features. VA clinicians, beginning in November 1997, diagnosed the presence of a mixed organic personality and organic affective syndrome, which were attributed specifically to the inservice head injury with subdural hematoma. The evidence presented identifies current disablement of the veteran involving left facial weakness and by one or more psychiatric disorders, the occurrence of a an inservice motor vehicle accident in which the veteran sustained an injury to the head, and medical opinions linking the disorders in question to the inservice head injury. Well-groundedness of the claims for entitlement to service connection for left facial weakness and a psychiatric disorder, including as due to or part of service-connected residuals of a closed head injury, is thus conceded. See Epps, supra. ORDER The veteran's claims of entitlement to service connection for left facial weakness and a psychiatric disorder, including as due to or part of service-connected residuals of a closed head injury, are well-grounded, and to that extent alone, the appeal is granted. REMAND Further evidentiary development of the veteran's well- grounded claims of entitlement to service connection for left facial weakness and a psychiatric disorder, including as due to or part of service-connected residuals of a closed head injury is deemed to be warranted. Evidence that the veteran's facial weakness and psychiatric disorder are the result of inservice head trauma conflicts to some degree with data furnished by the service department following the inservice accident as well as evidence developed by VA in 1994 and 1996 in terms of associating the veteran's memory complaints to an adjustment disorder or anxiety or depressive symptomatology. Further neurological and psychiatric examinations are thus found to be in order to better assess the relationship of the facial weakness and psychiatric disorder to the inservice head trauma. Concerning the veteran's claims for the assignment of initial ratings in excess of 10 percent for knee disorders, the record reflects that a VA orthopedic examination has not ever been conducted to determine the severity of such disabilities. While it is apparent that the veteran was referred for evaluation and treatment of his knee complaints in May 1996, and that a clinical examination was undertaken in June 1996, findings from which were used as a basis for the current ratings assigned, no disability evaluation of the knees has ever be accomplished. A complete orthopedic evaluation of the veteran's knees is thus indicated. The undersigned notes as well that, notwithstanding the RO's October 1998 statement to the veteran to the effect that its grant of a 10 percent rating for right knee disability effectively ended his appeal, such remains within the Board's jurisdiction to consider. See AB v . Brown, 6 Vet. App. 35, 38-39 (1993). At the time of an RO hearing in November 1998, the veteran testified that a VA physician and/or a fee-basis podiatrist in Florence, South Carolina, had informed him and had annotated his medical records to the effect that the fractures and other severe injuries involving the lower extremities, which were sustained in the motor vehicle accident of November 1987, were the cause of his flat foot disorder. When VA is put on notice that relevant evidence may exist or could be obtained, that, if true, would render the claim plausible, VA has a duty to notify the veteran of the evidence needed to complete a submitted benefits application. See McKnight v. Gober, 131 F3d 1483, 1485 (1997); see also 38 C.F.R. § 5103(a) (1999). As well, VA treatment records are deemed to be within the constructive possession of VA although not within the claims folder. See Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992). Further action is deferred on the veteran's claim for a TDIU, pending the outcome of the remanded issues and other development, including obtaining information as to the disposition of the veteran's pending claim for benefits from the Social Security Administration (SSA) and the records utilized in rendering of such determination. See generally Masors v. Derwinski, 2 Vet. App. 181 (1992). Accordingly, this case is hereby REMANDED to the RO for completion of the following actions: 1. The RO should (through contact with the veteran and his representative) determine the name and address of any VA physician or fee-basis podiatrist in Florence, South Carolina, who reportedly told the veteran and committed to writing a medical opinion that severe injuries to the lower extremities in an inservice motor vehicle accident in November 1978 was the direct cause of his flat feet. As well, the veteran should be asked to provide the date or dates such information was conveyed to him or placed in his medical records. 2. The RO thereafter should, regardless of whether the veteran responds to such request and in what manner, obtain any and all records of VA treatment concerning the veteran's flat feet, left facial weakness, and psychiatric disorder, which are not already on file. Such must include any records referred to the veteran as a result of the directive in the first indented paragraph, including but not limited to clinical records compiled by VA health care providers and fee-basis podiatrists in Florence, South Carolina, regarding the veteran's flat feet. Once obtained, such records must be made a part of the veteran's claims folder. 3. Thereafter, the veteran is to be afforded VA neurological and psychiatric examinations for the purpose of determining the relationship of the veteran's left facial weakness and existing psychiatric disorder(s) to the head injury occurring in a November 1987 motor vehicle accident. Such examinations are to include a detailed review of the veteran's history and current complaints, as well as a comprehensive clinical evaluation and all applicable diagnostic testing, including neuropsychological testing if deemed warranted by the examiners. All established diagnoses are to be fully set forth. The veteran's claims folder in its entirety is to be furnished to the examiners prior to any evaluation of the veteran for use in the study of this case. The examiners should provide professional opinions, with supporting rationale, as to whether there are currently present any neurological or psychiatric residuals of the veteran's inservice head trauma, including a description of the manifestations and severity thereof. It must specifically be determined whether left facial weakness or the organic personality and organic affective disorders, as initially diagnosed by VA in 1997, are residuals of the inservice head injury or disorders secondary thereto. 4. The veteran should also be afforded by medical examination by a VA orthopedist for the purpose of determining the nature and severity of the veteran's service-connected right and left knee disorders. Such examinations are to include a detailed review of the veteran's history and current complaints, as well as a comprehensive clinical evaluation and all applicable diagnostic testing, including detailed range of motion studies and radiographs of both knees. All established diagnoses are to be fully set forth. The veteran's claims folder in its entirety is to be furnished to the examiners prior to any evaluation of the veteran for use in the study of this case. 5. The RO is to obtain information from SSA as to the disposition of the veteran's claim for SSA disability benefits and it is asked that the RO obtain copies of any and all medical and administrative records utilized by SSA in rendering its decision. Once obtained, such records should then be made a part of the veteran's claims file. 6. Upon completion of the foregoing actions, the RO should then readjudicate the claims for service connection for left facial weakness, flat feet, and a psychiatric disorder, including as due to or a part of service-connected residuals of a closed head injury; for initial ratings in excess of 10 percent for patellar subluxation of the right and left knees; and for a TDIU, based on all of the evidence of record and all governing legal authority, including the holding of the United States Court of Appeals for Veterans Claims in Fenderson v. West, 12 Vet. App. 119 (1999) (at the time of an initial rating, separate or "staged" ratings may be assigned for separate periods of time based on the facts found). If any of the benefits sought are not granted, the veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond before the record is returned to the Board for further review. The veteran and his representative are free to submit additional evidence and argument in connection with the issues remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ALAN S. PEEVY Member, Board of Veterans' Appeals