[DECISION ASSESSMENT DOCUMENT]{.underline}

[DOCKET NO.]{.underline}: 93-245 [ACTIVITY:]{.underline} RATING

[NAME:]{.underline} Allen v. Brown

[ISSUE(S)]{.underline}: Service connection for aggravation of
nonservice-connected disabilities by service-connected disabilities

[ACTION BY COURT]{.underline}: Remand [DECISION DATE]{.underline}:
3/17/95

[BEFORE JUDGES]{.underline}: Nebeker (dissenting), [Kramer]{.underline},
Farley (dissenting), Mankin, Holdaway (dissenting), Ivers, Steinberg

[FACTS]{.underline}: The veteran claimed secondary service connection
under the provisions of 38 C.F.R. § 3.310(a) for osteoarthritis of both
hips and the left knee due to claimed altered gait resulting from a
service-connected right knee injury. Evidence submitted and/or gathered
during the development of the claim included four medical opinions which
addressed the etiological relationship between the service-connected
right knee injury and the bilateral hip and left knee disorders. One
found no etiological relationship; one found an etiological
relationship; and two could not determine etiology. Only one of the
opinions specifically addressed aggravation. That opinion concluded that
the bilateral hip and left knee disorders were definitely aggravated by
the right knee injury. The claim was subsequently denied on the basis
that the hip and left knee disorders were not due to the
service-connected right knee injury. On 11/19/92, the BVA affirmed the
decision.

[ANALYSIS]{.underline}: In December 1991, the Court issued a decision in
[Tobin v.]{.underline} [Derwinski]{.underline}, 2 Vet. App. 34 (1991),
which held that aggravation of a nonservice-connected disability by a
service-connected disability constituted an increase in the disability,
and, under the provisions of 38 C.F.R. § 3.310(a), such an increase in
disability was entitled to be service-connected. In February 1993, the
Court issued a decision in [Leopoldo v. Brown]{.underline}, 4 Vet. App.
216 (1993), which was contrary to [Tobin]{.underline}, holding that

38 U.S.C. § 1110 does not provide compensation for aggravation of a
nonservice-connected disability by a service-connected disability.
Because of the issues presented in [Allen]{.underline}, the Court, on
11/9/94, ordered en banc consideration to resolve the conflict between
[Tobin]{.underline} and [Leopoldo]{.underline}, requested memoranda on
the issue, and ordered oral argument to consider the question of whether
aggravation of a nonservice-connected disability by a service-connected
disability entitles a claimant to service connection for that increment
in severity of the nonservice-connected disability. The appellant, the
Secretary, and an amicus all submitted separate memoranda answering the
Court\'s question in the affirmative.

The Court discussed the two potential meanings of the term
\"disability\" as contained in various parts of the statutes. In
[Leopoldo]{.underline}, the Court adopted the definition of
\"disability\" contained at 38 U.S.C. § 1701; that is, a disease,
injury, or other physical or mental defect. A different interpretation
of the term was determined to be plausible from reviewing the language
of title 38. Section 1701 states that the definitions in that section
are provided \"for the purposes of\" chapter 17 of title 38, United
States Code. A definition of \"disability\" is not included either in 38
U.S.C. § 101 or in section 1101. The Court noted that it was reasonable
to infer that Congress did not intend that the definition contained in
section 1701 would control the meaning of \"disability\" in other parts
of the statute. Based on the provisions of sections 1155, 1110, and 38
C.F.R. § 4.1, the Court determined that \"disability\" should be
construed to refer to impairment of earning capacity due to disease,
injury, or defect, rather than to the disease, injury, or defect itself.
Under this interpretation, the holding in [Tobin]{.underline} that
\"when aggravation of a veteran\'s non-service-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.\" The Court noted that the different meanings of
\"disability\" contained in chapter 11 and chapter 17 should not produce
an undesirable result in terms of VA health-care eligibility, because
\"disability\" will continue to be defined as contained in chapter 17,
and 38 C.F.R. § 3.310 makes service connection for an increase in
disability part of the original service-connected condition, \"and there
is no question that health care under chapter 17 would be available to
the veteran for that increase in disability as part of the original
service-connected condition.\" Because the Court has determined that the
interpretation announced in [Tobin]{.underline} is the correct standard
to be applied, remand was ordered to determine whether the
service-connected right knee disorder aggravated the left knee and hip
disorders, and, if so, what level of disability is attributable to such
aggravation. The Court also determined that remand was appropriate to
correct a reasons or bases deficiency in the BVA decision for not
explaining the basis for rejecting the favorable opinion concerning
direct etiology. Additionally, if on remand the claim is allowed, it
must be determined whether the appellant is entitled to a total rating
based on individual unemployability as that issue has been reasonably
raised.

Implementing this decision will present a challenge to both VA rating
specialists and examining physicians. It will be incumbent on claimants
to present well-grounded claims, and on rating specialists to determine
if the claims are, in fact, well grounded; whether there has been an
aggravation of a nonservice-connected condition by a service-connected
condition; [and]{.underline} the degree of incremental increase in the
disability that can be attributable to the service-connected condition.
Requests for medical opinions as part of examinations will also involve
examining physicians in these determinations.

A Fast Letter concerning implementation of this decision was issued on
4/25/95.

[RECOMMENDED VBA ACTION(S)]{.underline}: Recommend that 38 C.F.R. §
3.310(a) be amended to include reference to aggravation of a
nonservice-connected disability by a service-connected disability as
establishing entitlement to service connection. Amend M21-1, Part VI,
Chapter 7, Subchapter XV, to incorporate this decision and the
procedures contained in Fast Letter 5-33. This decision was discussed
during the April 1995 Judicial Review Hotline.