Citation Nr: 0007568 Decision Date: 03/21/00 Archive Date: 03/28/00 DOCKET NO. 98-14 681 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim for service connection for residuals of a low back injury. 2. Whether new and material evidence has been presented to reopen a claim for service connection for a bilateral knee disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. W. Koennecke, Associate Counsel INTRODUCTION The veteran served on active duty from April 1982 to January 1988, and from March 1988 to November 1989. This case comes before the Board of Veteran's Appeals (the Board) on appeal from a February 1998 rating decision of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. Service connection for residuals of a back injury and right and left knee injury was denied in a January 1991 rating decision. The veteran did not perfect an appeal. 2. The evidence submitted in support of the claim to reopen bears directly and substantially on the matter of whether there is post-service residual disability of the back and both knees. 3. The veteran's current lumbosacral strain has been attributable to an inservice injury. 4. There is no competent medical evidence of nexus between the veteran's current bilateral knee disorder to include patellar femoral syndrome or chronic chondromalacia patella and service. CONCLUSIONS OF LAW 1. The January 1991 rating decision denying service connection for residuals of a back, right knee and left knee injury is final. New and material evidence sufficient to reopen the claim has been submitted. 38 U.S.C.A. §§ 5108, 7105(c) (West 1991); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (1999). 2. The claim for service connection for a bilateral knee disability to include patellar femoral syndrome or chronic chondromalacia patella is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 3. Lumbosacral strain was incurred during the veteran's active service. 38 U.S.C.A. §§ 1131, 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The issue before the Board is whether the veteran submitted new and material evidence to reopen the previously denied claims of entitlement to service connection for residuals of a back injury and residuals of right and left knee injuries. The RO denied the veteran's initial claims in January 1991 on the basis that chronic back or bilateral knee disability was not shown and that pain, in the absence of organic disease, was not a ratable entity. In other words, service connection was denied as there was no evidence of post-service residual disability in regard to the back or either knee. The RO considered the veteran's service medical records and the report of a VA examination conducted in December 1990 in making its decision. By letter dated February 1991, the RO notified the veteran of the denial and of her appellate rights with regard to that denial. The veteran initiated an appeal of the denial in February 1991. However, after the RO issued a statement of the case in March 1991, she did not perfect her appeal by filing any documentation that could be construed as a substantive appeal. See 38 U.S.C.A. § 7105(d)(3) (West 1991). The RO's January 1991 decision is thus final. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 20.1103 (1999). Once an RO decision becomes final under 38 U.S.C.A. § 7105(c), absent submission of new and material evidence, the claim may not thereafter be reopened or readjudicated by the VA. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999); Suttman v. Brown, 5 Vet. App. 127, 135 (1993). New and material evidence means evidence not previously submitted to agency decision makers that bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself and in connection with evidence previously assembled is so significant that it must be considered to decide fairly the merits of the claim. 38 C.F.R. § 3.156(a) (1999). A three pronged analysis is used to determine whether evidence is "new and material" as defined by 38 C.F.R. § 3.156(a) (1991). First, it must be determined whether the newly presented evidence "bears directly and substantially upon the specific matter under consideration," i.e., whether it is probative of the issue at hand. Secondly, the evidence must be shown to be actually "new," that is, not of record when the last final decision denying the claim was made, and finally, a determination must be made as to whether the evidence "is so significant that it must be considered in order to fairly decide the merits of the claim." See Hodge v. West, 155 F.3d 1356, 1359 (Fed. Cir. 1998). New evidence, submitted to reopen a claim, will be presumed credible solely for the purpose of determining whether the claim has been reopened. Justus v. Principi, 3 Vet. App. 510, 513 (1992). If all three tests are satisfied, the claim must be reopened. Hodge, supra. Evidence associated with the claims folder since the January 1991 rating decision consists of medical treatment and evaluation records beginning with the September 1988 in- service fall through December 1999. In March 1989 she was diagnosed with musculoskeletal back strain secondary to severe trauma, and in December 1999 with probable chronic chondromalacia patella. The evidence submitted since the prior final denial cures an evidentiary defect that existed at the time of the prior decision. The veteran has submitted competent evidence of a current back and bilateral knee disability. Accordingly, this evidence is new and material as it bears directly and substantially on the question of whether the veteran has post-service residual disability, and the claims for service connection for a back and bilateral knee disability are reopened. Upon reopening the claim, a determination must then be made as to whether, based upon all the evidence and presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C.A. § 5107(a) (West 1991). If the claim is well grounded, the claim may then be evaluated on the merits after ensuring that the duty to assist pursuant to 38 U.S.C.A. 5107(b) (West 1991) has been fulfilled. See Elkins v. West, 12 Vet. App. 209 (1999); Winters v. West, 12 Vet. App. 203 (1999). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). To establish that her claims are well grounded, the veteran must produce competent evidence of a current disability; a disease or injury which was incurred in service, and a nexus between the disease or injury and the current disability. Epps v. Gober, 126 F.3d 1464, 1469 (Fed.Cir. 1997). Alternatively, the nexus between service and the current disability can be satisfied by evidence of continuity of symptomatology and medical or, in certain circumstances, lay evidence of a nexus between the present disability and the symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495 (1997). The kind of evidence needed to make a claim well grounded depends upon the types of issues presented by the claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). For some factual issues, competent lay evidence may be sufficient. However, where the claim involves issues of medical fact, such as medical causation or medical diagnoses, competent medical evidence is required. Grottveit, 5 Vet. App. at 93. A. Bilateral Knee Disability Service medical records showed that in September 1998, the veteran fell from a height of 16 feet and fractured her pelvis and right elbow. After the fall she complained of pain in both knees and was diagnosed with knee pain. While the record contains competent medical evidence that she currently has bilateral patellar femoral syndrome and chondromalacia patella, there is no competent medical evidence linking this disorder to service. As a lay person lacking in medical training and expertise, the veteran is not competent to address an issue requiring an expert medical opinion. Accordingly, statements by the veteran that she has bilateral knee disability as a result of a fall in service do not constitute medical evidence. See Moray v. Brown, 5 Vet. App. 211, 214 (1995); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). For the foregoing reasons, it is the decision of the Board that the veteran has not met her initial burden of submitting evidence of a well-grounded claim for service connection for bilateral knee disorder. The Board is unaware of any additional evidence which is available which could serve to well ground the veteran's claim. As the duty to assist is not triggered here by a well-grounded claim, the VA has no obligation to further develop the veteran's claim. See 38 U.S.C.A. § 5103 (West 1991); McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Epps; supra; Grivois v. Brown, 5 Vet. App. 136, 140 (1994). The Board acknowledges that it has decided the present appeal as to these issues on a different legal basis than the RO did. When the Board addresses in a decision a question that has not been addressed by the RO, it must be considered whether the claimant has been given adequate notice and opportunity to respond and, if not, whether the claimant will be prejudiced thereby. See Bernard v. Brown, 4 Vet. App. 384 (1993). However, the Board concludes that the veteran has not been prejudiced by the decision herein. The Board has considered the same law and regulations. The Board concludes that the veteran did not meet the initial threshold evidentiary requirements of a well-grounded claim under the standards set forth in Epps. The result is the same. B. Residuals of a back injury The Board finds that the veteran has submitted a well grounded claim for service connection for residuals of a back injury. Specifically, a private physician in an examination report dated in December 1999 diagnosed the veteran as having lumbosacral strain which he related to her inservice fall. Epps, supra. The record reflects that the duty to assist has been met under 38 U.S.C.A. § 5107 (West 1991). Records were obtained from all identified treatment sources. In testimony before the Board, the veteran testified that no further records were available. She had checked with every prior treatment facility and her Reserve unit and determined that no additional records were obtainable. Furthermore, the undersigned Board Member suggested that the veteran obtain medical evidence linking her current disabilities to service, thereby fulfilling any duty to suggest evidence under 38 C.F.R. § 3.103 (1999). Once the duty to assist has been met, the Board must proceed to a merits determination. When all the evidence is assembled, the determination must then be made as to whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Service medical records reveal that in September 1988, the veteran fell approximately 16-feet from a second floor balcony. She fractured her pelvis and right elbow. Dallas County Hospital District records indicated that X-rays of the thoracic and lumbar spine were negative. In December 1988 she complained of lumbar backaches. Back pain was diagnosed. On Medical Board examination in January 1989, her lower extremities and spine were normal. In March 1989 she complained of chronic back pain. On examination she had decreased range of motion in her back, and an abnormal gait with an accentuated lordosis/straightening. Straight leg raising was negative. There was pain to palpation along the spinous processes in the mid-thoracic area. Musculoskeletal back strain secondary to severe trauma was diagnosed with a rule-out diagnosis of spinal compression fracture. Chronic low back pain was noted in August and September 1989. Although the veteran's back was described as normal on VA examination in December 1990; however the history of a lumbosacral musculoligamentous sprain with residual intermittent low back pain was noted. In February 1991 she was said to have chronic back pain secondary to the fall. Clinical records in 1997 documented diagnoses of chronic low back pain. In March 1997 mild degenerative joint disease and degenerative disc disease was noted on lumbosacral spine X- ray. Mechanical low back pain was diagnosed. In this case, the veteran has submitted an opinion from a private physician dated in December 1999 which relates her chronic lumbosacral strain to her fall in 1988 while on active duty. Specifically, the physician indicated that the veteran sustained a significant fall in 1988 which possible damaged the lumbar disc and/or ligaments causing chronic lumbosacral strain. Although this physician gave no indication that he reviewed the service medical records, the inservice fall is not in dispute. This evidence is competent, credible and probative of the issue under the Board's consideration. No competent medical opinion is of record that refutes the link established above, therefore the evidence supports the claim. Service connection for lumbosacral strain is warranted. ORDER New and material evidence having been submitted, the claim for service connection for a back and bilateral knee disability is reopened. To this extent, the appeal is allowed. A well grounded claim not having been submitted, service connection for a bilateral knee disability to include patellar femoral syndrome and chondromalacia patella is denied. Service connection for lumbosacral strain is granted. CONSTANCE B. TOBIAS Member, Board of Veterans' Appeals