BVA9503252 DOCKET NO. 93-09 600 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a bilateral knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD Theresa M. Catino, Associate Counsel REMAND The veteran served on active military duty from February 1943 to July 1946. He was also recalled to active duty for five weeks from September 1946 to November 1946. In June 1944, the veteran was involved in an airplane accident. According to the service medical records, the veteran had multiple abrasions on both of his knees. Also, on one occasion, he complained of uncomfortable soreness in his back and received an alcohol back rub. In an October 1991 statement, Dr. J. Alan Shand, the veteran's private physician since 1952, expressed his medical opinion that the veteran's present low back and bilateral knee disabilities are related to the in-service trauma he suffered as a result of the airplane accident. Subsequently, in November 1991, the veteran underwent a VA examination. Significantly, although VA Form 21-2545, Report of Medical Examination for Disability Evaluation, was signed by a physician, the report of the actual examination of the veteran's knees and back was signed by a certified physician's assistant. It appears that the VA examination was conducted by a physician's assistant rather than a physician. In a July 1992 statement, Dr. Shand indicated that he had reviewed the veteran's service medical records and that he continued to believe that the veteran's present low back and bilateral knee disabilities were residuals of the injuries sustained as a result of the in-service airplane accident. In view of these opinions from Dr. Shand, as well as the lack of a examination by a VA physician, the Board of Veterans' Appeals (Board) concludes that the veteran should be accorded a complete orthopedic examination. See, 38 C.F.R. § 3.326(a),(b) (1994). Although Dr. Shand has reported that he has treated the veteran since 1952, the claims folder does not contain any of the actual records of such treatment. Furthermore, it is unclear from a reading of his October 1991 letter whether he actually treated the veteran for low back or bilateral knee disabilities. At the June 1992 personal hearing, the veteran testified at first that he never talked to "Dr. Shane," his personal physician, about his back problems. Hearing transcript at 13. However, later at the hearing, the veteran testified that he may have discussed his back symptomatology with this physician in the 1950's. Id. at 20. According to his testimony, the veteran has not received specific treatment for his knees since service. Id. at 14. In any event, an attempt should be made to obtain and to associate with the claims folder the actual records of treatment that the veteran received from Dr. Shand. In addition, the veteran also testified at the personal hearing that he had received treatment for his back condition from various private physicians after his separation from service. Id. at 5, 11, 16, 22. A review of the claims folder appears to indicate that the RO did not attempt to obtain the treatment records from all of these physicians. VA has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1991). This duty to assist includes the duty to develop facts when the record before the Board is clearly inadequate. EF v. Derwinski, 1 Vet.App. 324 (1991); Littke v. Derwinski, 1 Vet.App. 90 (1990). The development of facts includes a "thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." Green v. Derwinski, 1 Vet.App. 121, 124 (1991). The Board concludes that further assistance to the veteran is required. Accordingly, the case is REMANDED to the RO for the following: 1. The veteran should be contacted and requested to furnish a complete list of all medical personnel and facilities from which he has received treatment for his back and bilateral knee conditions since his separation from service. The Board is particularly interested in the actual records of any treatment that the veteran may have received from Dr. Shand, Dr. Roberts, Dr. J. Sims Norman, Dr. Hoffman, Dr. Hanson, the local VA medical facility, and from a medical facility in Seattle, Washington (after he may have broken his tail bone in 1958 or 1959 at the University of Washington at Seattle). After obtaining the appropriate releases from the veteran where necessary, the health care providers, or their successors, should be contacted and requested to provide all treatment records in their possession pertaining to the veteran. If these records are unavailable, that fact should be annotated in the claims folder. Any available records should be associated with the claims folder. 2. Following the above, the veteran should be accorded an examination by a VA orthopedist to determine the nature, extent, and etiology of the veteran's back and bilateral knee disabilities. The report of examination should include a detailed account of all manifestations of joint pathology found to be present. All necessary tests and X-rays should be conducted, and the examiner should review the results of any testing prior to completion of the report. Special attention should be given to the presence or absence of pain, any limitation of motion, instability, and weakness. The examiner must express an opinion as to whether any present back and bilateral knee disabilities found on examination are in any way related to, or caused by, the veteran's June 1944 airplane accident, are secondary to abnormal posture (as determined at the August 1950 VA examination), or have some other etiology. The claims folder and a copy of this remand must be made available to and reviewed by the examiner prior to the examination. The orthopedist should provide complete rationale for all conclusions reached. 3. The RO should review the examination report and determine if it is adequate for rating purposes and in compliance with this Remand. If not, it should be returned for corrective action. When this development has been completed, the claim should be reviewed by the RO. If any benefit sought on appeal is not granted, the appellant and his representative should be given a supplemental statement of the case with regard to the additional development and should also be afforded an opportunity to respond. The record should be returned to the Board for further appellate consideration, if in order. The purpose of this REMAND is to obtain clarifying evidence. No action is required of the veteran until further notice is issued. V. L. JORDAN 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).