BVA9504240 DOCKET NO. 93-07 804 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating for postoperative residuals of internal derangement of the right knee, currently evaluated as 20 percent disabling. 2. Entitlement to service connection for postoperative residuals of the left knee with traumatic arthritis as secondary to the service-connected right knee disorder. 3. Entitlement to service connection for degenerative disc disease of the L5-S1, spina bifida, herniation of the C5-C6 disc, and pain of the thoracic spine, all claimed as secondary to the service-connected right knee disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Thomas H. Tousley, Associate Counsel INTRODUCTION The veteran had active military duty from May 1975 to August 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions in May 1991 and May 1992 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In a letter received in November 1992, the veteran mentioned that he was receiving treatment from the VA for high blood pressure and that fibromyalgia had been diagnosed at a VA medical facility. The Board refers this matter to the RO to determine if the veteran desires to submit claims for service connection for these disorders. In addition, at the end of the same letter, he stated that he had recently been found disabled by a Social Security Administration Administrative Law Judge based on VA medical records. The evidence indicates the veteran has not worked since 1990. This matter is also referred to the RO to determine if the veteran desires to submit a claim for a total rating based on individual unemployability due to service- connected disability. REMAND The evidence shows the veteran has experienced instability related to his service-connected right knee disorder for many years. He contends that the additional strain placed on his left knee as the result of his service-connected right knee disorder has caused his left knee disorder. VA medical records reveal that the veteran received treatment in 1986 for swelling, pain, and tenderness of the left knee prior to an injury he experienced at work in January 1990. During an April 1991 VA examination, he reported that he had been experiencing pain and swelling of the left knee since 1990. Private treatment records show that he began receiving treatment in February 1990 after experiencing the previously mentioned work injury. A treatment note dated in February 1991 indicates that an magnetic resonance imaging (MRI) of the left knee showed evidence of an extensive degenerative tear of the posterior horn of the medical meniscus. In January 1992, the veteran testified at a hearing at the RO that the left knee problem began in January 1990 after he had to climb up and down stairs for two weeks at his job. A treatment note dated in March 1991 reveals that a partial medial meniscectomy was performed that month. In addition, a VA examination was performed in December 1992. Some limitation of motion of the left knee was found on examination. The report of the examination indicates that the examiner was not aware of the veteran's January 1990 work injury. The orthopedic diagnoses included residuals of an injury to the left knee due to change in motion, suggesting a causal relationship between the right and left knee disorders. Based on this evidence, the Board determines that the veteran has submitted a well-grounded claim for entitlement to service connection for a left knee disorder as secondary to his service- connected right knee disorder within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). Furthermore, based on the veteran's statements and the medical evidence, the Board determines that the veteran has submitted a well-grounded claim for entitlement to an increased rating for his service-connected right knee disorder. The Board notes that a copy of the previously mentioned decision of the Social Security Administrative Law Judge is not a part of the record before the Board. Although the VA is not bound by a disability determination by the Social Security Administration, it is evidence to be considered by the VA. See Masors v. Derwinski, 2 Vet.App. 181, 188 (1992). In addition, the claims folder does not contain the report of the arthroscopic surgery performed on the veteran's left knee in early 1991, or records pertaining to the circumstances of the injury to his left knee in January 1991. Furthermore, although at the end of the January 1992 RO hearing the hearing officer suggested that an opinion as to the relationship between the veteran's left and right knee disorders should be obtained from a physician, none has been obtained by a physician who has examined the veteran and reviewed all the evidence. Finally, the veteran has indicated that he regularly receives VA medical care; however, the most recent VA treatment records before the Board are from the end of 1992. Therefore, the Board determines additional development of the evidence is required in order to assist the veteran in the development of his claims. See Dyess v. Derwinski, 1 Vet.App. 448, 455 (1991) (obtaining private medical records); Green v. Derwinski, 1 Vet.App. 121, 124 (1991) (obtaining a medical opinion to clarify diagnostic doubt); Murincsak v. Derwinski, 2 Vet.App. 363, 373 (1992) (obtaining VA medical records). It should be noted that at this time, the Board does not make a determination as to whether the veteran's claim for entitlement to service connection for degenerative disc disease of the L5-S1, spina bifida, herniation of the C5-C6 disc, and pain of the thoracic spine as secondary to the service-connected right knee disorder is well-grounded. The Board's full consideration of all issues on appeal pending completion of the action is requested This case is REMANDED to the RO for the following action: 1. After obtaining the proper authorization from the veteran, the RO should attempt to obtain the decision of the Social Security Administration's Administrative Law Judge that determined the veteran was disabled for the purposes of receiving social security disability benefits, including the exhibits attached to the decision. All Social Security Administration records received should be associated with the claims folder. 2. After obtaining the proper authorization from the veteran, the RO should attempt to obtain all private medical records pertaining to the veteran from the Palms of Pasadena Hospital. All private treatment records received should be associated with the claims folder. 3. The RO should obtain and associate with the claims folder the veteran's VA medical records since January 1993. 4. The veteran should be requested to provide to the RO with the current name and address of his previous employer, McMullen Air Conditioning. Once the RO has obtained this information, the RO should request that the veteran's former employer provide the RO with a statement as to dates of the veteran employment and the reason for termination of his employment. 5. After receiving the proper authorization from the veteran, the RO should attempt to obtain from FCCI Insurance Company all records pertaining to the veteran's workmen's compensation claim submitted for an injury received in January 1990 while working for McMullen Air Conditioning. All records received should be associated with the claims folder. 6. The veteran should be allowed the applicable period of time to submit any medical records not already of record. 7. Once the action requested in the above indented paragraphs has been completed, the veteran should be afforded a VA orthopedic examination, conducted in conformity with Chapter 2 of the VA's Physician's Guide for Disability Evaluation Examinations (1985), to determine the nature and severity of any disorders of the veteran's knees and spines. All appropriate tests and studies should be conducted, including X-rays, and range of motion studies of the veteran's knees and cervical, thoracic, and lumbosacral spines. In addition to providing the ranges of motion of the various joints, the examiner is requested to indicate the degree of laxity or instability present in the veteran's right knee joint. The examiner is requested to review the claims folders and the current examination findings. Based on this evidence, it is requested that the examiner offer medical opinions as to the following matters: (1) the extent to which the veteran's report of right knee pain is supported by the level of treatment received and pathology shown; (2) the relationship, if any, between the veteran's service-connected right knee disorder and his left knee disorder; (3) the effect of the veteran's January 1990 work injury upon his left knee disorder; and (4) the relationship, if any, between the veteran's service-connected right knee disorder, and any diagnosed disorders of the cervical, thoracic, and lumbosacral spines. The complete rationale for all opinions expressed should be set forth. Therefore, the claims folder must be made available to the examiner for review prior to and during the examination. 8. After the action requested in all of the above indented paragraphs has been completed, the RO should adjudicate the issues of entitlement to an increased rating for postoperative residuals of internal derangement of the right knee; entitlement to service connection for postoperative residuals of the left knee with traumatic arthritis as secondary to the service-connected right knee disorder; and entitlement to service connection for degenerative disc disease of the L5-S1, spina bifida, herniation of the C5-C6 disc, and pain of the thoracic spine, all claimed as secondary to the service-connected right knee disorder. In adjudicating the aforementioned issues, the RO should also determine whether an increased rating for the veteran's right knee disorder is warranted on an extra-schedular basis under 38 C.F.R. § 3.321(b)(1) (1993). 9. If the benefits sought on appeal are not granted, the veteran and his representative must be provided a supplemental statement of the case which includes citation to all applicable laws and regulations and a full discussion of the reasons for the denial of the veteran's claims. The veteran and his representative should be allowed the applicable period of time in which to respond to the supplemental statement of the case before the record is returned to the Board. The purpose of this REMAND is to assist the veteran in the development of his claims. The Board does not intimate any opinion as to the merits of this case, either favorable or unfavorable, at this time. No action is required of the veteran until he is notified. JACQUELINE E. MONROE 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).