Citation Nr: 0006186 Decision Date: 03/08/00 Archive Date: 03/17/00 DOCKET NO. 97-21 768 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for residuals of a head injury, and if so, whether the claim is well grounded. 2. Entitlement to an increased rating for chondromalacia of the right knee with degenerative joint disease, currently evaluated as 20 percent disabling. 3. Entitlement to an increased rating for chondromalacia of the left knee with degenerative joint disease, current evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Stephen L. Higgs, Associate Counsel INTRODUCTION The veteran served on active duty from May 1969 to January 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in February 1997 and March 1997 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. During his December 1999 Board hearing, the veteran raised the issue of entitlement to service connection for hepatitis C. This issue is referred to the RO for appropriate action. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. Evidence submitted since the March 1972 denial of the veteran's claim for service connection for residuals of a head injury, to include hearing testimony and records of treatment, has been received which was not previously submitted to agency decisionmakers, which bears directly and substantially upon the matter under consideration, which is neither cumulative or redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered to fairly decide the merits of the claim. 3. The claim for service connection for residuals of a head injury is not plausible. 4. The medical issues relating to the claim of service connection for residuals of a head injury do not involve such complexity or controversy as to warrant an independent medical opinion. CONCLUSIONS OF LAW 1. The claim for service connection for residuals of a head injury is reopened. 38 C.F.R. § 3.156 (West 1991). 2. The claim for service connection for residuals of a head injury is not well grounded. 38 U.S.C.A. § 5107(a). 3. An independent medical opinion regarding the claim for service connection for the residuals of a head injury is not warranted. 38 U.S.C.A. §§ 5107(a), 5109, 7109 (West 1991); 38 C.F.R. §§ 3.328, 20.901 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In Winters v. West, 12 Vet App 203 (1999), United States Court of Appeals for Veterans Claims (Court) stated, "Today, in Elkins v. West, __Vet.App.__, No. 97-1534 (Feb. 17, 1999), the en banc Court essentially holds that the recent decision of the Federal Circuit in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998), requires the replacement of the two-step Manio test with a three-step test. Under the new Elkins test, the Secretary must first determine whether the veteran has presented new and material evidence under 38 C.F.R. § 3.156(a)(1998) in order to have a finally denied claim reopened under 38 U.S.C. § 5108. Second, if new and material evidence has been presented, immediately upon reopening the claim the Secretary must determine whether, based upon all the evidence of record in support of the claim, presuming its credibility, see Robinette v. Brown, 8 Vet.App. 69, 75-76 (1995), the claim as reopened (and as distinguished from the original claim) is well grounded pursuant to 38 U.S. C. § 5107(a). Third, if the claim is well grounded, the Secretary may then proceed to evaluate the merits of the claim but only after ensuring that his duty to assist under 38 U.S.C. § 5107(b) has been fulfilled." Factual Background In March 1972, the RO denied service connection for a head injury as not being found on the last examination. The evidence of record at the time consisted of service medical records of treatment on August 13, 1970, which showed that the veteran was knocked out after hitting his head on a door. He regained consciousness and was taken to the dispensary where he was described as alert and oriented. There was no evidence of extensive injury. Pupils were equal and reactive to light and accommodation. Extraocular movement was intact. Examination of the fundi was negative. Ears were clear. The veteran's general condition was good. He complained of headache and dizziness. He was transferred to a hospital where he remained from August 13 to August 14 for observation. Treatment was conservative. No operations were performed. He was released on temporary limited duty. An August 14th temporary profile record shows that the veteran was profiled for a head injury. The temporary profile change was to be lifted after one week. Service medical records dated August 15, 1970, stated that the veteran was discharged from the hospital the day before. According to the records, there were no problems present now which were not previously present. He was still dizzy. The veteran was alert and oriented with a good gait. Extraocular movement was intact. Pupils were equal in size and reaction, and were round, regular and reactive to light. On August 17, the veteran was seen again. There was no increase in symptoms. He complained of a slight headache. Extraocular movement was normal. Pupils were equal in size and reaction, and were round, regular and reactive to light. The veteran was released to duty. During the veteran's December 1971 separation examination, clinical evaluation of the veteran's neurological condition, psychiatric condition, and head, face, neck and scalp, was normal. During a VA examination in February 1972 the veteran gave a history of having been rendered unconscious during an inservice incident in which he hit his head when he got out from under a large truck on the open door of the truck. The examiner stated that the veteran offered no complaints in reference to his head. There was no neurological disease found upon objective examination. Evidence received after the 1972 RO decision includes a report of a VA hospitalization from May to August 1980 for treatment of alcohol abuse. There was no mention of a head injury in service. A May 1991 VA psychiatric hospitalization was for treatment of drug and alcohol abuse. Additional VA outpatient treatment records note the veteran's ongoing substance abuse problems. VA records of treatment in April 1997 reflect that the veteran had a clinical history of a new onset seizure. A comparison was made to an examination from March 1997. A MRI report reflects an impression of a subcentimeter focus, which approximated CSF signal intensity within the left basal ganglia. Differential for this included a prominent perivascular space versus a lacunar infarct. During the veteran's October 1997 RO hearing, the veteran said that doctors told him that a severe concussion was probably the cause of post service ringing in the ears, insomnia, and headaches. The veteran asserted that apparently nobody wanted to put this opinion in writing, however. The veteran testified that he believed that the residuals he had were a direct result of the inservice head injury. He also attributed a recent transient ischemic attack in February 1997 and six following seizures, as well as migraine headaches and blurred vision, to the inservice head injury. Additionally he described an automobile accident in approximately 1991 in which he broke his jaw and crushed his ribs on his steering wheel. The veteran said that after the August 1970 inservice injury he was in and out of consciousness for three days, and that they had to wake him up repeatedly with smelling salts. He said he was put on convalescent leave for 30 days and given light duty after the injury. During his December 1999 Board hearing, the veteran testified that he hit his head on a truck or on concrete while getting out of a truck. He said he was currently being treated for insomnia, which he felt was a result of the concussion. He said that a MRI was performed on his head which showed a black spot at the base of his brain which he was told would have been caused by a concussion. He stated that an eye doctor had recently told him that the black spots he sees would occur as a result of a head trauma. He said that a treating physician told him that his problems with ringing in his ears, and hearing voices and radios which did not exist, would have resulted from a bruise on his brain. Analysis In Winters v. West, 12 Vet App 203 (1999), United States Court of Appeals for Veterans Claims (Court) stated, "Today, in Elkins v. West, __Vet.App.__, No. 97-1534 (Feb. 17, 1999), the en banc Court essentially holds that the recent decision of the Federal Circuit in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998), requires the replacement of the two-step Manio test with a three-step test. Under the new Elkins test, the Secretary must first determine whether the veteran has presented new and material evidence under 38 C.F.R. § 3.156(a)(1998) in order to have a finally denied claim reopened under 38 U.S.C. § 5108. Second, if new and material evidence has been presented, immediately upon reopening the claim the Secretary must determine whether, based upon all the evidence of record in support of the claim, presuming its credibility, see Robinette v. Brown, 8 Vet.App. 69, 75-76 (1995), the claim as reopened (and as distinguished from the original claim) is well grounded pursuant to 38 U.S. C. § 5107(a). Third, if the claim is well grounded, the Secretary may then proceed to evaluate the merits of the claim but only after ensuring that his duty to assist under 38 U.S.C. § 5107(b) has been fulfilled." Service connection for residuals of a skull injury was denied by the RO in March 1972. The denial was not appealed and became final. Since that time evidence in the form of hearing testimony and records of treatment has been received, which was not previously submitted to agency decisionmakers, which bears directly and substantially upon the 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 to fairly decide the merits of the claim. The Board makes this determination with an emphasis on completeness of the record rather than whether the outcome of the claim would be different in light of the new evidence. Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). Accordingly, the claim for service connection for residuals of a head injury is reopened. 38 C.F.R. § 3.156(a). The threshold question that must now be resolved with regard to this claim is whether the veteran has presented evidence of a well-grounded claim. See 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1991). A well-grounded claim is a plausible claim that is meritorious on its own or capable of substantiation. See Murphy, 1 Vet. App. at 81. An allegation that a disorder is service connected is not sufficient; the veteran must submit medical evidence in support of a claim that would "justify a belief by a fair and impartial individual that the claim is plausible." See 38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The quality and quantity of evidence required to meet this statutory burden of necessity will depend upon the issue presented by the claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). If the veteran has not presented a well-grounded claim, his appeal must fail, and there is no duty to assist him further in the development of the claim. 38 U.S.C.A. § 5107(a). See Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). In order for a claim for service connection to be well- grounded, there must be competent evidence of a current disability (a medical diagnosis); of incurrence or aggravation of a disease or injury in service (lay or medical evidence); and of a nexus between the in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498 (1995); 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). Where the determinant issue involves a question of medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible or possible is required to establish a well-grounded claim. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Lay assertions of medical causation cannot constitute evidence to render a claim well grounded under 38 U.S.C.A. § 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well-grounded. Id. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service, or during an applicable presumptive period, and that the veteran still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). Such evidence must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Savage. If the disorder is not chronic, it may still be service connected if the disorder is observed in service or an applicable presumptive period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present disorder to that symptomatology. Id. In addition to the medical evidence discussed above, the Board here asserts that it has examined all medical evidence of record, and that none of the medical evidence is probative of a link between the veteran's inservice head injury and a current disability. In the present case, there is no competent medical evidence of a link between a current disability, whether it be a transient ischemic attack, seizures, migraines, hearing voices, etc., and the veteran's inservice head injury. Accordingly, the claim for service connection for residuals of a head injury must be denied as not well grounded. Caluza; Epps. The Board notes that the veteran's lay assertions regarding a relationship between his inservice head injury and various current disabilities is not sufficient to well ground his claim. The veteran, as a lay person, is not competent to provide medical opinions, so that his assertions as to medical diagnosis or causation cannot constitute evidence of a well-grounded claim. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Grottveit. The Board acknowledges the veteran's assertions that several doctors have told him that various current medical conditions were a result of a severe concussion during service. The Board notes, however, that a statement about what a doctor told a lay claimant does not constitute the required medical evidence for a well-grounded claim. See Franzen v. Brown, 9 Vet. App. 235, 238 (1996). The veteran acknowledged at his RO hearing that apparently no doctor was willing to put in writing the opinion that he has a current disability as a result of the inservice head injury. A written medical opinion or record from a doctor expressing that he has a current disability as a result of his inservice head injury would be required to well ground the veteran's claim. Caluza. The veteran has requested that an independent medical opinion be obtained with respect to his claim for service connection for residuals of a head injury. An independent medical opinion may be obtained where the medical issues relating to a claim involve such complexity or controversy warrant such an opinion. 38 U.S.C.A. § 20.901; 38 C.F.R. § 3.328. In the present case, the veteran's inservice head injury and symptoms following the injury do not raise a complex or controversial medical issue. Additionally, the Board and the RO have no duty to assist the veteran by seeking medical opinions or examinations regarding the veteran's claim, since the claim is not well grounded. 38 U.S.C.A. § 5107(a); Caluza; Epps. Accordingly, the request for an independent medical opinion is denied. The Board acknowledges that, as is reflected by a May 1999 supplemental statement of the case, the RO denied the veteran's claim on the ground that new and material evidence adequate to reopen the claim for service connection for an acquired mental disorder had not been submitted. By contrast, the Board has found that there was new and material evidence to reopen the claim but that the claim was not well grounded. Even if the RO had found new and material evidence to have been submitted, there is a clear absence from the total record of the medical "nexus" Caluza requirement for a well grounded claim. Accordingly, the claim would have necessarily been denied, so that the veteran has not been prejudiced by this approach. Winters v. West, 12 Vet. App. 203, 207-208 (1999). ORDER Entitlement to service connection for residuals of a head injury is denied. REMAND The veteran contends that his bilateral knee disability is more severe than currently evaluated. During his December 1999 Board hearing, the veteran indicated that after years of being denied Social Security benefits, he received in September 1999 a letter stating he was granted Social Security benefits, though he did not yet understand what benefits he was granted or what the bases for those benefits were. In cases where the level of disability is at issue, Social Security Administration records are often relevant, and the VA's duty to assist often includes obtaining such records. Murcincsak v. Derwinski, 2 Vet. App. 363 (1992); Masors v. Derwinski, 2 Vet. App. 526 (1992). In light of the medical evidence of record and the veteran's testimony, it is reasonably likely that information regarding the severity of the veteran's bilateral knee disability is in the possession of the Social Security Administration. Additionally, the veteran has contended, and there is medical evidence to support the contention (see, e.g., August 1996 note of Charles E. Veurink, M.D.), that his bilateral knee disability may impair his ability to find employment. During his December 1999 VA examination, the veteran testified that his knees became more painful with use and were subject to flare-ups. The recent VA examinations of record do not address functional impairment of the veteran's knees upon use or due to flare-ups, or the extent to which his bilateral knee disability precludes employment. The Board notes that 38 C.F.R. § 4.10 provides that in cases of functional impairment, evaluations must be based upon lack of usefulness of the affected part or systems and 38 C.F.R. §§ 4.40, 4.45 and 4.59 require consideration of functional disability due to arthritis, flare-ups, weakened movement, excess fatigability, incoordination, or pain on movement. These requirements enable the VA to make a more precise evaluation of the level of disability and of any changes in the condition. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); DeLuca v. Brown, 8 Vet. App. 202 (1995). The VA has the duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a). The United States Court of Appeals for Veterans Claims has held that the duty to assist the veteran includes obtaining medical records and medical examinations where indicated by the facts and circumstances of an individual case. Littke v. Derwinski, 1 Vet. App. 90 (1990). On the basis of the above and pursuant to 38 C.F.R. § 19.9, the Board determines that further development of the evidence is essential for a proper appellate decision and, therefore, remands the matter to the RO for the following action 1. The RO should ask the veteran to provide the names, addresses, and approximate dates of treatment of all health care providers, VA or private, who have evaluated or treated him for his left and right knee disabilities since January 1995. After securing any necessary authorizations, the RO should request copies of all indicated records and associate them with the claims folder. 2. The RO should contact the Social Security Administration (SSA) and obtain and associate with the claims file copies of the veteran's records regarding SSA benefits, including any SSA administrative decisions (favorable or unfavorable) and the medical records upon which the decisions were based. Any records received should be associated with the claims folder. The attention of the SSA should be respectfully invited to 38 U.S.C.A. § 5106. 3. After the above development has been completed, but in any event, the RO should schedule the veteran for a comprehensive VA examination by an orthopedist in order to determine the manifestations of the service-connected left and right knee disabilities. The claims folder and a separate copy of this remand must be made available to the examiner for review prior to the examinations. All indicated tests, studies and X-rays should be performed. The orthopedist should set forth all objective findings regarding the left knee and right knee disabilities, including complete range of motion measurements. The orthopedist should obtain a history and note any objective findings regarding the following: functional loss due to pain, weakened movement, excess fatigability, incoordination, arthritis, and painful motion or pain with use of the knees. The examiner should express an opinion as to the extent of any additional disability present during flare-ups. The orthopedist should also address the effect of the veteran's current left and right knee disabilities on his ability to perform routine functions and his ability to work. 4. Prior to the examinations, the RO must inform the veteran, in writing, of all consequences of his failure to report for the examinations in order that he may make an informed decision regarding his participation in said examinations. 5. After the above examinations are conducted, the RO should 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, appropriate corrective action is to be implemented. Specific attention is directed to the report of examination. If the report does not include sufficient data or adequate responses to the specific opinions requested, the report must be returned to the examiner for corrective action. 38 C.F.R. § 4.2. 6. Then, the RO should undertake any other indicated development, and readjudicate the issues of entitlement to an increased rating for left knee disability and an increased rating for right knee disability. In addressing these issues, 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, 4.45, and 4.59. See DeLuca v. Brown, 8 Vet. App. 202 (1995). In addition, the RO should consider whether the components of the veteran's left and right knee disabilities should be separately rated in accordance with VAOPGCPREC 23-97. Also, the RO should consider the provisions of 38 C.F.R. § 3.321(b)(1), and determine whether the case should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration. If the benefits sought on appeal are denied, then the appellant and his representative should be provided a supplemental statement of the case which reflects RO consideration of all additional evidence, and the opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review. The purpose of this REMAND is to obtain additional evidence and ensure that the veteran is afforded all due process of law. 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. RENÉE M. PELLETIER Member, Board of Veterans' Appeals