BVA9506447 DOCKET NO. 93-14 781 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an increased evaluation for the residuals of an injury to the right knee to include chondromalacia and retained foreign bodies, currently evaluated as 10 percent disabling. 2. Entitlement to an increased evaluation for chondromalacia of the left knee, currently evaluated as 10 percent disabling. 3. Entitlement to service connection for post-operative residuals, internal derangement of the right knee, as secondary to his service-connected right knee chondromalacia. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. M. Barnard, Counsel REMAND The veteran served on active duty from March 1967 to July 1970 and from September 1974 to June 1975. This appeal arises from a May 1992 rating decision of the Cleveland, Ohio, Department of Veterans Affairs (VA), Regional Office (RO), which denied entitlement to an increased evaluation for his right knee chondromalacia, as well as service connection for the right knee post-operative residuals. A July 1992 rating action denied an increased evaluation for the veteran's left knee chondromalacia. The appellant testified at a personal hearing in March 1993; that same month, the hearing officer issued a decision which confirmed and continued the denials of the benefits sought. The veteran contends, in essence, that his knee disabilities are more severe than the current disability evaluations would suggest. He states that his right knee was aggravated by the injury that he suffered in 1991, an injury which was rendered more likely by his service-connected knee disorder. He notes that he suffers from continual pain and swelling in his knees. He also noted that he had been told by his doctor if he did not give up his job as a letter carrier, he would need a total knee replacement. He further commented that climbing stairs, standing, walking, or prolonged sitting resulted in pain. He noted that he receives daily physical therapy. Therefore, he believes that increased evaluations should be assigned to his service-connected knee disorders. He also asserts that the 1991 injury to the right knee was related to his service-connected right knee disability. Therefore, he believes that service connection should be granted for the post-operative residuals resulting from this injury. VA has a duty to assist the veteran in the development of all facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1994). This includes the duty to obtain VA examinations which provide an adequate basis upon which to determine entitlement to the benefits sought, as well as all relevant treatment records referred to by the veteran. Littke v. Derwinski, 1 Vet.App. 90 (1991). In those cases which present a complicated disability picture, examinations by specialists are recommended. Hyder v. Derwinski, 1 Vet.App. 221 (1991). VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons used to support the conclusion. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. § 4.1, that requires that each disability be viewed in relation to its history and that there be an emphasis placed upon the limitation of activity imposed by the disabling condition, and 38 C.F.R. § 4.2 which requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.10 states that, in cases of functional impairment, evaluations are to based upon lack of usefulness, and medical examiners must furnish, in addition to etiological, anatomical, pathological, laboratory and prognostic data required for ordinary medical classification, full description of the effects of the disability upon a person's ordinary activity. This evaluation includes functional disability due to pain under the provisions of 38 C.F.R. § 4.40. These requirements for the evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decision based upon a single, incomplete or inaccurate report and to enable VA to make a more precise evaluation of the disability level and any changes in the condition. In the instant case, the veteran has alleged that the injury he suffered in 1991, when he twisted his knee, and the subsequent surgery, are the direct result of his service-connected right knee injury with chondromalacia. However, the last VA examination, which was conducted in November 1992, does not contain an opinion as to any possible relationship between his service-connected right knee injury and the 1991 injury. Such an opinion is essential in this case, given his claim for secondary service connection. Moreover, the RO has denied an increased disability evaluation for the veteran's service-connected right knee chondromalacia, noting that the evidence did not show an increase in his underlying chondromalacia. However, the November 1992 VA examination referred to post-operative residuals with chondromalacia. There was no attempt to differentiate between the veteran's post-operative residuals, and those caused by his chondromalacia. Such an attempt is necessary, given the facts of this case. Finally, the veteran has indicated that he receives physical therapy on a daily basis. However, the RO made no attempt to ascertain if there were available records which should be obtained. Under the circumstances of this case, the undersigned concludes that additional assistance is necessary, and this case is REMANDED to the RO for the following: 1. The RO should contact the veteran and request that he provide the names and addresses of any physician's and/or medical facilities where he is receiving physical therapy for his service-connected knee disabilities. Once a consent form authorizing release to VA of any indicated records is provided by the veteran, all indicated records should be obtained. 2. Once the above-requested records have been obtained and associated with the claims folder, the RO should afford the veteran a VA orthopedic examination in order to fully evaluate the nature and degree of severity of the veteran's service-connected bilateral knee disorders. The examiner should also review the evidence of record and render an opinion as to whether the veteran's 1991 right knee injury was etiologically related to his service-connected right knee injury residuals with chondromalacia. The examiner should also differentiate, to the extent possible, between the symptoms caused by the veteran's service-connected right knee injury residuals with chondromalacia, and the symptoms caused by the veteran's 1991 arthroscopic surgery. All indicated special studies should be accomplished. The claims folder must be made available to the examiner prior to the examination so that the veteran's entire history can be taken into consideration. In the event that the veteran's claims remain denied, in whole or in part, he and his representative should be provided with an appropriate supplemental statement of the case, and an opportunity to respond, and the case should be returned to the Board for further appellate consideration if otherwise in order. C. P. RUSSELL 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).