BVA9507626 DOCKET NO. 92-52 853 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE 1. Entitlement to service connection for postoperative residuals of a right kidney disability. 2. Entitlement to service connection for hypertension. 3. Whether new and material evidence has been presented to reopen a claim of service connection for residuals of a low back injury. 4. Whether new and material evidence has been presented to reopen a claim of service connection for injury of both knees. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Anderson, Counsel INTRODUCTION The appellant had active service from April 1962 to October 1965. In June 1992, the Board of Veterans' Appeals (Board) remanded this case to the New Orleans, Louisiana, Regional Office (RO) for additional development of the evidence. The development added to the record a report of kidney surgery in December 1989, a report of Department of Veterans Affairs (VA) hospitalization of the appellant in July 1985, and reports of VA examinations of the appellant in August 1992 and August 1993. The RO attempted to obtain additional private medical records identified by the appellant, but to no avail. In a statement dated in March 1994, the appellant advised that he had personally made a trip to secure medical documents and was unsuccessful because private clinics had purged his records. Additionally, he confirmed that a private physician who had treated him is or was in a Federal penitentiary and all of his medical records were confiscated. He requested that VA proceed to adjudicate his claims on the basis of the evidence of record. CONTENTIONS OF APPELLANT ON APPEAL The appellant claims that he first injured his back delivering heavy mail in 1962, and that he slammed into a wall and hit his knees while running the obstacle course in basic training. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the appellant's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the veteran has filed a new claim for service connection for arthritis of the knees and low back. FINDINGS OF FACT 1. The appellant's original claim to establish service connection for residuals of back and knee injuries was denied by a rating decision in March 1984. 2. Since the 1984 decision, the veteran has presented evidence of arthritis of the knees and low back. Service connection for arthritis had not been previously denied, and presumptive service connection had not been considered. CONCLUSION OF LAW The claim for service connection for arthritis of the knees and low back is a new claim. Odiorne v. Principi, 3 Vet.App. 456 (1992). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran has appealed the determination that he did not submit new and material evidence sufficient to reopen the claim for service connection for back and knee disabilities. The service medical records show that the appellant was seen at a service department dispensary in June 1962, complaining of a sore knee since hitting it on a confidence course. Recommended treatment was a hot shower and liniment. In January 1963, the appellant was seen at a service department dispensary complaining of some pain in his lower back at night, none in the morning, with no radiation of pain. There was no limitation of motion of the back, but there was slight muscle spasm. The diagnosis was mild myalgia of the low back. The appellant was seen in a service department dispensary in April 1963 with the complaint of pain in his left knee. A "strong" question of malingering was recorded, with the knee showing no pathology, fracture, dislocation, or physiologic abnormality. In March 1965, the appellant reported to a dispensary with the chief complaint that he was in for X-rays of his lumbosacral spine and an orthopedic consultation. No radiologic report or report of consultation is of record. On service separation examination in October 1965, the appellant indicated that he had "trick" knees when sitting in one position over a period of time or on lengthy walking, and he further indicated that his back ached after a period of lifting heavy objects due to strain from lifting mail sacks. The appellant's lower extremities and spine were clinically evaluated as being normal. The appellant's original claim to establish service connection for back and knee injuries was denied by a rating decision dated in March 1984. It was determined that the knee and back injuries which were shown in service medical records were mild, and clearly shown to have been acute and transitory. The appellant did not appeal this determination, but requested that the claim be reopened in January 1991. In the absence of a timely appeal, the 1984 decision became final and may not be reopened in the absence of new and material evidence. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (1994); Manio v. Derwinski, 1 Vet.App. 140 (1991); Colvin v. Derwinski, 1 Vet.App. 171 (1990). 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 (1994). The law, regulations and decisions of the United States Court of Veterans Appeals establish that the prior decisions of the regional office are final and may not be reopened in the absence of new and material evidence. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (1994); Manio v. Derwinski, 1 Vet.App. 140 (1991); Colvin v. Derwinski, 1 Vet.App. 171 (1990). When a claim is disallowed, the claim [generally] may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered. 38 U.S.C.A. § 7105. The exception to this rule is 38 U.S.C.A. § 5108 (West 1991), which states: If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Masors v. Derwinski, 2 Vet.App. 181, 184 (1992). Evidence added to the record since March 1984 includes, in pertinent part, reports of VA hospitalization or disability evaluation examinations dated since 1984 and private medical reports dated since 1987. These records reflect that, on admission to a VA hospital in September 1984, the appellant reported that he had injured his left knee several days earlier by hitting it on a sliding glass door and that, on admission to a VA hospital in July 1985, he reported that back pain started the day prior to admission. On admission to a VA hospital in December 1985, the appellant reported that he was involved in an accident wherein his leg came between bumpers of two pickup trucks. In August 1992, a VA examination was conducted for compensation purposes. Pertinent VA and private diagnoses have included chronic low back pain, soft tissue injury, degenerative joint disease of the lumbar spine, and degenerative joint disease of both knees. The Court has established exceptions to the general rule. A claim following a change in the law or regulations may serve as a basis to reopen or may be a new claim. In addition, when the claim is a different than that previously denied, there may be a new claim. In one case, the RO had previously denied service connection for a generic left knee disorder. The Court noted that the claim for arthritis was a new claim. Odiorne v. Principi, 3 Vet.App. 456 (1992). Presumably, the prior adjudication did not consider the law governing presumptive service connection. It appears that if the VA must consider different laws or regulations than that considered previously, there is a new claim rather than a reopened claim. The facts in this case are essentially similar to the facts in Odiorne. It necessarily follows that the outcome should be the same. Since service connection has not been previously denied for arthritis of the knees and lumbar spine, there is no prior final decision. ORDER The claim for service connection for arthritis of the knees and shoulders is a new claim. REMAND The regional office must consider the new claim for service connection for arthritis of the knees and arthritis of the lumbar spine. The veteran is entitled to de novo review. In addition, the veteran is to be informed that he has a duty to submit evidence of a well grounded claim for service connection for hypertension, a kidney disability, arthritis of the knees, and arthritis of the lumbar spine. If, upon completion of the above action, the claim remains denied, the case should be returned to the Board after compliance with all requisite appellate procedures. No action on the veteran's part is required until he receives further notice. H. N. SCHWARTZ Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. In regard to whether the veteran has filed a new claim, the following applies: NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. In regard to the remaining issues, the following applies: Under 38 U.S.C.A. § 7252 (West 1991), 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) (1994).