Citation Nr: 0811035 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 06-13 864 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for a right knee disorder. 2. Entitlement to service connection for a left knee disorder. 3. Entitlement to an initial evaluation in excess of 30 percent for pseudofolliculitis barbae. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD S. Layton, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from September 1973 to October 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision by the Newark, New Jersey Regional Office (RO) of the Department of Veterans Affairs (VA). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify you if further action is required on your part. REMAND The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). A review of the record shows the veteran was notified of the evidence not of record that was necessary to substantiate his service connection claim and of which parties were expected to provide such evidence by correspondence dated in May 2005. The United States Court of Appeals for Veterans Claims, in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), held that the VCAA notice requirements applied to all elements of a claim. It was further noted that regarding the disability-rating element, in order to comply with section 5103(a), VA must notify the claimant of any information, and any medical or lay evidence, not previously provided, that is necessary to establish a disability rating for each of the disabilities contemplated by the claim and allowed under law and regulation. An additional notice regarding these elements was provided to the veteran in correspondence dated in March 2006. In this case, service records show that on his August 1973 Report of Medical Examination for enlistment, the examiner noted a 4 1/2 inch medial scar on the right knee, and all motion was within normal limits. The examiner also observed moderate crepitation, no point tenderness, and no lateral instability. The veteran indicated in his August 1973 Report of Medical History for enlistment that he previously had an operation oh his right knee in March 1972 for a medial meniscectomy. A service treatment record from April 1974 indicated that the veteran had medial cartilage removed from his right knee one year prior to entering active duty. The veteran complained of a sharp pain in his right knee, and the examiner observed a full range of motion with joint-line pain over the medial tibial-femur articulation. In June 1974, the veteran complained of pain in his right knee after playing football. A service examiner noted a negative study except for tenderness distal to patella and along the medial joint line. An X-ray appeared within normal limits. The September 1974 Report of Medical Examination for administrative discharge indicated that the veteran had normal lower extremities. In October 1974, the veteran was administratively discharged. The separation had been recommended by service medical personnel due to the veteran's pseudofolliculitis barbae. The veteran received VA examinations in connection with his claims in May 2005 and September 2005. Unfortunately, both examiners indicated that they did not have the claims file for review. Also, the May 2005 examiner offered no opinion regarding etiology or possible aggravation in service of the veteran's claimed knee disorders. Further, it was indicated in the September 2005 VA dermatology examination that a color photograph of the veteran's face was ordered. If the photograph was taken, it was not associated with the claims folder. The Board also notes that the revised VCAA duty to assist requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim and in claims for disability compensation requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. 38 C.F.R. § 3.159. In Green (Victor) v. Derwinski, 1 Vet. App. 121, 124 (1991), the Court held that the duty to assist may include "the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." As both previous VA examinations were made without the benefit of review of the claims file, the Board finds that new VA examinations are necessary. Additionally, the Board notes that the veteran has reported five previous surgeries on his right knee and three previous surgeries on his left knee. None of the records concerning these surgeries have been associated with the claims file. The RO should obtain all outstanding pertinent medical records. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should contact the veteran and obtain the names, addresses, and approximate dates of treatment of all medical care providers, VA or non-VA, who treated the veteran for his bilateral knee disorders and pseudofolliculitis barbae. Of particular interest would be information concerning the claimed knee surgeries, as well as the photograph of the veteran's face ordered following the September 2005 VA dermatology examination. After the veteran has signed the appropriate releases, those records not already associated with the claims file should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the veteran, a notation to that effect should be inserted in the file. The veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the veteran the opportunity to obtain and submit those records for VA review. 2. After all appropriate treatment records have been obtained and associated with the claims file, the veteran should be afforded a VA orthopedic examination to determine the etiology of his right and left knee disorders. All indicated tests and studies are to be performed. Prior to the examination, the claims folder must be made available to the physician for review of the case. A notation to the effect that this record review took place should be included in the report of the physician. The physician is requested to provide an opinion as to the whether there is at least a 50 percent probability or greater (at least as likely as not) that a left knee disorder was incurred as a result of service. The physician is also requested to provide an opinion as to the whether there is at least a 50 percent probability or greater (at least as likely as not) that a pre-service right knee disorder was aggravated beyond the normal progression of the disease as a result of service. If it is determined that the veteran's service aggravated his right knee disorder beyond the normal progression of the disease, the medical provider, if possible, should quantify the degree to which service worsened the veteran's right knee disorder beyond its normal progression. If quantifying the effect is not possible, the physician should so state. Any opinion should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. Sustainable reasons and bases are to be provided for any opinion rendered. 3. The veteran should be scheduled for a VA dermatology examination to determine the current symptomatology of the veteran's pseudofolliculitis barbae. All indicated tests and studies are to be performed. Prior to the examination, the claims folder must be made available to the physician for review of the case. A notation to the effect that this record review took place should be included in the report of the physician. The physician is specifically requested to provide an opinion regarding: 1) the percentage of the entire body that is affected by the pseudofolliculitis barbae; 2) the percent of exposed areas affected; 3) the period of time (if any) in which the veteran has had systemic therapy such as corticosteroids or other immunosuppressive drugs during the previous 12 months. Any opinion should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. Sustainable reasons and bases are to be provided for any opinion rendered. 4. The veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent must be associated with the claims folder. The veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 5. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed. All applicable laws and regulations should be considered. If any benefit sought remains denied, the veteran and his representative should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). _________________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).