Citation Nr: 0005533 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 97-29 801 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for a back disability. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for a neck disability. 3. Whether new and material evidence has been submitted to reopen a claim for service connection for a left knee disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD R. L. Shaw, Counsel INTRODUCTION The veteran had a number of periods of active duty for training between March 1971 and February 1977 in connection with his membership in the Delaware Army National Guard, including the period from June 15 through June 29, 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 14, 1997, rating decision by the Togus, Maine, Regional Office (RO) of the Department of Veterans Affairs (VA) which held that new and material evidence sufficient to reopen previously disallowed claims for service connection for a back disorder, a neck disorder, a left knee disorder and a left leg disorder had not been submitted. The veteran testified at a hearing at the RO on November 17, 1997, in connection with his appeal. The Board subsequently remanded the case to the RO on November 18, 1998, for procurement of additional medical records and readjudication of the claim based on review of such records. The requested actions have been completed, and the case has been returned to the Board for further appellate review. The RO has in the appeal the issue of whether new and material evidence has been received to reopen a claim for service connection for a disability of the "left leg." Although this issue was included among the matters remanded by the Board in November 1998, it is clear on further review that the matter cannot be addressed by the Board since it was not adjudicated by the RO in October 1996, when the RO issued the rating decision now deemed to have become final in the absence of a timely appeal. More fundamentally, even with a liberal reading of the contentions presented both in writing and at the hearing, it does not appear that the veteran is pursuing a claim with respect to any part of the left lower extremity other than the knee and the femur, which he claims was fractured. In this regard, the "lower extremity" is not the same as the "leg." In medical parlance, the "leg" is the portion of a lower extremity between the knee and the foot whereas the "lower extremity" (membrum inferius) includes the whole lower limb, i.e., the thigh, knee and foot. Dorland's Illustrated Medical Dictionary, 26th ed., 721; 479, 794. The RO appears to have construed a claim regarding the "leg" from vague language found in lay statements submitted by the veteran, but at no time has the veteran identified a claim regarding the leg specifically or articulated a theory of entitlement involving this portion of the lower extremity separate and apart from the knee and femur. In this context, the issue relating to the knee must be viewed as a by-product of the adjudication process rather than a separately adjudicated issue properly before the Board. To the extent that the veteran is seeking to establish service connection for residuals of a fracture of the left femur in service, that matter has not been developed or certified for appellate review. Since it is not inextricably intertwined with any issue properly before the Board, it is referred to the RO for appropriate action. See Harris v. Derwinski, 1 Vet. App. 180 (1991); Hoyer v. Derwinski, 1 Vet. App. 208 (1991); Kellar v. Brown, 6 Vet. App. 157 (1994); see also Parker v. Brown, 7 Vet.App. 116 (1994) (A claim is intertwined only if the RO would have to reexamine the underlying merits of any denied claim which is pending on appeal before the Board). FINDINGS OF FACT 1. The veteran's original claim for service connection for a back disability, neck disability, and a left knee disability was denied by the RO in a rating decision of October 24, 1996; the veteran did not appeal the denial following notification thereof. 2. Evidence received since the October 24, 1996, final denial includes documents which bear substantially and directly on the issue of entitlement to service connection for a back disability, neck disability, and a left knee disability, are neither cumulative or redundant and are so significant that they must be considered in order for the Board to fairly decide the merits of the claim. 3. During service the veteran was involved in a motor vehicle accident in which he sustained injuries to the back, neck and left knee. 4. Postservice medical evidence shows that the veteran currently has disability of the low back, neck and left knee, characterized variously as degenerative joint disease or osteoarthritis. 5. The positive and negative evidence of record with respect to whether the injuries in service caused the postservice disabilities of the low back, neck and left knee is in relative equipoise. CONCLUSIONS OF LAW 1. Evidence received in support of the veteran's claim for service connection for a back disability is new and material and the claim is reopened. 38 U.S.C.A. §§ 1110, 5107, 5108, 7104 (West 1991 & Supp. 1998); 38 C.F.R. § 3.156(a) (1999). 2. Degenerative joint disease of the low back was incurred in service. 38 U.S.C.A. §§ 1110, 5107, 7104 (West 1991 & Supp. 1998); 38 C.F.R. § 3.303(d) (1999). 3. Evidence received in support of the veteran's claim for service connection for a neck disability is new and material and the claim is reopened. 38 U.S.C.A. §§ 1110, 5107, 5108, 7104 (West 1991 & Supp. 1998); 38 C.F.R. § 3.156(a) (1999). 4. Osteoarthritis of the cervical spine was incurred in service. 38 U.S.C.A. §§ 1110, 5107, 7104 (West 1991 & Supp. 1998); 38 C.F.R. § 3.303(d) (1999). 3. Evidence received in support of the veteran's claim for service connection for a left knee disability is new and material and the claim is reopened. 38 U.S.C.A. §§ 1110, 5107, 5108, 7104 (West 1991 & Supp. 1998); 38 C.F.R. § 3.156(a) (1999). 4. Degenerative joint disease of the left knee was incurred in service. 38 U.S.C.A. §§ 1110, 5107, 7104 (West 1991 & Supp. 1998); 38 C.F.R. § 3.303(d) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran's original claim for VA disability compensation was received in January 1996. In an undated statement that appears to have been received in February or March 1996, the veteran related that he had injured his leg in basic training at Fort Dix in 1971 when he ran into a hole 4 feet deep. He related that his leg had been placed in a cast. He also described a jeep accident that occurred in 1974 when he swerved the vehicle to avoid a boy on a bicycle, causing the jeep to turn over three times side to side and twice end over end. He claimed that he had experienced immediate severe pain in the back and neck and was sent for X-rays which showed damage to his back and neck. He stated that in 1975 he had had to have another cast put on his knee by a Dr. Freedman at the Nanticoke Memorial Hospital. In connection with his claim, the veteran submitted a number of additional statements: (a) In a December 1995 statement, J. C. Campbell identified himself as one of the four individuals in the jeep at the time of the 1974 accident. He related that after the accident he saw the veteran and the other two men on the ground with stunned faces. He stated that for the next few days after the accident, all of them were stiff and sore. (b) In a December 1995 statement, the veteran's wife reported that when she met her husband in 1990, she immediately noticed that he had trouble walking due to a problem with his legs and that he appeared to have back pain. He told her that he had been in constant pain since an accident in service. (c) In a December 1995 statement, J. W. Grant, who had known the veteran for four years, described various physical problems that the veteran had due to problems in his knees, back and neck. (d) In an undated statement, a member of the veteran's family, for whom the veteran had worked from 1969 to 1990, related that the veteran's workload had to be restricted after his fall in a hole in basic training but that the real change came after the jeep accident. The veteran moved into a sales job because of pain in the neck, knees and back, but after a while he could no longer do the walking required by that job. (e) In a statement received in April 1996, R. Cannon indicates that he witnessed a jeep accident on June 24, 1974, in which the veteran suffered injuries to his neck and back. He stated that the veteran was unable to work or to lift or carry on his regular duties and that he (Mr. Cannon) had to assume the veteran's duties. (f) In a May 1996 statement, the veteran's wife claimed that the veteran's condition had continued to worsen daily. A January 1996 document from Unipac Service Corporation shows that the veteran had been medically characterized as totally and permanently disabled. A February 1996 Social Security Administration award letter notified the veteran that payments of Supplemental Security Income had been awarded from January 1, 1996. The record contains a January 1996 report of disability determination by D. J. Bradford, M.D. The veteran alleged disability from March 1995 due to constant pain in the back, neck and spine, disc damage, and numbness in the legs and hands. He reported having had an injury in the 1970's in a jeep accident in which he injured his back and claimed that he had had back pain since then which had interfered with his ability to exercise and maintain his weight. The diagnosis was degenerative disc disease with morbid obesity. The physician stated that unless the veteran could lose some weight, he might still have difficulty with his back. He could not do physical activities such as standing, lifting or walking. Other records show that the veteran was referred to W. L. Budd, M.D., for diet counseling. The veteran's estimated weight was 435 pounds. The diagnoses included assessment and probable degenerative joint disease of multiple joints. In an April 1996 statement, [redacted] related that he had been the Battalion Maintenance Officer at the time of the veteran's accident on or about June 24, 1974. He had taken several pictures of the vehicle, which was unrepairable. He claimed that the personnel involved had been lucky to escape with their lives since few accidents involving a rollover were ever absent some fatalities. He indicated that the veteran had experienced much pain and suffering upon return to duty from the hospital. In April 1996, the veteran submitted a photocopy of a June 25, 1974, newspaper article reporting that two National Guardsmen had been hurt before when their jeep swerved to miss a bicyclist and overturned. The veteran was identified by name as one of the individuals, both of whom had been treated at the National Guard Dispensary at Bethany Beach. A March 1996 statement from an officer from the Headquarters 280 Signal Battalion of the Delaware Army National Guard certified that the veteran had appeared at the headquarters to locate a line-of-duty investigation pertaining to a June 1974 motor vehicle accident. The officer stated that this type of record was maintained at the unit for about two years and then destroyed and that the same policy held true at the State headquarters. Documents submitted by the veteran include a unit morning report showing that on June 24, 1974, at 8:15 a.m., the veteran had sustained minor lacerations of the left arm in a jeep accident. Of record are Delaware State Police Department accident report showing that the veteran had received injuries consisting of a laceration of the left hand and that he had been removed from the scene by a National Guard vehicle to the Bethany Beach National Guard Dispensary. An August 1996 statement from the Director of Personnel of the State of Delaware, Department of Military Affairs, responding to a request by the veteran, a former member of the Delaware Army National Guard, relates that official records located in the Office of the Adjutant General indicate that on the morning of June 24, 1974, the veteran was involved in a motor vehicle accident when a jeep he was driving rolled over and that the circumstances surrounding the accident were sufficient to make a determination of "Line of Duty (LOD) Yes." The report further indicated that based on the presented documents, a sufficient basis existed to rule that the veteran did, in fact, sustain injuries while performing military duties and that these injuries were incurred in line of duty. The RO attempted in February 1996 to obtain copies of the veteran's service medical records, administrative file, and line-of-duty report for the jeep accident. The service department responded in May 1996 that the records were not available. The VA liaison office at the National Personnel Records Center (NPRC) reported in August 1996 that no records were found at "Codes 11 and 13." A further reply dated in August 1996 indicates that no records were found at ARPERCEN. In September 1996, the 436th Medical Group at Dover Air Force Base advised that a thorough search of its files was conducted and that no medical records could be located. In August 1986 the veteran submitted additional material in support of his claim, including a copy of the report of the preenlistment physical examination performed in February 1971. No defects of the spine, neck or knees were reported or complained of. Medical records from the Nanticoke Memorial Hospital covering the period from March 1983 through October 1988 were included, bearing highlighted portions in yellow. These show that in June 1988 the veteran underwent an intravenous pyelogram with tomography, the report of which showed radiopaque densities in the right pelvis. In May 1988 the veteran was admitted because of right lower quadrant abdominal pain of three days' duration and right flank pain. He was hospitalized in October 1988 for similar symptoms. Also received was an emergency room record which appears to be dated in September 1974. The record is an extremely poor photocopy and is nearly illegible. The disorder treated appears to have been a pilonidal sinus. The veteran underwent a VA examination in September 1996. On general medical examination, he related that on its last roll, the jeep had apparently landed on his neck briefly before turning upright. He related that he had sustained abrasions and small lacerations of the left arm but had had severe pain in his back, neck and knees and had been hospitalized for two weeks and was told that he had damaged the vertebrae in his back and also his knees. He claimed that since then he had had continued complaints related to pain in the cervical, lower dorsal and lumbar regions of the spine and in both knees. He claimed that after falling in a hole in basic training in 1971 his knee had been treated with an immobilizer for eight weeks and that he had reinjured the knee at the time of the automobile accident, at which time the knee was immobilized for eight weeks. He claimed that, at the time of the 1974 accident, X-rays were taken and that he was told of a possible cracked pelvis and injuries to the vertebrae. The diagnoses included chronic neck pain as a result of a motor vehicle accident in 1974, chronic lower back pain as a residual of motor vehicle accident in 1974, left knee pain secondary to trauma, and arthritis. The veteran was referred for X-rays. Examination of the neck showed loss of the normal cervical lordosis consistent with spasm. The disc spaces appeared to be within the limits of normal. There was moderate anterior lipping at the C6-7 area. There was no evidence of fracture or subluxation. Films of the thoracic spine showed mild to moderate degenerative changes. There was no evidence of compression fractures or listhesis. X-rays of the lumbosacral spine showed mild to moderate degenerative changes with moderately marked narrowing of the L5 - S1 interspace and lumbarization of the L5 transverse process. X-rays of the right knee showed moderately severe degenerative changes with moderately marked narrowing of the medial compartment with no evidence of fracture. X-rays of the left knee showed severe degenerative changes with soft tissue calcification in the suprapatellar area which may represent old trauma. On a psychiatric examination the veteran gave additional history concerning the jeep accident, stating that he was taken to the Dover Air Force Base Hospital, which was the nearest military hospital, where he stayed for two weeks. He claimed that he had had some sort of back surgery in 1975. The foregoing evidence was before the rating board on October 24, 1996, when the veteran's original service connection claim was adjudicated. The RO held that the claims were not well grounded. The veteran was notified of the adverse determinations by letter dated October 28, 1996. He was also advised of his right to appeal. In a statement dated and received on November 8, 1996, the veteran's representative advised that the veteran requested that the VA reconsider the service connection claim. Subsequently received was a December 1996 statement from [redacted] [redacted], the former maintenance officer in the veteran's National Guard unit, who related that the veteran had been transferred by ambulance after the accident to the Lewes Hospital in Lewes, Delaware, after receiving aid from National Guard medics. The new name of the Lewes Hospital was Beebe Medical Center. He stated that the veteran remained hospitalized for about two weeks for injuries involving the back, neck and knees. After camp was over, the veteran returned to his unit and was reassigned to dispatching vehicles and operating the tool room. In correspondence received in January 1997, the veteran related that records relating to the June 1974 accident could not be located and that some records from that time period had been destroyed. The veteran testified at a hearing at the RO on November 17, 1997, that he had been transported from the accident scene to the National Guard Dispensary in Bethany Beach, Delaware, where stitches were applied to a lacerated left arm which was bleeding profusely. He stated that he was then taken to the nearest civilian hospital, the Lewes Hospital (now Beebe Medical Center) in Lewes, Delaware, about 3 miles away for X-rays. He stated that he was kept there for a couple of days for observation and then transferred to the Dover Air Force Base Hospital where he was hospitalized for two weeks and discharged walking on crutches. He stated that he was in a walking cast for several more weeks until he could support his own weight. He claimed that he had been left with a permanent limp as well as neck and low back problems ever since the injury. He claimed that he had been treated by his family physician, Dr. Rawlins, on several occasions after the accident but had been unable to obtain any records from Dr. Rawlins or from any of the hospitals where he was treated. In support of his petition to reopen, the veteran has submitted a number of additional statements from various persons: (a) In a February 1997 statement, J. O. Polk, a National Guard colleague of the veteran, reported that the veteran had been involved in a jeep accident in June 194 and had been taken to Dover Air Force Base Hospital where he received treatment for his left leg, back and neck. (b) W. E. Rollins, reported in January 1997 that he had been trying to help the veteran with his claim and had contacted several people at the NPRC to no avail. He expressed the opinion that there seemed to be plenty of evidence supporting the veteran's claim. (c) In a statement received in February 1997, W. Hurley stated that the veteran, his friend, was involved in a jeep accident in service and that for a lengthy period of time afterwards he wore a cast on his left leg, a back brace, and a neck collar. (d) A letter from the veteran's brother reported that the veteran had hurt his back, neck and leg and wore a neck brace and a leg cast. (e) A statement from R. Wilcox indicated that after the jeep accident the veteran wore a leg brace and a back brace and walked with crutches. C. A. Smith, D.O., reported in December 1997 that he had taken over the medical practice of Dr. J. C. Rawlins. He did not have any records for the veteran and felt that they had been destroyed since they were over 20 years old. A physical therapy evaluation dated in October 1997 from the Newport Physical Rehabilitation Center related that the veteran had decreased physical abilities due to chronic lumbar, knee and cervical dysfunction which "may be linked" to a motor vehicle accident several years earlier. A November 1998 report is of record from D. D. Kalvoda, M.D., together with a report of initial evaluation and history. Dr. Kalvoda saw the veteran for complaints involving the knees claimed to date back to an old National Guard injury. Additional medical evidence concerning the veteran's current medical condition has been received, including an October 1990 statement from Dr. Bradford, a February 1996 radiology report from the Midcoast Hospital showing minor degenerative changes and mild right lumbar rotoscoliosis, progress notes from Dr. Bradford dated from January 1996 to October 1998, and an October 1988 X-ray report showing findings consistent with advanced osteoarthritis, possibly due to prior left knee trauma. In April 1997, the NPRC certified that no records from the Bethany Beach National Guard Clinic, Dover Air Force Base, or the Fort Dix Base Hospital were located. A July 1997 report from the NPRC showed that the veteran's Social Security number did not show on the computerized records system at the Dover facility. It reported that Dover Air Force Base would not have treated the veteran since he was not on active duty or retired. Received from the veteran in December 1999 was additional evidence consisting mostly of duplicate material. The items not previously of record included an October 1999 statement from Dr. Kalvoda, who stated that the findings consistent traumatic arthritis found on his examinations were caused by the veteran's injuries in military service. Also included was a November 1999 note from Dr., Bradford to the effect that the veteran had disability of the back neck and knees from a motor vehicle accident in service. II. Analysis Service connection may be established for disability which is shown to have been incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110 (wartime), 1131 (peacetime) (West 1991 & Supp. 1998). If the disability is not shown to have been chronic in service, continuity of symptomatology after separation is required to support the claim. 38 C.F.R. § 3.303(b) (1999). VA regulations also provide that service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). Service connection for the disabilities at issue was originally denied by the RO October 1996 and the veteran did not appeal that determination. His November 1996 request for reconsideration of the denial of service connection did not constitute a valid notice of disagreement (NOD) since it did not satisfy the definition of a NOD, established by 38 U.S.C.A. § 7105 (b)(2) (West 1991 & Supp. 1997) and 38 C.F.R. § 20.201, by specifically disputing the rating decision denying service connection or indicating a desire to appeal. [A NOD is a] written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the [RO] and a desire to contest the result.... While special wording is not required, the Notice of Disagreement must be in terms which can be reasonably construed as disagreement with that determination and a desire for appellate review.... 38 C.F.R. § 20.201; See also Beyrle v. Brown, 9 Vet. App. 24, 28 (1996); Muehl v. West, No. 98-539 (U. S. Vet. App., Nov. 16, 1999). In the absence of a timely appeal, the denial became final with respect to the evidence then of record. 38 U.S.C.A. § 7105 (West 1991 & Supp. 1998). However, the law permits the reopening of a finally adjudicated claim if additional evidence recognizable as "new and material" evidence is subsequently received. 38 U.S.C.A. § 5108 (West 1991 & Supp. 1998); 38 C.F.R. § 3.156(a) (1999). In Manio v. Derwinski, 1 Vet. App. 140, 145 (1991), the United States Court of Veterans Appeals United States Court of Veterans Appeals (redesignated on March 1, 1999, as the United States Court of Appeals for Veterans Claims) (Court) set forth a two-step analysis to be applied in determining whether a claim should be reopened. The Board must first determine whether the evidence received since the most recent prior denial is new and material; if it is, the case will be considered reopened, and the claim will be evaluated in light of the entire evidence of record, both old and new. If the claim is found not to be reopened, no further adjudication may take place. See also Barnett v. Brown, 8 Vet. App. 1 (1995), affirmed 83 F.3d. 1980 (Fed. Cir. 1996) (if the Board finds that there is no new and material evidence, it is bound by an express statutory mandate not to consider the merits of the case). Citing the later decision of the United States Court of Appeals for the Federal Circuit in Hodge v. West, 155 F 3d. 1356 (1998) (discussed below), the Court in Elkins v. West, 12 Vet. App 209 (1999), added a third step to the process, holding that if the claim is reopened and found to be well grounded, the duty to assist in the development of the evidence to support such claim must be fulfilled. See also Winters v. West, 12Vet. App 203 (1999). The definition of new and material evidence is found in a VA regulation, 38 C.F.R. § 3.156(a) (1999), which provides as follows: New and material evidence means evidence not previously submitted to agency decision makers 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. In its decision in the case of Colvin v. Derwinski, 1 Vet. App. 171 (1991), the Court refined the criteria defining new and material evidence by adopting a three-pronged test consisting of three distinct determinations: (1) whether evidence received since the prior final disallowance is "new;" if so, (2) whether such evidence is relevant to and probative of the issue at hand; and, if so (3) whether there is a reasonable possibility that, when viewed in the context of all of the evidence of record, such evidence would change the outcome of the claim. The decision of the Court of Appeals for the Federal Circuit in Hodge, Id., overruled Colvin with respect to the materiality of the evidence required to reopen disallowed claims, finding that the component of the Colvin test which required a reasonable possibility that the new evidence would change the outcome of the claim negated the language of 38 C.F.R. § 3.156(a) (which requires only that the new evidence be "so significant that it must be considered in order to fairly decide the merits of the claim"). In this regard, the May 1997 rating decision the RO applied the Colvin standard then in effect, but it is clear from the September 1999 supplemental statement of the case that the appeal was later reviewed under the less stringent Hodge standard. See Karnas v. Derwinski, 1 Vet.App. 308 (1991). When the claim for service connection for residuals of injured received in the 1974 jeep accident was originally adjudicated in October 1996, the evidence of record consisted of service department documents showing that the accident had occurred as claimed, a number of lay statements and the veteran's hearing testimony concerning the nature of the injuries received and the treatment given for them, and VA and private medical evidence pertaining to the veteran's current disabilities. The evidence added to the record since then includes a large number of post service examination and treatment reports, both VA and private, as well as more lay statements. While most of it is cumulative, the new evidence includes recent statements from Dr. Kalvoda and Dr. Bradford which provide competent evidence of a medical nexus between the injuries in service and current disabilities. This evidence is highly relevant to the claim and is of such significance that it clearly satisfies the regulatory definition of new and material evidence. The statements are presumed to be credible for the purpose of determining whether it is material. Justus v. Principi, 3 Vet. App. 510 (1992). Whether this additional evidence in conjunction with the documents previously considered provides a basis for the granting of service connection or, for that matter, for recognizing the claim as well grounded, is unrelated to the question of whether it is sufficient to reopen the earlier disallowed claim. To reopen such claim, it is required only that the criteria found in 38 C.F.R. § 3.156(a) be satisfied. Adjudication of the merits of the claim is the next step now that the claim has been reopened, but the Board may proceed only after it is determined whether the initial decision must be made by the RO. The general rule established by the Court is that if there is a possibility that a veteran will be prejudiced by consideration of an issue by the Board, the claim must be remanded to the RO for initial adjudication. Bernard v. Brown, 4 Vet. App. 384 (1993). The Court has specifically held that where the Board determines that new and material evidence has been submitted to reopen a claim, the veteran must be asked, before the claim is reviewed on the merits, whether he objects to Board adjudication in the first instance, or, alternatively, the Board may make a decision on the merits of the claim without contacting the veteran if it explains why no prejudice will result to him from adjudicating the matter on the merits without first remanding to the RO. Sutton v. Brown, 9 Vet. App. 553, 562 (1996). In the present case, the RO has made its determination under the law and regulations pertaining to reopening of previously denied claims, but its discussion of the issue, as set forth in the statement of the case, supplemental statements of the case and the decision of a hearing officer, focuses largely on the merits of the underlying claims. It is also significant that at all times the arguments made by the veteran have related to the merits of the issues rather than to procedural technicalities associated with the reopening of a prior claim. Most importantly, the Board's decision herein is wholly favorable to the veteran. Under these circumstances, no prejudice will result to the veteran from initial Board adjudication of the merits of the claims. The veteran's claim for service connection for residuals of injuries sustained in the jeep accident is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1998) in that it is "a plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Once a claimant has met the initial burden of submitting evidence sufficient to establish a well-grounded claim, the VA has a duty under § 5107(a) to assist the claimant in developing the facts pertinent to the claim. See Epps v. Gober, 126 F. 3d 1464 (Fed. Cir. 1997), cert. denied sub nom Epps v. West, 118 s. CT. 2348 (1998). In the present case, since the veteran's service medical records are not available, both the RO and the Board have taken essentially every action possible to obtain the service department and postservice medical evidence necessary to adjudicate the issues raised. Multiple document requests have established that the requisite service department documents are not available from the National Personnel Records Center or any other known source. Inquiries to the Dover Air Force Base Hospital and the Delaware Army National Guard by both the RO and the veteran have been unavailing. The RO has actively attempted to secure postservice private treatment records and has accorded the veteran a VA examination to ascertain the current status of his disabilities. The status of the search for records was discussed in detail at the veteran's RO hearing. The veteran himself has been a motivated and resourceful participant in the search process. The failure of the RO efforts is regrettable, but the Board now has no choice but to decide the appeal on the basis of the evidence now of record. The Court has held that where service medical records are unavailable, the VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit of the doubt rule. O'Hare v. Derwinski, 1 Vet.App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet.App. 83, 85 (1992). An explanation must be provided to the claimant regarding the VA's inability to obtain or produce the records, and the VA must advise the veteran of the need to submit alternate forms of evidence. Dixon v. Derwinski, 3 Vet.App. 261 (1992). The actions by the RO and the decision herein are adequate to satisfy the VA obligations under § 5107 and O'Hare. The evidence of record includes a number of official documents that establish that the jeep accident reported by the veteran did in fact occur, that it took place during a period of active duty for training, that a number of people were injured in the event, and that the injuries were deemed by military authorities to have been received in line of duty. The official documents include the civilian police report as well as statements from the Delaware Army National Guard, including a statement from [redacted], the official investigator. The record also contains ample postservice VA and private medical evidence describing substantial pathology of the veteran's lumbosacral spine, cervical spine and left knee. Arthritis has been confirmed in the neck and degenerative disease has been reported in the low back and knee. While the receipt of injuries in a jeep accident that occurred in service and the later documentation of disability are not in dispute, the evidence concerning the relationship of the present disabilities to the accident is conflicting. There is no medical evidence contemporaneous with the incident describing any injuries to the back, neck or knees received. Their absence is significant, considering that the only available service department document, a morning report, noted only lacerations of the arm, and that the police report showed no injury other than a laceration of the left hand. In the absence of adequate evidence describing either the nature or extent of the injuries sustained in the crash, it is difficult to assess the probative value of the statements of individuals who knew the veteran at the time, including one of the other passengers in the jeep at the time of the crash, who attested to the fact that the veteran was injured in it and have reported extensive disability associated with the injuries. Even if their truthfulness is accepted at face value, the statements do not provide detailed information concerning the exact location, the nature, and the severity of the injuries. On the other hand, the lay accounts provided by the statement-writers is not lacking in credibility, in view of the sheer number of statements, the basic consistency of the allegations therein and the findings reported in the subsequent medical records. Of particular value are the statements of Mr. [redacted], who visited the veteran in the hospital and had personal knowledge that the veteran wore a brace at that time. This evidence has value in compensating for the unavailability of records from the Dover Air Force Base Hospital and other medical facilities that might have corroborated the veteran's claims regarding the nature of his injuries and the treatment he received. There is no basis in the record to challenge the statements, and a layperson is competent to provide evidence regarding his own observations on matters that do not require medical knowledge, skill, expertise, training or education. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In this context, the conclusion by Dr. Kalvoda and Dr. Bradford that the current disabilities are related to the service accident may be deemed to have a reasonable factual foundation. In addition, there is medical opinion to the effect that the degenerative changes in the veteran's back, neck and knee are post-traumatic in origin. There is no basis in the record by which to reject these medical judgments. The Board is prohibited from exercising its own independent medical judgment in resolving medical matters arising in appeals before it. In these circumstances, the positive and the negative evidence as to whether the current disabilities of the back, neck and left knee are related to the injuries in service must be viewed as in relative equipoise and the benefit of the doubt must be accorded tot he veteran. 38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet. App 49 (1990). ORDER The claim for service connection for a back disability has been reopened by submission of new and material evidence, and service connection for degenerative joint disease of the back is granted. The claim for service connection for a neck disability has been reopened by submission of new and material evidence, and service connection for osteoarthritis of the neck is granted. The claim for service connection for a left knee disability has been reopened by submission of new and material evidence, and service connection for degenerative joint disease of the left knee is granted. G. H. SHUFELT Member, Board of Veterans' Appeals