Citation Nr: 0004567 Decision Date: 02/22/00 Archive Date: 02/28/00 DOCKET NO. 95-21 087 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for arthritis of the right knee, to include as secondary to the veteran's service- connected fracture of the right tibia and fibula. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The appellant and his spouse ATTORNEY FOR THE BOARD A. C. Mackenzie, Associate Counsel INTRODUCTION The veteran served on active duty from October 1955 to October 1959. This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from a May 1995 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board remanded this case to the RO in November 1997 for the scheduling of a VA Travel Board hearing, which was subsequently held in July 1999. The veteran's claims on appeal initially included entitlement to service connection for a low back disorder, to include as secondary to his service-connected fracture of the right tibia and fibula. During his July 1996 VARO hearing, however, he withdrew this claim from appellate status. See 38 C.F.R. § 20.204 (1999). In recent correspondence and during his July 1999 Travel Board hearing, however, the veteran indicated that he still wishes to pursue a claim for this benefit. As such, the Board refers the issue of whether new and material evidence has been submitted to reopen a claim for service connection for a low back disorder, to include as secondary to the veteran's service-connected fracture of the right tibia and fibula, back to the RO for appropriate action. FINDING OF FACT There is competent medical evidence of a nexus between the veteran's current right knee arthritis and the veteran's military service. CONCLUSION OF LAW The claim of entitlement to service connection for arthritis of the right knee, to include as secondary to the veteran's service-connected fracture of the right tibia and fibula, is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION As a preliminary matter, the Board finds that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, the veteran is found to have presented a claim which is not inherently implausible. See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The Board has based this finding on the report of an April 1995 VA orthopedic examination, which contains the opinion that the veteran's current right knee disability was probably traumatic in origin and secondary to a 1957 knee injury. ORDER The claim of entitlement to service connection for arthritis of the right knee, to include as secondary to the veteran's service-connected fracture of the right tibia and fibula, is found to be well grounded. REMAND The 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 (1999); Talley v. Brown, 6 Vet. App. 72, 74 (1993). This duty includes conducting a thorough and contemporaneous medical examination of the veteran. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). If an examination report is incomplete, the Board must await its completion, or order a new examination, before deciding the veteran's claim. Abernathy v. Principi, 3 Vet. App. 461, 464 (1992). The Board notes that the April 1995 opinion of a VA medical examiner, referred to above, requires further clarification. In that report, the examiner indicated that the veteran's current right knee disorder was related to an in-service injury of that knee. He also noted that the veteran was claiming that his knee injury was, in pertinent part, aggravated by the veteran's fracture of the right tibia and fibula. It does not appear from the record that this examiner reviewed the evidence of record, including the veteran's service medical records and he did not address the question of aggravation. However, as the reported history appears to be inaccurate that the veteran's right knee was hit with a beam which the veteran acknowledged in a subsequent letter dated in May 1995, the Board finds that further medical opinion, based on a review of the entire record is necessary. The Board notes further, that in connection with a claim for increase, the veteran was afforded a VA examination in March 1999. At that time, the VA examiner who examined the veteran diagnosed chronic right pretibial pain secondary to an old fracture/crash injury of the right tibia, with a knee prosthesis with an old healed fracture of the distal tibia noted by x-ray; and calcification and degenerative joint disease of the ankle mortis on the right side. In conjunction with the latter diagnosis, the examiner noted that "[t]he above findings are consistent with his injury in 1957 when he was 19 years of age." It is unclear whether this etiological opinion was intended to apply only to the right ankle disability or to the right knee disability as well. As such, clarification of this matter is warranted. Accordingly, in order to fully and fairly adjudicate the veteran's claim, this case is REMANDED to the RO for the following action: 1. The RO should refer the veteran's claims file to the VA examiner who conducted the March 1999 VA examination, if available. The examiner is requested to review the entire claims file and offer an opinion as to whether it is at least as likely as not that the veteran's arthritis of the right knee was incurred as a result of an incident of service. If the examiner answers that question in the negative, he or she should offer an opinion as to whether it is at least as likely as not that either incurrence or aggravation of this disorder is proximately due to, or the result of, the veteran's service-connected fracture of the right tibia and fibula. A complete rationale should be given for all opinions and conclusions expressed in a typewritten report. If the March 1999 examiner is unavailable, then the veteran's claim file should be forwarded to another VA examiner and he/she should be requested to address the above matters. If it is determined that another VA examination is necessary, the RO should ensure that the veteran is afforded such. 2. The RO should then review the examiner's report to ensure that all action requested by the Board has been accomplished. If not, the report should be returned to the examiner for completion, as the United States Court of Appeals for Veterans Claims has determined that a remand by the Board confers upon a claimant, as a matter of law, the right to compliance with remand orders. See generally Stegall v. West, 11 Vet. App. 268 (1998). 3. After completion of the above development, the RO should again adjudicate the veteran's claim of entitlement to service connection for arthritis of the right knee, to include as secondary to his service-connected fracture of the right tibia and fibula. If the determination remains adverse to the veteran, he and his representative should be furnished with a Supplemental Statement of the Case and given an opportunity to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The purpose of this REMAND is to obtain additional development and adjudication, and the Board intimates no opinion, either factual or legal, as to the ultimate outcome warranted in this case. The veteran has the right to submit additional evidence and argument on this matter. See generally Kutscherousky v. West, 12 Vet. App. 369 (1999). However, no action is required of the veteran until he is so notified by the RO. S. L. KENNEDY Member, Board of Veterans' Appeals