BVA9502772 DOCKET NO. 90-25 983 ) DATE ) ) On appeal from the decisions of the Department of Veterans Affairs Regional Offices in St. Petersburg, Florida and Seattle, Washington THE ISSUES 1. Entitlement to service connection for right knee disability. 2. Entitlement to service connection for left knee disability. 3. Entitlement to service connection for residuals of Agent Orange exposure, including heart disability and hypertension. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARINGS ON APPEAL The appellant ATTORNEY FOR THE BOARD P. H. Mathis, Counsel INTRODUCTION The veteran had active service from May 1966 to March 1972. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions by the St. Petersburg, Florida, Regional Office, and the Seattle, Washington, Regional Office (RO) of the Department of Veterans Affairs (VA). The Seattle, Washington, RO currently has jurisdiction of the claims. In February 1991 and May 1993, the Board remanded the veteran's case to the RO for further development. In August 1994, the RO granted service connection for post-traumatic stress disorder, which had been an issue before the Board in May 1993. The issues of entitlement to service connection for left knee disability and entitlement to service connection for residuals of Agent Orange exposure are discussed in the REMAND section of this decision. CONTENTIONS OF APPELLANT ON APPEAL It is contended that the veteran incurred right knee disability during his active service. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. After review of the relevant evidence in this matter, and for the following reasons and bases, the Board concludes that the evidence supports service connection for right knee disability. FINDING OF FACT The evidence before the rating board at the time of its December 1978 rating decision denying service connection for right knee disability unequivocably established that the veteran had chronic right knee disability due to service trauma. CONCLUSIONS OF LAW 1. The December 1978 RO denial of service connection for right knee disability was clearly and unmistakably erroneous. 38 C.F.R. §§ 3.105(a) (1993). 2. Disability of the right knee was incurred during wartime service. 38 U.S.C.A. § 1110 (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSIONS In December 1978, the RO denied service connection for right knee disability on the basis that no knee disability was shown at service discharge. The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. §§ 1110 (West 1991). Here, the service medical records reflect that the veteran sustained right knee trauma during service and was evaluated or treated on numerous occasions for right knee symptoms. When the veteran was examined in February 1972 for discharge purposes, he was on a T-3 profile because of continued knee symptoms and there was an impression of chronic sprain of the right knee. When the veteran was examined by VA in October 1978, there was a diagnosis of status post trauma to the right knee with subsequent surgical repair. At the time of the examination, the veteran reported the history of post service treatment by several private physicians. The other clinical evidence submitted regarding the claim decided in 1978 consisted of statements from private physicians, including right knee surgical reports, reflective of chronic knee disability and supportive of the history provided by the veteran at the time of the VA examination. Lay statement evidence supportive of the claim was also received prior to the decision in 1978. In sum, all of the relevant evidence before the rating board in December 1978, to include the report of an orthopedic consultation performed in February 1972 for discharge purposes, was suppportive of the veteran's claim. Consequently, the rating board's denial of that claim was clearly and unmistakably erroneous. Accordingly, service connection for right knee disability is in order. ORDER Service connection for right knee disability is granted. REMAND Inasmuch as the veteran is claiming service connection for left knee disability secondary to right knee disability, there must be further action by the RO on the claim in light of the grant of service connection for right knee disability. Moreover, the Board is of the opinion that other RO actions are also warranted. Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO should contact the veteran and request that he specify whether he is claiming service connection for Agent Orange exposure residuals other than heart disease and hypertension. 2. The veteran should be advised of the need to submit medical opinion or other medical evidence showing that his claim of a causal connection between the service- connected right knee disability and left knee disability, and his claim of a causal connection between Agent Orange exposure and hypertension and heart disease are plausible. 3. The RO should request that the veteran identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated or evaluated him for either left knee disability or Agent Orange exposure residuals since service. With any necessary authorization from the veteran, the RO should attempt to obtain copies of pertinent treatment records identified by the veteran, which have not been previously secured, and associate them with the claims folder. 4. If evidence of well groundedness is received regarding the claim for service connection for left knee disability, the RO should arrange for examination of the veteran by a board certified orthopedist, if available, to determine the nature and extent of any left knee disability present. All indicated studies should be performed. The orthopedist should examine the veteran, review the record and provide an opinion, with complete rationale, as to the etiology of any left knee disability present, to include whether it is at least as likely as not that any left knee disability shown is etiologically related to the veteran's service-connected right knee disability. If the examination is scheduled, it is imperative that a copy of this Remand and the veteran's claims file be made available to the examiner prior to the examination. 5. If evidence of well groundedness is received regarding the claim for service connection for residuals of Agent Orange exposure, the RO should arrange for examination of the veteran by an appropriate board certified specialist, if available. The examination should be performed for the purpose of determining if the veteran has any chronic residuals of Agent Orange exposure. With respect to any hypertension, heart disease or other pertinent disorder found to be present, the examiner should review the record and offer an opinion, with complete rationale, as to whether it is at least as likely as not that the disorder(s) is (are) etiologically related to service Agent Orange exposure. All indicated studies should be performed. If the examination is scheduled, it is imperative that a copy of this Remand and the veteran's claims file be made available to the examiner prior to the examination. 6. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, including if any requested examination does not include all test reports, special studies or opinions requested, appropriate corrective action is to be implemented. 7. Thereafter, the RO should undertake any other indicated development, adjudicate the claim for service connection for left knee disability in light of the grant of service connection for right knee disability, and readjudicate the claim for service connection for residuals of Agent Orange exposure. If the benefits sought on appeal are not granted to the appellant's satisfaction or if a timely Notice of Disagreement is received with respect to any other matter, a Supplemental Statement of the Case addressing all issues in appellate status should be prepared and furnished to the appellant and his representative. They should be provided an opportunity to respond. Thereafter, in accordance with proper appellate procedures, the case should be returned to the Board for further appellate review, if otherwise in order. All issues properly in appellate status should be returned to the Board at the same time. In taking this action, the Board implies no conclusion, either legal or factual, as to any final outcome warranted. The appellant need take no action until otherwise notified. _____________________________ SHANE A. DURKIN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 State. 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. (CONTINUED ON NEXT PAGE) NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. 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. The above 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).