BVA9501983 DOCKET NO. 93-08 024 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Anthony D. Dokurno, Associate Counsel INTRODUCTION The veteran performed active military service from December 1977 to June 1978. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 1992 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for a right knee disability. 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). The veteran and his representative have submitted reports of medical examination substantiating his claim that his knee disorder commenced during his active service and may have continued to the present. Specifically, the service medical record contains an April 1978 entry noting bilateral knee pain and crepitus, and a May 1978 orthopedic treatment entry with a stated impression of chondromalacia patella, with gross crepitation and pain in both knee caps. The veteran and his representative have also submitted records from a private physician which document a current knee condition. These July 1991 records refer to a left knee condition, but also mention comparing the 1991 findings with records of June 1984, which are not of record. The claims file also includes the results of a November 1991 VA examination, which noted a history of bilateral knee pain. Accordingly, the Board finds that this claim is well- grounded. Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993). However, though the claim is well-grounded, the current record indicates that significant additional medical records may be available and that clarification is required as to questions of medical diagnosis and causation. The veteran's service medical records are somewhat contradictory regarding his knee condition. The veteran's October 1977 enlistment physical examination reveals that the veteran's condition was entirely normal. A March 7, 1978 service medical record entry discloses that the veteran presented with a complaint of left knee pain with limited range of motion, but no crepitus "now." The symptoms reportedly had been present for four weeks. The assessment was chondromalacia. Service medical records show the veteran was referred to a physical therapy clinic on March 20, 1978 for complaints of knee pain of six weeks duration. He was seen the next day, at which time a two month history of left knee pain was recorded. The pain reportedly increased on running, and there had been no antecedent trauma. On clinical evaluation, knee pain and chondromalacia patella were reported, as was crepitus and inhibition. Assessment was left patella chondromalacia. A separate entry dated March 21, 1978 in the service medical records reflects a complaint of knee pain (which knee is unspecified), with crepitus. An April 1978 service medical record entry listed symptoms of "bilateral knee pain" and observations of crepitus, though it is unclear whether the right knee, the left knee, or both were so affected. The veteran's Report of Medical History, made in April 1978 in connection with his separation examination, is checked to indicate a positive response to whether he currently had or previously had a "bone, joint, or other deformity," but the report contains no explanatory note. The listed observations of the veteran's May 1, 1978 orthopedic examination included gross crepitation and pain in both knee caps, with an impression of chondromalacia patella. The examiner also noted that the veteran had performed quadriceps exercises at the behest of earlier examiners, but without benefit. A May 17, 1978 service medical record entry repeated the impression of chronic chondromalacia patella, but included the observation that the right knee, for which the veteran is now claiming service connection, was better. No separation examination is of record. The records of the veteran's medical history after service are somewhat contradictory, as well. At a personal hearing before the RO in August 1992, the veteran referred to treatment sometime between 1978 and 1991 by a private physician, who diagnosed an arthritis condition after reviewing x-rays. The veteran did not specify which knee was examined, or if both were viewed. It is unclear from the record if the veteran was referring to the private physician's examination whose notes are of record, dated July 30, 1991. If so, they may not be pertinent to the present claim, since they reported the left knee's condition, not the right. In any event, one of the July 1991 notes stated that the left knee's condition was "(c)ompared to (June 6, 1984)," suggesting that other records regarding the veteran's knee condition, including x-rays, may exist. These records, if they exist, are not in the claims file and there is no indication they were sought. The veteran underwent a VA examination of his knees in November 1991. The Radiology Diagnostic Reports indicate that there was no bone or joint pathology in either knee. The clinical diagnosis was: "History of bilateral knee pain, the patient is symptomatic with functional impairment per the patient's history of pain with prolonged standing or instability with walking." The examiner also wrote that the veteran had reported seeing a private physician (whose name is not mentioned), who told him he had arthritis. He also recorded that the veteran stated that the doctor had at one time prescribed anti-inflammatory medication for his condition, but that he could no longer afford it. A month after the veteran testified personally at his August 1992 hearing, the hearing officer promulgated his decision. As the veteran and his representative have argued, the hearing officer wrote that, in a sense, the veteran's VA examination was inadequate for rating purposes, because it did not conform to procedures and practices in cases where chronic symptoms are identified and the veteran exhibits functional impairment. Nevertheless, after a full reading of the claims file, the hearing officer found that service connection was in order for a left knee disability, but not for the right. The VA has a duty to assist a veteran in the development of facts pertinent to his or her claim. 38 U.S.C.A. 5107(a). The duty to assist a veteran in obtaining and developing available facts and evidence to support a claim includes obtaining adequate VA examinations. Littke v. Derwinski, 1 Vet.App. 90 (1990). In light of the above, there appear to be additional and potentially relevant medical records available, as well as significant medical questions concerning diagnosis and causation, that require additional development. Accordingly, the VA's duty under 38 U.S.C.A. § 5107(a) to assist the veteran in the development of facts pertinent to his claim mandates that this case must be REMANDED to the RO for the following actions: 1. The RO should request the veteran to provide a comprehensive statement regarding all medical treatment he received post- service for his knee condition. The veteran should be advised to supply the necessary signed authorizations for the release of this medical information. He should also be informed that his cooperation is vitally important to a resolution of his claim and that his failure to cooperate may have adverse consequences. After the veteran has submitted written authorizations for the release of any further information, the RO should take appropriate action to secure copies of these records. The RO should specifically ask the veteran for information identifying the facility and physician the veteran mentioned during his August 1992 hearing. That physician reportedly diagnosed the veteran's right knee condition as arthritic. 2. The RO should also specifically assist the veteran in seeking and securing copies of treatment notes, clinical evaluations, x-ray reports, or any other documentation pertaining to the veteran's consultation for a knee condition on June 6, 1984 with a private physician. These reports are referred to in the July 30, 1991 radiological report signed by Stephen F. Albert, M.D. 3. The RO should schedule the veteran for a VA orthopedic examination of both knees, to include x-rays. The claims folder must be made available to the examiner for review in conjunction with the examination. After reviewing the claims file and conducting the examination, the examiner should render an opinion as to whether the veteran has arthritis or other knee disability in the right knee, and if so, whether it is at least as likely as not that the disability had its onset during the veteran's active service, or is related to the service connected left knee disorder. 4. In light of any additional evidence obtained, the RO should readjudicate the issue listed on the title page, adjudicate any additional issues identified by the veteran, and issue a supplemental statement of the case if the benefits sought on appeal are not granted to the veteran's satisfaction. The veteran and his representative should be provided an 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. ____________________________ RICHARD B. FRANK 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) (1993).