Citation Nr: 0004192 Decision Date: 02/16/00 Archive Date: 02/23/00 DOCKET NO. 95-29 263 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Whether new and material evidence has been submitted to reopen the veteran's claim of entitlement to service connection for a right knee disorder. 2. Entitlement to service connection for a back disorder secondary to a right knee disorder. REPRESENTATION Veteran represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Maureen A. Young, Associate Counsel INTRODUCTION The veteran had active military service from May 1975 to August 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1995 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. The Board notes that entitlement to service connection for a right knee condition was denied by the RO in March 1976. The veteran was informed of the denial of service connection by letter dated March 26, 1976. He did not appeal that decision which became final in March 1977. The RO, in an April 1995 rating decision reviewed the claim of entitlement to service connection for the right knee on a de novo basis. In accordance with the United States Court of Appeals for Veteran Claims (Court), ruling in Barnett v. Brown 8 Vet. App. 1 (1995), the Board is obligated to address the issue of new and material evidence regardless of whether the RO based its determination on that issue. Hence, the Board will proceed with a determination of whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a right knee disorder, which was denied in March 1976. A claim for clear and unmistakable error (CUE) was submitted by the veteran's representative, Paralyzed Veterans of America (PVA), in June 1997. The RO denied the CUE claim and PVA submitted a timely notice of disagreement (NOD) in April 1999. A statement of the case (SOC) was issued in August 1999. PVA submitted a letter dated in September 1999 to the RO requesting that it be accepted in lieu of a VA Form-9. Pursuant to 38 C.F.R. § 20.204(b)(c) (1999), the PVA has withdrawn the substantive appeal and has withdrawn the issue of CUE from consideration. The Board finds that jurisdiction is not found in this instance and will not consider the issue of CUE. This case was before the Board in June 1997. At that time the Board remanded it for additional development of the issues of entitlement to service connection for a right knee disorder and a back disorder as secondary to a right knee disorder. The Board also directed the RO to adjudicate the issue of CUE. As noted above, the issue of CUE has been withdrawn. The case has been returned to the Board for further evaluation on the remaining issues. The issue of entitlement to service connection for a back disorder as secondary to a right knee disability is addressed in the remand portion of the decision. FINDINGS OF FACT 1. The RO denied entitlement to service connection for a right knee disorder when it issued an unappealed rating decision in March 1976. 2. The evidence received since the final disallowance in March 1976 provides a more complete picture of the circumstances surrounding the origin of the veteran's claimed disability, bears directly and substantially upon the issue at hand, and because it is neither cumulative nor redundant, and is significant, it must be considered in order to fairly decide the merits of the claim. 3. The claim of entitlement to service connection for a right knee disorder is supported by cognizable evidence showing that the claim is plausible or capable of substantiation. 4. A chronic right knee disorder cannot satisfactorily be dissociated from injury sustained in service. CONCLUSIONS OF LAW 1. Evidence submitted since the March 1976 decision wherein the RO denied entitlement to service connection for a right knee disorder is new and material and the veteran's claim for that benefit is reopened. 38 U.S.C.A. §§ 5104, 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a), 20.1103 (1999). 2. The claim of entitlement to service connection for a right knee disorder is well grounded. 38 U.S.C.A. § 5107 (West 1991). 3. A chronic right knee disorder was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107(a) (West 1991); 38 C.F.R. §§ 3.102, 3.303, 3.303(b) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background Service medical records reveal that the veteran was examined at enlistment in May 1975, and he denied any history of problems with trick or locked knee, bone, joint or other deformity or swollen or painful joints. Clinical evaluation further found no abnormalities with any part of his musculoskeletal system or lower extremities. It was noted that he was qualified for enlistment. Service medical records dated in June 1975 show the veteran reported that he collided with someone's head and hurt his right knee. Examination revealed effusion of the right knee; and, the diagnosis was noted as effusion. He was treated with a cylinder cast. His medical condition was further noted on a Medical Condition Physical Profile Record. It indicated that he was medically qualified for line of duty, with limitations imposed on his activities. Knee effusion was noted and crutches were prescribed for 14 days. A June 1975 medical report indicated that the veteran had been marching in the cylinder cast. Examination revealed that the cast was in place. The diagnosis indicated that he needed crutches. Crutches were prescribed for 11 days. In an undated orthopedic clinical record, it was noted that the veteran complained of knee pain and popping. It was also noted that the veteran was examined, but that he desired further evaluation. In a July 9, 1975 medical treatment report, it was noted that the veteran had a contusion of the right anterior knee, three weeks earlier. It was further noted that he came out of the cylinder cast the day of the report. Examination revealed no effusion of the right knee. It was indicated that he still had slight tenderness of the medial side of the right patella with some pain on patellar grind with no crepitus. The diagnosis was contusion of the right knee. Further, on a Medical Condition Physical Profile Record, dated the same day, the veteran was evaluated as medically qualified for duty with limited activities. Crutches were prescribed for 14 days. The veteran was seen again, on July19, 1975, with complaints of a right knee problem. Examination showed negative McMurray's and Drawer, and good stability. The diagnosis was chondromalacia - chronic subluxating patella. He was treated with crutches, among other things. It was further noted on this medical record that there was no effusion, instability or sub patellar crepitus. On a July 30, 1975 clinical record, the examiner noted that the veteran reported that when he was eight years old, he had lateral dislocation of the right patella. He further claimed that "this has happened two or three times prior to service and each time required having somebody reduce the patella or crutches until ambulation was possible." During the medical evaluation, the veteran complained of knee pain and popping. The examiner further noted that since entry on active duty, the veteran had been plagued with right knee pain. The pain was worse when he marched, went up and down stairs, ran or did any type of strenuous physical activity. Moreover, the veteran had had knee effusion since entry into active duty. He had been treated with casting and crutches to no avail and every time an activity was started, the knee swelled and hurt. Examination revealed poor range of motion of the right knee. There was 2+ effusion. There was patella femoral crepitus. There was tenderness on pressing on the patella. Ligaments were normal and McMurray's was negative. The diagnosis was recurrent dislocation of the right patella with chondromalacia. The examiner noted that since the veteran did not meet induction standards, he recommended presentation to the Medical Board for consideration for separation. He further noted that this was a condition that existed prior to service and was not service aggravated. The veteran underwent an examination on July 31, 1975 for Medical Board evaluation. Recurrent dislocation of the right patella with chondromalacia was noted. It was further noted that he was not qualified for enlistment. On July 31, 1975 the veteran signed a disposition form which provided, inter alia, the following: "Under provisions of AR 635-200, para 5-9, I request discharge from the military service by reason of erroneous induction/enlistment." The report of the Medical Board Proceedings of August 1975 indicate that the veteran was medically fit for further military service in accordance with current medical fitness standards. His medical condition was listed as recurrent dislocation of the right patella with chondromalacia. It was indicated that the condition existed prior to service and was not aggravated by service. It also indicated that there was optimum hospital improvement for disposition purposes and that he received the maximum hospital benefit. The veteran initially filed a claim for service connection for a knee injury in January 1976. The claim was denied in a March 1976 rating decision on the bases that the evidence showed the knee condition was held to have existed prior to service and was not aggravated beyond its natural progress while in service. The veteran did not appeal this decision. In September 1996 the veteran filed an application to reopen his claim for service connection for a knee condition. In that same application he made a claim for service connection for a back disorder as secondary to the knee condition. In a statement in support of his claim, he asserted that he was hurt while playing Army football in basic training and had a leg cast on for months. He stated that he signed a document stating that he had a prior injury in order to get an honorable discharge. Private medical records show that x-rays of the veteran's cervical spine and lumbar spine were taken in April 1994. The findings showed minimal degenerative changes of the lower cervical spine and mid and lower lumbar spine. It was noted that spina bifida occulta of the first sacral segment was probably of no clinical consequence. In April 1995 the RO denied the veteran's claim for service connection for the right knee and the back secondary to the right knee on the bases that the claims were not well grounded. On appeal to the Board, in August 1995, the veteran stated that he hurt his right knee playing Army football. He stated that he was frustrated when he could not go back to his company, so he lied to the medical doctor, telling him that his injury was old. He further stated the doctor told him that if he would sign a paper [stating the injury pre-existed service], he could get an honorable discharge. In June 1998 the veteran underwent a VA compensation examination for joints in accordance with the Board's remand directive. The examiner noted that the C-file was available and thoroughly perused. X-rays were taken and the findings were evaluated. The examiner opined that there was nothing in the x-rays that would indicate that there are anatomical features in the bones, which would predispose the veteran's knee to recurrent dislocation of the patella. The examiner stated that he could not indicate whether the veteran had a definite dislocation of the patella at any stage or that he had ever had a recurrent dislocation of the patella. He stated that the veteran probably sustained a single episode of patellar dislocation and that at this stage he has chondromalacia of the patella, which does not appear to be advanced, but there is no evidence to indicate that he has a severe limiting disability in the knee. The diagnosis was chondromalacia patella, tear of the posterior horn of the medial meniscus. There was no examination of the veteran's back. Criteria New and Material Evidence If no notice of disagreement is filed within the prescribed period, the action or determination shall become final and the claim will not thereafter be reopened or allowed, except as otherwise provided by regulation. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. § 20.1103 (1999). The Board does not have jurisdiction to consider a previously adjudicated claim unless new and material evidence is presented. Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996). A decision of a duly constituted rating agency or other agency of original jurisdiction shall be final and binding on all field offices of VA as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C.A. § 5104 (West 1991). A final and binding agency decision shall not be subject to revision on the same factual basis except by duly constituted appellate authorities or except as provided in § 3.105 of this part. 38 C.F.R. § 3.104(a). A determination on a claim by the agency of original jurisdiction of which the claimant is properly notified is final if an appeal is not perfected as prescribed in Rule 302 (§ 20.302 of this part). 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. If new and material evidence is presented or secured with respect to a claim, which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108 (West 1991). The determinations of whether evidence is new and whether it is material are governed by the tests set forth in 38 C.F.R. § 3.156(a); new and material evidence means evidence not previously submitted to agency decision makers 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 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) (1998); Fossie v. West 12 Vet. App. 1, 4 (1998); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New evidence is evidence, which (1) was not in the record at the time of the final disallowance of the claim, and (2) is not merely cumulative of other evidence in the record. Smith v. West, 12 Vet. App. 312, 314 (1999); Evans v. Brown, 9 Vet. App. 273, 283 (1996). New evidence is considered to be material where such evidence provides a more complete picture of the circumstances surrounding the origin of the veteran's injury or disability, even where it will not eventually convince the Board to alter its decision. See Hodge, supra at 1363. Recently in Elkins v. West, 12 Vet App. 209 (1999) The United States Court of Appeals for Veteran Claims (Court) held that the recent decision of the Federal Circuit in Hodge, supra requires the replacement of the two-step Manio test with a three-step test. Winters v. West, 12 Vet. App. 203, 206 (1999); See Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Under the new Elkins test, VA must first determine whether the veteran has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108. Second, if new and material evidence has been presented, immediately upon reopening the claim the Board must determine whether, based upon all the evidence of record in support of the claim, presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C.A. § 5107(a). Third, if the claim is well grounded, the Board may then proceed to evaluate the merits of the claim but only after ensuring that the duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. Winters, supra. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Duran v. Brown, 7 Vet. App. 216, 220 (1994). However, lay assertions of medical causation cannot serve as the predicate to reopen a claim under § 5108. See Moray v. Brown, 5 Vet. App. 211, 214 (1993). Well Groundedness Pursuant to 38 U.S.C.A. § 5107(a), a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The Court has held that a well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § [5107(a)]." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The Court has also held that although a claim need not be conclusive, the statute provides that it must be accompanied by evidence that justifies a "belief by a fair and impartial individual" that the claim is plausible. Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992). The Court has held that "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." Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) (citing Murphy, at 81). The Court has held that a well-grounded claim requires competent evidence of current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in-service injury or disease and the current disability (medical evidence). See Epps v. Brown, 126 F.3d. 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Service Connection Service connection for VA disability compensation purposes will be awarded to a veteran who served on active duty during a period of war, for any disease or injury that was incurred in or aggravated by a veteran's active service or for certain diseases that were initially manifested, generally to a degree of 10 percent or more, within a specified presumption period after separation from service. Brock v. Brown, 10 Vet. App. 155, 160 (1997); See 38 U.S.C.A. §§ 1110, 1112(a), 1116, 1137 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303(a), 3.307, 3.309(a) (1999). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). When a disease is first diagnosed after service, service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during the veteran's service or by evidence that a presumption period applied. Brock, supra at 160 (citing Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994)). Proof of direct service connection entails proof that exposure during service caused the malady that appears many years later. Brock, supra at 160 (citing Cosman v. Principi, 3 Vet. App. 503, 505 (1992); 38 U.S.C. § 1116). The provisions of 38 C.F.R. § 3.310(a) (1999) provide that disability which is proximately due to or the result of a service-connected disease or injury, shall be service connected. Further, in a claim for secondary service connection for a diagnosis clearly separate from the service- connected disability, the veteran must present evidence of a medical nature to support the alleged causal relationship between the service-connected disability and the disorder for which secondary service connection is sought, in order for the claim to be well grounded. See Jones v. Brown, 7 Vet. App. 134 (1994). In Allen v. Brown, 7 Vet. App. 439 (1995), the Court made clear that service connection may not only be granted for a disorder found to be proximately due to or the result of a service-connected disability, but also when it is shown that the claimed disorder has been aggravated by the service- connected disability. In such cases, according to the Court, a basis exists upon which to predicate a grant of entitlement to service connection on a secondary basis. Id. Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (1999). This rule does not mean that any manifestation in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1999). See Savage v. Gober, 10 Vet. App. 488 (1997). In order for service connection to be warranted, there must be evidence of present disability, which is attributable to a disease or injury incurred in or aggravated by service. See Brammer v. Derwinski, 2 Vet. App. 23 (1992); Rabideau v. Derwinski, 2 Vet. App 141, 143 (1992). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except for defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 1991). Signed statements of veterans relating to the origin, or incurrence of any disease or injury made in service if against his or her own interest is of no force and effect if other data do not establish the fact. Other evidence will be considered as though such statements were not of record. 38 C.F.R. § 3.304(b)(3) (1999). Where the determinative issue involves the question of a medical diagnosis or causation, only individuals possessing specialized training and knowledge are competent to render a medical opinion. Espiritu v. Derwinski, 2 Vet. App. 192 (1992). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt doctrine in resolving each such issue shall be given to the veteran. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 (1999). Analysis Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a right knee disorder The veteran seeks to reopen his claim of service connection for a right knee disorder, which the RO denied in March 1976. When a claim is finally denied by the RO, the claim may not thereafter be reopened and allowed, unless new and material evidence has been presented. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 3.104 (1999). When a veteran seeks to reopen a finally denied claim, the Board must review all of the evidence submitted since that action, to determine whether the claim should be reopened and readjudicated on a de novo basis. Glynn v. Brown, 6 Vet. App. 523, 529 (1994). The Court has defined new evidence as evidence, which was not in the record at the time of the final disallowance of the claim, and, is not merely cumulative of other evidence in the record. See Smith v. West 12Vet. App. 312, 314 (1999). New evidence is considered to be material where such evidence provides a more complete picture of the circumstances surrounding the origin of the veteran's injury or disability. See Hodge, supra at 1363. In the instant case, the Board finds that evidence has been submitted which was not in the record at the time of the final disallowance of the claim and such evidence is not redundant of evidence previously of record and it provides a more complete picture of the circumstances surrounding the origin of the veteran's injury. This evidence consists of the June 1998 VA compensation examination for joint and statements by the veteran dated in September 1994 and July 1997. The VA examination reveals the physician's observation that the record does not document symptoms of a dislocated patella, but that it provides a diagnosis of effusion. The physician noted that there was nothing in the x-rays that would suggest that the veteran's joint was predisposed to patellar dislocation. He further noted that the veteran could have sustained the tear of the meniscus at the original injury and not a dislocation of the patella. In addition, the statements made by the veteran indicated that the knee injury was sustained during an Army football game. Since the VA physician's opinion and the veteran's statement were not of record prior to the March 1976 disallowance, this evidence is neither duplicative nor cumulative, and therefore constitutes new evidence. Moreover, such evidence bears directly and substantially upon the specific issue being considered in this case because in-service Medical Board findings were that recurrent dislocation of the right patella with chondromalacia existed prior to service. Therefore, the evidence is significant and must be considered in order to fairly decide the merits of the claim. The Board finds that new and material evidence has been received since the March 1976 final determination, and the veteran's claim is reopened. Whether the veteran's claim for service connection for a right knee disorder is well grounded The second step of the three-step test in Elkins, supra, provides that if new and material evidence has been presented, immediately upon reopening the claim, the Board must determine whether the claim is well grounded. The veteran's claim for service connection for a right knee disorder is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the claim is plausible. The record contains medical evidence of a current right knee disorder and medical evidence that the veteran received treatment for and was originally diagnosed with a right knee disorder while in service. Moreover, a VA physician noted that the veteran could have sustained the tear of the meniscus at the original [in-service] injury and not a dislocation of the patella. Thus the requirements for a well ground claim are met. See Caluza, supra. Although the examiner's opinion is expressed with uncertainty by use of the phrase, "could have," the veteran's claim remains plausible. In Molloy v. Brown, 9 Vet. App. 513 (1996) the Court commented that although the physician's opinion was not expressed to a certainty, the physician's use of the term "could" rendered the veteran's claim plausible. Based upon the plausibility of the veteran's claim, the Board finds that his claim for service connection for a right knee disorder is well grounded. Entitlement to service connection for a right knee disorder If the claim is well grounded, under the third and final step of the Elkins' test, the Board may proceed to evaluate the merits of the claim, providing the duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. See Winters, supra. There does not appear to be other obtainable evidence not already of record that would be pertinent to this claim. Service medical records and the report from the June 1998 VA examination have been obtained. On VA examination the veteran stated that he did not see any other physician or seek medical attention because he did not have any money. In order to establish service connection for a claimed disability, the facts, as shown by the evidence, must demonstrate that a particular injury or disease resulting in current disability was incurred in or aggravated coincident with service in the Armed Forces. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 303(a). When a chronic disease is noted in service, subsequent manifestations of the same chronic disease at any later date, however remote, is service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (1999). The RO denied the veteran's claim for service connection for a right knee disorder on the bases that the condition was held to have existed prior to service and was not aggravated beyond its natural progress while in service. Service medical records show that there were no defects of the veteran's right knee at enlistment. Unless clear and unmistakable evidence demonstrates that a disease or injury of the veteran's right knee existed prior to enrollment in service, he shall be taken to have been in sound condition when examined, accepted and enrolled for service. 38 U.S.C.A. § 1111(West 1991). The Board finds that clear and unmistakable evidence has not been presented sufficient to rebut the presumption of sound condition. The veteran was treated in-service for a right knee injury in June 1975, approximately one month following his enlistment. He was diagnosed with effusion of the right knee. In early July 1975 he was diagnosed with contusion of the right knee. In late July 1975 he was diagnosed with chondromalacia, chronic subluxating patella. In a July 30, 1975 report he was diagnosed with recurrent dislocation of the right patella with chondromalacia. The record is devoid of any medical evidence of treatment for a right knee condition prior to service. The medical board found that the veteran's right knee disorder was not incurred in the line of duty but that it pre-existed service. Its findings are predicated solely on the allegation that the veteran said he had some dislocations prior to service. The Board finds that the evidence relied upon by the medical board to establish that a knee disorder pre-existed service is unpersuasive and does not constitute clear and unmistakable evidence. The Court in Paulson v. Brown 7 Vet. App. 466 (1995) held that an appellant's account of a prior condition is an inadequate basis upon which to conclude that the appellant had a condition that pre-existed service. See Id. Moreover, the veteran's initial diagnoses did not include dislocation of the knee. Furthermore, a VA physician noted that there was nothing in the record to suggest that the veteran's joint was predisposed to patellar dislocation. Consequently, the veteran is presumed to have been in sound condition at the time he entered military service. The magnetic resonance imaging (MRI) findings of June 1998 revealed chondromalacia patella and a tear of the posterior horn of the medial meniscus. This diagnosis is not inconsistent with the chronic right knee disorder shown in service. For the foregoing reasons the Board finds that the veteran's right knee disorder, a chronic disability, cannot satisfactorily be dissociated from his period of active service, thereby warranting entitlement to a grant of service connection. ORDER The veteran having submitted new and material evidence to reopen a claim of entitlement to service connection, the appeal is granted in this regard. The veteran has submitted a well grounded claim of entitlement to service connection for a right knee disorder. Entitlement to service connection for a right knee disorder is granted. REMAND 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 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. The RO denied the veteran's claim of entitlement to service connection for a back disorder as secondary to a right knee disorder on the basis that service connection had not been granted for a right knee disorder. As noted earlier, the Board granted service connection for a right knee disorder. Accordingly, adjudication of the claimant's appeal would be prejudicial since it would be on a basis not initially considered by the RO. Bernard v. Brown, 4 Vet. App. 384 (1993). Accordingly, in order to accord the appellant due process of law, the Board is deferring adjudication of the claim of entitlement to service connection for a right knee disorder pending a remand of the case to the RO for further development and adjudicatory actions as follows: 1. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). 2. The RO should contact the appellant and request that he identify the names, addresses, and approximates dates of treatment for all medical health care providers, VA and non-VA, inpatient and outpatient, who may possess additional records referable to his treatment for a back disorder. After obtaining any necessary authorization or medical releases, the RO should request and associate with the claims file legible copies of the veteran's complete treatment reports from all sources identified whose records have not previously been secured. Regardless of the veteran's response, the RO should secure all outstanding VA treatment records. 3. The RO will undertake such additional development or review action as it deems proper regarding the issue of entitlement to service connection for a back disorder as secondary to the service-connected disability of the right knee. 4. If such action does not resolve the disagreement either by granting the benefit sought or through withdrawal of the notice of disagreement, the RO shall prepare a supplemental statement of the case referable to the issue of entitlement to service connection for a back disorder as secondary to the service-connected disability of the right knee. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for final appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. RONALD R. BOSCH Member, Board of Veterans' Appeals