Citation Nr: 0001785 Decision Date: 01/21/00 Archive Date: 01/28/00 DOCKET NO. 98-06 390 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUES 1. Entitlement to service connection for a back disorder. 2. Entitlement to service connection for a bilateral hip disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jeffrey J. Schueler, Counsel INTRODUCTION The appellant had active service from November 1942 to November 1945. This matter comes to the Board of Veterans' Appeals (Board) from a November 1997 rating decision of the Department of Veterans Affairs (VA) Fort Harrison Regional Office (RO), which denied the claims of service connection for back, bilateral hip, and hernia disorders secondary to a service- connected left knee disability. The appellant perfected an appeal as to each of these issues. At a May 1998 hearing, he withdrew his claim of service connection for a hernia disorder secondary to a left knee disability. In a March 1985 statement, a private physician opined that the appellant had chronic spinal joint sprains with referred muscle spasm dating to his original injury. Although the appellant contends that his back and hip disorders are related to the post-service left knee surgeries, this evidence would support a claim of direct service connection. Thus, the issues for appellate review are as stated on the title page of this decision. FINDINGS OF FACT 1. Competent evidence has been submitted linking the post- service findings of a back disorder to service. 2. Competent evidence has been submitted linking the post- service findings of a bilateral hip disorder to service. CONCLUSIONS OF LAW 1. The claim for service connection for a back disorder is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The claim for service connection for a bilateral hip disorder is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Because the appellant served continuously for 90 days or more during a period of war, arthritis, if manifest to a degree of 10 percent within one year from the date of termination of service, shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection on a secondary basis is warranted when it is demonstrated that a disorder is proximately due to or the result of a disorder of service origin. 38 C.F.R. § 3.310. When aggravation of a nonservice-connected condition is proximately due to or the result of a service-connected condition, the claimant shall be compensated for only the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995). The threshold question that must be resolved with regard to a claim is whether the appellant has presented evidence of a well-grounded claim. See 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). 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 of a disorder that is service connected is not sufficient; the appellant must submit evidence in support of a claim that would "justify a belief by a fair and impartial individual that the claim is plausible." 38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The quality and quantity of the 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). In order for a service-connection claim to be well grounded, there must be competent medical evidence of current disability, lay or medical evidence of incurrence or aggravation of a disease or injury in service, and competent medical evidence linking the in-service injury or disease and the current disability. Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). In order for a claim for secondary service connection for a disorder clearly separate from the service- connected disorder to be well grounded, the appellant must present medical evidence to support the alleged causal relationship between the service-connected disorder and the disorder for which secondary service connection is sought. Jones v. Brown, 7 Vet. App. 134, 137 (1994). The RO granted service connection for a left knee disability in March 1946 rating decision. The appellant injured his left knee during service when he fell. In January 1986, he underwent a total left knee arthroplasty, which failed. In December 1988, he underwent revision of the total left knee arthroplasty. The appellant maintains that his back and bilateral hip pain are the result of a lengthening of the left leg due to the surgeries, causing a discrepancy between the length of the relatively shorter right leg and the relatively longer left leg. The record includes evidence that the appellant has pain associated with the back and hips. In a March 1985 statement, a private physician opined that the appellant had chronic spinal joint sprains with referred muscle spasm dating to his original injury. This statement satisfies the requirement of competent medical evidence linking the claimed disorders to service. Epps, 126 F.3d at 1468. The record also includes a statement from a private osteopath in September 1996, indicating that the appellant's back and hip complaints were probably related to the leg length disparity following the 1986 and 1988 surgeries. This opinion satisfies the requirement of competent medical evidence support the alleged causal relationship between the service- connected left knee disorder and the claimed back and hip disorders for which secondary service connection is sought. Jones, 7 Vet. App. at 137. Thus, the claims are well grounded and VA has a statutory obligation to assist the appellant in further development of the claims. 38 U.S.C.A. § 5107(a); Murphy, 1 Vet. App. at 81. ORDER The claim of entitlement to service connection for a back disorder is well grounded. The claim of entitlement to service connection for a bilateral hip disorder is well grounded. REMAND With a well-grounded claim established, the focus of this case shifts to an analysis of all evidence concerning a relationship between the service-connected left knee disability and the claimed back and hip disorders. With respect to the arguments in favor of secondary service connection, the record includes two conflicting medical opinions. On the one hand, the September 1996 statement noted above indicated that the appellant's back and hip complaints were probably related to the leg length disparity following the 1986 and 1988 surgeries. The record includes another osteopath's October 1996 statement to the effect that the complaints of low back pain arose only after the surgeries. On the other hand, a May 1997 independent medical examination found that the mild leg length discrepancy was probably not the cause of the low back pain. The record is silent as to any opinions relating the current symptomatology directly to service, except for a March 1985 private physician's statement to the effect that the chronic spinal joint sprains with referred muscle spasm dated to the original injury. The record also includes a December 1991 VA clinical record showing that the appellant fell on ice, with subsequent pain in the right groin and some radiating pain. In order to assist the Board in evaluating the merits of the claims, the case is REMANDED for the following development: 1. The RO should request that the appellant supply the names and addresses of any individuals or treatment facilities that have treated him for back or bilateral hip disorders since May 1997, and the dates of such treatment. After securing any necessary releases, the RO should obtain complete clinical records of such treatment and associate them with the claims folder. 2. The RO should schedule the appellant for orthopedic and neurologic examinations to determine the nature and etiology of the claimed back and bilateral hip disabilities. The claims folder and a copy of this REMAND must be made available to the physician for review in conjunction with the examination. The pertinent history concerning the disabilities should be obtained, and all necessary tests and studies, including x-ray studies, should be accomplished. The report of examination should contain a detailed account of all orthopedic manifestations of the disabilities found to be present. The orthopedist should be asked to opine as to whether, based on examination of the appellant and review of the claims file, any back or hip disorder is a residual of the fall in service, the total left knee arthroscopy in 1986 or the revision of that procedure in 1988, or to some other post-service, intercurrent or superceding injury. 3. When the aforementioned development has been completed, the RO should review the record to ensure it is in compliance with this REMAND. If not, the RO should undertake remedial action before returning the claim to the Board. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant 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. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. 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