Citation Nr: 0119639	
Decision Date: 07/30/01    Archive Date: 08/07/01

DOCKET NO.  97-27 395	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. 
Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for a bilateral knee 
disability.

2.  Entitlement to service connection for a cervical spine 
disorder.

3.  Entitlement to an increased evaluation for myofascitis 
pain syndrome of the low back, currently rated as 20 percent 
disabling.


REPRESENTATION

Appellant represented by:	Sean Kendall, Attorney


ATTORNEY FOR THE BOARD

D. L. Wight, Associate Counsel


INTRODUCTION

The veteran served on active duty from October 1988 to 
October 1992.
 
This case comes before the Board of Veterans' Appeals (Board) 
by means of a March 1997 rating decision rendered by the St. 
Petersburg, Florida, Regional Office (RO) of the Department 
of Veterans Affairs (VA) wherein service connection for a 
bilateral knee condition and cervical strain were denied and 
wherein an increased disability rating for myofacial pain 
syndrome, low back, was denied.  

The issues on appeal were previously the subject of a March 
26, 1999, Board decision.  By means of an August 2000 
Memorandum Decision rendered by a single Judge of the United 
States Court of Appeals for Veterans Claims (Court), the 
issues of service connection for a bilateral knee disorder 
and a cervical spine disorder were affirmed.  However, the 
Court vacated the Board's decision with regard to an 
increased rating for a low back disorder and remanded the 
matter to the Board for further adjudication.  Subsequently, 
in light of changes in the law brought on by the Veterans 
Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 
2096 (2000) (VCAA), the Court issued a December 2000 Order 
withdrawing its August 2000 affirmance of the Board denial of 
service connection for a bilateral knee disorder and a 
cervical spine disorder and remanding these issues to the 
Board for readjudication.  

The Board notes that during the pendency of this appeal, the 
veteran has submitted Statements in Support of Claim dated in 
April 1998 and April 1999 wherein he appears to raise several 
new claims for VA benefits.  As these matters have not been 
adjudicated, they are referred to the RO for additional 
development as necessary.  


REMAND

As noted in the December 2000 Court Order, there has been a 
significant change in the law during the pendency of this 
appeal.  On November 9, 2000, the President signed into law 
the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. 
No. 106-475, 114 Stat. 2096 (2000).  This law redefines the 
obligations of VA with respect to the duty to assist and 
includes an enhanced duty to notify a claimant as to the 
information and evidence necessary to substantiate a claim 
for VA benefits.  This law also eliminates the concept of a 
well-grounded claim and supersedes the decision of the United 
States Court of Appeals for Veterans Claims in Morton v. 
West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. 
Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam 
order), which had held that VA cannot assist in the 
development of a claim that is not well grounded.  This 
change in the law is applicable to all claims filed on or 
after the date of enactment of the VCAA, or filed before the 
date of enactment and not yet final as of that date.  VCAA 
§ 7, subpart (a), at 2099-2100.  See also Karnas v. 
Derwinski, 1 Vet. App. 308 (1991).

Because of the change in the law brought about by the VCAA, a 
remand in this case is required for compliance with the 
notice and duty to assist provisions contained in the new 
law.  In addition, because the RO has not yet considered 
whether any additional notification or development action is 
required under the VCAA, it would be potentially prejudicial 
to the appellant if the Board were to proceed to issue a 
decision at this time.  See Bernard v. Brown, 4 Vet. App. 384 
(1993); VA O.G.C. Prec. Op. No. 16-92 (July 24, 1992) 
(published at 57 Fed. Reg. 49,747 (1992)).  Therefore, for 
these reasons, a remand is required.  

In an effort to assist the RO, the Board has reviewed the 
claims file and identified certain assistance that must be 
rendered to comply with the VCAA.  However, it is the RO's 
responsibility to ensure that all appropriate development is 
undertaken in this case.

This duty to assist requires VA to make "reasonable efforts 
to obtain relevant records (including private records)" and 
to provide a medical examination when such examination is 
necessary to make a decision on the claim.  Id. at § 3(a) (to 
be codified as amended at 38 U.S.C. § 5103A). The most recent 
medical evidence consists of an April 2001 medical opinion 
rendered by Dr. Craig N. Bash, a private physician.  Dr. Bash 
indicated that he relied on several pieces of evidence that 
are not presently associated with the veteran's claims 
folder.  He indicated that he reviewed, inter alia, the 
"following documents:"  "a patient interview on 21 April 
2001" and a "patient letter dated 21 April 2001."  Copies 
of these documents are not presently associated with the 
claims folder.  As the information contained in these 
documents may be probative to the present case, a copy of 
these documents must be obtained.  

In light of the recent changes in the law brought forth by 
the VCAA, a new examination or examinations would be 
probative in ascertaining the etiology of the veteran's 
current knee and cervical spine disabilities.  The Board 
notes that the veteran has been afforded several VA 
orthopedic examinations; however, these examinations, while 
identifying the severity of disability, do not offer an 
opinion to the etiology or date of onset of disability.  The 
duty to assist requires a "thorough and contemporaneous 
medical examination" that is sufficient to ascertain the 
current level of disability, and accounts for its history.  
Floyd v. Brown, 9 Vet. App. 88, 93 (1995).  This medical 
examination must consider the records of prior medical 
examinations and treatment in order to assure a fully 
informed decision.  Caffrey v. Brown, 6 Vet. App. 377, 381 
(1994). 

The Board notes that, in his April 2001 statement, Dr. Bash 
quoted an October 1993 post service VA medical record which 
reads that the "[veteran] states he has had knee pain for 
[the] past three years."  Based on this reported history, 
Dr. Bash opined that the veteran had "pain in his knees 
during service time because [he] was in the service from 1988 
to 1992."  Based on this history of inservice knee injury 
and pain, Dr. Bash opined that the veteran's current knee 
pathology was "all due to his service related knee 
injuries."  However, the veteran's service medical records 
are silent for any complaint, treatment, or diagnosis of a 
bilateral knee disorder.  While Dr. Bash indicated that the 
veteran sustained "knee injuries" during service, he did 
not identify which alleged injury or injuries caused the 
veteran's current knee disability.  The Board notes that it 
is not required to accept doctors' opinions that are based 
upon the veteran's recitation of medical history. Godfrey v. 
Brown, 8 Vet. App. 113 (1995), see also, Owens v. Brown, 7 
Vet. App. 429 (1995).  The Board also notes that Dr. Bash 
indicated that the "pathophysiologic situation is similar to 
the one that I have described . . . for the spine."  It is 
unclear if Dr. Bash is proffering an opinion that the 
veteran's current knee disability is related on a secondary 
basis to his service connected low back disorder.  Based on 
the discussion above, the Board is of the opinion that a new 
examination would be probative in ascertaining the etiology 
of his present bilateral knee disability.  

With regard to the veteran's claim for an increased 
disability rating, in April 2001, Dr. Bash opined that the 
veteran's low back disability "should be appropriately rated 
at the 40% level under [Diagnostic Code] 5295."  However, 
Dr. Bash noted that his evaluation was based on a review of 
medical records and evaluations performed by other 
physicians.   Dr. Bash indicated that "it is not required 
that I examine the patient . . ."  However, the Court has 
held that where entitlement to compensation has already been 
established and an increase in the disability rating is at 
issue, the present level of disability is of primary 
importance.  Francisco v. Brown, 7 Vet.App. 55, 58 (1994).  
The Board notes that the most recent thorough examination 
report is a December 1997 private medical record.  Subsequent 
VA outpatient treatment records show treatment for back pain; 
however, they do not contain sufficient information to rate 
the present severity of the veteran's service connected back 
disability.  Accordingly, the Board is of the opinion that a 
new examination would be probative.  The "duty to assist" 
requires a "thorough and contemporaneous medical 
examination" that is sufficient to ascertain the current 
level of disability, and accounts for its history.  Floyd v. 
Brown, 9 Vet. App. 88, 93 (1995).  This medical examination 
must consider the records of prior medical examinations and 
treatment in order to assure a fully informed decision.  
Caffrey v. Brown, 6 Vet. App. 377, 381 (1994).  

Accordingly, this case is REMANDED for the following:

1.  The RO should obtain the names and 
addresses of all medical care providers 
who have treated the veteran for his 
bilateral knee, cervical spine, and low 
back disabilities, since September 2000.  
After securing the necessary releases, 
the RO should obtain these records.

In addition, the RO should obtain a copy 
of any documents or records identified in 
the April 2001 statement by Dr. Craig N. 
Bash that are not presently associated 
with the claims folder.  

The RO should ensure that its efforts to 
obtain the requested records are fully 
documented in the claims folder.  If such 
records do not exist or if further 
efforts to obtain those records would be 
futile, the RO should so indicate in the 
claims folder.  If any identified 
evidence is not available, the RO should 
notify the appellant as mandated by the 
VCAA.  

2.  Thereafter, the veteran should be 
afforded a VA examination(s), with an 
appropriate VA physician(s), to ascertain 
the etiology or date of onset of any 
current bilateral knee or cervical spine 
disorder.  Prior to the scheduling of the 
examination, the RO should apprise the 
veteran of the consequences of a failure 
to report for the VA examination, 
pursuant to 38 C.F.R. § 3.655.  The 
claims folder and a copy of this REMAND 
should be made available to the 
examiner(s) for review before the 
examination(s).  Specifically the 
examiner(s) should provide the following 
information:

a) The examiner(s) should perform a 
thorough review of the veteran's 
claims file and medical history and 
should state in the examination 
report that such review has been 
conducted.

b)  The examiner should indicate 
whether any bilateral knee or 
cervical spine disability is 
currently shown or otherwise 
indicated by the medical evidence.

c)  The examiner should comment on 
the etiology and onset for each 
bilateral knee or cervical spine 
disability that is currently 
manifested. 

Additionally, for each bilateral 
knee or cervical spine disability 
found on examination, or otherwise 
indicated in the medical record, the 
examiner should proffer an opinion 
as to whether the disability is 
"more likely than not" (i.e., the 
probability is greater than 50%); 
"as least as likely as not" (i.e., 
the probability is equal to or 
greater than 50%); or "not as least 
as likely as not" (i.e., the 
probability is less than 50%) 
proximately due to or the result of 
his active military service or his 
service connected low back 
disability.

Any indications that the veteran's 
complaints of pain or other symptomatology 
are not in accord with physical findings 
on examination should be directly 
addressed and discussed in the examination 
report(s).

3.  The VA examinater should also 
ascertain the severity of his myofascitis 
pain syndrome of the low back.  Prior to 
the scheduling of the examination, the RO 
should apprise the veteran of the 
consequences of a failure to report for 
the VA examination, pursuant to 38 C.F.R. 
§ 3.655.  The claims folder and a copy of 
this REMAND should be made available to 
and be reviewed by the examiner prior to 
the examination.  Specifically the 
examiner should provide the following 
information:

a)  The examiner should perform a 
thorough review of the veteran's 
claims file and medical history and 
should state in the examination 
report that such review has been 
conducted.

b) The examiner should provide full 
ranges of motion, both active and 
passive of the veteran's lumbar 
spine as measured in degrees.  The 
examiner should also state whether 
there is any additional limitation 
of motion, excess motion, 
incoordination, fatigability, or 
pain on motion caused by the 
veteran's low back disability.  

The examiner should state whether or 
not any of the signs listed below 
are presently shown.  For each sign 
requested, the examiner should, if 
possible, specifically state whether 
or not shown, and if shown should 
provide an opinion as to the 
severity and frequency:

1)  pain on motion 
characteristic of lumbosacral 
strain;
2)  muscle spasm on extreme 
forward bending;
3)  or unilateral loss of 
lateral spine motion in the 
standing position;
4)  listing of the spine to the 
opposite side;
5)  positive Goldthwait's sign;
6)  marked limitation of 
forward bending in the standing 
position;
7)  loss of lateral motion with 
osteo-arthritis changes;
8)  narrowing or irregularity 
of joint space;
9)  abnormal mobility on forced 
motion;
10)  recurring attacks of 
intervertebral disc syndrome 
(if so, the examiner should 
state the frequency of the 
attacks and the relief);
11)  persistent symptoms 
compatible with sciatic 
neuropathy;
12)  pain characteristic of 
intervertebral disc syndrome;
13)  demonstrable muscle spasm;
14)  absent ankle jerk;
15)  neurological findings 
appropriate to the site of a 
diseased disc; and
16)  ankylosis of the lumbar 
spine.

Any indications that the veteran's 
complaints of pain or other symptomatology 
are not in accord with physical findings 
on examination should be directly 
addressed and discussed in the examination 
report(s).

4.  Thereafter, the RO should 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, appropriate 
corrective action is to be implemented.  
Specific attention is directed to the 
examination reports.  If the requested 
examinations do not include fully detailed 
descriptions of pathology and all test 
reports, special studies or adequate 
responses to the specific opinions 
requested, the report must be returned for 
corrective action.  38 C.F.R. § 4.2 
(2000); see also Stegall v. West, 11 Vet. 
App. 268 (1998).

5.  The RO should review the claims file 
and ensure that all notification and 
development action required by the 
Veterans Claims Assistance Act of 2000, 
Pub. L. No. 106-475 is completed.  In 
particular, the RO should ensure that the 
new notification requirements and 
development procedures contained in 
sections 3 and 4 of the Act (to be 
codified as amended at 38 U.S.C. §§ 5102, 
5103, 5103A, and 5107) are fully complied 
with and satisfied.  

6.  Upon completion of the above, the RO 
should readjudicate the veteran's claims, 
with application of all appropriate laws 
and regulations, and consideration of any 
additional information obtained as a 
result of this remand.  
		
7.  If the decision with respect to the 
veteran's claims remains adverse to the 
veteran, either in whole or in part, he 
and his representative should be furnished 
a supplemental statement of the case and 
afforded a reasonable period of time 
within which to respond thereto.

Thereafter, the case is to be returned to the Board, 
following applicable appellate procedure.  The veteran has 
the right to submit additional evidence and argument on the 
matter or matters the Board has remanded to the regional 
office.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  The 
veteran is advised that if there is additional evidence that 
can be obtained or generated, he should submit that evidence 
to the RO.

The veteran is also hereby informed that failure to report 
for a scheduled VA examination, without demonstrated good 
cause for such action, could result in adverse action with 
regard to his claim.  See 38 C.F.R. § 3.655(a) (When a 
claimant fails to report for an examination scheduled in 
conjunction with an original compensation claim, the claim 
shall be rated based on the evidence of record.  When the 
examination was scheduled in conjunction with any other 
original claim, a reopened claim for a benefit which was 
previously disallowed, or a claim for increase, the claim 
shall be denied).

The purposes of this REMAND are to obtain additional 
information and comply with due process considerations.  No 
inference should be drawn regarding the final disposition of 
these claims as a result of this action.

This claim must be afforded expeditious treatment by the RO.  
The law requires that all claims that are remanded by the 
Board of Veterans' Appeals or by the United States Court of 
Appeals for Veterans Claims for additional development or 
other appropriate action must be handled in an expeditious 
manner.  See The Veterans' Benefits Improvements Act of 1994, 
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and 
Statutory Notes).  In addition, VBA's Adjudication Procedure 
Manual, M21-1, Part IV, directs the ROs to provide 
expeditious handling of all cases that have been remanded by 
the Board and the Court.  See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.




		
	MARK W. GREENSTREET
	Member, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a 
decision of the Board of Veterans' Appeals is appealable to 
the United States Court of Appeals for Veterans Claims.  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) (2000).