Citation Nr: 0004028 Decision Date: 02/16/00 Archive Date: 02/23/00 DOCKET NO. 96-23 402A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of a left ankle fusion. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Fussell, Counsel REMAND The veteran had active service from June 1957 to December 1960. This matter comes before the Board of Veterans' Appeals (Board) from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This case was remanded in February 1999 to afford the veteran a hearing before a traveling member of the Board but in November 1999 he waived entitlement to such a hearing and the case has now been returned to the Board. Because the case was remanded for procedural reasons in February 1999, the matter of whether the claim was well grounded was not specifically addressed. However, in Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied, 524 U.S. 940 (1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 U.S.C. § 5107(a), the Department of Veterans Affairs (VA) has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the United States Court of Appeals for Veterans Claims (Court or CAVC) issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). Accordingly, the threshold question that must be resolved in this appeal is whether the appellant has presented evidence that the claim is well grounded; that is, that the claim is plausible. The appellant's claim is premised on 38 U.S.C.A. § 1151 and because the claim was filed in 1995, the version of § 1151 that is applicable to this case is the version that existed prior to its amendment in 1996, as those amendments were made applicable only to claims filed on or after October 1, 1997. See Pub. L. No. 104-204, § 422(b)(1), (c), 110 Stat. 2926-27 (1996). The pre-amendment version of § 1151 provides, in relevant part: Where any veteran shall have suffered an injury, or an aggravation of an injury, as the result of hospitalization, medical or surgical treatment, or the pursuit of a course of vocational rehabilitation under chapter 31 of this title, awarded under any of the laws administered by the Secretary, or as a result of having submitted to an examination under any such law, and not the result of such veteran's own willful misconduct, and such injury or aggravation results in additional disability to or the death of such veteran, disability or death compensation under this chapter and dependency and indemnity compensation under chapter 13 of this title shall be awarded in the same manner as if such disability, aggravation, or death were service-connected. 38 U.S.C.A. § 1151 (amended 1996). Since the February 1999 remand, the criteria for a well grounded claim were set forth in Jones v. West, 12 Vet. App. 460, 464 (1999) in which it was stated that for a claim to be well grounded under the pre-amendment version of 38 U.S.C.A. § 1151, the appellant must provide: (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of incurrence or aggravation of an injury as the result of hospitalization, medical or surgical treatment, or the pursuit of a course of vocational rehabilitation under chapter 31 of title 38, United States Code; and (3) medical evidence of a nexus between that asserted injury or disease and the current disability. While the duty to assist does not attach until after a well grounded claim is submitted, VA has constructive notice of its own records in a determination of entitlement to benefits. Generally see Bell v. Derwinski, 611 (1992). While service connection for left knee disability and left leg disability was denied in March 1993 and service medical records are negative for left knee disability, the veteran testified that since a postservice injury in 1963 he had received treatment at VA facilities in Lake City and Gainesville, Florida (page 1 of the transcript of the November 12, 1997 hearing). In his original claim for service connection in 1993 he reported first having had left knee surgery in 1984 at a VA hospitalization in Gainesville, Florida. However, the only records on file are those from VA facilities in Lake City and Gainesville, Florida beginning in 1993 (just prior to his October 1993 VA left ankle surgery from which this claim stems). Accordingly, an attempt should be made by the RO to obtain all VA clinical records from the noted VA facilities from 1963 to 1993. Additionally, under 38 U.S.C.A. § 5103 (West 1991) the VA must inform the veteran of the evidence needed to complete his claim. Here, it appears that he has current left ankle disability but (without adjudication of whether the claim is well grounded) it appears that there may not be sufficient evidence of the second and third elements cited above. Thus, the veteran is placed on notice that he should submit evidence of incurrence or aggravation of an injury as the result of VA treatment and medical evidence of a nexus between that VA treatment and the current disability. This is particularly true because following the October 1993 VA left ankle fusion, the veteran was injured in an August 1994 vehicular accident and, due to left ankle pain, sought treatment at the Suwannee Hospital. Thus, consideration should be given by the veteran and his representative to the submission of private clinical records pertaining to the veteran's 1963 and 1984 injuries as well as obtaining and submitting a medical nexus opinion (from a competent medical professional) as to the relationships between that VA treatment and the current status of his left ankle. Accordingly, further appellate consideration will be deferred and the case is REMANDED to the RO for the following development: 1. The RO should obtain all VA clinical records from 1963 to 1993 from VA facilities in Lake City and Gainesville, Florida. If obtained, those records should be associated with the claim file. If not obtained, the RO must ensure that there is a written record in the claims file explaining that such a search was conducted. 2. The RO should then readjudicate the claim on the basis of whether the claim is well grounded. If the claim is determined not to be well grounded, then there is no further duty to assist. If the claim is determined to be well grounded, the RO should ensure that the duty to assist is met and the claim should be adjudicated on the merits. 3. If any determination remains adverse to the veteran, he and his representative should be furnished a supplemental statement of the case in accordance with 38 U.S.C.A. § 7105 (West 1991), which includes a summary of additional evidence submitted, any additional applicable laws and regulations, and the reasons and bases for the decision reached. "[A] remand [by the Court or the Board] confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders . . . a remand [] imposes upon [VA] a concomitant duty to ensure compliance with the terms of the remand [and] [i]t matters not that the agencies of original jurisdiction as well as those agencies of the VA responsible for evaluations, examinations, and medical opinions are not under the Board as part of a vertical chain of command which would subject them to the direct mandates of the Board." Stegall v. West, 11 Vet. App. 268, 271 (1998) (in which a VA examination at which the claims file was made available had not been conducted as instructed in a Board remand). While this case is in remand status, the appellant and representative are free to submit additional evidence and argument on the questions at issue. Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992) and Kutscherousky v. West, 12 Vet. App. 369 (1999). Thereafter, the appellant and representative should be afforded the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if otherwise in order. By this REMAND the Board intimates no opinion, either factual or legal, as to the ultimate determination warranted in this case. The purpose of the REMAND is to further develop the record. No action is required of the veteran until he receives further notice. 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. A. BRYANT Member, Board of Veterans' Appeals