BVA9500053 DOCKET NO. 90-43 622 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for arteriosclerosis. Entitlement to service connection for a skin disorder. Entitlement to service connection for disability of the knees. Entitlement to service connection for disability of the ankles. Entitlement to service connection for residuals of exposure to Agent Orange. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Mark J. Swiatek, Counsel INTRODUCTION The veteran had active service from September 1964 to April 1969. This matter came before the Board of Veterans' Appeals (Board) from a December 1989 decision from the Nashville, Tennessee, Regional Office (RO). In May 1993, the Board remanded the case to the RO for further development. In March 1994, the case was returned to the Board for further appellate consideration. At the time of the May 1993 Board decision, the issues included entitlement to a rating in excess of 30 percent for post- traumatic stress disorder. In December 1993, the RO granted a 100 percent schedular evaluation, effective from September 1989. This decision concerns only the issue of service connection for a right knee disability. The remand that follows addresses the remaining issues. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that he has a knee disability that is the result of traumatic injury during active service 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. 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 the preponderance of the evidence supports a grant of service connection for chondromalacia patella of the right knee. FINDING OF FACT Chondromalacia patella of the right knee may not be dissociated from active service. CONCLUSION OF LAW Chondromalacia patella of the right knee was incurred in active service. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. § 3.303(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claim for service connection for disability of the right knee is well grounded in that it is at least plausible. With respect to this claim, the Board is satisfied that all relevant facts have been properly developed to the extent possible and that no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a). It is provided under 38 U.S.C.A. § 1110 that service connection may be granted for disability that is a result of disease or injury incurred in or aggravated by service. The implementing regulations provide that continuity of symptomatology is required where a disorder noted in service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Regarding the right knee, the service medical records show that the August 1964 entrance medical examination for service revealed normal lower extremities and no pertinent history. In May 1966, contusions and swelling of the knees was reported. The referral for orthopedic evaluation reports a history of injury to the knees 3 years previously playing football, and current complaints of pain with marching and running. The orthopedic examiner reported subpatellar crepitus greater on the left. The diagnosis was chondromalacia patella, greater on the left. No pertinent findings were noted at separation from active service. Thereafter, knee stiffness and knee pain were reported in March 1980 and September 1983 VA medical certificates, respectively. A follow-up VA evaluation in December 1984 included a history of knee pain since service and disclosed very mild patellar grating bilaterally and included an impression of chondromalacia patella of the knees and early arthritis. At the hearing, the veteran recalled that his knees swelled and were treated in service with ice and Novocain (August 1992 transcript at 11). On the July 1993 VA orthopedic examination chondromalacia patella of the right knee, with mild patellar tendon tendinitis was confirmed. Although the record includes a clinical history suggesting a preservice injury to the right knee, it would be speculative in view of the record to conclude that a right knee disability preexisted service. The veteran served approximately two years before any right knee complaint, and chondromalacia was initially reported at that time. The record suggests that he had had problems with the knee during physical training. Chondromalacia of the right knee was confirmed on the recent VA examination. There is no clinical history of any intervening injury of the right knee to account for the complaints of knee pain in the early 1980's. The Board concludes that the record is sufficient to allow service connection for chondromalacia of the right knee. There is a current disability of the right knee and evidence to reasonably establish a relationship to an injury during service. ORDER Service connection for a disability of the right knee is granted. REMAND In reviewing the August 1992 hearing testimony, we note that the veteran raised the matter of service connection for a gastrointestinal disorder secondary to his service-connected post-traumatic stress disorder. The VA examiners in 1993 did not address the possibility of secondary service connection. On a gastrointestinal examination, however, it was reported that duodenitis could be related to prescribed medication, thereby introducing another possible etiology. Regarding the disability of the left knee and the ankles, the Board observes that the July 1993 examination report was returned to the examiner for an opinion regarding the relationship of current findings to injuries reported to have occurred in service. In November 1993, the examiner noted, as he had previously in July 1993, that records from 1966 and Vietnam were not available. The information sought was contained in the service medical records located in the claims folder that should have been provided to the examining physician. As for arteriosclerosis, the 1993 examination included a Doppler study of the carotid arteries interpreted by the examiners as consistent with no significant pathology. The peripheral vascular studies were also normal. Apparently no chest or abdominal X-ray or other non invasive procedure were performed to evaluate the abdominal aorta nor was arteriography obtained. The importance of a comprehensive evaluation, including arteriography, is discussed at paragraph 6.1 of the VA Physician's Guide for Disability Evaluations, IB 11-56, March 1, 1985. The Board observes that arteriosclerosis was mentioned in January 1985 and June 1987 VA clinical records. The Board also observes that in written communication to the RO in March 1980 and March 1981, and in testimony at the August 1992 RO hearing, the veteran sought to raise the issue of entitlement to service connection for residuals of exposure to Agent Orange. This issue requires clarification of the disorders claimed to be related to Agent Orange exposure as well as consideration under current adjudication criteria. In the May 1993 remand, the Board referred to the RO for further consideration the matter of a clear and unmistakable error in the RO decision of August 1980 that reduced to less than compensable the evaluation for hypertension. In April 1994, the representative presented additional written argument on this matter. The Board notes that the issue has not been adjudicated. Regarding the hearing, the Board observes that it was conducted by a former Board member, and that the veteran advised the Board in November 1994 that he did not desire another hearing. In view of the additional action necessary in this appeal, if necessary, and if desired by the veteran, he should be offered the opportunity for another hearing before a current member of the Board prior to a final decision on his claim. In view of the foregoing, the Board concludes that further RO action, as specified below, is required. Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO should request the veteran to clarify the disabilities for which he is claiming service connection on the basis of Agent Orange exposure. The RO should respond appropriately to any clarification provided. 2. The RO should contact the veteran and request that he identify the names and addresses and approximate dates of treatment or evaluation for all VA and non- VA health care providers who have treated or evaluated him for any gastrointestinal disorder, left knee or ankle disability, skin disability and arteriosclerosis since service. With any necessary authorization from the veteran, the RO should attempt to obtain copies of pertinent treatment records identified by the veteran which have not been previously secured. 3. Thereafter, the veteran should be afforded VA examination by a board certified gastroenterologist, if available, to determine the nature and extent of any gastrointestinal disorder present. All indicated studies should be performed. The examiner should also be requested to review the claims folder and provide an opinion, with complete rationale, as to the etiology of any gastrointestinal disorder found to be present, to include whether it is at least as likely as not that it is etiologically related to manifestation of the service-connected post-traumatic stress disorder or the result of any medication prescribed for a service-connected disability or whether the gastrointestinal symptoms in service represented the initial symptoms of any gastrointestinal disorder found to be present. 4. Thereafter, the veteran should be afforded VA examination by a board certified cardiologist, if available, to determine the nature and extent of any arteriosclerosis present. All indicated studies should be performed. The examiner should also be requested to review the claims folder and provide an opinion, with complete rationale, as to the etiology of arteriosclerosis, if found to be present, to include whether it is at least as likely as not that it is the result of the service-connected hypertension. 5. The veteran should also be scheduled for an examination by a board certified orthopedist, if available, to determine the nature and extent of any left knee disorder or disorder of either ankle present. All indicated studies should be performed. The examiner should also be requested to review the claims folder and provide an opinion, with complete rationale, as to the etiology of any left knee or ankle disorder found to be present, to include whether it is at least as likely as not that the left knee or ankle symptoms in service represented the initial symptoms of any left knee or any ankle disorder found to be present. 6. The veteran should also be scheduled for an examination by a board certified dermatologist, if available, to determine the nature and extent of any skin disability present. The examiner should be requested to review the claims folder and provide an opinion, as to whether it is at least as likely as not that current skin pathology is related to the skin complaints and findings noted in service. 7. Thereafter, the RO should undertake any other indicated development and readjudicate the issues of entitlement to service connection for a gastrointestinal disorder, arteriosclerosis, a left knee disorder, a disability of the ankles, and disabilities due to Agent Orange exposure, in light of the evidence obtained in connection with this remand. Finally, the RO should adjudicate the claim of clear and unmistakable error in the August 1980 rating decision. If any benefit sought on appeal is not granted to the satisfaction of the veteran, or if a timely notice of disagreement is received with respect to any other matter, a Supplemental Statement of the Case on all issues in appellate status should be issued, and the veteran and his representative provided a reasonable opportunity to respond. Thereafter, the case should be returned to the Board for further consideration, if otherwise in order. By this REMAND, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is otherwise notified by the RO. ROBERT E. SULLIVAN 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. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. 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).