Citation Nr: 0310957 Decision Date: 06/02/03 Archive Date: 06/10/03 DOCKET NO. 02-16 141 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for residuals of a fracture of the medial condyle of the right tibia. 2. Entitlement to service connection for a back condition. 3. Entitlement to service connection for a lung condition including consideration of the condition as due to asbestos exposure in service. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD K. Gallagher, Counsel INTRODUCTION The veteran served on active duty from April 1952 to April 1954. This matter comes before the Board of Veterans' Appeals (Board) from a November 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, which denied service connection for residuals of a fracture of the medial condyle of the right tibia on the basis that new and material evidence had not been submitted to reopen that claim and denied service connection for a back condition and a lung condition including consideration of the lung condition as due to asbestos exposure in service. A hearing was held on January 13, 2003, in Phoenix, Arizona, before M. Sabulsky, a Veterans Law Judge who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c) (West 2002) and who is rendering the determination in this case. The Board has reopened the claim for service connection for residuals of a fracture of the medial condyle of the right tibia based on new and material evidence having been received, and that claim is the subject of the remand order below. The claims for service connection for a lung condition and back condition are also subjects of the Board's remand order. FINDINGS OF FACT 1. In a March 1999 rating decision, the RO denied service connection for residuals of a fracture of the medial condyle of the right tibia; the RO notified the veteran of this decision in April 1999, and he did not appeal it. 2. Evidence received since the March 1999 rating decision was not previously submitted to agency decisionmakers, bears directly and substantially upon the specific matter under consideration, is neither cumulative nor redundant, and by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. CONCLUSION OF LAW Evidence received since the March 1999 rating decision denying service connection for residuals of a fracture of the medial condyle of the right tibia is new and material, and the veteran's claim for service connection for residuals of a fracture of the medial condyle of the right tibia must be reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist In October 2000, shortly before the enactment in November 2000 of the Veterans Claims Assistance Act of 2000 (VCAA), the RO received a letter from the veteran "seek[ing] service connection [for] [p]ulmonary, [b]ack, and [k]nee condition[s]" accompanied by evidence. Because the RO had issued a rating decision denying these claims less than one year earlier in July 2000, the veteran's statement and submission of evidence was, under VA regulations, an application to reopen the claims with new and material evidence received within the appeal period of the July 2000 decision. 38 U.S.C.A. §§ 7105(a), (c); 5108; 38 C.F.R. §§ 3.104, 3.156(b); see also 38 C.F.R. § 3.400(q)(1)(i). However, the enactment of the VCAA required the RO to perform special procedures with regard to these claims. The VCAA emphasized VA's obligation to notify claimants what information or evidence is needed in order for a claim to be substantiated, and it affirmed VA's duty to assist claimants by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002). The VCAA also amended the law by eliminating a previous requirement that a claimant must have presented a certain degree of evidence in support of his claim to make that claim "well grounded" before the VA had the duty to assist him further. The VCAA applies to all claims filed on or after the date of its enactment or filed before the date of enactment and not yet subject to a final decision as of that date because of an appeal filed which abated the finality of the decision appealed. 38 U.S.C.A. § 5107, Note (West 2002). A provision in the new law also required VA, either at the request of a claimant or on its own motion, to readjudicate claims which were denied on the basis that they were not well grounded in final decisions issued between July 14, 1999, and November 9, 2000. In this case, the Board, in a May 2000 decision, had reopened the veteran's claim for service connection for a chronic pulmonary disorder based on new and material evidence and denied the claim on the basis that it was not well grounded. In the July 2000 rating decision, the RO adjudicated claims raised by the veteran in October 1999 for service connection for a lung condition due to asbestos exposure (the veteran had not argued that his lung condition was due to asbestos exposure before the Board); service connection for back disorder; and whether new and material evidence had been submitted to reopen a previously denied claim for residuals of a fracture of the medial condyle of the right tibia (claimed as a knee condition). The latter claim had been denied by the RO in final rating decision issued in March 1999. Because two of these conditions had been denied on the basis that they were not well grounded - i.e., the lung condition by both the Board and the RO and the back condition by the RO -- the RO, in the November 2001 rating decision, readjudicated these two claims under the VCAA. In keeping with the VCAA's provision that, "Nothing in [the law pertaining to the duty to assist claimants] shall be construed to require [VA] to reopen a claim that has been disallowed except when new and material evidence is presented or secured . . . ", the RO considered the October 2000 claim for service connection for residuals of a fracture of the medial condyle of the right tibia as an application to reopen that claim based on new and material evidence. In the decision below, the Board, unlike the RO, has reopened the claim for service connection for residuals of a fracture of the medial condyle of the right tibia based on new and material evidence having been received, and the Board is remanding all three of the claims for further development of the evidence. Thus, although the RO carried out the appropriate procedural steps in readjudicating under the VCAA two of the claims previously denied as not well grounded and in considering the other as an application to reopen, the Board has determined that the duty to assist the veteran with the development of evidence under the provisions of the VCAA has not been fulfilled in this case. Therefore, the Board has remanded to provide the veteran further assistance in this regard. New And Material Evidence To Reopen A Claim For Service Connection For Residuals Of A Fracture Of The Medial Condyle Of The Right Tibia Service connection may be established for a disability on a direct basis where a current disability exists and that disability is the result of a disease or injury incurred in active service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be established for a disability resulting from aggravation during service of a disease or injury which preexisted service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). A veteran is presumed to be in sound condition at entrance to service except for disorders noted at entrance or where clear and unmistakable evidence rebuts the presumption of sound condition for disorders not noted at entrance. History provided by the veteran of the preservice existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting condition. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). For veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306(b). Temporary or intermittent flare-ups of symptoms of a preexisting condition during service are not considered "aggravation" for the purposes of section 1153 for determinations of service connection based on aggravation of the preexisting condition. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991); Davis v. Principi, 276 F. 3d 1341, 1546-47 (Fed. Cir. 2002). In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C.A. § 5108. New and material evidence means evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (2001); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The claimant does not have to demonstrate that the new evidence would probably change the outcome of the prior denial. Rather, it is important that there be a complete record upon which the claim can be evaluated, and some new evidence may contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability. Hodge, 155 F.3d at 1363. The provisions of 38 C.F.R. § 3.156(a), defining new and material evidence, were amended effective August 29, 2001. These amendments are effective only for claims received on or after August 29, 2001, and therefore they are not relevant in this case. See 66 Fed. Reg. 45620-45632 (August 29, 2001). Accordingly, the Board has used the former definition of new and material evidence in section 3.156(a) in determining whether the claim may be reopened. 38 C.F.R. § 3.156(a) (2001). In this case, the RO denied service connection for residuals of a fracture of the medial condyle of the right tibia in a March 1999 rating decision. The RO notified the veteran of this decision in April 1999. Later in April 1999, the RO received a statement from the veteran in which he asserted that he had trouble with his knee and that, at times, it got sore and tender. However, he did not state that he disagreed with the March 1999 rating decision or otherwise indicate an intention to appeal it. In response to his April 1999 letter, the RO wrote to him in August 1999, informing him that it regarded his April 1999 letter as a claim and telling him the best type of evidence to submit to support his claim. In reply to the RO's letter, the veteran submitted a statement in August 1999 withdrawing his claim for service connection for a knee disorder. Because the veteran did not appeal the March 1999 rating decision to the Board within the one-year appeal period, it is a final decision. 38 U.S.C.A. § 7105(a), (c); 38 C.F.R. § 3.104. In October 2000, the RO received a letter from the veteran seeking service connection for a knee condition, accompanied by additional evidence. The additional evidence included a September 2000 statement from a private physician, G.E.D., M.D., which provided in pertinent part, "It is possible that his knee pain was made worse by aggravation in the service in 1952, November." The veteran also submitted, along with the statement of Dr. G., a September 2000 x-ray report pertaining to the right knee which showed a healed proximal right tibia fracture and mild to moderate degenerative changes in the right knee. In the March 1999 rating decision, the RO had denied the veteran's claim for service connection because it found that the fracture of the medial condyle of the right tibia preexisted service and was not aggravated in service. Thus, the Board concludes that Dr. D.'s statement, along with the x-ray evidence showing current mild to moderate degenerative changes in the right knee, constitutes evidence which had not previously been submitted to agency decisionmakers, which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). Accordingly, the Board concludes that new and material evidence has been submitted to reopen the claim for service connection for residuals of a fracture of the medial condyle of the right tibia, and the veteran's claim for service connection for residuals of a fracture of the medial condyle of the right tibia must be reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Having decided to reopen the claim, the Board must now determine whether it may proceed to consider the merits of the claim. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). It appears from the rating decision and statement of the case, that the RO denied the claim for service connection for residuals of a fracture of the medial condyle of the right tibia on the basis that no new and material evidence had been submitted to reopen the claim, although the RO stated the issue as if it had proceeded on the merits. Because it does not appear that the RO has addressed the claim on the merits in the first instance, the Board must remand the claim to the RO to do so unless the Board can state why the veteran nevertheless would not prejudiced by the Board's rendering of the decision in the first instance. Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993); Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991); see also Curry v. Brown, 7 Vet. App. 59, 66-67 (1994). In this case, the Board concludes that the case should be remanded to the RO for consideration of the claim on the merits in the first instance because the Board concludes that, in light of the medical evidence showing a current right knee condition, i.e., degenerative changes, and the statement of Dr. D. indicating that a possibility exists that the veteran's claimed condition was aggravated by service, further development of the medical evidence is necessary in order for the claim to be decided. 38 C.F.R. § 3.159(c)(4); Wells v. Principi, No. 02-7404, slip op. at 3 (Fed. Cir. Apr. 29, 2003). Given the recent ruling of United States Court of Appeals for the Federal Circuit in Disabled American Veterans, et al. v. Secretary of Veterans Affairs, Nos. 02- 7304, -7305, -7316 (Fed. Cir. May 1, 2003), the Board may not consider additional evidence not considered by the RO without remanding the case to the RO for initial consideration. Accordingly, the Board has remanded the claim below for development of additional evidence and consideration of that evidence in the first instance by the RO. ORDER New and material evidence having been submitted, the claim for service connection for residuals of a fracture of the medial condyle of the right tibia is reopened; to this extent only, the appeal is granted. REMAND Residuals of a fracture of the medial condyle of the right tibia. No complaints or findings of a knee disability or a fracture of the medial condyle of the right tibia were reported on the January 1952 pre-induction examination report. In November 1952, the veteran reported an old injury of the right leg and complained of pain constantly. X-ray reports showed a bony deformity which protruded from the medial aspect of the tibia, apparently the result of an old fracture of the tibia. During an orthopedic consultation, the doctor noted that the veteran had sustained the fracture eight years earlier at age 15. The doctor noted that x-rays showed an old fracture of the medial condyle of the tibia. On examination, the knee joint was stable. The doctor recommended that the veteran apply hot packs as needed when he had pain in the knee. No restriction of physical intensity was necessary. There were no further complaints regarding the knee for the remainder of service. On the separation examination report, the examiner noted under the personal history of the veteran that he had fractured his right knee in 1945. The examiner also noted in relation to this injury, "complete recovery no residual difficulties except mild aching in cold weather. Examination of knee now is not remarkable except for slight crepitation. Full range of motion." On an examination conducted in February 1958 in connection with the veteran's reserve service, the examiner noted the history of a fracture to the right leg in 1945 and that it was "infrequently symptomatic". There was no limitation of motion. Clinical evaluation of the lower extremities was normal. A September 2000 statement from a private physician, G.E.D., M.D., provided in pertinent part, "It is possible that his knee pain was made worse by aggravation in the service in 1952, November." A September 2000 x-ray report pertaining to the right knee showed a healed proximal right tibia fracture and mild to moderate degenerative changes in the right knee. At a January 2003 hearing before the Board, the veteran testified that he had pain in his knee through the years after service and that he had started wearing a knee brace in 1956 and that he used medications over the years for pain. He stated that he currently took pain killers including Oxychodone and Codeine and Tylenol. In light of this evidence, the claim is remanded below for further medical examination and medical opinion needed to decide the claim. 38 C.F.R. § 3.159(c)(4). A back condition. Service medical records reflect no complaints or findings of a back condition in service. A September 2000 statement from Dr. D. indicated that "gait changes and misalignment of the knee is making back pain and sciatica worse". It appears from this that the veteran is claiming service connection for a back condition secondary to the right knee condition for which he is also presently claiming service connection. 38 C.F.R. § 3.310(a). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Thus, given its nature, this claim must be deferred pending the outcome of the adjudication of service connection for a right knee condition. However, in an April 1999 statement and in testimony at the hearing before the Board in January 2003, the veteran appeared to be claiming service connection for a back disability on a direct basis as well. He claimed that he was in a motor vehicle accident in service in 1953 in which he hurt his back. He indicated at the hearing that the incident was not recorded in his service medical records because he did not seek treatment. He stated that his back bothered him throughout the years. The Board also will defer a decision on this theory of entitlement pending additional development, if needed, of the evidence on remand. A lung condition including consideration of the condition as due to asbestos exposure in service. The January 1952 pre-induction examination report showed no complaints or findings relevant to a lung condition. Clinical evaluation of the lungs and chest was normal. A chest x-ray was negative. The examiner noted that complaints of "undulant fever" were not verified. (Undulant fever is also called "brucellosis" and is an infectious disease caused by Brucella, characterized by fever, sweating, weakness, aches, and pains, and transmitted to man by direct contact with diseased animals or through ingestion of infected meat, milk, or cheese, and particularly hazardous to veterinarians, farmers, and slaughterhouse workers. Stedman's Medical Dictionary 246 (26th ed. 1995). Reports of agglutination tests in April and May 1952 were positive for brucellosis. An April 1952 clinical record noted a history of fatigue and low grade fever for past 3-4 years in the veteran, who was a ranch hand and provided a history of a diagnosis of undulant fever. On a May 1952 consultation report, the examiner noted that the veteran had been well until two years earlier when he developed a fever and felt weak and sleepy. The veteran was presently in the hospital and would be followed up by another examiner. That examiner noted that the veteran had completed the last course of treatment for brucellosis in December 1951, and while recently in the hospital he had been afebrile. The examiner's impression, having reviewed agglutination testing results, was there was no evidence of active brucella infection. In May 1952, the veteran was thrown from a bronco while working for rodeo on a pass from the military and sustained, among other injuries, a simple fracture of the left 5th rib, anterior axillary line, with no major nerve or artery involvement. In January 1954, the veteran had a chest x-ray as part of a physical examination for his marriage, and findings on that x-ray were negative. The April 1954 discharge examination report showed no complaints or findings relevant to a lung condition. Clinical evaluation of the lungs and chest was normal. A chest x-ray was negative. A February 1958 examination conducted in connection with the veteran's reserve service showed a lung granuloma or metastasis. Specifically, the findings on a radiographic report, signed by J.W.K., M.D., showed "a large 3 m coin shadow at posterior L-2nd interspace." The impression was granuloma or metastasis. The veteran was disqualified for service in the Ready Reserves and for retention in the Army Reserves by reason of the pulmonary granuloma. A March-May 1960 Narrative Summary from a VA hospital (VAH) showed that the veteran was admitted with a 12-day history of shortness of breath. The veteran provided a history of a local doctor having noted in September 1958 a lesion in the left upper lobe of the lung and diagnosed valley fever. The veteran smoked a pack of cigarettes a day. On further questioning, it was discovered that 12 days earlier, the veteran was rolled on by a horse on his right side and a similar incident occurred the following day. On examination, there were diminished breath sounds on the right; the left chest was clear to auscultation and percussion. It was determined that the veteran had an old traumatic right hemothorax, and he underwent a right thoracotomy and a decortication of his middle, lower, and upper lobes on the right. The veteran had an uneventful postoperative course with full expansion of the right lung. Also called "primary coccidioidomyocosis", valley fever is a disease common in the San Joaquin Valley of California and certain additional areas in the southwestern United States caused by inhalation of the arthroconidia of Coccidioides immitis; acute onset of symptoms resemble pneumonia or pulmonary tuberculosis productive of sputum usually containing spores of the fungus, and accompanied by aches, malaise, severe headache, and occasionally an early erythematous or papular eruption. Progressive or disseminated extrapulmonary granulomatous lesions following primary coccidioidomyocosis are called secondary coccidioidomyocosis. Stedman's at 359. Private and VA medical evidence dated in the late 1990s and in 2000 reflected diagnoses including chronic obstructive pulmonary disease (COPD), emphysema, asthma, and cor pulmonale. The records also show that the veteran is oxygen and steroid dependent. The veteran has alleged that his lung disability is due to asbestos exposure in service. A September 2000 letter from R.B.C., M.D., reflected Dr. C.'s belief that the veteran had asthmatic bronchitis which, Dr. C. stated, means a combination of emphysema, from the veteran's years of cigarette smoking, and asthma. Dr. C. further stated, however, that "there is significant scarring in your chest x-ray and this possibly could be due to exposure to asbestos and development of asbestosis." Dr. C. continued, "I do not see evidence for calcification of the pleural surface or diaphragm on your x-ray, but you certainly could have asbestosis with findings of fibrosis without calcification." In connection with Dr. C.'s statement, the veteran submitted an August 2000 chest x-ray report which reflected that "[f]ibrosis or atelectasis is noted in the lung bases . . . ." The x-ray report also showed that "[a] calcified granuloma is visualized in the left upper lobe." Similarly, two x-ray reports dated in October 1999 from Northwest Medical Center also show a calcified granuloma in the left upper lobe, and K. K. E., M.D., of Northwest Medical Center, described this as "a left upper lobe nodule which is chronic." In light of doctor C.'s statement suggesting that the veteran may have asbestosis and his own claims of exposure to asbestos in service, the Board concludes the case must remanded for development of additional medical evidence to confirm or rule out a diagnosis of asbestosis and, if confirmed, for development of the evidence regarding asbestos exposure in service in conjunction with paragraph 7.21 in Veterans Benefits Administration (VBA) Adjudication Procedure Manual M21-1 (Manual M21-1), Part VI. See VAOPGCPREC 4-00 (Apr. 13, 2000). In addition, the veteran contends that the February 1958 examination on which the lung granuloma was noted was not conducted in conjunction with an application from him to enlist in, or begin, Reserve service. Rather, he contends that he was already in the Reserves, having completed active duty in 1954, and his Reserve obligation, which he contends was for eight years, was cut short in 1954 after only four years when the lung granuloma was discovered. In support of his contentions, he has submitted a copy of DA Form 493, Separation Qualification Record, which shows that the veteran was "[r]elieved from Active Duty and transferred to the USAR [United States Army Reserves] for the completion of eight (8) years obligation." With regard to the February 1958 USAR examination report showing the granuloma of the left lobe of the lung, the Board notes that service connection and VA compensation benefits are awarded for disability resulting from injury suffered or disease contracted in line of duty in "the active military, naval, or air service". 38 U.S.C.A. § 1110. The term, "active military, naval, or air service" includes "any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty." 38 U.S.C.A. § 101(24)(B). (Inactive duty periods can only be considered "active military, naval, or air service" if the individual concerned was disabled or died from an injury only, not a disease, or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training.") Thus, the issues concerning the lung granuloma include whether the veteran became disabled from it during a period of active duty for training and, if so, whether the disease was incurred or aggravated in line of duty. The Board is remanding for verification of the veteran's periods of active duty for training, if any, during his Reserve service, which appears to have ended with his disqualification upon the discovery of the lung granuloma on examination in February 1958. Having obtained verification of those periods, if any, further development of the medical evidence is required concerning the nature of the lung granuloma, whether it was likely a residual of valley fever or some other factor, when it was likely to have been incurred, whether the granuloma shown on recent private x-rays in the left upper lobe is likely to be the same lesion noted in 1958 at the "posterior L-2nd interspace", whether such a lesion was or is "disabling" in nature or a nondisabling residual of a disease, and the nature of the relationship, if any, between the lung granuloma and any current lung disability. Accordingly, to ensure 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. Review the claims file and ensure that all notification and development action required by the Veterans Claims Assistance Act of 2000 (VCAA) is completed with regard to the issues on appeal. Provide any notification and development action still needed. 2. Ask the veteran to identify the facilities, private and VA, where he has received treatment for his lung, knee, and back disabilities since March 2001 and obtain records of treatment, if any, identified and place them in the claims file. 3. Verify the dates of the veteran's Reserve service with the service department including the dates of periods of active duty for training, if any, during his Reserve obligation, which appear to have ended with his disqualification from the Reserves upon the discovery of the lung granuloma on examination in February 1958. Lung condition. 4. Asbestosis. Schedule the veteran for an examination to determine the nature and etiology of the veteran's current lung disabilities. Specifically, the examiner is to confirm or rule out a diagnosis of asbestosis. In doing so, the examiner is to review and consider the medical history of the veteran's lung disabilities to include the September 2000 statements of Dr. C. that "there is significant scarring in your chest x-ray and this possibly could be due to exposure to asbestos and development of asbestosis" and "I do not see evidence for calcification of the pleural surface or diaphragm on your x-ray, but you certainly could have asbestosis with findings of fibrosis without calcification" along with the August 2000 chest x-ray report which reflected that "[f]ibrosis or atelectasis is noted in the lung bases . . . ." and recent medical evidence showing diagnoses including COPD, emphysema, asthma, and cor pumonale. If the examiner confirms a diagnosis of asbestosis in this case, the RO must develop the evidence regarding asbestos exposure in service in conjunction with paragraph 7.21 in Veterans Benefits Administration (VBA) Adjudication Procedure Manual M21-1 (Manual M21-1), Part VI. Lung condition other than asbestosis. The examiner must also review the medical records relevant to the lung granuloma shown on the February 1958 examination report including (a) the past history in the service medical records of brucellosis, a fractured left fifth rib, and negative chest x-rays in January 1952, January 1954, and April 1954; (b) records showing that the veteran lived in the southwestern United States at the time of entrance onto active duty in 1952 and that he still lived there at the time of the February 1958 USAR examination showing the granuloma, and that records show that he was a ranch worker and farmer; (c) the March-May 1960 VA hospital records showing a history of a local doctor having noted in September 1958 a lesion in the left upper lobe of the lung and having diagnosed valley fever; the VA examiner's note that the veteran smoked a pack of cigarettes a day; and the diagnosis of old traumatic right hemothorax for which the veteran underwent a right thoracotomy and a decortication of his middle, lower, and upper lobes on the right; and (d) recent medical evidence showing diagnoses including COPD, emphysema, and asthma, as well as recent x-ray reports showing a calcified granuloma in the left upper lobe which one doctor described as a "chronic" nodule. In the examination report and based on the evidence noted above, the examiner must render an opinion as to whether any current lung disability, to include COPD, emphysema, and asthma, is more likely, less likely, or as likely as not the result of a disease or injury incurred in service as opposed to some other factor or factors. In so doing, the examiner should particularly describe the nature and likely etiology of the lung granuloma noted in February 1958 and render an opinion as to whether it was more likely, less likely, or as likely as not a residual (secondary coccidioidomyocosis) of valley fever (primary coccidioidomyocosis) as opposed to some other factor of factors. The examiner should comment on when the granuloma and/or valley fever was likely to have been incurred; whether the granuloma shown on recent private x-rays in the left upper lobe is likely to be the same lesion noted in 1958 at the "posterior L-2nd interspace"; whether such a lesion was or is "disabling" in nature or a nondisabling residual of a disease; and the nature of the relationship, if any, between the lung granuloma and any current lung disability to include COPD, emphysema, and asthma. In rendering the opinions, the examiner should provide a rationale for conclusions reached and a discussion of the medical principles involved -- which will be of considerable assistance to adjudicators -- by referring to specific pertinent matters involved in this case or by explaining the nature of the diseases shown and what is known about its causes." Knee disability. 5. Schedule the veteran for an orthopedic examination to determine the nature and etiology of a current right knee disability including mild to moderate degenerative changes of the right knee. If the likely etiology of the current right knee degenerative changes is the fracture in 1945 of the medial condyle of the right tibia as opposed to some other factor or factors, the examiner should review the medical records -- including (a) the complaint of right leg pains in November 1952 and the x-ray and orthopedic consultation reports conducted at that time; (b) the April 1954 discharge examination report; (c) the February 1958 USAR examination report; and (d) the September 2000 statement from a private physician, G.E.D., M.D., providing, "It is possible that his knee pain was made worse by aggravation in the service in 1952, November" -- and render an opinion as to whether it is more likely, less likely, or as likely as not that the symptoms experienced in service in November 1952 constituted a temporary flare-up of symptoms associated with the old fracture as opposed to representing a permanent worsening of the underlying condition that was beyond the natural progress of that condition. Back disability. 6. Secondary service connection. If the RO grants service connection for the right knee disability, depending on the outcome of the development of the medical evidence above, then the RO must develop the medical evidence to determine (1) whether a current back disability exists and (2) whether the current back disability was either (a) proximately caused by or (b) proximately aggravated by the right knee disability. In rendering an opinion on the matter, an examiner should note the September 2000 statement from Dr. D. indicating that "gait changes and misalignment of the knee is making back pain and sciatica worse". Direct service connection. The RO may consider what, if any, additional development is necessary, including a medical examination or opinion under 38 C.F.R. § 3.159(c)(4), regarding the veteran's contentions and testimony at the hearing before the Board in January 2003 that he was in a motor vehicle accident in service in 1953 in which he hurt his back. He indicated at the hearing that the incident was not recorded in his service medical records because he did not seek treatment. He stated that his back bothered him throughout the years. The RO should obtain any evidence it deems necessary to render a decision on this claim. 7. Thereafter, the RO should readjudicate the veteran's claims for entitlement to service connection for a lung condition, a right knee condition, and a back condition. If the benefits sought on appeal remain denied, the appellant should be provided with an appropriate supplemental statement of the case (SSOC) and given the opportunity to respond. The appellant 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). 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 2002) (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. ______________________________________________ M. SABULSKY Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.