BVA9500601 DOCKET NO. 93-07 996 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for a right knee condition. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Tresa Schlecht, Associate Counsel INTRODUCTION The appellant had active service from September 1966 to July 1968. By a rating decision issued in January 1980, the appellant's claim for service connection for a right knee disorder on the basis of aggravation was denied. The appellant was notified in January 1980 of that decision, but filed no timely notice of disagreement therewith. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 1992 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which denied the appellant's request to reopen his claim of service connection for aggravation of a right knee condition. It also appears that the appellant's representative may be attempting, in the informal hearing presentation, to raise an issue of clear and unmistakable error. Given the facts and circumstances of the case, however, the Board does not consider the representative's argument as reasonably raising a claim for clear and unmistakable error. See Fugo v. Brown, 6 Vet.App. 40 (1993), en banc review denied, 6 Vet.App. 162, 163 (1994). Specific allegations may be made at the RO. The issue is not currently developed. REMAND The appellant stated in his notice of disagreement that the disability due to in-service aggravation of his right knee condition has become more pronounced in the last few years. The appellant's representative, in an April 1993 statement, contends that an injury to appellant's right knee during service which required use of a cast represented a permanent worsening of the appellant's condition, even though no further or continuing treatment for the right knee as a result of that injury was required in service. In an informal hearing presentation of July 1993, the appellant's representative contends that the duty to assist requires that a VA examination be provided in this case prior to a determination whether the appellant has submitted new and material evidence to reopen his claim for service connection of aggravation of a right knee condition. By alleging that the in-service aggravation of his right knee condition has become more noticeable over the past few years, the appellant has submitted a plausible claim as defined under 38 U.S.C.A. § 5107(a). See also Browder v. Brown, 5 Vet.App. 268 (1993); Hensley v. Brown, 5 Vet.App. 155, 161-162 (1993); Moore v. Derwinski, 1 Vet.App. 410 (1991). To ensure that VA has met its duty to assist the appellant in developing the facts pertinent to the claim, the case is REMANDED to the RO for the following development: 1. The RO should attempt to obtain the names and addresses of all medical care providers who have treated the veteran for his right knee condition prior to an subsequent to service discharge in 1968, as well as any relevant employment medical records, including the actual 1966 clinical records of Donald Ross, M.D., 401 East Springfield Avenue, Champaign, Illinois, if such records are still available, including any available radiologic films of appellant's knee in 1966. The RO should also attempt to obtain any available preservice or postservice medical records from E.N. Hetherington, M.D., 715 W. Fairchild, Danville, Illinois, from Dr. Andracki (address not referenced in the record), and any records or radiologic studies regarding appellant on file at Lake View Memorial Hospital in Danville, Illinois. After securing the necessary release(s), the RO should obtain these records and associate such records with the claims folder. If records are not available, the claims folder should contain documentation concerning the attempts made to obtain the records. The veteran and his representative should also be informed of any negative results. 38 C.F.R. § 3.159. 2. The veteran should be afforded a VA orthopedic examination to determine the nature and extent of the appellant's current right knee disability, if any. The examiner should, on the basis of all available medical and employment medical records, together with the service medical records, provide a medical opinion as to whether an injury in November 1966 or May 1967 or other in-service injury permanently worsened the veteran's underlying condition, or whether the current right knee disability is what would be expected given the preservice findings, or whether current findings are most likely related to injury after service such as the reported re-injury in 1979. The claims folder should be made available to the examiner for review before the examination. When the aforementioned development has been accomplished the case should be reviewed by the RO. In the event 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. Thereafter, the case should be returned to the Board for further appellate consideration. No action is required of the veteran until he is notified. The Board intimates no opinion as to the ultimate outcome of this case by the action taken above. 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) (1993).