Citation Nr: 0318836 Decision Date: 08/04/03 Archive Date: 08/13/03 DOCKET NO. 98-02 291 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for pelvic tilt, secondary to service-connected healed fracture of the left proximal tibia and fibula. 2. Entitlement to service connection for degenerative disc disease of the lumbar spine with low back pain, secondary to service-connected healed fracture of the left proximal tibia and fibula. 3. Entitlement to service connection for instability of the left knee secondary to service-connected healed fracture of the left proximal tibia and fibula. 4. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. D. Parker, Counsel INTRODUCTION The veteran (also referred to as "appellant" or "claimant") served on active duty from December 1965 to November 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in January 1997 by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied service connection for pelvic tilt, degenerative discs, low back pain, and left knee instability, all claimed as secondary to service-connected healed fracture of the left proximal tibia and fibula. The veteran entered notice of disagreement with this decision in February 1997; the RO issued a statement of the case in March 1997; and the veteran entered a substantive appeal, on a VA Form 9, which was received in December 1997. The Board determined in September 1999 that the claims for service connection were well grounded, and remanded the claims to the RO for additional assistance and development, including a VA orthopedic examination with etiology opinions. That development was completed and the case returned to the Board. In order to further assist the veteran, the Board requested additional examination and medical etiology opinions, which were conducted in April and May 2003. In a January 1976 rating action, the RO found that chondromalacia of the left knee was not service connected and had no relation to the veteran's service-connected left leg disability. The veteran was informed of that decision in January 1967 and was provided appellate rights, but he did not thereafter enter a notice of disagreement with the decision; therefore, the rating decision denial of chondromalacia of the left knee (as secondary to service- connected left leg disability) became a final decision. As the veteran's current claim is for service connection for left knee instability, the Board will consider this claim on a de novo basis. In a December 2001 rating decision, the RO denied the veteran's claim for a TDIU, and notified the veteran of the decision in December 2001. In January 2002, the veteran entered a notice of disagreement with the RO's decision to deny a TDIU. A statement of the case has not yet been issued on this issue; therefore, the issue of entitlement to a TDIU is addressed below in the REMAND portion of this decision. The Board is required to remand this issue to the RO for the issuance of a statement of the case addressing the TDIU claim. Manlincon v. West, 12 Vet. App. 238 (1999). FINDINGS OF FACT 1. All evidence necessary to decide the service connection claims on appeal has been obtained; in light of the grant of service connection, there is no reasonable possibility that additional assistance would further aid in substantiating the veteran's claims for service connection. 2. The evidence for and against the veteran's claim is in relative equipoise on the question of whether pelvic tilt is etiologically related by competent medical evidence to his service-connected healed fracture of the left proximal tibia and fibula. 3. The evidence for and against the veteran's claim is in relative equipoise on the question of whether currently diagnosed degenerative disc disease of the lumbar spine with low back pain is etiologically related by competent medical evidence to his service-connected healed fracture of the left proximal tibia and fibula. 4. The evidence for and against the veteran's claim is in relative equipoise on the question of whether current instability of the left knee is etiologically related by competent medical evidence to his service-connected healed fracture of the left proximal tibia and fibula. CONCLUSIONS OF LAW 1. With the resolution of reasonable doubt in the veteran's favor, service connection is warranted for pelvic tilt, as secondary to service-connected healed fracture of the left proximal tibia and fibula. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2002). 2. With the resolution of reasonable doubt in the veteran's favor, service connection is warranted for degenerative disc disease of the lumbar spine with low back pain, as secondary to service-connected healed fracture of the left proximal tibia and fibula. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2002). 3. With the resolution of reasonable doubt in the veteran's favor, service connection is warranted for instability of the left knee, as secondary to service-connected healed fracture of the left proximal tibia and fibula. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000, Pub. L. No. 106- 475, 114 Stat. 2096 (2000), now requires VA to assist a claimant in developing all facts pertinent to a claim for VA benefits, including a medical opinion and notice to the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the VA Secretary, that is necessary to substantiate the claim. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA has issued regulations to implement the Veterans Claims Assistance Act of 2000. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2002). In light of the grant of benefits sought on appeal, no further evidence is necessary to substantiate the veteran's claims for service connection for pelvic tilt, degenerative disc disease with low back pain, or instability of the left knee. See 38 U.S.C.A. § 5103(a) (West 2002). In this veteran's case, there is no reasonable possibility that further assistance would aid in substantiating the veteran's claims for VA compensation benefits. See 38 U.S.C.A. § 5103A(a)(1),(2) (West 2002). II. Secondary Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a) (2002). Additionally, service connection may be granted for a disorder found to be proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). A. Service Connection for Pelvic Tilt, Degenerative Disc Disease with Low Back Pain The veteran contends that he currently has pelvic tilt, degenerative disc disease, and low back pain that is etiologically related to his service-connected healed fracture of the left proximal tibia and fibula. After a review of the evidence of record, the Board finds that the evidence for and against the veteran's claim is in relative equipoise on the questions of whether currently diagnosed pelvic tilt, and degenerative disc disease of the low back with low back pain, are etiologically related by competent medical evidence to his service-connected healed fracture of the left proximal tibia and fibula. The unfavorable evidence includes medical opinion that the veteran's left leg length discrepancy was at the threshold for what could be considered normal variants in normal people without previous history of trauma, so that it was possible that the left leg length discrepancy was due to the veteran's normal anatomy (December 2000 addendum to examination report). The unfavorable evidence includes a December 1996 VA examination report, which reflects the examiner's opinion that the veteran's low back pain appeared to be mechanical low back pain that was most likely not associated with the (in-service) left leg injury. The favorable evidence includes a letter dated in November 1996 from a private physician, David Lydon, D.O., that includes the opinion that the veteran's left leg length difference "had caused a significant pelvic tilt to the left with strain on the pelvic joints" that caused recurrent structural changes in the relationships of the ilia, sacrum, and femurs with the spine, which "lead to changes in function and resultant symptoms" that include low back pain and degeneration in the joints. A December 2000 addendum to a January 2000 VA examination report reflects the examiner's opinion that there was a "possibility" that the veteran's left "leg length discrepancy may contribute in some form or fashion to his low back pain." A May 2003 VA examination report reflects MRI findings of a herniated disc at L5-S1 and L4-L5, and the examiner's opinion that "it is only likely as not that the relationship of the herniated disc is related to the injury he has had to his left leg." For these reasons, and with the resolution of reasonable doubt in the veteran's favor, the Board finds that service connection is warranted for pelvic tilt, and degenerative disc disease of the lumbar spine with low back pain, as secondary to service-connected healed fracture of the left proximal tibia and fibula. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. B. Service Connection for Left Knee Instability The veteran contends that he currently has left knee instability that is etiologically related to his service- connected healed fracture of the left proximal tibia and fibula. After a review of the evidence of record, the Board finds that the evidence for and against the veteran's claim is in relative equipoise on the question of whether currently diagnosed instability of the left knee is etiologically related by competent medical evidence to his service- connected healed fracture of the left proximal tibia and fibula. The unfavorable evidence includes a VA examiner's opinion (December 2000 addendum) that there was a possibility that the left leg length discrepancy was due to the veteran's normal anatomy rather than his service-connected fracture of the left proximal tibia and fibula. The favorable evidence includes findings of left leg shortening with some medical opinion evidence associated the left leg shortening with his service-connected healed fracture of the left proximal tibia and fibula. Moderate anterior cruciate ligament (ACL) laxity was noted in a November 1975 VA orthopedic examination report. A December 2000 addendum to a January 2000 VA examination report reflects the examiner's opinion that "[t]here is a slight medical probability that [unspecified left knee findings recorded upon examinations in January and October 2000 are] secondary to leg length discrepancy at the tibia secondary to fracture." The findings at the January 2000 VA examination included ACL deficiency of the left knee. A May 2003 VA examination report reflects the opinion that "difficulty with the knee on the MRI and by general examination" is "more likely than not to be related" to the veteran's service-connected healed fracture of the left proximal tibia and fibula. For these reasons, and with the resolution of reasonable doubt in the veteran's favor, the Board finds that service connection is warranted for instability of the left knee, as secondary to service-connected healed fracture of the left proximal tibia and fibula. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. ORDER Service connection for pelvic tilt, as secondary to service- connected healed fracture of the left proximal tibia and fibula, is granted. Service connection for degenerative disc disease of the lumbar spine with low back pain, as secondary to service- connected healed fracture of the left proximal tibia and fibula, is granted. Service connection for instability of the left knee, as secondary to service-connected healed fracture of the left proximal tibia and fibula, is granted. REMAND In a December 2001 rating decision, the RO denied the veteran's claim for a TDIU, and notified the veteran of the decision in December 2001. In January 2002, the veteran entered a notice of disagreement with the RO's decision to deny a TDIU. As a statement of the case has not yet been issued, in order to comply with due process requirements, a remand is in order for the RO to prepare a statement of the case on the issue of entitlement to a TDIU. See Manlincon, 12 Vet. App. 238. Accordingly, to ensure full compliance with due process requirements, this case is REMANDED for the following: The RO should provide the veteran a statement of the case regarding the claim for a TDIU. The statement of the case should address all aspects of this claim, and compliance with the notice and duty to assist provisions of the Veterans Claims Assistance Act of 2000. Further, the veteran should be advised that, if he wishes the Board to address this claim for TDIU, he must submit a timely substantive appeal in response to the statement of the case. The appellant has the right to submit additional evidence and argument on the matter 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 2002) (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. ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.