BVA9500183 DOCKET NO. 93-04 238 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a back disorder. 2. Entitlement to an increased rating for degenerative joint disease of the left knee, currently rated as 10 percent disabling. 3. Entitlement to an increased (compensable) rating for eczematoid dermatitis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. R. Olson, Counsel INTRODUCTION The veteran's active military service extended from February 1944 to October 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A January 1992 rating decision continued a 10 percent rating for degenerative joint disease of the left knee, which had been in effect since September 1987, continued a noncompensable rating for eczematoid dermatitis, which had been in effect since November 1946, and denied service connection for degenerative joint disease of multiple joints, as secondary to the service- connected left knee disorder. A September 1992 decision by an RO hearing officer found that the veteran had reasserted a claim for service connection for a back disorder at the September 1992 hearing, that service connection had previously been denied by a February 1956 rating decision and that new and material evidence had not been presented to reopen the claim. REMAND In January 1956 an RO received the veteran's claim for service connection for a head condition (blackouts). The report of a VA hospitalization in January and February 1956 included a diagnosis of herniated nucleus pulposus with left sciatica. A February 1956 rating decision considered the issue of whether the veteran was permanently and totally disabled and noted that he had a herniated nucleus pulposus with left sciatica, which was not incurred in service. An RO letter dated in March 1952 informed the veteran that his back disability with sciatica was not shown to have been incurred in service. However, the letter was returned as undelivered. It is clear from these facts that the issue of entitlement to service connection for a back disorder was not properly before the RO in 1956 and the RO did not made a final denial of service connection for the veteran's back condition at that time. The claim for service connection for a back disorder should be adjudicated on a de novo basis. That is, the RO should consider the claim for service connection for a back disorder on the basis of all evidence, both old and new. In the statement of the case, the RO listed the third issue as entitlement to service connection for additional joints affected by degenerative joint disease as being secondary to the service- connected left knee condition. The veteran responded in his substantive appeal that the RO had the third issue wrong and that it should be entitlement to service connection for a lumbosacral spine disorder. The veteran has not presented any evidence linking his service-connected knee disorder to degenerative changes in other joints. At the September 1992 hearing, he discussed his degenerative joint disease in general terms and did not assert a that the service-connected knee caused degeneration of other joints. The issue of service connection for degenerative joint disease of multiple joints, as secondary to the service-connected left knee disorder, was restated as an issue by the veteran's RO and Board level representatives; however, they did not advance any specific arguments in support of that issue. Clearly, the veteran is not appealing on this issue and the issues on appeal are as he stated in his substantive appeal to the Board and as stated on the first page of this Remand. VA decisions must be based on examinations which are done in accordance with the VA Physician's Guide for Disability Examinations (1985). See Littke v. Derwinski, 1 Vet.App. 90 (1990). Of course, they must provide sufficient information to rate the disability. 38 C.F.R. § 4.2 (1993). The report of the most recent VA examination, in December 1991, shows that knee extension was limited by almost complete ankylosis. There was no measurement of flexion. 38 C.F.R. §§ 4.46, 4.71 (1993). Although the statement of the case refers to an absence of subluxation or instability, the examination report is actually silent on these aspects of possible disability. A medical examiner should determine and report if there is any instability and its extent. The examiner should also determine how pain affects the functioning of the left knee joint. 38 C.F.R. §§ 4.40, 4.45, 4.59 (1993). The comments of the hearing officer with respect to the function of the veteran's left knee may not be used as a basis for determining the assignment of the proper rating. This individual is not competent to provide a medical opinion as to the extent of joint function. Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992) (lay witness is not capable of offering evidence requiring medical knowledge). If it had appeared to the hearing officer that the extent of motion about the left knee was inconsistent with that reported on the VA examination, he should have ordered another examination to corroborate the medical findings. During the December 1991 VA examination, it was reported that the veteran was on continuous therapy for his skin condition. However, there was no comment as to what the therapy was. To ensure that VA has met its duty to assist the claimant in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. The veteran should be accorded an examination by a VA orthopedist. A copy of this Remand and the claims folder must be made available to and be reviewed by the examiner prior to the examination. 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 report of examination should include a detailed account of all manifestations of joint pathology found to be present. Special attention should be given to the presence or absence of pain, any limitation of motion, instability and weakness. The orthopedist should provide a medical opinion as to the probability that the lumbosacral injury of May 1945 resulted in the herniated nucleus pulposus with left sciatica noted in 1956 or any other pathology noted on examination. The examiner should give a complete rationale for all conclusions reached. 2. The veteran should be accorded an examination by a dermatologist to determine the extent of the veteran's service- connected eczematoid dermatitis. If possible, arrangements should be made when the veteran considers the condition especially present. The report of examination should include a detailed account of all manifestations of the 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. Full color prints of the affecter areas should be made. The physician should discuss the therapy provided the veteran and the extent it controls the disease. The claims folder and a copy of this remand must be made available and reviewed by the examiner prior to the examination. The physician should provide complete rationale for all conclusions reached. 3. The RO should review the examination reports and determine if they are adequate for rating purposes and in compliance with this Remand. If not, any report not in compliance should be returned for corrective action. Following completion of these actions the RO should review the issues as set forth on the first page of this decision. If the decision remains unfavorable, the veteran and representative should be provided with a supplemental statement of the case and afforded a reasonable period of time in which to respond. Thereafter, in accordance with the current appellate procedures, the case should be returned to the Board for completion of appellate review. The Board intimates no opinion as to the ultimate outcome of this case. No action is required of the veteran until further notice is issued. JAN DONSBACH 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).