Citation Nr: 0004469 Decision Date: 02/18/00 Archive Date: 02/23/00 DOCKET NO. 97-23 211 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to service connection for a right knee disorder as secondary to service-connected postoperative residuals of a meniscectomy of the left knee. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The veteran served on active duty from January 1969 to August 1971. This matter comes to the Board of Veterans' Appeals (Board) from rating determinations of the Department of Veterans Affairs (VA) Regional Offices (ROs) in Reno, Nevada, and Honolulu, Hawaii. FINDING OF FACT Competent evidence has been submitted linking current right knee problems to the service-connected left knee disability. CONCLUSION OF LAW The claim of service connection for a right knee disorder as secondary to service-connected postoperative residuals of a meniscectomy of the left knee is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran contends that his right knee disorder is the result of his service-connected left knee locking up on him as he was going down some steps. This caused him to miss the step with his right foot resulting in injury to the right knee. He ultimately underwent two right knee surgeries. Disability which is proximately due to or the result of a service-connected disease or injury shall be service- connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (1999). When aggravation of a nonservice-connected disability is proximately due to or the result of a service- connected disorder, service connection is warranted for the degree of aggravation, but only that degree, over an above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995). The threshold question that must be resolved with regard to a claim is whether the veteran has presented evidence that the claim is well grounded. Under the law, it is the obligation of the person applying for benefits to come forward with a well-grounded claim. 38 U.S.C.A. § 5107(a). Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). 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)." Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997). Mere allegations in support of a claim that a disorder should be service-connected are not sufficient; the veteran must submit evidence in support of the claim that would "justify a belief by a fair and impartial individual that the claim is plausible." 38 U.S.C.A. § 5107(a); Tirpak, supra. The quality and quantity of the evidence required to meet this statutory burden depends upon the issue presented by the claim. Grottveit, supra. The U.S. Court of Appeals for Veterans Claims (Court) has held that, in general, a claim for service connection is well grounded when three elements are satisfied with competent evidence. Caluza v. Brown, 7 Vet. App. 498 (1995). First, there must be competent medical evidence of a current disability (a medical diagnosis). Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) Second, there must be evidence of an occurrence or aggravation of a disease or injury incurred in service (lay or medical evidence). Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991); Layno v. Brown, 6 Vet. App. 465 (1994). Third, there must be a nexus between the in-service injury or disease and the current disability (medical evidence or the legal presumption that certain disabilities manifest within certain periods are related to service). Grottveit v. Brown, 5 Vet. App. 91, 93; Lathan v. Brown, 7 Vet. App. 359 (1995). A review of the private and VA records reflects that the veteran was seen in September 1994 for right knee complaints. It was indicated that the veteran was attempting to walk down the stairs the previous night when he missed a step and injured his right knee. The impression was sprain and traumatic effusion of the right knee. Subsequently dated reports include a private record from February 1995 which notes that the veteran twisted his knee when walking down some stairs. Magnetic resonance imaging (MRI) of the right knee showed a prominent tear of the posterior horn medial meniscus. Private records reflect that the veteran underwent a right knee arthroscopy in March 1995. Additional clinical reports include a September 1995 VA record which shows that the veteran was seen for bilateral knee complaints. The examiner noted that the veteran said that he had been living on the second floor for the past three years which might have contributed to his right knee pain. It was noted that the left knee was weak and that, therefore, weight bearing had generally been on the right knee. Private records reflect that the veteran underwent additional right knee surgery (complete lateral and partial medial meniscectomy) in February 1997. Bilateral degenerative joint disease in the both knees is the continuing diagnosis. It is the Board's conclusion that this medical evidence meets the criteria for a well-grounded claim. There is evidence of a current right knee disorder satisfying the first element of a well grounded claim. It is alleged that the right knee disorder is the result of the service-connected left knee disorder. The truthfulness of this statement must be presumed when determining whether a claim is well grounded, thereby satisfying the second element of a well-grounded claim. Finally, the third element of a well grounded claim is met by the examiner's statement in September 1995 that weight bearing was borne by the right knee due to left knee problems. See Epps, Grottveit, Caluza, Rabideau, Brammer, Cartwright, Layno, and Lathan, supra. Because the claim is well grounded, VA has an obligation to assist the appellant in further development of the claim. 38 U.S.C.A. § 5107(a); Murphy, supra. Action pursuant to this duty is addressed in the Remand section below. ORDER The claim of service connection for a right knee disorder as secondary to service-connected postoperative residuals of a meniscectomy of the left knee is well grounded. REMAND As noted earlier, the veteran contends that his right knee disorder is the result of his service-connected left knee locking up on him as he was going down some steps. This caused him to miss the step with his right foot resulting in injury to the right knee. He ultimately underwent two right knee surgeries. In this case, the medical evidence of record does not specifically address whether or not a causal relationship exists between the veteran's service-connected left knee disorder and his right knee disability. As noted above, it was mentioned by one examiner that weight bearing was borne by the right knee due to left knee problems. In addition, the RO did not consider the question of whether the veteran's service-connected residuals of left knee surgery aggravated his right knee disability. Under Allen, 7 Vet. App. 439, service connection for the veteran's right knee disability can be established on the basis that, unrelated to service, it was aggravated by his service- connected postoperative residuals of a left knee meniscectomy. Id. at 448-450. The Board must consider independent medical evidence in supporting recorded findings, rather than providing its own medical judgment in the guise of a Board opinion. Where the Board determines that the evidence of record is insufficient for a fully informed evaluation, the Board is free to supplement to the record by seeking an advisory opinion or ordering a medical examination. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). In addition, where an issue of causation is present, an adequate record should include an opinion as to any possible relationship. Moore v. Derwinski, 1 Vet. App. 401 (1991). Under the present circumstances, it is unclear whether the veteran's right knee disability was caused or aggravated by his service-connected left knee postoperative residuals. Also, the veteran has not been afforded a VA medical examination to determine the etiology of his right knee disability. Thus, a VA medical examination is necessary for a fully informed evaluation of this claim. Colvin, supra. In light of the foregoing, the case is REMANDED for the following development: 1. The RO should request the veteran to identify the names, addresses, and approximate dates of treatment for all health care providers, VA or private, inpatient or outpatient, who may possess additional records of treatment pertinent to his claim that are not already of record. After securing any necessary authorization from the veteran, the RO should attempt to obtain copies of these treatment records identified by the veteran. 2. The veteran should be afforded a VA medical examination to ascertain the nature and etiology of any right knee disability. All indicated studies should be performed and all findings set forth in detail. The claims folder must be made available to the examiner for review in conjunction with the examination. The examiner should be asked to render an opinion as to the etiology of the veteran's right knee disability, to include whether it is as last as likely as not that the veteran's right knee disorder is causally related to his service-connected left knee disability. If no causal relationship is determined by the examiner to exist, he or she should then opine as to whether the service-connected left knee disorder aggravated any right knee disability found on examination. If aggravation is determined to have occurred, to the extent possible, the examiner is requested to comment on the degree of any additional impairment to the right knee (but only that over and above the degree of disability preexisting the aggravation) caused by the veteran's service-connected left knee meniscectomy residuals. 3. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the above foregoing development has been accomplished. If any development is incomplete, including if the requested examination does not include all test reports or opinions requested, appropriate corrective action should be implemented. Stegall v. West, 11 Vet. App. 268 (1998). 4. The RO should then readjudicate the veteran's claim of service connection for a right knee disability either as secondary to his service-connected postoperative residuals of a left knee meniscectomy, or pursuant to the holding in Allen, supra. If the benefit remaining on appeal is not granted, the RO should issue a supplemental statement and provide the veteran and his representative an opportunity to respond. The case should then be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. 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 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. James R. Siegel Acting Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (1999).