BVA9507360 DOCKET NO. 92-07 452 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to an increased (compensable) rating for tinea versicolor. versicolor 2. Entitlement to service connection for a disorder of the knees. 3. Entitlement to service connection for residuals of a back injury. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD Kay F. Mayer, Associate Counsel INTRODUCTION The veteran had active duty from August 1985 to August 1989. This matter came before the Board of Veterans' Appeals (Board) on appeals from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In April 1993 the Board remanded the case to the RO for further development. The Board has noted that an October 1993 rating decision of the RO granted the appellant a compensable rating of 10 percent for his service-connected old ununited fracture of the medial malleolus with small avulsion fracture of the lateral malleolus with chronic synovitis and some degenerative arthritis of the right ankle. Also, the RO granted the appellant service connection for post-traumatic synovitis plus early post traumatic degenerative arthritis of the metacarpal phalangeal joint of the right thumb and assigned a 20 percent evaluation. The Board considers these assignments of benefits grants of the benefits requested because the appellant has not filed a notice of disagreement with respect to these benefits. The Board has not included those claims in its consideration of the current appeal. REMAND Service medical records show that the appellant had complaints of bilateral knee pain beginning in December 1986 and that he was assessed as having bilateral chondromalacia of the patella beginning in September 1987, following a hyperextension injury to his right knee and on subsequent occasions. There was also some indication in January 1987 that he had had bilateral knee pain since childhood. As noted, he sustained a hyperextension injury to the right knee during service, but there is no indication of any trauma to his left knee in service. Knee instability is not shown during service. His separation examination dated in August 1989 indicates he had bilateral retropatellar pain syndrome. The appellant underwent a partial lateral meniscectomy of the right knee in June 1990 but at that time he gave a history of a twisting injury with a popping sensation the previous month, that is, postservice. He underwent a left lateral meniscus repair in January 1994, more than 4 1/2 years after service. There is no medical opinion concerning the relationship between the current status postoperative knee disabilities and the knee complaints and findings in service. The Board believes the appellant should undergo a further VA examination of his knees to determine if the surgeries and knee disorders the appellant has had since discharge are related to the retropatellar pain and chondromalacia patella of the knees he was assessed as having during service. The United States Court of Veterans Appeals has held that the duty to assist the veteran in obtaining and developing available facts and evidence supporting his claim includes obtaining an adequate VA examination. Littke v. Derwinski, l Vet.App. 90 (1990). 38 U.S.C.A. § 5107(a)(West 1991); 38 C.F.R. § 3.103(a)(1993). The Board also notes that it was reported during a VA examination in July 1993, after the Board's remand, that the appellant underwent back surgery at a VA facility in 1992 and that he continued to have severe chronic pain in the lower lumbar back. Service medical records show treatment for low back strain in March 1987 following a fall on rocks and complaints of recurring low back pain during an October 1987 physical examination and in December 1987. The Board believes the appellant should undergo further VA examination to determine if his claimed low back disorder, if identified, is related to service. The VA treatment records, and any private medical records following discharge, involving the appellant's back that are not currently of record should also be obtained and associated with the claims file. The VA has a duty to assist a veteran in developing facts pertinent to a potentially well-grounded claim. 38 U.S.C.A. § 5107 (a)(West 1991); 38 C.F.R. §§ 3.103, 3.159 (1994). That duty includes obtaining medical records and medical examinations where indicated by the facts and circumstances of an individual case. See Murphy v. Derwinski, 1 Vet.App.78 (1990); Littke v. Derwinski, 1 Vet.App.90 (1990). Additionally, the Board has noted that there is no enlistment or other medical records for the appellant until April 1986 in the claims file, although he began active service in August 1985. Therefore, the service department should again contact the Medical Records Unit Headquarters, U.S. Marine Corps to request that any additional records for the aforestated time period be obtained so they may be associated with the claims file. To ensure that the Department of Veterans Affairs (VA) has met its duty to assist the claimant in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is REMANDED to the regional office (RO) for the following development: 1. The RO should obtain the names and addresses of all medical care providers, including VA facilities, where the appellant has been treated for any low back disorder since discharge from service. After securing any necessary release, the RO should obtain these records, including the records of back surgery at a VA facility in 1992. If no records are found, the claims folder should reflect the attempts made to obtain the records and the appellant and his representative should be notified of the negative results. 38 C.F.R. 3.159. 2. The appellant should be afforded a VA orthopedic examination to determine the nature and extent of the his claimed knee and low back disorders. After examining the appellant and reviewing the records, the examiner should opine whether the appellant's knee and low back disorders are related to the knee and low back complaints and findings in service. The examiner should adequately summarize the relevant medical history and clinical findings and provide detailed reasons for the medical conclusions. All indicated tests and studies should be performed, including radiographic and range of motion studies. The claims folder and the records obtained pursuant to paragraph 1 above should be made available to the examiner for review prior to the examination. The examination should be conducted and reported in accordance with the provisions set forth in the VA Physicians Guide for Disability Evaluation Examinations. The examination of the knees should include pertinent findings of atrophy, limitation of motion, instability and arthritic changes. 3. The RO should make another attempt to secure the veteran's above-described service medical records through official channels. The claim for an increased rating for tinea versicolor shall be held in abeyance pending the outcome of the above requested development. When this development has been completed, the case should be returned to the Board for further appellate consideration, after compliance with appropriate appellate procedures, including issuance of a supplemental statement of the case. This statement should set forth the reasons and bases for the decision. The appellant need take no action until he receives further notice. The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case, pending completion of the requested development. HOLLY E. MOEHLMANN 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).