BVA9502136 DOCKET NO. 93-08 101 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for bilateral knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Anthony D. Dokurno, Associate Counsel INTRODUCTION The veteran performed active military service from December 1968 to December 1972, February 1978 to February 1980, and June 1981 to May 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for bilateral knee disability. An examination of the record shows that 10% ratings for degenerative arthritis of the back and the right ankle were continued by a March 1993 rating decision. The veteran was informed of that decision the same month, but no notice of disagreement has been received. REMAND The threshold inquiry is whether the veteran's claim is well- grounded. Under the provisions of 38 U.S.C.A. § 5107 (West 1991), a person who submits a claim to the VA has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well-grounded. If the person meets this burden, the VA is obligated to assist in developing facts pertinent to the claim. A well-grounded claim is one that is plausible, that is, meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). The veteran and his representative have submitted reports of medical examination substantiating his claim that bilateral, degenerative joint disease of the knees began during his active military service and may have continued to the present. Specifically, the service medical record contains a June 1989 Report of (Navy) Medical Board which notes a diagnosis of bilateral degenerative arthritis of the knees, moderately severe. A May 13, 1992 VA report of clinical examination reports a diagnosis of degenerative joint disease of the knees, with crepitus consistent with severe arthritis. Accordingly, the Board finds that this claim is well-grounded. Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993). However, though the claim is well-grounded, there are indications that the record before the Board is incomplete, and there remain significant outstanding questions concerning medical diagnosis and causation that require further development. The first service medical record entry reporting the veteran's knee condition is dated June 24, 1988. (It should be noted in passing that an April 1991 rating decision appears to have incorrectly identified this examination as occurring on June 24, 1968, which would have been prior to the veteran's active service.) The orthopedic surgeon reported that his physical examination indicated bilateral knee pain and crepitus. Later the same month, a service Physical Examination Board (PEB) listed as its primary diagnosis "bilateral degenerative arthritis of the knees, moderately severe." Specifically, the physical examination revealed "bilateral patellofemoral crepitus as well as bilateral crepitus and pain over the medial and lateral joint spaces." However, the PEB report continued, "There is no indication for (sic) internal derangement of either knee." The veteran was again seen by a Navy orthopedic surgeon in September 1988. The physician reported a diagnosis of degenerative joint disease of the knees, with stiffness but minimal pain and swelling. It was also reported, however, that a bone scan revealed that the knees were within normal limits. In June 1989 the same orthopedic surgeon who examined the veteran the previous year conducted a follow-up examination. He reported that the veteran's condition was essentially unchanged, with crepitus in the knees, and diagnosed the veteran as having degenerative arthritis in both knees, though the veteran reported to him that his knees were "doing fairly well." The veteran's June 1989 PEB reported that his condition was essentially unchanged from the previous year, but added that he retained full range of motion. It reiterated that, due to the degenerative joint disease of his lower back, right ankle, and knees, and partly because of an episode of post-traumatic stress disorder, he was unfit to reassume the shipboard duties of his military rating. The veteran's file contains other notations reflecting degenerative joint disorder. In August, October, and December 1989 a Navy orthopedic surgeon recorded his impressions and diagnoses. The August entry recites a diagnosis of degenerative joint disease in both knees and notes that the veteran's physical examination was unchanged from the June 1989 examination described above. The October and December entries contain the same diagnosis and clinical history. However, when the veteran underwent a VA examination in July 1990, an X-ray study was interpreted as showing both knees were normal. A clinical examination resulted in a diagnosis of arthralgia. The file also contains a May 13, 1992 VA report of examination. This report reveals a diagnosis of degenerative joint disease, including "crepitus in the knees consistent with severe arthritis." (Emphasis added.) The report refers specifically to an X-ray report upon which this diagnosis is based, but that report is absent from the case file. There are indications that an effort was made to recover the X-ray report, with November 1992 notations stating, "No other X-ray available, per rel of wife (Elaine) at VAMC Omaha." It is unclear from the file whether the RO contacted the hospital directly. In contradiction, the file contains a VA radiology report dated May 29, 1992, which contained an impression of no significant abnormality in the veteran's knees. Specifically, it noted minimal varus of the tibia, left more than right, but no evidence of joint space narrowing or reactive bone. A July 1992 VA examination diagnosed arthralgia of both knees only. Reference was made to an X-ray report, but it is not of record. In turn, the November 1992 rating decision expresses reliance on the July 1992 examination (which relied on an unspecified radiologic report), the May 13, 1992 report (whose supporting radiologic report is missing), and the May 29, 1992 VA examination (which does not support the veteran's claim). The Board finds that there is a clear conflict in the record between the clinical findings and diagnoses and the x-ray reports actually of record as to whether degenerative arthritis is present. The governing regulations provide for ratings to be assigned for degenerative arthritis "established by X-ray findings." 38 C.F.R. § 4.71a, Code 5003 (1993). Accordingly, while the veteran may well be at a loss to understand how the RO can deny his claim, the Board finds that the current record provides technical support for the current rating determination. Substantiation of the presence of arthritis by X-ray findings is not optional under the rating criteria. In this case, indications of the existence of additional X-ray studies that may support the veteran's claim, as well as the clear conflict in the record as to the correlation of clinical to x-ray findings, dictate additional development of the veteran's well grounded claim under the duty to assist. 38 U.S.C.A. 5107(a); Littke v. Derwinski, 1 Vet.App. 90 (1990). Accordingly, this case must be REMANDED to the RO for the following actions: 1. The RO should directly contact the VA Medical Center in Omaha to determine the existence or location of a VA radiologic report done at that facility on or about May 13, 1992. 2. The RO should request the veteran to provide a comprehensive statement regarding all medical treatment he received post- service for his knee condition. The veteran should be advised to supply the necessary signed authorizations for the release of this medical information. He should also be informed that his cooperation is vitally important to a resolution of his claim and that his failure to cooperate may have adverse consequences. After the veteran has submitted written authorizations for the release of any further information, the RO should take appropriate action to secure copies of these records. 3. Following the above, the RO should schedule the veteran for a VA orthopedic examination of his knees, to include X- rays. The claims folder must be made available to the examiner for review in conjunction with the examination. After reviewing the claims file and conducting the examination, the examiner should render an opinion as to whether the veteran has arthritis or other knee disability, and if so, whether it is at least as likely as not that it had its onset during the veteran's active service, or that it is causally related to the service-connected degenerative arthritis of the back and right ankle. 4. In light of any additional evidence obtained, the RO should readjudicate the issue listed on the title page, adjudicate any additional issues identified by the veteran, and issue a supplemental statement of the case if the benefits sought on appeal are not granted to the veteran's satisfaction. The veteran and his representative should be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further consideration, if otherwise warranted. By this REMAND, the Board intimates no opinion regarding any final outcome. The veteran is not required to perform any action until he is notified by the RO. RICHARD B. FRANK 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).