BVA9504728 DOCKET NO. 93-10 988 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a right knee disorder. 2. Entitlement to an evaluation in excess of 10 percent for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Melissa F. Marquez, Associate Counsel INTRODUCTION The appellant had active wartime service from February to December 1968. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from a June 1992 rating decision of the Muskogee, Oklahoma Regional Office (hereinafter RO), of the Department of Veterans Affairs (hereinafter VA), which in part, granted service connection for post-traumatic stress disorder, and assigned a 10 percent disability evaluation therewith. The only issue certified to the Board was entitlement to an increased rating for PTSD. While that appeal was undergoing development, the veteran sought service connection for a right knee disorder. Service connection had previously been denied by an unappealed rating decision of June 1969. The veteran was informed that he needed to submit new and material evidence to reopen the claim, and that he had not. A statement of the case was issued in May 1993. In his substantive appeal on the increased rating issue, the veteran requested that this issue also be considered. In an April 1993 presentation his representative also makes reference to the issue. It is clear, therefore, that they desire appellate consideration of this issue. Thus while the claims folder does not contain a formal substantive appeal on the service connection issue, in view of the guidance from the United States Court of Veterans Appeals (Court), and in view of the need for additional development on the certified issue, the service connection issue has been listed on the title page. As will be set forth in greater detail below, new and material evidence has been submitted, and additional development on this issue is also required. REMAND 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). At the time of the April 1992 psychiatric examination, it was noted that the veteran had, the previous November, taken part in a VA PTSD program. These records, potentially pertinent to the increased rating issue before the Board, are not on file. They should be associated with the claims folder. The veteran's representative has argued that the most recent VA psychiatric examination was not sufficiently detailed to allow an informed opinion to be rendered. After reviewing a recent decision of the Court in Massey v. Brown, No. 93-135 (U.S. Vet, App. Dec. 6, 1994), the Board agrees that additional development is in order. Additionally, while this case was pending at the Board, in the case of Hood v. Brown, 4 Vet.App. 301 (1993), the Court stated that the term "definite" in 38 C.F.R. § 4.132 (1993) was "qualitative" in character, whereas, the other terms were "quantitative" in character, and invited the Board to "construe" the term "definite" in a manner that would quantify the degree of impairment for purposes of meeting the statutory requirement that the Board articulate "reasons and bases" for its decision. 38 U.S.C.A. § 7104(d)(1) (West 1991). In a precedent opinion, dated November 9, 1993, the General Counsel of the VA concluded that "definite" is to be construed as "distinct, unambiguous, and moderately large in degree." It represents a degree of social and industrial inadaptability that is "more than moderate but less than rather large." O.G.C. Prec. 9-93, 59 Fed. Reg. 4753 (1994). The VA, including the Board, is bound by this interpretation of the term "definite." 38 U.S.C.A. § 7104(c) (West 1991). As the case is otherwise in need of additional development, the RO will have a chance to readjudicate the evaluation of the psychiatric disorder mindful of this interpretation. As to the other issue, service connection was denied, on the merits, by rating decision of June 1969. This is the last final denial on the merits. As such, an application to reopen must consider all evidence submitted since the last final denial on the merits. See Glynn v. Brown, 6 Vet.App. 523 (1994). In that rating decision it was held that the veteran had pre-service knee problems that were not aggravated by his period of service. It has been asserted, since that rating action, that the veteran's right knee problems were made worse by basic training, and the shell fragment wound he sustained to the right thigh in the area of the knee. In support of these contentions, private and VA medical records have been received. An April 1969 VA hospital summary contains a recorded history that the right knee disorder got worse during service. It is the Board's conclusion that the information added to the record since the last final denial on the merits is new and material and that the claim should be reopened. De Novo consideration is, therefore, warranted. Initial de novo review should be undertaken at the RO so as to prevent prejudice to the appellant. Bernard v. Brown, 4 Vet.App. 384 (1993). In view of the foregoing, this case is REMANDED to the RO for the following actions: 1. The RO should, with the veteran's assistance as needed, obtain copies of medical records for the PTSD treatment he underwent in November 1991. Additionally, the RO should request information from the veteran concerning any other pertinent medical or psychiatric treatment that he has had in the last 3 years. Attempts should be made to obtain copies of any records to which reference is made. If records are sought but not received, the claims folder should contain documentation of the attempts made to obtain the records. The appellant and his representative should also be informed as to the negative results. 38 C.F.R. § 3.159. 2. The RO should schedule the veteran for a comprehensive VA psychiatric examination. This study must be conducted in accordance with the VA Physician's Guide for Disability Evaluations. All indicated tests, including appropriate psychological studies with applicable subscales, must be conducted. The claims file must be made available to and be reviewed by the examiner prior to the requested study. The examiner must assign a Global Assessment of Functioning Score consistent with the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (3d ed. rev., 1987), and explain what the assigned score represents. A complete rationale for any opinion expressed must be provided. 3. The RO should schedule the veteran for an VA orthopedic examination of the right knee. All indicated tests should be performed and all clinical findings should be reported in detail. The claims folder should be made available to the examiner for review prior to the examination. The orthopedist should, after reviewing the claims folder, including the service medical records, and the VA records for the period shortly after service, and after having examined the veteran enter an opinion as to (1) whether any current knee pathology can be attributed to service or the shrapnel wound of the right thigh; (2) whether the underlying pre-service knee disorder can be identified; and, (3) whether the knee disorder underwent a permanent worsening during service. 4. When the aforementioned developments have been accomplished, the issues should be readjudicated by the RO. The review of the evaluation for the psychiatric disorder should encompass consideration of the interpretation of the term "definite" as set out in the G.C. Precedent Opinion 9-93. The review of the service connection issue should be on a de novo basis, giving consideration to all the evidence on file. When the aforementioned development has been accomplished, if the benefits sought are not granted, the veteran and his representative should be provided with a supplemental statement of the case and afforded a reasonable opportunity to respond thereto. This document should include a discussion of the General Counsel's Opinion and its application to the facts of this case. Thereafter, the case should be returned to the Board for further appellate review, as appropriate. No action is required of the veteran until he is notified. MICHAEL D. LYON 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).