Citation Nr: 0003931 Decision Date: 02/15/00 Archive Date: 02/23/00 DOCKET NO. 97-23 750A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES Entitlement to service connection for a left ankle disability as secondary to a service-connected left knee disability. Entitlement to an increased rating for a left knee disability currently evaluated at 10 percent since April 1995, 20 percent since January 1996, 100 percent since February 1999, and 10 percent since April 1999. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Marisa Kim, Associate Counsel INTRODUCTION The veteran had active military service from May 1975 to April 1981. This appeal is before the Board of Veterans' Appeals (Board) from rating decisions from the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO). The May 1997 rating decision continued the 10 percent rating for the left knee disability since April 1995. The June 1997 rating decision denied service connection for a left ankle disability as secondary to a service-connected left knee disability. The August 1999 rating decision increased the current 10 percent evaluation for the left knee disability to 20 percent since January 1996, 100 percent since February 1999, and 10 percent since April 1999. It should be noted that the May 1997 rating decision that denied service connection for a right knee disability as secondary to the service-connected left knee disability. Shortly thereafter, the RO denied service connection for a left ankle disability in June 1997. The veteran's notice of disagreement in June 1997 did not specifically identify whether he disagreed with the right knee rating action and was interpreted as disagreeing only with the June 1997 denial of the veteran's ankle claim. The veteran has not further addressed this matter. FINDINGS OF FACT 1. The record does not include a medical diagnosis of a current left ankle disability. 2. There is no medical evidence relating a current left ankle disability to an in-service event or to a service- connected disability. CONCLUSION OF LAW The claim of entitlement to service connection for a left ankle disability as secondary to a service-connected left knee disability is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.303 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background Service medical records show that the veteran ruptured the patellar tendon of his left knee in November 1978. There was no evidence of a left ankle injury or disease in service and it is not otherwise contended. The veteran underwent a VA joints examination in March 1997. The veteran complained of problems with his left knee, right knee, and left ankle. Examination of the left knee revealed popping and grinding of the patella as it moved over the end of the femur. The patellofemoral alignment was normal, and the veteran was moderately anxious on palpation of the patella. The patella did not subluxate or dislocate, and it was not loose. There was synovial thickening and generalized tenderness. The knee was stable on the stressing test. The range of motion was 0-120 degrees. The veteran complained that his left ankle ached but he did not describe swelling, catching, or giving way. Examination of the left ankle revealed dorsiflexion of 20 degrees, planar flexion of 50 degrees, inversion of the heel 20 degrees, and eversion of 10 degrees. There was no tenderness and no localizing swelling. There was little tenderness on pressure of the Achilles tendon and the soft tissues behind the ankle but the ankle appeared to function normally, and it was not unstable. The diagnosis was status following surgery for dislocation of the left patella with rupture of the patella tendon with significant degenerative arthritis now present, a basically negative examination of the right knee, and a basically negative examination of the left ankle. The examiner opined that there was no direct connection between the problem of the right knee and the left knee or the left ankle and the left knee. The only area of functional impairment was the left knee and there was obvious tenderness and synovitis present associated with chronic arthritis. There was no significant muscular atrophy involving any of the 3 areas. There was functional impairment due to pain involving the left knee that had significant degenerative joint disease now. The March 1997 x-ray demonstrated a normal left ankle. The remaining medical evidence did not mention the veteran's left ankle. Criteria Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a) (1999). Where a veteran claims a new disease or disability that is the result of his service-connected disability, competent evidence must be submitted to make the claim well grounded. See Jones (Wayne) v. Brown, 7 Vet. App. 134 (1994). The Court has held that a well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § [5107(a)]." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The Court has held that a well-grounded claim requires competent evidence of 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). See Epps v. Brown, 126 F.3d. 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis In September 1999, the RO mailed a timely notice of the October 1999 hearing to the veteran at his last known address, with a copy to his representative, the Texas Veterans Commission. 38 C.F.R. § 19.76 (1999). The notice was not returned in the mail. At the October 1999 travel board hearing, a Board member made a handwritten note to the record that the veteran was a "no show." The veteran and his representative did not request or file a motion for a new hearing, and they did not explain why he failed to appear. Therefore, the Board will adjudicate the claim based on the current evidence of record as though the request for hearing had been withdrawn. 38 C.F.R. § 20.704(d) (1999). The claim of entitlement to service connection for a left ankle disability as secondary to a service-connected left knee disability is not well grounded. The record does not include evidence of a current left ankle disability because the veteran's left ankle was normal in March 1997. Moreover, the medical evidence does not include a nexus opinion linking any current left ankle disability to an in-service event or to a service-connected disability. Service medical records do not show a diagnosis or treatment for a left ankle disability in service, and the March 1997 examiner opined that there was no direct connection between the left ankle condition and the left knee disability. Accordingly, the claim of entitlement to service connection for a left ankle disability as secondary to a service-connected left knee disability is not well grounded. ORDER The claim of entitlement to service connection for a left ankle disability as secondary to a service-connected left knee disability is denied. REMAND The claim for an increased rating for a left knee disability is well grounded because the veteran stated that he now experiences constant pain that has caused him to miss work. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). A veteran's assertion that the disability has worsened serves to render the claim well grounded. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Once the veteran has established a well-grounded claim, the VA has a duty to assist the veteran in the development of facts pertinent to his claim. See 38 U.S.C.A. § 5107(a) (West 1991). In this case, the VA has a duty to assist the veteran in obtaining additional medical records and a comprehensive medical examination. Several applications for clothing allowances show that the veteran has worn a left knee brace for at least 5 years. The record does not include the medical records referencing the left knee brace or complete medical records since March 1997. The veteran's June 1999 appeal alleged that the March 1997 VA examination was outdated, and his other statements indicated that his left knee had worsened recently. The March 1997 VA examination was inadequate for a current evaluation because the examiner failed to provide a full description of the effects of the disability upon the veteran's ordinary activities, such as his work at the post office or interacting with his 5 sons; whether pain could significantly limit functional ability during flare-ups or when the left knee was used repeatedly over a period of time; loss of range of motion portrayed in terms of the degrees of additional range of motion loss due to pain on use or during flare-ups; and some of the other matters listed below in Item 2. If a diagnosis is not supported by the finding on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (1999). Therefore, this case is remanded to obtain the veteran's full medical records, a comprehensive examination by a VA physician, and a statement of the case. See 38 U.S.C.A. § 5107(a); 38 C.F.R. § 4.2 (1999). This matter is remanded to the RO for further development as follows: 1. The RO should ask the veteran to provide the names, addresses, and approximate dates of treatment of all health care providers, VA and non-VA, inpatient and outpatient, who have treated him for left knee disorders since 1995. After securing any necessary authorization or medical releases, the RO should request and associate with the claims file legible copies of the veteran's complete treatment reports from all sources whose records have not previously been secured. Failures to respond or negative replies should be noted in writing and also associated with the claims folder. 2. After the above-requested development has been completed and the additional evidence added to the record, the veteran should be afforded a comprehensive VA examination. Any further indicated special studies should be conducted. The claims file and a separate copy of this remand should be made available to and reviewed by the examiner prior and pursuant to conduction and completion of the examination and the examination report must be annotated in this regard. It is essential that the examiner review the claims folder in its entirety. The examiner should also take specific note of the veteran's reported and documented medical history, including in-service and post-service left knee conditions. The examiner should then offer a medical opinion as to: a) the medical classification of the left knee condition and etiological, anatomical, pathological, laboratory, and prognostic data required for the ordinary medical classification; b) a full description of the effects of the disabilities upon the veteran's ordinary activity; c) whether pain could significantly limit functional ability during flare-ups or when the left knee is used repeatedly over a period of time; d) loss of range of motion portrayed in terms of the degrees of additional range of motion loss due to pain on use or during flare-ups; e) crepitation; f) less or more movement than normal; g) weakened movement; h) excess fatigability; i) incoordination and impaired ability to execute skilled movement smoothly; j) pain on movement; k) swelling, deformity, or atrophy of disuse; l) instability of station; m) disturbance of locomotion; and n) interference with sitting, standing, and weight-bearing. Any opinions expressed by the examiner must be accompanied by a complete rationale. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). 3. Thereafter, the RO should review the claims file to ensure that all of the foregoing requested development has been completed. In particular, the RO should review the requested examination report and medical opinion to ensure that they are responsive to and in complete compliance with the directives of this remand, and if they are not, the RO should implement corrective procedures. Stegall v. West, 11 Vet. App. 268 (1998). 4. After undertaking any development deemed essential in addition to that specified above, the RO should readjudicate the claim for an increased rating for a left knee disability based on the entire evidence of record. All pertinent law, regulations, and Court decisions should be considered, including DeLuca v. Brown, 8 Vet. App. 202, 206 (1995) and 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, and 4.71a (1999). The veteran and his representative, if any, should be provided with a supplemental statement of the case, which includes notice of any additional pertinent laws and regulations that were used, and a full discussion of action taken on the veteran's claims. The RO's actions should follow the Court's instructions detailed in Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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). A reasonable period of time for a response should be afforded. 5. Thereafter, the case should be returned to the Board for further appellate review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. 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. V. L. Jordan 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) (1998).