BVA9501594 DOCKET NO. 93-04 079 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Fargo, North Dakota THE ISSUES 1. Entitlement to service connection for residuals of a left knee injury. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for thrombophlebitis of the left thigh. 3. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for right internal and middle cerebral occlusion. REPRESENTATION Appellant represented by: Minnesota Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. M. Lynch, Associate Counsel INTRODUCTION The veteran's active military service extended from September 1968 to May 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1992 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota. That rating decision denied entitlement to service connection for residuals of a left knee injury and denied the veteran's petition to reopen his claims of entitlement to service connection for thrombophlebitis of the left thigh and for right internal carotid and middle cerebral occlusion. REMAND The veteran's claim for residuals of a left knee injury is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, he has presented a claim which is plausible. However, for the reasons that follow, it appears that the statutory duty to assist the veteran mandated by 38 U.S.C.A. § 5107(a) has not yet been fully met. The veteran initially filed a claim for entitlement to service connection for residuals of a left knee injury in January 1992. The RO denied the veteran's claim in March 1992 on the grounds that his service medical records were negative for any treatment associated with a left knee injury. A review of the service medical records reveals that the veteran had a bruise on his left knee in October 1968. Also of record is a report of hospitalization dated in December 1968 from R. Watson, M.D. which indicates that the veteran gave a history of a recent left knee injury. The veteran appeared at a personal hearing at the RO in September 1992. He testified that x-rays conducted in August 1992 revealed a torn meniscus and a bone chip in his left knee. He also indicated that he was scheduled for follow up treatment for this condition. It is noted that these medical records are not currently associated with the claims file. These records should be obtained as the duty to assist the veteran includes obtaining all medical evidence pertinent to his claim. Littke v. Derwinski, 1 Vet.App. 90 (1990) and Hyder v. Derwinski, 1 Vet.App. 221 (1991). In September 1978, the veteran filed a claim for entitlement to service connection for thrombophlebitis of the left thigh and for right internal carotid and middle cerebral occlusion. In November 1978, the RO denied service connection for the thrombophlebitis of the left thigh on the grounds that the left knee bruise with blood clot shown during service in October 1968 was acute and transitory and the veteran made a full recovery. The RO also determined that the right internal carotid and middle cerebral occlusion which occurred in September 1978 was of post service origin, and that there was no relationship between the thrombophlebitis of the left thigh and right internal carotid and middle cerebral occlusion. This decision became final as no appeal was filed by the veteran. 38 U.S.C.A. § 7105 (West 1991). Evidence submitted in support of the veteran's petition to reopen his claims for service connection included medical records from the U.S. Army Hospital in Fort Sill, Oklahoma dated in December 1968; reports of hospitalization from St. Ansgar Hospital dated from August to September 1974 and in February 1985; and a report of examination dated in July 1991 and a statement dated in March 1992 from J. Roger Edson, M.D. In a rating decision in March 1992, the RO denied the veteran's petition to reopen his claims for service connection on the grounds that the evidence submitted was not new and material. In response, the veteran's representative requested review of the veteran's file by a VA vascular specialist. While such a review was conducted, it discussed the veteran's disability only in general terms and did not address questions relative to the issue of service connection. In particular, it did not address the question as to whether the thrombophlebitis of the left thigh and the blood clot noted during service were chronic conditions or acute and transitory conditions that resolved completely without residuals prior to the veteran's discharge from service. VA has a duty to assist the veteran in the development of facts pertinent to his claim. 30 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1993). The duty to assist applies even where the additional evidence submitted by a claimant is inadequate to reopen the claim. See Ivey v. Derwinski, 2 Vet.App. 320 (1992). In Colvin v. Derwinski, 1 Vet.App. 171 (1991) the U.S. Court of Veterans Appeals (Court) held that decisions must be based on medical opinion and that adjudicators may not substitute their own opinion. Therefore, the veteran should be afforded a medical examination in order to determine whether the symptoms in service were chronic or transitory in nature. It is further noted that the veteran has received treatment from several physicians and facilities throughout the years. In particular, a review of the file reveals that he has been treated at St. Mary's Hospital by Dr. Watson in September 1978; at the Mayo Clinic in Rochester, Minnesota in 1980; at the VA Medical Center in Fargo, North Dakota; by Robert Campbell, M.D.; by Ryan Harrington, M.D.; and by Dr. Holten. These complete medical records are not currently associated with the claims folder. The RO should make arrangements to obtain all pertinent medical evidence and associate it with the veteran's file. In view of the foregoing, action is deferred and the case is REMANDED to the RO for the following development: 1. The veteran should be asked to provide a list of all medical treatment received for his left knee condition, his thrombophlebitis of the left thigh, and his right internal carotid and middle cerebral occlusion since his discharge from service. The Board is particularly interested in treatment received by the veteran for a left knee condition since May 1970. This includes, but is not limited to, treatment received for an alleged torn meniscus and bone chip in August 1992 and thereafter. The Board is also particularly interested in any treatment received by the veteran at St. Mary's Hospital by Dr. Watson in September 1978; at the Mayo Clinic in Rochester, Minnesota in 1980; at the VA Medical Center in Fargo, North Dakota; by Robert Campbell, M.D.; by Ryan Harrington, M.D.; and by Dr. Holten. 2. The RO should then make all the arrangements necessary in order to obtain copies of treatment records from all the sources listed by the veteran not already on file. The RO should also obtain all treatment records from VA facilities. If any records are not available that fact and the reason(s) should be noted. 3. Following the above, the veteran should be afforded a VA examination by a specialist in orthopaedics. The report of examination should include a detailed account of all manifestations of left knee pathology found to be present. All necessary tests and X-rays should be conducted and the examiner should review the results of any testing prior to completion of the report. The veteran has reported that he first injured his knee as the result of a fall in October 1968. The examiner is requested to describe the nature and extent of any current left knee disorder and render an opinion as to the approximate onset of the condition and whether any such disorder is the result of the documented injury during service. A copy of this remand and the claims folder must be made available to and reviewed by the examiner prior to the examination. The examiner must provide a comprehensive report with complete rationale for all opinions and conclusions expressed. 4. The veteran should also be examined by a VA vascular specialist in order to determine the etiology, nature and severity of any vascular disorder. The report of examination should include a detailed account of all manifestations of any vascular disorder found to be present. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. The claims folder must be made available to and reviewed by the examiner prior to the examination. The specialist should provide complete rationale for all opinions and conclusions reached. The examiner should render opinions as to the following: a. Whether the blood clot noted in October 1968 and the superficial thrombophlebitis of the left thigh noted during December 1968 were the early manifestations of any current thrombophlebitis of the left thigh. b. Whether any current thrombophlebitis of the left thigh was caused by the documented trauma to the left knee in service. 5. The RO should review the examination reports to ensure that they are in full compliance with this REMAND. If not, they should be returned to the examiners for corrective action. Once the foregoing has been accomplished, and if the benefits are not granted to the satisfaction of the veteran, both the veteran and his representative should be furnished a supplemental statement of the case covering all the pertinent evidence, law and regulatory criteria. They should be afforded a reasonable period of time in which to respond. Thereafter, the case should be returned to the Board for further appellate consideration. The veteran needs to take no action until so informed. The purpose of this REMAND is assist the veteran and to obtain clarifying information. JOAQUIN AGUAYO-PERELES 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).