BVA9501945 DOCKET NO. 93-10 258 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for residuals of a right knee injury. WITNESS AT HEARING ON APPEAL Appellant. ATTORNEY FOR THE BOARD Melissa F. Marquez, Associate Counsel INTRODUCTION The appellant had active service from September 1989 to April 1990. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from a July, 1990 rating decision of the Buffalo, New York, Regional Office (hereinafter RO), of the Department of Veterans Affairs (hereinafter VA), which denied entitlement to service connection for residuals of a right knee injury. REMAND Service medical records indicated that the appellant injured her right knee in October 1989, and was subsequently diagnosed with patellofemoral joint syndrome of the right knee. Records further reflect that she was allowed convalescent leave in January, 1990, where she was reportedly treated by a private physician for a subluxating patella. Upon returning in February 1990, service records reflect that she was treated for an abrasions on both knees due to a fall while running at home. Following a March 1990 medical board evaluation indicating patella plica which is unresponsive to conservative treatment, the appellant was discharged with severance pay in April 1990. Relevant post-service medical reports of record include VA orthopedic examinations dated in June 1990 and June 1992, as well as treatment reports from Martin Korn, M.D., Northside Orthopedic Surgeons, Rochester, New York, dated from August 1990 to June 1991. The June 1990 VA examination, with accompanying x-ray, found no objective clinical residuals of the in-service right knee injury, and therefore, rendered no orthopedic diagnosis. During 1990-1991 private treatment, the appellant reported that she had been treated by a private physician in February 1990, at which time x-rays and a MRI were performed. While she presented the x-ray for review by the private physician, she stated that the MRI was unavailable, but that she had been told it was negative. Such x-ray films revealed no abnormalities, with other clinical findings of the right knee consisting of slight effusion, tenderness, palpable plica, and painful flexion. The physician diagnosed inflamed medial synovial plica with a possible torn meniscus in the right knee which could require arthroscopic examination for a definitive diagnosis. During a December 1991 personal hearing, the appellant testified that she continues to suffer from pain and swelling associated with her in-service right knee injury, but that she could not afford the arthroscopy recommended by her private physician due to a lack of private insurance. Therefore, a new VA orthopedic examination was held in June 1992. At that time, the appellant continued to complain of associated right knee pain upon moderate exertion, but the examiner could find no clinical right knee abnormalities upon examination. However, such examiner did agree with Dr. Korn that further investigation would be necessary in order to rule out possible internal tissue damage. The Board has a duty to assist the appellant in the development of facts pertinent to a potentially well-grounded claim. 38 U.S.C.A. § 5107(a) (West 1991). This duty to assist involves obtaining relevant medical reports and examinations where indicated by the facts and circumstances of the individual case. See Murphy v. Derwinski, 1 Vet.App. 78 (1990); Littke v. Derwinski, 1 Vet.App. 90 (1990). There are no private treatment records dated in January or February 1990, including reported diagnostic MRI and x-ray reports, currently associated with the claims folder. Nevertheless, it is unclear from the record whether the appellant re-injured her right knee after such private examination. In addition, both the appellant's private physician and the VA orthopedic examiner have indicated that further medical testing is necessary in order to rule out possible internal muscle damage to the right knee. No current disability has been clinically established for which service connection could be granted. In view of the continued complaints, and the determination that additional testing might reveal internal tissue or other knee impairment, further development is indicated. Accordingly, the case is REMANDED for the following developments: 1. The RO should contact the appellant to determine the names, addresses, and dates of treatment of any physicians, hospitals or treatment centers (private, VA or military) who provided her with relevant treatment for residuals of an in-service right knee injury, including but not limited to private treatment received during convalescent leave from military service in January or February 1990. After obtaining the appropriate signed authorization for release of information forms from the appellant, the RO should contact each physician, hospital, or treatment center specified by the appellant to obtain any and all medical or treatment records or reports relevant to the above mentioned claim. All pieces of correspondence, as well as any medical or treatment records obtained, should be made a part of the claims folder. If private treatment is reported and those records are not obtained, the appellant and her representative should be provided with information concerning the negative results, and afforded an opportunity to obtain the records. 38 C.F.R. § 3.159. 2. The RO should then schedule the appellant for a complete orthopedic examination to determine the nature and etiology of any residuals of an in-service right knee injury currently manifested. All indicated tests and studies should be done in an effort to arrive at a definitive diagnosis of any knee impairment present, including a completed range of motion study of the right knee, expressed in degrees, appropriate x-rays, MRI, or CAT scan. The examination should be conducted and reported in accordance with the guidelines set forth in the VA Physician's Guide for Disability Evaluation Examinations. The claims folder should be made available to the examiner for review purposes prior to the examination. After reviewing the records and the studies conducted the examiner should determine whether it is possible to conclude whether there is a disability of the right knee, if there is no disability found, or if a diagnosis can not be made without resort to invasive procedures such as an arthroscopy. In order to avoid undue delay in this case, the RO should make certain that the instructions contained in the REMAND decision, detailing the requested developments, have, in fact, been substantially complied with. When these developments has been completed, and if the benefit sought is not granted, the case should be returned to the Board for further appellate consideration, after compliance with appropriate appellate procedures, including issuance of a supplemental statement of the case. It is requested that this statement specifically set forth the reasons and bases for the decision. No action by the appellant is required until she receives further notice. The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this claim, pending completion of the requested developments. MICHAEL D. LYON 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).