BVA9506347 DOCKET NO. 92-21 182 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for a disability of the lumbar spine, secondary to service-connected right leg disability. 2. Entitlement to service connection for a disability of the right hip, secondary to service-connected right leg disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Connolly, Associate Counsel INTRODUCTION The veteran had active service from September 1941 to December 1945. This matter came before the Board of Veterans' Appeals (Board) on appeal from a June 1992, rating decision of the Des Moines, Iowa, Regional Office (RO) of the Department of Veterans Affairs (VA) which granted an increased rating of 30 percent for service- connected malunion of right tibia and fibula with varus deformity, foot callosity, and scars, and also denied entitlement to service connection for a disability of the lumbar spine secondary to his service-connected right leg disability, and a disability of the right hip secondary to his service-connected right leg disability. A notice of disagreement as to the two secondary service connection issues was received in July 1992. The statement of the case was sent to the veteran in July 1992. The substantive appeal was received in September 1992. In an October 1993 decision, the Board remanded this case to the RO for further development. The veteran at his May 1992 VA examination stated he had retired early from the Post Office because of his service connected right leg disorder. The Board finds that this is a claim for a total rating for compensation based on individual unemployability. This matter is referred to the RO for appropriate action. Also as a claim for compensation may be a claim for pension under 38 C.F.R. § 3.151 (1994) the RO should consider a claim for pension. REMAND The issues currently on appeal involve claims for secondary service connection. The United States Court of Veterans Appeals (Court) has recently issued some new directives that may affect the veteran's claims for secondary service connection. In the recent case, Allen v. Brown, No. 93-245 (U.S. Vet.App. March 17, 1995)(en banc), the Court held that the term "disability" as used in 38 U.S.C.A. § 1110 (West 1991), refers to impairment of earning capacity, and that such definition of disability mandates that any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, shall be compensated. Thus, pursuant to 38 U.S.C.A. § 1110 (West 1991) and 38 C.F.R. § 3.310(a) (1994), 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 over and above the degree of disability existing prior to the aggravation. The Court has stated that when the Board addresses in its decision a question that was not addressed by the RO, the Board must considered whether the claimant has been given adequate notice of the need to submit evidence or argument on that question and an opportunity to submit such evidence and argument. If not, it must be considered if the veteran has been prejudiced thereby. Bernard v. Brown, 4 Vet.App. 384, 393 (1993). In addition, if the Board determines that the claimant has been prejudiced by a deficiency in the statement of the case, the Board should remand the case to the RO pursuant to 38 C.F.R. § 19.9 (1994), specifying the action to be taken. Bernard v. Brown, 4 Vet.App. 384, 394 (1993). In this case, the RO did not consider the question of whether the veteran's service-connected right leg disability aggravated his lumbar spine disorder and/or his right hip disorder. According to the veteran's February 1994 VA examination report, the examiner who examined him opined that his "leg length discrepancy may aggravate some back symptoms." In light of the findings of the VA examiner and the directives outlined in Bernard regarding questions which have not been considered by the RO, the Board finds that the veteran would be prejudiced if he is not given an opportunity to submit evidence or argument on the question of aggravation as to both secondary service connection issues. Therefore, the Board finds that RO must readjudicate the veteran's claims for entitlement to service connection for disorders of the lumbar spine and right hip. The RO should first make a preliminary determination as to whether the veteran's claims are well-grounded. A well-grounded claim is a plausible claim, one which is meritorious on its own or is capable of substantiation. Such a claim need not be conclusive, but only possible to satisfy the initial burden of 38 U.S.C.A. § 5107(a) (West 1991). Murphy v. Derwinski, 1 Vet.App. 78, 80 (1990) The claim must be accompanied by supporting evidence; an allegation is not enough. Tirpak v. Derwinski, 2 Vet.App. 609 (1992). In addition, when a veteran contends that his service- connected disability has caused a new disability, he must submit competent medical evidence of a causal relationship between the two disabilities to establish a well-grounded claim. Jones v. Brown, 7 Vet.App. 134 (1994). If service medical records do not show the claimed disability and there is no medical evidence to link a current disability with events in service or with a service-connected disability, then the claim is not well- grounded. Montgomery v. Brown, 4 Vet.App. 343 (1993). The United States Court of Veterans Appeals (Court) has stated that, in determining whether a claim is well grounded, 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. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993) citing Murphy. If either claim is well-grounded, then, in light of the Allen case, the RO must consider whether the veteran's lumbar spine and/or right hip disorders are proximately due to or the result of his service-connected right leg disability pursuant to 38 C.F.R. § 3.310(a) (1994). If however, the RO determines that the veteran does not have lumbar spine and/or right hip disorders which are proximately due to or the result of his service- connected disability, the RO must now also consider whether the veteran has separate lumbar spine and/or right hip disorders which have been aggravated by his service-connected disability, and, if so, the level of disability attributable to aggravation must be determined. Since the 1994 VA examination indicated the possibility that the veteran's leg discrepancy aggravates his lumbar spine disorder, the Board finds that the veteran should be afforded another VA examination by a certified orthopedist to resolve that question. If the examiner determines that the right leg disability does in fact aggravate the lumbar spine disorder then the examiner should indicate what level of disability is attributable to aggravation. Under the circumstances of this case, additional development is necessary in order to fulfill the VA's duty to assist. Accordingly, this matter is REMANDED for the following action: 1. The veteran should be afforded a VA examination by a certified orthopedist to determine the current nature, extent, and manifestations of any low back disorder. All indicated x-rays and laboratory tests should be completed. If a low back disorder is present, the examiner should provide his/her medical opinion as to the etiology of that disorder. The examiner should also be asked to provide specific comments as to any relationship between the veteran's service-connected right leg disability and a low back disorder. The examiner should also indicate if the veteran's service-connected right leg disability aggravated a low back disorder, and, if so, what level of disability is attributable to aggravation. The claims file should be made available to the examiners prior to the examination. 2. The RO should readjudicate the veteran's claim for entitlement to service connection for a disorder of the lumbar spine and a disorder of the right hip, secondary to service-connected right leg disability. If the RO determines that the claims are well-grounded, the RO should specifically consider the provisions of 38 C.F.R. § 3.310(a) (1994) and the directives set forth in Allen regarding aggravation. If the action taken is adverse to the veteran, he and his representative should be furnished a supplemental statement of the case that contains a summary of the relevant evidence and a citation and discussion of the applicable laws and regulations. He should also be afforded the opportunity to respond to that supplemental statement of the case before the claim is returned to the Board. No action is required of the veteran until further notice. The Board expresses no opinion, either factual or legal, as to the ultimate determination warranted in this case pending completion of the requested development. E. M. KRENZER Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1994).