Citation Nr: 0005685 Decision Date: 03/02/00 Archive Date: 03/14/00 DOCKET NO. 98-13 248 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an increased evaluation for residuals of a gunshot wound to the right knee with degenerative joint disease, currently evaluated as 30 percent disabling. 2. Entitlement to an increased evaluation for residuals of a gunshot wound to the left knee with degenerative joint disease, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jonathan E. Taylor, Associate Counsel REMAND The appellant served on active duty from May 1969 to December 1971. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a June 1998 rating decision of the Atlanta, Georgia, Department of Veterans Affairs (VA) Regional Office (RO). The veteran has claimed entitlement to increased evaluations of his service connected bilateral knee disabilities. Service connection has been established for residuals of gunshot wounds to both knees. Service medical records establish that the wound to the right leg occurred on January 15, 1971, in Okinawa, when the appellant was shot by a fellow soldier. Service medical records are entirely unclear as to when a gunshot wound injury to the left knee may have occurred, but it did not occur at the same time as the right leg injury. There is early reference to a left knee injury in March 1971, but that appears to be a mistaken entry, as the rest of that treatment note deals entirely with the appellant's right knee. There is a September 4, 1971, x-ray of the left knee showing a normal examination. The appellant has reported that he was injured in October 1971 when he was shot getting out of his car in Virginia Beach, Virginia. He said he was treated at Portsmouth Naval Hospital, and that military police did an investigation of that incident. There is no record of that incident, or of his treatment at Portsmouth Naval Hospital, other than the negative x-ray report dated in September 1971. In considering the residuals of injury, it is essential to trace the medical-industrial history of the disabled person from the original injury, considering the nature of the injury and the attendant circumstances, and the requirements for and effect of treatment over past periods. 38 C.F.R. § 4.41 (1999). It does not appear that the RO has ever attempted to obtain any line of duty determination for the wound to the left knee, nor has the RO ever developed for the hospital records attending either the right knee injury or the left knee injury. These records may be of importance in determining the extent of the original injuries and any possible muscle or nerve involvement. They are also important for any examiner to review in order to assess the residuals of the injuries. This is particularly true where, as here, the appellant has periodically, including during active service and on numerous VA examinations and treatment records, reported that both knees were injured while serving in the Republic of Vietnam, a reported history that is patently untrue. There is no indication on the veteran's DD 214 that he ever served in Vietnam. One injury was clearly shown to have occurred in Okinawa, and the other apparently occurred in Virginia many months later. On the appellant's most recent VA examination, in June 1997, the examiner noted that the veteran's claims file was unavailable for review. The appellant reported an untrue history to the examiner, which was apparently accepted by the examiner as true. Without the appellant's claims file and service medical records for review, the examiner was unable to consider the accurate history of the appellant's injuries, including the initial severity of the injuries. In order to assure that appellate review is fully informed, an attempt should be made to associate with the veteran's claims file the hospitalization records, including clinical records, from both injuries. Accordingly, the RO should request from the appropriate custodian of military medical and clinical records the hospitalization and clinical records from the U.S. Army Hospital at Camp Kowie, Okinawa, for the injury to the appellant's right knee on January 15, 1971, and from the U.S. Naval Hospital in Portsmouth, Virginia, for treatment beginning in September 1971. In requesting the clinical records from Portsmouth Naval Hospital, it is noted that the appellant served in the U.S. Army at the time he was seen there, and any such information as may be required by the custodian of records or the facility to locate the appellant's records should be provided. After obtaining the service hospitalization and clinical records, assure that treatment records are current. Then, schedule the appellant for a VA examination, with the claims folder provided and a request that the examiner review the reports concerning the initial injuries and follow-up treatment to determine whether any muscle or nerve damage is indicated. Accordingly, this case is REMANDED for the following additional development: 1. Request from the appropriate custodian of records the appellant's hospital and clinical records from his hospitalization at the U.S. Army Hospital at Camp Kowie, Okinawa, in January 1971 for right knee gunshot wound, and from his hospitalization at the U.S. Naval Hospital in Portsmouth, Virginia, in early September 1971. Follow up on any alternative sources of such records that may be suggested, to include requesting records directly from the facilities themselves. Associate all responses received with the claims file. 2. Obtain the names and addresses of all medical care providers who have treated the appellant for his knee disabilities since February 1998. After securing the necessary release(s), request the records. If any request for private treatment records is unsuccessful, notify the appellant and his representative, so he may obtain and present the records himself, in keeping with his ultimate responsibility to present evidence in support of his claim. 38 C.F.R. § 3.159(c) (1999). 3. Obtain and associate with the claims file the appellant's VA treatment records from February 1998 to the present. 4. Schedule the appellant for a VA examination to assess the severity of his service-connected knee disabilities. The claims folder and a copy of this REMAND should be made available to the examiner for review before the examination, and the examiner is asked to state in the examination report whether he or she has reviewed the claims folder, including service medical and clinical records, particularly those dealing with initial injury and treatment. The examiner should identify all residuals attributable to the appellant's service- connected left and right knee gunshot wounds. The examiner should note the range of motion for the knees and should state what is considered normal range of motion. Whether there is any pain, weakened movement, excess fatigability or incoordination on movement should be noted, and whether there is likely to be additional range of motion loss due to any of the following should be addressed: (1) pain on use, including during flare- ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner is asked to describe whether pain significantly limits functional ability during flare- ups or when the knees are used repeatedly. All limitation of function must be identified. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. The examiner should also state whether there is any evidence of ankylosis, locking, effusion into the joint, or recurrent subluxation or lateral instability of the knees, and if so, to what extent. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5257, 5258 (1999). Whether any muscle or nerve injury was indicated in the original injury reports and treatment records in service is to be discussed, and, if any, the muscle group(s) and nerves involved are to be identified. Whether there is any residual muscle or nerve damage attributable to the gunshot wounds should be discussed. All indicated tests are to be performed. The examiner should further describe in detail the scars on the appellant's knee from his gunshot wounds. The examiner should note whether there is any tenderness or pain on objective demonstration or any ulceration, and whether or not the scar is poorly nourished or superficial or causes any limitation of function of the knees. 38 C.F.R. § 4.118, Diagnostic Codes 7803, 7804, 7805 (1999). Any indications that the appellant's complaints of pain or other symptomatology are not in accord with physical findings on examination should be directly addressed and discussed in the examination report. The examiner must provide a comprehensive report including complete rationales for all conclusions reached. If further testing or examination by other specialists is determined to be warranted in order to evaluate the residuals of the condition in issue, such testing or examination is to be accomplished. 5. After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant and representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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. J. SHERMAN ROBERTS 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).