Citation Nr: 0002226 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 97-23 624 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a left leg disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Odlum, Associate Counsel INTRODUCTION The veteran had active military service from May 1966 to January 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 1996 rating decision from the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the veteran withdrew his claim for entitlement to an increased rating for a left varicocele in September 1999. Accordingly, the Board finds that such issue is no longer within its jurisdiction. See Hamilton v. Brown, 4 Vet. App. 528 (1993) (en banc), aff'd, 39 F.3d 1574 (Fed. Cir. 1994); 38 C.F.R. § 20.204 (1999). FINDING OF FACT The claim of service connection for a left leg disability is supported by cognizable evidence showing that the claim is plausible or capable of substantiation. CONCLUSION OF LAW The claim of entitlement to service connection for a left leg disability is well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background Pertinent service medical records show that the veteran reported a history of polio at the age of 5 on the enlistment report of medical history. The examiner noted that this was not verified. He also reported, in pertinent part, a history of leg cramps. Enlistment examination documented no diagnoses or clinical findings with regard to the left leg. In June 1967 the veteran was seen for left testicular pain radiating down into the left thigh. No diagnosis pertaining to the left leg was documented. On separation examination, the veteran reported, in pertinent part, a history of leg cramps. It was indicated that he had had leg cramps for two years, but with no recurrence. Also reported was a history of polio in the left leg at the age of 5 with a full recovery. Physical examination was described as normal in the lower extremities, and no diagnosis regarding the left leg or any other disorder was documented. In January 1975, the veteran submitted a claim of service connection for a dental disability and varicose veins. On VA examination in March 1975, the veteran reported left testicle pain sometimes radiating into the left thigh, left groin, and left lumbosacral area. On examination, normal strength and mobility was found in all four extremities, the neck, and the trunk. On VA examination in March 1976 the veteran again reported pain in his left scrotum with tingling in the scrotum and about the thigh and leg on the left. He reported being told that he had a varicocele. He was noted as walking down the hall with a slight limp in his left leg. The diagnosis was left varicocele with numbness and tingling. In April 1975, the RO granted service connection for a left varicocele. In August 1979 the veteran was seen at a VA facility with complaints of left lower back, left scrotum, and left upper leg pain secondary to his left varicocele. In May 1996, the veteran submitted a claim for, in pertinent part, a left leg disorder that he contended was aggravated by service. In April 1997 the veteran was seen by Dr. R.A.S. for increasing problems in his left leg. It was noted that he had polio as a young child and had had intermittent discomfort in the past with his left leg. He stated that the pain and discomfort had become more severe and more frequent over the last several months to years, stating that there were some days when he had difficulty ambulating because of the pain. Examination revealed the left leg to be non- tender. The assessment was chronic left leg pain, probably secondary to previous polio. In April 1997 a local hearing was conducted. The veteran testified that he had polio when he was 5 and that he was unable to do certain activities because to do so would strain or stress the leg. Transcript, pp. 3-4. He reported that he got over the initial part of the polio probably within one year. Tr., p. 4. He testified that his left leg was a lot stronger before entering the military. He stated that working and jumping from the wings of aircrafts caused it to worsen while he was in the service. Tr., p. 4. The veteran testified that he had his leg checked out and received treatment such as bed rest or hot baths for his left leg while he was in the military. He testified that the condition of his left leg after service was much more severe than it was before he entered the military. Tr., pp. 4-5. In June 1997 a VA joints examination was conducted. The veteran reported having polio in his left leg at the age of 5 associated with pain and limping. He currently complained that strenuous exercise aggravated his leg. On examination, the left leg appeared completely intact with no evidence of atrophic changes. Strength was intact and there was no visible deformity. Gait was normal. Heel to toe was also normal with a minimal limp protecting the left leg. The diagnosis was post polio syndrome. The examiner concluded that the veteran had this when he was 5 and had worsening of the pain with exercise even before he went into the military. In October 1998 a VA neurological examination was conducted. The examiner noted that he did not have the veteran's medical records during his visit. The veteran reported having polio when he was five and that he recovered, but not completely. He indicated that his left leg started hurting and would become numb and buckle at times while he was in the service. Despite that, the veteran indicated that he did not complain of his symptoms. He reported that his left leg had continued to bother him since his discharge from service. Sensory examination revealed decreased position in the toes, vibration in the left foot and globally decreased pinprick and touch in the left leg. Muscle strength was 4+/5 with irregular effort. Gait was normal and reflexes were symmetric. The diagnosis was chronic pain, numbness, and buckling of the left leg since the time of service. The examiner stated that the diagnosis was unclear and that he could not make any conclusions regarding his claim. In December 1998 the October 1998 VA examiner (neurological) noted that a subsequent electromyogram of the left leg revealed normal conduction velocities and sensory latencies. The needle examination was found to show fasciculations in the lateral gastrocnemius and in the "EDB" and also in the "AHB." It was concluded that these fasciculations, combined with the absence of peripheral neuropathy or root compression, tended to support the existence of a very chronic and mild lesion localized in the anterior horn cell which was concluded to be congruent with the veteran's history of acute anterior poliomyelitis affecting the left leg as a child. The examiner noted it was described in the "American Literature" that "sometimes coincidentally with persistent overuse or exercise of an extremity previously affected by polio, sometimes the patient develops pain and fatigability in that extremity," which he noted as being sometimes labeled as post polio syndrome. The examiner concluded that the veteran's history, findings, and description were compatible with such a diagnosis. In January 1999 the RO requested clarification of the VA examiner's December 1998 conclusions. In doing so, the RO requested the examiner to review the service medical records and post-service evidence and make a definite statement as to whether service permanently aggravated the left leg polio condition beyond its normal progression. In March 1999, the October 1998 VA examiner (neurological) responded that it was possible that the activity during service aggravated the polio beyond the normal progression. In September 1999 a videoconference hearing before the undersigned Member of the Board was conducted. The veteran testified to having pain in his left leg prior to entering the service. Transcript, pp. 2-3. He stated that he started having more problems with the left leg after entering the service. Tr., p. 3 He stated that he sought treatment while he was in the service and was either told to go back to work or was advised to take warm baths, keep his leg elevated, exercise, and take aspirin. Tr., pp. 3-4. In spite of this, the veteran testified that the pain continued, but that he did not seek further in-service treatment. Tr., p. 4. The veteran testified that he received medical attention a few months after his discharge from service. He did not specify the name of the individual who provided such treatment. Tr., p. 5. He stated that he tried to let the left leg settle down, but that it did not. Id. He subsequently sought treatment from Dr. G. Tr., p. 5. He stated that he currently was receiving treatment at VA from time to time. Id. When asked whether he had been told by a doctor that his left leg had gotten worse because of his military service, the veteran answered that Dr. G. had told him, and that a doctor at VA had also felt that his service-connected activities and aggravated it beyond the "normal normalities." Tr., p. 7. Criteria Pursuant to 38 U.S.C.A. § 5107(a), a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well-grounded. The United States Court of Appeals for Veterans Claims (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 also held that although a claim need not be conclusive, the statute provides that it must be accompanied by evidence that justifies a "belief by a fair and impartial individual" that the claim is plausible. Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992). The Court has held that "where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is 'plausible' or 'possible' is required." Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) (citing Murphy, at 81). 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). In order to establish service connection for a claimed disability the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). 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) (1999). Continuous service for 90 days or more during a period of war, and post-service development of a presumptive disease to a degree of 10 percent within one year from the date of termination of such service, establishes a presumption that the disease was incurred in service. 38 C.F.R. §§ 3.307, 3.309 (1999). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (1999). This rule does not mean that any manifestation in service will permit service connection. To show 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1999). The veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b) (1999). Generally, a preexisting injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such service. Unless there is a specific finding that the increase in disability is due to the natural progress of the disease; however, aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306 (1999). In order to establish aggravation of a preexisting injury or disease, clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. This includes medical facts and principles which are to be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306 (1999). "[I]n short, a proper application of [38 U.S.C. § 1153 and 38 C.F.R. § 3.306 (a), (b)] . . . places an onerous burden on the government to rebut the presumption of service connection" and "in the case of aggravation of a preexisting condition, the government must point to a specific finding that the increase in disability was due to the natural progress[ ] of the disease". Akins v. Derwinski, 1 Vet. App. 229, 232 (1991). 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). When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt doctrine in resolving each such issue shall be given to the veteran. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 (1999). Analysis Initially, the Board finds that the veteran's claim for service connection for a left leg disability is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). The veteran has contended that he has a left leg disability resulting from pre-service polio that was permanently aggravated by activities in the military service. The enlistment examination notes a history of childhood polio. The veteran has a current left leg disability. Finally, the October 1998 VA examiner's (neurological) statements, taken together, indicate a link between the veteran's current left leg disability and an in-service aggravation. Thus, after a careful review of the record, the Board concludes that a well-grounded claim for service connection of a left leg disability has been presented as there is a medical opinion indicating a link between the left leg disability and aggravation in service. ORDER The claim of entitlement to service connection for a left leg disability is well grounded. REMAND 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 or by the Court 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. As was stated above, the claim of service connection for a left leg disability is well-grounded. Once the appellant has established a well-grounded claim, VA has a duty to assist the appellant in the development of facts pertinent to the claim. See 38 U.S.C.A. § 5107(a) (West 1991). However, the Board is not satisfied that all relevant facts have been properly developed to their full extent and that VA has met its duty to assist with regard to the issue of service connection for a left leg disability. Godwin v. Derwinski, 1 Vet. App. 419 (1991); White v. Derwinski, 1 Vet. App. 519 (1991). The Board notes that the October 1998 VA examiner (neurological) did not review the claims file during the initial examination. The RO subsequently asked him to clarify his conclusions, and specifically requested that he review the service medical records and provide a rationale for his conclusion. There is no indication in the March 1999 addendum to the October 1998 VA examination and December 1998 addendum that the service medical records or the claim folder were reviewed. Nor is a rationale provided explaining why the examiner thought that it was possible that the veteran aggravated his polio disability beyond its normal progression while in the service. While the service medical records note a pre-service history of polio of the left leg, aside from complaints relating to his left varicocele, there is no documentation of the veteran being treated for problems with his left leg. In addition, available post-service medical records show no documentation of problems regarding his left leg disability (not pertaining to radiation from the left varicocele) for more than 20 years following his discharge from service. The VA examiner did not attempt to explain such absence of medical evidence, and his conclusions are somewhat vague and inconclusive. During the June 1997 VA joints examination, the VA examiner concluded that the veteran's post polio syndrome with pain was already worsening with exercise even before he entered the military. This opinion conflicts with the above- mentioned medical opinion of the VA neurological examiner; however, it too is not very clear in its meaning. The Board additionally notes that the current nature of the veteran's disability should be clarified. The veteran was diagnosed once with post polio syndrome with pain in June 1997 by the VA joints examiner. He was diagnosed with chronic left leg pain by the October 1998 VA neurological examiner. On remand, the veteran's current disability should be clarified. In light of the above, the Board concludes that a VA examination is warranted. If the medical evidence of record is insufficient, or, in the opinion of the Board, of doubtful weight or credibility, the Board is always free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. However, it is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board also notes that the veteran testified that Dr. G. felt that his leg left disability got worse because of his military service. Tr., p. 7. The claims folder does not appear to contain records from Dr. G. The RO should attempt to obtain these records. 38 U.S.C.A. § 5107(a) (West 1991). In light of the above, the veteran's claim is remanded to the RO for the following development: 1. The RO should request the veteran to identify the names, addresses, and approximate dates of treatment for all health care providers, VA and non-VA, inpatient and outpatient, who may possess additional records pertinent to his claim for service connection for a left leg disability. After securing any necessary authorization or medical releases, the RO should attempt to obtain legible copies of the veteran's complete treatment records from all sources identified whose records have not previously been secured. Regardless of the veteran's response, the RO should secure all outstanding VA treatment reports. In particular, the RO should obtain medical records from Dr. G. See Transcript, pp. 5 and 7. All information which is not duplicative of evidence already received should be associated with the claims file. 2. After any additional evidence has been received and added to the record, the RO should arrange for a VA examination(s) of the veteran for the purpose of ascertaining the etiology of any left leg disability found to be present. The claims file and a separate copy of this remand should be made available to and reviewed by the examiner(s) prior and pursuant to conduction and completion of the examination(s) and the examination report(s) should be annotated by the examiner(s) in this regard. It is essential that the examiner(s) review the claims folder in its entirety. The examiner should certify that the evidence was reviewed. The examiner should take specific note of the veteran's reported and documented medical history. Any further indicated special studies should be conducted. The examiner should assess the veteran's current symptomatology and specifically note the specific nature of his left leg disorder in the examination report. The examiner should distinguish between the veteran's left leg disability resulting from his polio and any disability of the left leg resulting from his left varicocele. If such a distinction cannot be made, the examiner should note this in the examination report. The examiner should offer an opinion as to whether there is a causal link between any diagnosed left leg disability and the veteran's military service. The examiner should also offer an opinion as to whether, and to what degree, if any, a left leg disability resulting from pre- service polio was aggravated by his military service. In doing so, the examiner should carefully examine the service and post-service medical records. The examiner should also carefully address the veteran's post-service left leg injuries and associated laboratory findings. Any opinions expressed should be accompanied by a complete rationale. 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(s) 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 issue of service connection for a left leg disability based on the entire evidence of record. If the benefit requested on appeal is not granted to the appellant's satisfaction, the RO should issue a supplemental statement of the case containing all applicable criteria pertinent to the appellant's claim. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for final appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until he is notified by the RO. RONALD R. BOSCH Member, Board of Veterans' Appeals