BVA9506461 DOCKET NO. 92-17 775 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for a bilateral knee disorder. 2. Entitlement to service connection for defective hearing. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph Horrigan, Counsel INTRODUCTION The veteran retired in December 1989 after more than 20 years of active duty. This matter came before the Board of Veterans' Appeals (Board) from a January 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina which denied service connection for chronic headaches with nasal problems, a ruptured disk, bilateral knee disability, and hearing loss as well as a compensable evaluation for low back strain. In December 1991, the veteran appeared and gave testimony before a Hearing Officer at the RO and a transcript of this hearing is of record. Following the Hearing Officer's decision, rating actions of February 1992 granted a 10 percent evaluation for the veteran's low back disability and denied service connection for tinnitus. Thereafter, the veteran moved to Wisconsin and the case was transferred to the Milwaukee RO. A Board decision of April 1994 granted service connection for allergic rhinitis and remanded for further development the issues of service connection for herniated nucleus pulposus, a sinus disorder with headaches and tinnitus as well as an increased evaluation for a low back disability. Development was not requested of the issues of entitlement to service connection for a bilateral knee disorder and defective hearing. A rating decision of December 1994 granted service connection for tinnitus and a sinus disorder with headaches. Service connection was also granted for herniation of L4-5 and L5-S1 which was combined with the previously service connected low back strain and assigned a 40 percent evaluation from January 1, 1990. The veteran subsequently expressed agreement with this rating decision. Accordingly, only the issues of entitlement to hearing loss and a bilateral knee disability are before the Board for appellate consideration at this time. The veteran's representative has raised the issue of entitlement to service connection for hypertension and, in a March 1995 statement, has disagreed with the assignment of a noncompensable evaluation for tinnitus. These issues have not been developed and certified for appeal and are referred to the RO for all appropriate action. REMAND The service medical records show that the veteran was seen in March 1976 with complaints which included pain and weakness in the knees after running one half mile. In October 1980, the veteran was seen with complaints of tenderness in the right leg of two to three months duration secondary to recurrent trauma to the knee area (hitting desk). Examination showed a mild inflammatory area just below the tibial tuberosity without streaking, eschar formation, or tenderness. He was seen in April 1981 with complaints of left knee arthralgia. The assessment was R/O strain. In January 1983, it was noted that the veteran wanted a prescription of Tolectin for his left knee. In August 1983, the veteran was provided with two medium knee braces. On examination prior to separation from the service, the veteran was noted to have chronic, recurrent pain in the knees. On VA orthopedic examination in May 1990, the veteran was noted to complain of pain in the knee joints. Evaluation revealed a normal gait. There was normal configuration of the knees and normal active and passive range of motion. No swelling, synovial edema, articular effusion, or crepitus was found. X-rays of the knee were normal. The diagnosis was normal knee joints but the examiner stated that "most probably, the veteran's complaints are chondromalacia of the right and left knee joint." In view of this apparent contradiction, the Board is uncertain whether the veteran has chronic knee disability due to service. The duty to assist the claimant is not discretionary when a well-grounded claim is presented. See 38 U.S.C.A. § 5107(a) (West 1991). Thus, although this case was previously remanded for development of other issues, the Board is now of the opinion that additional evidentiary development is necessary to establish the correct diagnosis. In view of the foregoing, and given the duty to assist the veteran in the development of his claim under 38 U.S.C.A. § 5107 (West 1991), this case is again remanded to the RO for the following action: 1. The RO should take appropriate steps to contact the veteran and request that he provide the names, addresses, and approximate dates of treatment of all medical care providers who have treated him for knee complaints since his discharge from the service. After securing any necessary release, the RO should obtain these records. All records obtained should be associated with the claims folder. 2. Then, the veteran should be afforded a VA orthopedic examination to determine the nature and etiology of any current knee complaints. All necessary special studies should be obtained and all clinical findings reported in detail. The claims folder must be made available to the examiner prior to his evaluation so that the pertinent clinical records can be reviewed in detail. At the conclusion of the evaluation, the examiner should express her/his medical opinion, with complete rationale, as to whether any current knee pathology is related to the complaints reported during service. 3 Then, after any further development deemed appropriate, the RO should again adjudicate the veteran's claim for service connection for a bilateral knee disorder after consideration of all potentially applicable criteria. If this benefit is not granted, he and his representative should be provided a supplemental statement of the case and afforded a reasonable opportunity to respond. Thereafter, the case should be returned to the Board for further consideration, if appropriate. By this remand, the Board intimates no opinion as to the outcome warranted in this case. No action is required of the veteran until he is so informed by the RO. The issue of service connection for hearing loss will be held in abeyance pending completion of the above development. BARBARA B. COPELAND 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).