Citation Nr: 0003146 Decision Date: 02/08/00 Archive Date: 02/15/00 DOCKET NO. 98-13 172 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a low back disorder. 2. Entitlement to an increased rating for status post anterior cruciate ligament reconstruction of the left knee, status post operative fracture of the patella, with a history of metal fragment injury and retained foreign body, currently rated as 30 percent disabling. 3. Entitlement to an increased rating for reconstruction, stress fracture, medial aspect of the right tibia and fibular head with traumatic arthritis, currently rated as 30 percent disabling. 4. Entitlement to an increased rating for traumatic arthritis of the right ankle with a history of a sprain and chip fracture, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Bernie Gallagher, Counsel INTRODUCTION The veteran had active service from July 1978 to July 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision in May 1998 of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi which denied entitlement to all benefits on appeal. On a VA Form 9 filed in August 1998, the veteran only appealed the issue of service connection for the back. However, at that time, he requested a personal hearing. At the hearing at the RO at the RO in November 1998, he gave testimony on all of the issues currently on appeal. A transcript of that hearing is in the claims file. A supplemental statement of the case in June 1999 considered this testimony. The Board finds that the hearing transcript dated in November 1998 constitutes a timely substantive appeal as to all the issues. The issues of entitlement to increased rating for reconstruction, stress fracture, medial aspect of the right tibia and fibular head with traumatic arthritis; status post anterior cruciate ligament reconstruction of the left knee, status post operative fracture of the patella, with a history of metal fragment injury and retained foreign body; and traumatic arthritis of the right ankle with a history of a sprain and chip fracture, are addressed in the remand portion of this decision. FINDINGS OF FACT 1. A rating decision in October 1989 denied entitlement to service connection for back pain. The veteran was notified of the denial in November 1989 and he did not appeal this issue. 2. Evidence received since the October 1989 rating decision bears directly and substantially upon the veteran's claim of entitlement to service connection for a back disorder, and is so significant that it must be considered in order to fairly decide the merits of the veteran's claim for this benefit. 3. The claim of entitlement to service connection for a low back disorder is plausible and capable of substantiation. CONCLUSIONS OF LAW 1. Evidence submitted to reopen the claim of entitlement to service connection for a low back disorder is new and material, and therefore, the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104, 3.156 (1999). 2. The claim of entitlement to service connection for a low back disorder is well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A claim of entitlement to service connection for a low back disorder was denied by an unappealed rating decision in October 1989. Therefore, that decision is final. 38 U.S.C.A. § 7105. To reopen a finally denied claim, a veteran must submit new and material evidence. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.104. Accordingly, the Board must consider whether new and material evidence has been received since the final October 1989 rating decision. In the October 1989 rating decision, the RO denied service- connection for low back pain on the grounds that a current back disability was not shown. When a veteran seeks to reopen a final decision based on new and material evidence, a three-step analysis must be applied. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); Winters v. West, 12 Vet. App. 203 (1999); Elkins v. West, 12 Vet. App. 209 (1999). The first step is to determine whether new and material evidence has been received under 38 C.F.R. § 3.156(a). If new and material evidence has been presented, then immediately upon reopening the veteran's claim, the VA must determine whether the claim is well grounded under 38 U.S.C.A. § 5107(a). Third, if the claim is found to be well grounded, then the merits of the claim may be evaluated after ensuring that the duty to assist under 38 U.S.C.A. § 5107(a) has been met. New and material evidence means evidence not previously submitted which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with the evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a); See also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Further, when determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Since the rating decision in October 1989, additional evidence has been presented. A report of a VA examination dated in February 1998, noted the existence of a chronic back problem, degenerative disc and facet joint disease at L5-S1, and a psuedosynovium formation between level L4 and L5 spinous processes, which was noted as the possible cause of low back pain, noted as probably Bastrup Disease. On this examination, the VA examiner said that he did not think that the veteran's back problems, including degenerative disc and facet joint disease was "due to" the service-connected knee disorders. However, a report of H. Smith, D.C., dated in March 1998, indicated that the veteran's knee injuries and surgeries contributed to his low back pain. A statement of M. F. Longnecker, M.D., dated in April 1998, stated that the veteran's knees and back were "service aggravated." A statement of H. L. Smith, M.D., dated in June 1998, disclosed that he reviewed the VA medical records and those of Dr. Longnecker, and also had examined the veteran in June 1998. It was his opinion that the veteran's degenerative back condition was the result of his bilateral knee condition, pes planus, and ankle disabilities. The private medical reports, particularly the report of Dr. H. L. Smith, bear directly and substantively on the underlying question in a claim for service connection, i.e., medical causation, as service connection has been granted for right and left knee disorders as well as a right ankle disorder. Moreover, as a medical doctor, his opinion in this regard constitutes competent evidence. In addition, 38 C.F.R. § 3.310 (a) (1999) provides that a disability which is proximately due to or the result of a service connected disease or injury shall be service connected. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet App 439 (1995). In other words, it is not necessary for a service-connected disability to cause the claimed condition; aggravation is sufficient. Accordingly, the Board finds this evidence so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156. The Board further finds that Dr. Smith's opinion constitutes competent evidence suggesting a link between the veteran's service-connected disorders and his current low back condition, providing evidence of a well grounded claim. 38 U.S.C.A. § 5107(a). ORDER As new and material evidence has been submitted to reopen the veteran's claim of entitlement to service connection for a low back disorder, the claim is reopened. The claim of entitlement to service connection for a low back disorder is well grounded. REMAND In December 1999, the Board received medical evidence with regard to the claims on appeal. Submission of additional evidence following certification of an appeal must be referred to the RO for review and preparation of a supplemental statement of the case, unless the veteran waives this procedural right. 38 C.F.R. § 20.1304(c) (1999). This procedural right was not waived with regard to the aforementioned evidence. The Board notes that the most recent VA examination conducted in February 1998, did not consider the presence of the veteran's pain and the effect of his pain on the functional use of the right knee was not set out in the report. The United States Court of Appeals for Veterans Claims (Court) has held that when a diagnostic code provides for compensation based solely upon limitation of motion, that the provisions of 38 C.F.R. §§ 4.40 and 4.45 (1999) must also be considered, and that examinations upon which the rating decisions are based must adequately portray the extent of functional loss due to pain "on use or due to flare-ups." DeLuca v. Brown, 8 Vet. App. 202 (1995). The diagnostic codes assigned to the service-connected right knee disorder in this case are 5010-5257, which encompass both range of motion and recurrent subluxation or lateral instability. Moreover, except as otherwise provided in the VA'S SCHEDULE FOR RATING DISABILITIES, codified in 38 C.F.R. Part 4 (1999), all disabilities, including those arising from a single disease entity, are to be rated separately, and then all ratings are to be combined pursuant to 38 C.F.R. § 4.25 (1999). Esteban v. Brown, 6 Vet. App. 259, 261 (1994). The Court has interpreted 38 U.S.C.A. § 1155 as implicitly containing the concept that the rating schedule may not be employed as a vehicle for compensating a claimant twice (or more) for the same symptomatology; such a result would overcompensate the claimant for the actual impairment of his earning capacity and would constitute pyramiding of disabilities, which is cautioned against in 38 C.F.R. § 4.14 (1999). In Esteban, the Court ruled that the veteran, who had residuals of injury to the right side of his face, was entitled to separate ratings for disfigurement, a painful scar, and muscle injury. Thus, as a matter of law, the appellant was entitled to combine his 10 percent rating for disfigurement under 38 C.F.R. § 4.118, Diagnostic Code 7800 (1999) with an additional 10 percent rating for tender and painful scars under 38 C.F.R. § 4.118, Diagnostic Code 7804 (1999), and a third 10 percent rating for facial muscle injury interfering with mastication under 38 C.F.R. § 4.71a, Diagnostic Code 5325 (1999). The Court found that the critical element was that none of the symptomatology for any one of these three manifestations was duplicative of or overlapping with the symptomatology of the other two conditions. Instead, each was separate and distinct in nature. A precedent opinion of the VA General Counsel, VAOPGCPREC 23- 97 (July 1, 1997), held that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5010 and 5257, citing Esteban. Diagnostic Code 5257 provides for evaluation of instability of the knee without reference to limitation of motion. The terms of Diagnostic Code 5010, on the other hand, refer not to instability but to x-ray findings and limitation of motion "under the appropriate diagnostic codes for the specific joint or joints involved (Diagnostic Code 5200 etc.)." The reference to "DC 5200 etc." associates Diagnostic Code 5010 with the diagnostic codes involving limitation of motion. Since Diagnostic Code 5257 is not among those codes, it is not thereby associated with Diagnostic Code 5010. The Board finds the instant case to be analogous to the precedent opinion cited above. As such, the Board concludes that this issue should be remanded for adjudication of this issue in the first instance. See Bernard v. Brown, 4 Vet.App. 384 (1993). Additionally, the Board has found that new and material evidence has been submitted to reopen the veteran's claim of entitlement to service connection for a low back disorder, and has also found the claim to be well grounded. Accordingly, the VA has a duty to assist the veteran with the development of this claim. 38 U.S.C.A. § 5107(a). The Court has held that "when aggravation of a veteran's nonservice-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation." Allen v. Brown, 7 Vet App 439 (1995). For the reasons set forth above, these issues are REMANDED for the following actions: 1. All pertinent VA and private medical treatment records subsequent to December 1998, to include a VA examination conducted in December 1999, should be obtained and associated with the claims file. 2. The veteran should be scheduled for VA examination to determine the nature and extent of his right knee disability, left knee disorder, right ankle disorder, and low back disorder. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The claims file must be made available to and reviewed by the examiner prior to the requested study and the examination report should reflect that such a review was made. Back Disorder: The examiner should be requested to provide an opinion as to whether the veteran's low back disorder was either caused or aggravated by the service-connected disorders, to include his right and left knee disorder and the right ankle disorder. The examiner should also discuss the private medical statements and set forth reasons for either agreeing or disagreeing with these statements, particularly the conclusions of Dr. H. L. Smith as to the etiology of the veteran's low back disorder. If the examiner finds that the veteran's low back disorder was aggravated by a service-connected disorder, he is requested to provide an opinion as to the degree of disability over and above the degree of disability existing prior to such aggravation. Right knee disorder, left knee disorder, and right ankle disorder: The examiner should record pertinent medical complaints, symptoms, and clinical findings, including range of motion, and comment on the functional limitations, if any, caused by the veteran's service- connected right knee disorder, left knee disorder, and right ankle disorder in light of the provisions of 38 C.F.R. §§ 4.40, 4.45. The examiner should state if the service-connected disorders cause weakened movement, excess fatigability, and incoordination. With respect to the subjective complaints of pain, the examiner is requested to specifically comment on whether pain is visibly manifested on movement of the joints, the presence and degree of, or absence of, muscle atrophy attributable to the disorders, the presence or absence of changes in condition of the skin indicative of disuse due to the service- connected disorders, or the presence or absence of any other objective manifestation that would demonstrate disuse or functional impairment due to pain attributable to the service-connected disorders. 3. The RO should notify the veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (1999). 4. After completion of the above (and any other development deemed necessary by the RO), the RO should review the claim of entitlement to service connection for a low back disorder on a de novo basis in view of the entire record. The RO should develop and adjudicate the issue of whether separate ratings are to be assigned to the veteran's service-connected arthritis based on limitation of motion and instability of the right knee. If any claim remains denied, the veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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 regional offices 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. No action is required by the veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). JOY A. MCDONALD Acting Member, Board of Veterans' Appeals