Citation Nr: 9909401	
Decision Date: 04/05/99    Archive Date: 04/16/99

DOCKET NO.  97-26 848	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, 
West Virginia


THE ISSUES

1.  Entitlement to service connection for a low back disorder 
as secondary to a service-connected left knee disorder.

2.  Entitlement to an increased rating for a left knee 
disorder, currently evaluated as 20 percent disabling. 


REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America, 
Inc.


WITNESS AT HEARING ON APPEAL

The veteran



ATTORNEY FOR THE BOARD

D. M. Casula, Associate Counsel 


INTRODUCTION

The veteran had active service from February 1987 to February 
1990.

This matter comes before the Board of Veterans' Appeals 
(Board) from a January 1997 rating decision of the 
Huntington, West Virginia, Regional Office (RO) of the 
Department of Veterans Affairs (VA), which found that new and 
material evidence had not been submitted to reopen claims of 
service connection for high blood pressure, a left eye 
condition, and a nervous condition; denied service connection 
for low back pain as secondary to the service-connected left 
knee disorder; denied a rating in excess of 10 percent for a 
left knee disorder; and denied a compensable rating for 
residuals of a fracture of the left ring finger.  The veteran 
has only filed a notice of disagreement with the denial of 
service connection for a low back disorder and the denial of 
a rating in excess of 10 percent for the left knee disorder; 
hence, those are the only issues before the Board.  38 C.F.R. 
§ 20.200 (1998).  By December 1997 rating decision, the RO 
granted a 20 percent rating for the service-connected left 
knee disorder.  The veteran has continued to appeal for a 
higher rating.

In December 1998, along with the informal hearing 
presentation, the veteran's representative submitted a 
medical report and opinion from Craig N. Bash, M.D.  The 
Board notes that this medical evidence was received within 90 
days of certification, without a waiver of the veteran's 
right to have the evidence initially considered by the RO.  
Any pertinent evidence submitted within 90 days of 
certification by the veteran or his representative must be 
referred to the RO for review and preparation of a 
supplemental statement of the case, unless this procedural 
right is waived by the veteran.  38 C.F.R. § 20.1304(a), (c) 
(1998).

Also in the December 1998 informal hearing presentation, the 
veteran's representative indicated that a January 1997 letter 
from the RO was incorrect in notifying the veteran that new 
and material evidence was necessary to reopen the claim of 
service connection for high blood pressure.  The Board notes 
that in December 1994 the veteran filed a claim for service 
connection for high blood pressure.  By March 1995 rating 
decision, the RO denied service connection for hypertension 
(high blood pressure), a left eye injury, and an acquired 
psychiatric disorder; denied a compensable rating for 
residuals of a fracture of the left ring finger; and granted 
a 10 percent rating for a left knee disorder.  In a letter 
dated in March 1995, the RO notified the veteran of the grant 
of a 10 percent rating for a left knee disorder, but failed 
to notify him of the denials.  Hence, it appears that the 
representative is correct, and the veteran has not been 
notified of the denial of his claim of service connection for 
high blood pressure.  The Board notes that if that is the 
case, then there is a pending claim of service connection for 
high blood pressure, and the veteran need not submit new and 
material evidence to reopen the claim.  This matter is 
therefore referred to the RO for appropriate action.


REMAND

The veteran contends that his left knee disorder is more 
severely disabling than the current rating indicates.  He 
also contends he has low back pain as a result of his 
service-connected left knee disorder.

On VA examination in October 1997, the veteran reported that 
he injured his knee while playing volleyball during service.  
He indicated that he went up to hit the ball, and when he 
came down, his knee dislocated laterally.  He was treated 
with an immobilizing splint initially and then treated 
conservatively.  Surgery had been recommended in service and 
subsequently by the VA, but had not yet been performed, and 
he had decided to wait and see how the knee was doing.  He 
reported increased pain and problems with the left knee in 
the past two years.  He also reported pain in his low back 
and left hip, and indicated that these symptoms had gradually 
worsened with the increased weakness and pain in the left 
knee.  The assessment was torn anterior cruciate of the left 
knee, old tear of the medial meniscus, degenerative joint 
disease of the left knee, left greater trochanteric bursitis, 
left sciatica, varicose veins to the left posterior knee and 
superior left posterior calf, and low back pain irritated by 
the left knee because of the abnormal gait, secondary to 
chronic pain in the left knee, because of left knee weakness 
and internal derangement of the left knee.  

Submitted in December 1998 by the representative, along with 
the informal hearing presentation, was a medical report and 
opinion from Craig N. Bash, M.D., Neuroradiologist.  Dr. Bash 
opined that the service-connected chronic anterior cruciate 
ligament meniscus injury of the left knee was the major 
causative factor for the arthritis of the left knee.  Dr. 
Bash also opined that the service-connected chronic anterior 
cruciate ligament meniscus injury of the left knee was a 
major contributory factor for the veteran's sciatica.  Dr. 
Bash indicated that the evidence established that the veteran 
had sciatica, but additional testing was required to 
determine the exact cause of sciatica, whether it was due to 
a disc problem or a problem with the sciatic nerve.  

There is a conflict in the medical evidence as to whether the 
service-connected left knee disorder caused any low back 
disorder, and it is unclear as to the nature of any low back 
disorder.  It is also unclear as to the etiology of the 
veteran's sciatica.  These conflicts must be resolved.  
Furthermore, the U.S. Court of Appeals for Veterans Claims 
(known as the United States Court of Veterans Appeals prior 
to March 1, 1999, hereinafter "the Court") has held that a 
veteran is entitled to service connection on a secondary 
basis when it is shown that the veteran's service-connected 
disability aggravates a non-service-connected disability.  
Allen v. Brown, 7 Vet. App. 439, 449 (1995).  There is no 
medical opinion that specifically addresses the issue as to 
whether the service-connected left knee disorder 
"aggravated" any low back disorder.  

The medical evidence of records shows that the veteran has 
arthritis in the left knee, however, it is unclear whether 
the arthritis is related to the service-connected left knee 
disorder.  It is also unclear to what degree his disability 
is due to service-connected pathology.  The Board notes that 
the most recent VA examination, while reporting extensively 
on the veteran's complaints of knee pain, does not provide 
commentary on such complaints.  In DeLuca v. Brown, 8 Vet. 
App. 202 (1995) the Court pointed out that orthopedic 
examinations must include consideration of all factors 
identified in 38 C.F.R. §§ 4.40 and 4.45 (1997).  Those 
regulations, in part, require consideration of limitation of 
movement, weakened movement, excess fatigability, and 
incoordination, as well as pain and limitation of motion due 
to pain.  The examination report must provide detailed 
information concerning functional loss in order to permit the 
Board to consider the applicable regulations.  Hence, an 
examination pursuant to the mandates of DeLuca is warranted.  

The VA has a duty to assist the veteran in the development of 
all facts pertinent to his claim.  38 U.S.C.A. § 5107(a)(West 
1991 & Supp. 1998).  In light of the foregoing, the case is 
REMANDED to the RO for the following:

1.  The RO should obtain from the veteran 
the names and addresses of any additional 
medical care providers (VA and private) 
who have treated him for either a low 
back disorder or a left knee disorder 
since October 1997.  The RO should obtain 
copies of all pertinent records (which 
are not already in the file) from the 
identified treatment sources, and 
associate them with the claims folder.

2.  The RO should then schedule the 
veteran for a VA examination by an 
orthopedic specialist or a neurologist.  
The claims file must be available to (and 
reviewed by) the examiner, specifically 
including the opinions by Dr. Bash and 
the VA examiner in October 1997.  The 
examiner should provide an opinion as to 
whether the left knee disorder is a cause 
of any low back disorder, and 
specifically indicate the nature of the 
low back disorder.  The examiner should 
also provide an opinion as to whether the 
left knee disorder aggravated any low 
back disorder.  The examiner should 
comment on the etiology of the veteran's 
sciatica, and indicate whether it is 
related to the service-connected left 
knee disorder.  As to the left knee 
disorder, the examiner should conduct an 
orthopedic examination pursuant to 
DeLuca, with all findings reported in 
detail.  Any indicated studies should be 
done.  This should specifically include 
complete range of motion studies (with 
normal ranges reported).  The examiner 
should note whether there are any further 
limitations due to pain and, if so, 
quantify the degree of additional 
impairment due to pain.  The examiner 
should indicate whether any arthritis is 
related to the service-connected left 
knee disorder and explain the nature of 
the relationship, if any.  If the 
arthritis is not related to the service-
connected disability, the examiner should 
indicate to what degree the left knee 
impairment is due to the service-
connected disability, and to what degree 
it is due to superimposed pathology.  A 
complete rationale for all opinions 
expressed should be provided.  In 
conjunction with the scheduling of the 
examination, the veteran should be 
advised of the provisions of 38 C.F.R. 
§ 3.655(b).

3.  The RO should then readjudicate the 
claims.  If the claims remain denied, the 
veteran and his representative should be 
provided an appropriate supplemental 
statement of the case and given the 
opportunity to respond.

Thereafter, the claims should be returned to the Board for 
further review.  No action is required of the veteran unless 
he receives further notice.  

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 
Veterans Appeals 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. 1998) (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.



		
	Keith W. Allen
	Acting Member, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1998), 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) (1998).

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