BVA9502195 DOCKET NO. 93-03 773 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a left knee disorder. 2. Entitlement to a total disability rating on the basis of individual unemployability due to service connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD William Harryman, Counsel INTRODUCTION The veteran had active service from July 1958 to June 1960. This case arises from rating decisions of the New Orleans, Louisiana, Department of Veterans Affairs (VA) Regional Office (RO). A rating decision in August 1989 denied the veteran service connection for left knee arthritis as secondary to his service-connected right knee disability and also granted an increased rating from a noncompensable level to 20 percent for his service-connected right knee disability. In November 1989, another rating decision confirmed the assignment of the 20 percent rating. Communication received from the veteran in December 1989 was characterized by him as a notice of disagreement with the November 1989 determination, referring only to the denial of the increased rating. Another rating decision in January 1990 denied him a total rating on the basis of individual unemployability. The RO issued a statement of the case regarding the issues of an increased rating for the right knee disability and of a total disability rating in February 1990. In June 1990, a VA Form 1-9 was received from the veteran in which he again indicated that he wanted an increased rating "for moderate to severe arthritis bilateral (both) knees," and also that he wanted a total disability rating. A Board decision in June 1991, concerning only the increased rating issue, indicated that the issues of service connection for a left knee disability and of a total disability rating had not been procedurally developed for appellate review, and so were referred to the RO. In February 1992, the RO issued the veteran a statement of the case regarding those issues, and the veteran’s "substantive appeal" was received the following month. The Board believes that the latter action taken by the RO cured any previous procedural irregularities, and that the document received from the veteran in June 1990 should have been construed as his notice of disagreement with the August 1989 denial of service connection for a left knee disability. Accordingly, the August 1989 rating decision is the appealed RO determination concerning the issue of service connection for the left knee listed on page one. Moreover, although that rating decision denied only secondary service connection for the left knee disorder, the Board construes the issue to be as stated above. Further, the veteran timely appealed the January 1990 decision of the RO relating to his claim for a total rating due to individual unemployability. The veteran’s May 1990 substantive appeal also appears to have raised the issue of entitlement to an earlier effective date for an increased rating. Although the Board subsequently increased the assigned rating for the right knee disability as a result of the veteran’s appeal of that issue, the issue of entitlement to an earlier effective date for the assigned rating has not been adjudicated or otherwise developed for appellate review. That issue, then, is referred to the RO for appropriate consideration. Because of action taken herein regarding the issue of service connection for a left knee disorder, the issue of entitlement to a total disability rating will be addressed in the Remand section of this decision. CONTENTIONS OF APPELLANT ON APPEAL It is contended by and on behalf of the veteran that his left knee disorder originated in service concurrent with his service- connected right knee disability; he also contends, alternatively, that the left knee disorder was caused by his service-connected right knee disability. The veteran also asserts that he is totally disabled as a result of his knee disabilities. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran’s claims file(s). Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that service connection for a left knee disorder is established. FINDING OF FACT The veteran’s current left knee disability had its origins in service. CONCLUSION OF LAW A left knee disability was incurred during active service. 38 U.S.C.A. §§ 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1993). REASONS AND BASES FOR FINDING AND CONCLUSION At the outset, the Board finds that the veteran has met his burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim for service connection for a left knee disability is well grounded; that is, the claim is not implausible. See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Additionally, there is no indication that there are unobtained records which are available and which would aid a decision in this case as to that issue. Accordingly, we conclude that the record is complete and that there is no further duty to assist the veteran in developing the claim, as mandated by 38 U.S.C.A. § 5107(a). Factual background The service medical records reflect that the veteran was hospitalized for several months in 1959 for treatment, to include surgery on two occasions, for an injury to his right knee. The records of that hospitalization are silent as to any symptoms or abnormal clinical findings regarding the veteran’s left knee. He was finally discharged from the hospital in November 1959, but was readmitted after two days because of recurrent effusion. During the ensuing hospitalization, the veteran admitted to experiencing dull, aching pain in both knees, more severe on the right, after a full eight hours of duty on his feet. Clinically, he was found to have retropatellar crepitus bilaterally, worse on the right. X-rays of both knees taken in December 1959 were interpreted as normal. A Physical Evaluation Board concluded in April 1960 that the veteran had bilateral chondromalacia of the patellar cartilage due to trauma, manifested by retropatellar pain on walking, climbing stairs or other knee exercise, and painful retropatellar crepitus. It was felt that the veteran was unable to perform military duty. He was separated from service in June 1960 due to medical disability. A VA compensation examination was conducted in July 1960. The only reported clinical finding regarding the left knee was a comparison between the circumference of the veteran’s knees. However, the request for the examination specified that only the right knee was to be examined. (The veteran, at that time, had confined his claim for service connection to the right knee only.) In November 1988, the veteran was seen in a VA outpatient clinic, stating that his knees had hurt and had fluid built up in them for about one week. On examination, there was swelling in the left knee. X-rays of the left knee reportedly demonstrated moderate degenerative joint disease and an effusion. The summaries of VA hospitalizations in December 1989 and February 1990, for surgical treatment of the veteran’s right knee disorder, make no mention of symptoms or abnormal findings regarding the left knee. A VA orthopedic examination was conducted in June 1990. That examiner noted that the veteran ambulated with a cane, favoring his right knee. Range of motion of the left knee was from 0-130 degrees. There was no left leg muscle atrophy, but crepitation and slight tenderness of the knee were reported. The diagnoses included degenerative arthritis of the left knee. A VA outpatient record dated in December 1990, documenting a visit primarily for treatment of the veteran’s right knee, also noted left knee swelling of a lesser degree than on the right. During a March 1991 visit, the veteran complained of his left knee hurting and giving way. In September 1991 he indicated he was having more pain in the left knee. The knee was noted to be edematous and tender to the touch, with crepitus and varus deformity. Treatment options discussed at that time included a proximal tibial osteotomy. A personal hearing was held before members of the Board sitting at the RO in January 1991. The issue developed at that time concerned only the right knee disorder. However, there was testimony elicited from the veteran concerning his left knee disorder. The veteran testified that he could walk only a few feet without using Canadian crutches, and only about a block even with the crutches. He indicated that he spent most of his time sitting or reclining. He also stated that he cannot even sit for prolonged periods without moving his knees, or else they begin to hurt. The veteran testified that the added strain put on his left knee because of his difficulty ambulating due to his service-connected right knee disability caused the pain and problems with his left knee. The veteran was hospitalized at a VA facility in January 1992 for treatment of continuing left knee pain which had progressed over the previous several months. He indicated that the pain was localized to the medial joint line. The veteran stated that he was able to ambulate two or three blocks at a time, but needed a cane for longer distances. He reported that he occasionally had swelling of the left knee, but no giving way. X-rays showed medial gonarthrosis of the left knee. During that hospitalization, a left proximal tibial osteotomy was performed with internal fixation. On discharge, the veteran was able to flex the left knee to 90 degrees. Another personal hearing was held before the undersigned member of the Board in February 1993. The veteran testified as to the effect his left knee disability currently has on his ability to engage in various activities. He also stated that, during service, he received treatment for his left knee, to include removal of fluid from the knee, Ace bandage wraps and whirlpool treatment. He indicated that he believed that the difficulties with his left knee he experienced during service were due to having to favor his right knee. The veteran denied any specific injury to his left knee since service, but testified that he had continued to favor his right knee ever since his separation from service, putting added stress on the left knee. He further testified that the first post-service treatment he received for his left knee was in late 1980, at which time fluid was removed from both knees. Additionally, he indicated that he had been told by VA physicians that his left knee problems were due to bearing most of weight on that knee because of his service- connected right knee disability. The veteran underwent a right total knee replacement in April 1993. At a VA facility in January 1994, he underwent a total replacement of the left knee for progressive degenerative joint disease. Analysis Service connection connotes many factors, but basically it means that the facts, as shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces or, if pre-existing such service, was aggravated therein. 38 U.S.C.A. § 1131. Such a determination requires a finding of a current disability which is related to an injury or disease incurred in service. Watson v. Brown, 4 Vet.App. 309, 314 (1993); Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992). For a showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In this case, a diagnosis of chondromalacia of the left knee was clearly shown in service, subsequent to complaints of pain and findings of crepitance in the knee. The diagnosis may have been based, at least partially, on the veteran’s more severe chondromalacia of the right knee which was determined to be due to trauma as a result of "squat jumps" he performed during training in service. There is no documentary evidence of post- service symptoms or abnormal clinical findings related to the left knee until 1988, almost thirty years after the veteran’s separation from service although the veteran has testified under oath, on two occasions, that he continued to experience left knee problems subsequent to service, albeit not severe until 1988. His testimony is deemed credible. Although his in-service left knee symptoms may have been relatively minor, especially in comparison to those referable to his right knee, the diagnosis in service of chondromalacia patella of the left knee indicates that a chronic, degenerative process was present during service. The fact that there are no medical records showing a continuation of left knee symptoms for many years after service is irrelevant for service connection purposes, once the chronic disease entity is established in service. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected. 38 C.F.R. § 3.303(b). While the precise diagnosis assigned during service does differ from that currently assigned, the Board cannot dissociate the degenerative process of chondromalacia patella from the more general "degenerative joint disease," especially since the service medical records attribute the left knee disorder to trauma, and also considering the nature of the veteran’s service-connected right knee disability. Accordingly, the Board finds that the preponderance of the evidence is in favor of the veteran’s claim for service connection for a left knee disorder. Therefore, service connection for that disability is granted. Subsequent to the issuance of the July 1992 supplemental statement of the case, additional medical evidence was received at the Board concerning medical treatment for the veteran’s knees. The provisions of 38 C.F.R. § 20.1304(c) state that such evidence must be referred to the agency of original jurisdiction for review and preparation of another supplemental statement of the case unless this right is waived by the appellant or unless the Board determines that the benefit to which it relates may be allowed without such referral. Inasmuch as service connection for a left knee disability is granted herein, the Board determines that the veteran is not prejudiced by the decision not to refer the case to the RO for initial consideration of the additional evidence as to that issue. See also Bernard v. Brown, 4 Vet.App. 384 (1993). ORDER Service connection for a left knee disorder is granted. REMAND Inasmuch as service connection for an additional disability is granted herein, the Board's consideration of the issue relating to entitlement to a total disability rating based on individual unemployability must be deferred. The left knee disability must be rated and the right knee disability should be re-evaluated in light of the additional medical evidence and any other evidence developed pursuant to this Remand. The total rating issue is inextricably intertwined with the assignment of proper ratings for the veteran’s service-connected knee disabilities. See Harris v. Derwinski, 1 Vet.App. 180 (1991). Accordingly, this case is Remanded for the following actions: 1. The RO should contact the veteran and request that he furnish the names and addresses of all medical care providers who have examined or treated him for either of his knee disabilities since April 1993. After obtaining any necessary release from the veteran, the RO should then request copies of the records of all treatment or examinations indicated by him. The RO should also secure any unobtained medical records referred to in the June 1993 Social Security Administrative Law Judge’s decision granting the veteran disability benefits. All records received should be associated with the claims file. 2. The veteran should be afforded a VA social and industrial survey to assess his employment history and day-to-day functioning. A written copy of the report should be inserted into the claims folder. 3. Following receipt of all records requested above, the RO should schedule the veteran for a VA orthopedic examination to include a complete and thorough evaluation of his service-connected knee disabilities. All indicated special tests should be accomplished. The claims folder must be made available to and reviewed by the examiner prior to the examination. The examiner’s report should include an opinion as to the overall effect the veteran’s service-connected knee disabilities have on his ability to obtain and retain substantially gainful employment. 4. Upon completion of the requested development, the RO should issue a rating decision which assigns a disability rating for the left knee disability and which again considers the proper rating to be assigned for the right knee disability. The rating decision should also again consider the claim for a total disability rating on the basis of individual unemployability, utilizing the analysis set forth by the United States Court of Veterans Appeals in Van Hoose v. Brown, 4 Vet.App. 361 (1993). The RO’s consideration of these issues should be based on all the evidence of record, including those VA records forwarded to the Board subsequent to the July 1992 supplemental statement of the case. The veteran should be afforded an opportunity to appeal the rating assigned for his left knee disability; all appropriate procedural development should be accomplished should he do so. Regardless of action taken by the veteran concerning the assigned ratings, the case should be returned to the Board for consideration of the total rating issue, if otherwise in order. By this REMAND, the Board intimates no opinion as to the final outcome warranted in this case. No action is required of the appellant until he is notified by the RO. N. R. ROBIN 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. The remand portion of this decision is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal of the issue of entitlement to a total disability rating based on individual unemployability. 38 C.F.R. § 20.1100(b) (1993).