BVA9506452 DOCKET NO. 93-12 698 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to service connection for a bilateral knee disability. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John M. Clarkson, III INTRODUCTION The veteran had active service from November 1965 to October 1967. This appeal arises from a February 1991 rating action of the Togus, Maine Regional Office (RO) which denied service connection for a bilateral knee disability. This initial rating action was based upon the RO's erroneous consideration of another veteran's medical records, rather than those of the appellant. In February 1992, based upon a review of the medical records of the appellant, the RO again denied service connection for a bilateral knee disability. REMAND The U.S. Department of Veterans Affairs (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) (1994). The U.S. Court of Veterans Appeals (Court) has held that the duty to assist the veteran in obtaining and developing available facts and evidence to support his claim includes obtaining medical records to which the veteran has referred, and obtaining adequate VA examinations; the Court has also stated that the Board must make a determination as to the adequacy of the record. Littke v. Derwinski, 1 Vet.App. 90 (1990). Fulfillment of the statutory duty to assist includes the conduct of a thorough and contemporaneous medical examination, one that 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 (1991). At a personal hearing in August 1992, the veteran testified to having had his knees examined by his family physician, identified as Dr. Nassinger, of Woodbridge, Virginia, at unspecified times between the late 1960's and the late 1980's. The veteran also testified to having had his knees examined by a facility identified as the "Goldsboro Clinic" at unspecified times. However, the record does not contain any reports of medical treatment of the veteran by the Goldsboro Clinic or Dr. Nassinger. The appellant contends, in effect, that he currently suffers from bilateral knee problems, incurred in service. The service medical records show that the veteran injured his knees in a military motor vehicle accident in March 1967. A report of the inservice examination following the accident discloses that the veteran sustained a crush-type injury to both knees with marked bruising. Following post-service VA examination in February 1992, the impression was clinical chondromalacia patella, bilateral, of moderate severity, but the examining physician could not be certain as to whether the veteran's inservice injury was causing his current complaints. The Court has held that the Board must consider only independent medical evidence to support its findings, rather than provide its own judgment in the guise of a Board opinion. Colvin v. Derwinski, 1 Vet.App. 171 (1991). By rating action of February 1992, the RO denied service connection for a bilateral knee disorder, but no independent medical evidence was cited as the basis for dissociating the veteran's current bilateral knee disability from his inservice knee injury. The current record is unclear as to the relationship between the veteran's current knee disability and his inservice injury. The VA is obligated to give the veteran a medical examination to include a medical opinion as to whether any current disabilities are in any way related to those he experienced in service. Moore v. Derwinski, 1 Vet.App. 401 (1991). Under these circumstances, we find that additional development is required, and the case is REMANDED to the RO for the following: 1. The veteran should be contacted and requested to furnish the full names and addresses of Dr. Nassinger and all physicians who treated him at the Goldsboro Clinic, specifying the dates of treatment. The veteran should also be requested to sign and submit the appropriate forms giving his consent for the release to the VA of all records of his medical treatment by Dr. Nassinger and the Goldsboro Clinic. 2. When the consent forms are received, the RO should contact Dr. Nassinger and the Goldsboro Clinic and request that they furnish copies of all records of medical treatment of the veteran. All records should be associated with the claims folder. 3. After the above-mentioned medical records have been obtained, the veteran should be afforded a VA orthopedic examination to determine whether any current bilateral knee problem is related to his inservice knee injury. Such tests as the examining physician deems necessary should be performed. The examining physician should furnish an opinion for the record as to whether, in his best medical judgment, it is at least as likely as not that the veteran's current bilateral knee disability is related to his inservice knee injury; or, in the alternative whether it is more likely that the veteran's current bilateral knee disability is of post- service origins and unrelated to the injuries in service. The clinical findings and reasoning which form the basis of the opinion should be clearly set forth. The claims folder must be made available to the examining physician prior to the examination so that the examiner may review pertinent aspects of the veteran's military and medical history. 4. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing actions have been conducted and completed in full. If any development is incomplete, including if the requested examination does not include all test reports, special studies or opinions requested, appropriate corrective action is to be implemented. After completion of these actions, the RO should review the evidence and determine whether the veteran's claim for service connection may now be granted. If not, the veteran and his representative should be furnished an appropriate supplemental statement of the case, and the case should be returned to the Board for further appellate consideration. C.W. SYMANSKI 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).