BVA9502920 DOCKET NO. 93-104 83 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Whether new and material evidence has been submitted in order to reopen a claim for entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Anthony D. Dokurno, Associate Counsel INTRODUCTION The veteran performed active service from November 1972 to July 1974. In a July 1983 rating decision, the RO denied entitlement to service connection for a right knee disability. The veteran was notified of that decision and of his appellate rights. He did not appeal within the time period prescribed by law. In December 1989 the veteran filed an Application for Compensation or Pension, requesting compensation for a right femur and tibia condition. In August 1990 the Department of Veterans Affairs (VA) Regional Office (RO) issued a rating decision denying service connection for a right femur and tibia condition. In February 1991, the veteran filed a claim for service connection for a right knee condition. In March 1991 the veteran's representative filed a Notice of Disagreement with the RO's "rating decision which denied service (connection) for right knee condition." The veteran and his representative then requested and received a March 1992 hearing before a VA hearing officer. In that hearing, the veteran's testimony confirmed that the veteran is claiming service connection for a right knee condition. Therefore, the issue before the Board is as it appears on the title page of this remand. REMAND The threshold consideration 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's Report of Medical History, made in May 1974 in connection with his separation examination, notes that he either received or was advised to receive surgery for a "knee injury in Motor Pool." During his March 1992 RO hearing, the veteran testified that he underwent surgery in-service at Darnall Military Hospital, Fort Hood, Texas, in either 1972 or 1973. After service, he testified, his right knee was x-rayed in 1982 or 1983 at the VA hospital in Shreveport, Louisiana. He also testified that he received treatment on some unspecified date for his knee condition from a Dr. Bradley, from an "Oakland Orthopedics" in Pittsburgh, Pennsylvania, and a "St. Margaret's" hospital. He also mentioned receiving surgery for this condition on December 22, 1991, but did not mention the location. These medical records are not on file. The claims file also contains a VA hospital summary for the veteran's September 18-October 11, 1985 hospital admission, which describe a consultation the veteran received for "an old injury to his right knee (with a) diagnosis (of) chronic cellulitis." The consultation report is not of record. It is the Board's opinion that the indications that there are additional relevant medical records make the veteran's claim "capable of substantiation" and may constitute new and material evidence sufficient to justify reopening the veteran's claim for entitlement to service connection for a right knee disability. 38 U.S.C.A. § 5107 (West 1991); Murphy v. Derwinski, 1 Vet.App. 78 (1990); Ivey v. Derwinski, 2 Vet.App. 320 (1992). The VA therefore has a statutory duty to assist in the development of evidence pertinent to the claim. 38 U.S.C.A. § 5107(a). The RO forwarded additional medical records directly to the Board, which were received in April and July 1994. These records relate to the veteran's claimed disability, but the RO has not reviewed these documents and their relation to the veteran's claim, as required by 38 C.F.R. § 20.1304 (1993). Accordingly, pursuant to the Board's statutory duty to assist the veteran's development of evidence pertinent to the claim, and to accord the veteran his full panoply of due process rights, the case is REMANDED for the following actions: 1. The RO should attempt to secure treatment records from Darnall Military Hospital, Fort Hood, Texas concerning the veteran's purported 1972 or 1973 right knee surgery, in accordance with M-21, Chapter 4. In this regard, the veteran should be requested to specify as accurately as possible the date of this treatment. 2. The RO should provide the veteran the appropriate release of medical information forms in order to obtain copies of all VA and private medical records pertaining to treatment for his right leg and right knee disabilities following his discharge from active duty to the present. The request should include the records from the following: any person or facility from whom he received treatment for injuries suffered in a mugging in the early 1980's; Oakland Orthopedics; Dr. Bradley; Charity Hospital, New Orleans, Louisiana (see VA hospital summary dated July 25-September 12, 1980); and St. Margaret's Hospital. (The Supplemental Statement of the Case (SSOC) notes that St. Margaret's Hospital had not responded to a request for information.) Thereafter, the RO should obtain copies of the medical records which are not on file. 3. The RO should secure copies of medical records from the following VA institutions: any x-rays or radiological reports of the veteran's right knee and leg done at the Shreveport, Louisiana VA Hospital in 1982 or 1983; the consultation the veteran received in October 1985 at the VA Medical Clinic (VAMC), Pittsburgh, Pennsylvania, which diagnosed his right knee condition as chronic cellulitis; any medical records pertaining to the veteran's treatment at the VAMC, Pittsburgh, Pennsylvania from 1986 to 1989 and from July 1994 to the present; and the medical records at the VAMC, Decatur, Georgia, pertaining to the veteran's 1986 admission and/or treatment (see VA Form 10-7131, dated June 1986). With respect to these post-service VA hospitalizations, the complete records should be secured and associated with the claims file. The purpose of securing the complete records is to determine whether there are any incidental notations of complaints, findings or medical history that would be relevant to the issue on appeal. 4. Thereafter, the RO should review the additional evidence. Based upon this additional evidence, the RO should determine whether there is a "reasonable probability of a valid claim," and if so schedule a VA examination. 38 C.F.R. § 3.326(a)(1993). Thereafter, the RO should adjudicate the claim of entitlement to service connection for a right knee disability. The RO's decision should include all evidence submitted into the record since the last denial on the merits in July 1983. Glynn v. Brown, 6 Vet.App. 523, 528-529 (1994). The RO should issue an SSOC if the benefit sought on appeal is not granted to the veteran's satisfaction. The SSOC is to include the law and regulations pertaining to the finality of a prior decision by the RO. 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).