BVA9507355 DOCKET NO. 93-12 974 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a right knee disorder, based on new and material evidence. ATTORNEY FOR THE BOARD Anthony D. Dokurno, Associate Counsel INTRODUCTION The veteran performed active naval service from July 1957 to June 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1992 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for a right knee disability on the ground that new and material evidence had not been submitted. An examination of the record reveals that in its September 1989 rating decision, the RO denied service connection for the right knee disability on the basis that the veteran's service medical records "do not disclose any complaint of , treatment for, or diagnosis of a right knee injury." The veteran was informed of this decision by letter dated September 22, 1989, but no timely- filed notice of disagreement is of record. In April 1992, however, the veteran and his then-representative filed to reopen, claiming that he had in fact undergone such treatment, and forwarded photocopies of various military treatment records. By rating decision of June 1992, the RO reiterated its denial of service connection for the right knee, stating that it had considered the November 7, 1975 entry in its 1989 decision. The available record amply reflects that the veteran has canceled his association with both service representatives he duly appointed in the past to represent him in his claim before the VA. Thus, he apparently intends to represent himself in this proceeding. REMAND The threshold inquiry is whether the veteran's claim is well- grounded. Under the provisions of 38 U.S.C.A. § 5107 (West 1991), a person who submits a claim to the VA has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well-grounded. If the person meets this burden, the VA is obligated to assist in developing facts pertinent to the claim. A well-grounded claim is one that is plausible, that is, meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). For the reasons which follow, the Board concludes that the veteran's claim of entitlement to service connection for a right knee disability is well grounded, and that further development of certain legal and factual issues by the RO would assist the Board in arriving at a final resolution of this appeal. A review of the veteran's service medical records reveals treatment for symptomatology of the right knee in February 1975, September 1975, and twice in November 1975. In his May 1979 Statement in Support of Claim, the veteran stated he sought service connection "for knee disability," though the consequent June 1979 VA examination only encompassed his left knee and other unrelated disorders not now at issue before the Board. However, VA examinations in July 1986, February 1987, and July 1994 all mention the presence of degenerative changes in both knees. The Board therefore concludes that the claim of entitlement claim is well grounded. Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993). However, though the claim is well grounded, there are indications that the record before the Board is incomplete, and that certain medical and legal questions require further development. The substance of the veteran's May 1993 appeal to the Board is that the RO's 1989 decision denying service connection for a right knee disability did not give proper weight to the November 19, 1975 service medical record of an orthopedic examination of the right knee. Although the time limit for an appeal of the RO's 1989 rating decision elapsed prior to his current appeal to the Board, the existence of other service medical record entries of treatment to the right knee that were available for the RO's review in 1989 has persuaded the Board to construe the veteran's appeal as including a claim of clear and unmistakable error by the RO in its September 1989 and June 1992 rating decisions. The Board further finds that this issue is "inextricably intertwined" with the issue of entitlement to service connection for a right knee disability, based on new and material evidence. It must therefore be formally adjudicated by the RO. Harris v. Derwinski, 1 Vet.App. 180 (1991). There are also indications that private medical records may exist which would assist in a resolution of this claim. In a July 1994 VA examination (the record of which was forwarded directly to the Board pursuant to 38 C.F.R.§ 19.37(b) (1994)), the recitation of medical history includes a reference to an unnamed "GP" (general practitioner's) previous diagnosis of a left knee disorder. Considered in conjunction with the July 1994 VA examiner's diagnosis of bilateral, degenerative joint disease of the knees, it appears that that private physician's treatment records could potentially be of value in this case. The Board also notes that the veteran's April 1992 letter to his former service representative mentions a physical examination and consultation conducted in December 1991. Record of that session is not in the veteran's claim file, but it may also be of use in rendering a decision in this case. Accordingly, in light of the foregoing and the Board's duty under 38 U.S.C.A. § 5107(a) to assist the veteran in the development of facts pertinent to his claim, the case is REMANDED to the RO for the following action: 1. The RO should request from the veteran a comprehensive list of names and addresses of all medical care providers who treated him for his knees, as well as the approximate dates of treatment, since his separation from service. This list should include not only those treatments the veteran specifically sought or received for a right knee disorder, but all reports which may contain evidence of symptomatology of a bilateral knee disorder. The veteran should be advised that his cooperation is vitally important to a resolution of his claim and that his failure to cooperate may have adverse consequences. 2. After securing the necessary authorization for release of medical information, the RO should take appropriate action to secure copies of them for association in the claims folder. 3. Following the above, the RO should schedule the veteran for a VA orthopedic examination. The veteran's complete claims folder should be available to the examiner for review in conjunction with the examination, and all necessary testing should be performed. The examiner should identify all pathologies of either knee and opine whether it is at least as likely as not that any current right knee disorder is causally related to an in- service event or injury. 4. After the development requested above has been completed, the RO should again review the record and consider whether, in light of the entire record, the 1989 and 1992 RO rating decisions were clearly and unmistakably in error pursuant to 38 C.F.R.§ 3.105(a) (1994). If the benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the veteran should be furnished a supplemental statement of the case and provided the opportunity to respond. Thereafter, the case should be returned to the Board for further consideration, if otherwise warranted. By this REMAND, the Board intimates no opinion regarding any final outcome. The veteran is not required to perform any action until he is notified by the RO. J.F. GOUGH 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).