BVA9504471 DOCKET NO. 91-36 675 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Whether there is new and material evidence to reopen a claim for entitlement to service connection for residuals of a left leg and knee injury. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher B. Moran, Counsel INTRODUCTION The veteran served on active duty from December 1971 to January 1978. He also had five periods of active duty for training from July 1956 to July 1960. A historical review of the record shows that, in his December 1979 application for disability benefits, the veteran claimed service connection for residuals of an injury to the left lower extremity from the hip to the knee. A February 1980 Department of Veterans Affairs (VA) regional office (RO) rating determination denied service connection for residuals of a left leg injury. A timely notice of disagreement was limited to service connection for a left knee injury. Thereafter, a Board of Veterans' Appeals (Board) decision in January 1982 denied service connection for residuals of a left knee injury. CONTENTIONS OF APPELLANT ON APPEAL It is contended by the veteran, in essence, that he incurred a chronic left lower extremity disorder from the hip to the knee due to an injury incurred in basic training when he fell off of a 2 1/2-ton truck and struck his knee on the pavement with another trainee falling on top of him. They were all carrying full gear and rifles. His left knee jammed up and he had to be carried to the medics. He was then put into the mess hall to cook instead of training. Prior to that time his left lower extremity had been already weakened by the constant stress of running and walking for hours on end. It is argued that the voluminous private VA clinical data, as well as lay statements, along with statements from former service comrades, [redacted], [redacted], and [redacted], and testimony given at hearings at the RO, and at the Board in Washington, D.C., provide sufficient new and material evidence upon which to reopen the claim. The Board is requested to consider all pertinent decisions of the United States Court of Veterans Appeals. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of the evidence and material of record in the veteran's claims file and for the following reasons and bases, it is the decision of the Board that the veteran has not submitted new and material evidence to reopen a claim of entitlement to service connection for residuals of left leg and knee injury. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. An RO rating determination in February 1980 denied service connection for residuals of a left leg injury because no left leg injury was noted during service; the veteran was notified of the denial of his claim but filed a notice of disagreement with respect to his left knee only. 3. A Board decision in January 1982 denied service connection for residuals of a left knee injury because any left knee symptom present during service was not more than acute and transitory and not shown to be related to any underlying chronic disorder. 4. The pertinent evidence added to the record since the rating determination in February 1980 and Board decision in January 1982 consists of post service VA and private clinical data and lay statements which do not support a link between any left leg disorder including chondromalacia or arthritis of the left knee to service and cannot change the outcome of the claim. CONCLUSIONS OF LAW 1. The decision of the RO in February 1980 denying service connection for residuals of a left leg injury is final and there is no new and material evidence to reopen the claim. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104, 3.156(a) (1994). 2. The Board decision of January 1982 denying service connection for residuals of a left knee injury is final and there is no new and material evidence to reopen a claim. 38 U.S.C.A. §§ 5107, 5108, 7104 (West 1991); 38 C.F.R. § 3.156(a) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Assist The veteran's claim is well grounded within the meaning of the statute and judicial construction. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). The VA, therefore, has a duty to assist the veteran in the development of facts pertinent to his claim. In this regard, we recognize that the evidence of record consisting of the veteran's service medical records, extensive post service private and VA clinical data dating between approximately March 1979 and January 1992, with records of treatment through Arthur C. Rettig, M.D., St. Vincent's Hospital, Canyon General Hospital, and Morgantown Orthopedic Associates, multiple lay statements including statements from former service comrades, [redacted], [redacted], and [redacted], and transcripts of testimony given by the veteran before a hearing officer at the RO in May 1990 (T-1), testimony given at the Board of Veterans' Appeals in Washington, D.C. in April 1992 (T-2), and testimony given before a hearing officer at the RO in May 1994 (T-3), provides a sufficient basis upon which to address the merits of the veteran's claim. We note that the record contains information from the Indianapolis, Indiana, VA Medical Center that no records of treatment of the veteran were found between 1978 or 1979. Also of record is information from the VA Medical Center at Clarksburg, West Virginia, indicating that a search of the veteran's treatment file for treatment records from VA Medical Center at Indianapolis, Indiana, during 1978 and 1979, and at VA Medical Center, Long Beach, California, between 1980 and 1984 for left leg and knee conditions, was negative. In view of the fact that there is no indication that there are additional pertinent records which the RO has not attempted to obtain, no further assistance to the veteran is required to comply with the duty to assist him as mandated by 38 U.S.C.A. § 5107(a) (1991). II. Pertinent Law and Regulations Service connection may be established for a disease resulting from personal injuries suffered or disease contracted in line of duty or for aggravation of preexisting injuries suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Regulations 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 U.S.C.A. § 3.303(d) (1994). If the disorder is arthritis then service connection may be granted if manifest to a degree of 10 percent within one year of date of termination of such service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). Further, we note that, for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or diagnoses, including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1994). The Board notes that the provisions of 38 U.S.C.A. § 1154(b) (West 1991) relating to combat veterans are not for application since the veteran is not shown to have participated directly in combat during active duty nor does he or his representative claim otherwise. Moreover, we note that the provisions regarding service connection for a disability while serving on active or inactive duty for training under 38 U.S.C.A. §§ 101(24), 106 (West 1991), are not for application since the veteran noted at a hearing at the RO in May 1990 that no pertinent injuries were incurred at that time. (T-1, 2). The law, in effect in February 1980 was that where there had been a prior denial action on an issue, a notice of disagreement was to be filed within one year from the date of mailing of notification of the initial review and determination, as well as following a substantive appeal within 60 days from the mailing of the statement of the case or within the remainder of one year from the date of mailing of the notification of the initial review and determination being appealed, whichever period ended later; otherwise that determination became final in the absence of new and material evidence. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 3.104 (1994). When an issue has been previously denied by the Board, such claim may not be reopened and allowed in the absence of new and material evidence. 38 U.S.C.A. §§ 5108, 7104 (West 1991); 38 C.F.R. § 3.156(a) (1994). Evidence is considered new when it is not merely cumulative of other evidence in the record and is considered material when it is relevant and probative of the issue at hand. To justify a reopening of a claim on the basis of new and material evidence, there must be a reasonable possibility that the new evidence, when viewed in context of all the evidence, both old and new, would change the outcome. Colvin v. Derwinski, 1 Vet.App. 171 (1991). The evidence is "new" when it is not cumulative of evidence of record, and is not "material" when it cannot possibly change the outcome of the case. Godwin v. Derwinski, 1 Vet.App. 419 (1991). III. Residuals of Left Leg And Knee Injury We note that the veteran argues that he developed a left leg disorder that primarily affects his knee due to injury associated with falling off of a truck during basic training. He points out that prior to the left knee injury in service that his left lower extremity had already been weakened by the strenuous physical activity required of military life. A historical review of the record on file at the time of the RO's rating decision in February 1980 and Board decision in January 1982 shows that the veteran's contentions were that he developed a left knee injury when he jumped off of a truck during basic training. He argued that he was thereafter trained as a cook because it placed less strain on his knee. It was emphasized that no injury to his knee existed prior to service. The veteran's service medical records revealed no pertinent complaint or defects concerning the left leg or knee on an entrance examination in November 1971. In January 1972, he was examined at his unit clinic for complaints of pain in his knees. No swelling or discoloration was noted. A physical examination undertaken in April 1973 found no abnormalities referable to the left leg or knee. In December 1973, the veteran reported to an orthopedic clinic and gave a history of an old injury to his left knee. He stated that it "gives out." X-ray studies of the left knee were essentially negative. Physical examination showed slight limitation of the anterior cruciate ligament. Impression was possible strain. On a hospital admission physical examination in October 1977 an examination of the left lower extremity was normal. No pertinent complaint was noted. The veteran's separation examination in January 1978 reflected a normal clinical evaluation of the left lower extremity including range of motion and strength testing although he complained of a "trick" or "locked knee." He was found medically unfit for further service due to conditions unrelated to the issue on appeal. A report of a VA examination in June 1978 reflected no pertinent physical complaint. Examination of the left lower extremity was negative. No relevant diagnosis was made. In a statement dated in December 1979, Arthur C. Rettig, M.D., reported that the veteran had sustained an external rotation injury to his left ankle while rollerskating in March 1979. X-ray studies revealed a trimalleolar fracture, comminution of the lateral malleolus, and a small nondisplaced posterior malleolar fragment. He was taken to an operating room where an open reduction and internal fixation of the fracture were performed. It was further noted that the veteran had some complaints regarding his left knee which were thought compatible with the diagnosis of chondromalacia of the patella. X-rays of the knee were negative. Also of record was a treatment summary which indicated that the veteran was examined and treated by Dr. Rettig between April 1979 and February 1980. Following receipt of the veteran's claim of service connection for residuals of an injury to the left lower extremity from the hip to the left knee in December 1989, an RO rating determination in February 1980 denied service connection for residuals of a left leg injury because the service medical records did not show any complaints, medical findings or a diagnosis pertaining to the alleged injury. Following a receipt of the notice of disagreement as to the left knee, a Board decision in January 1982 denied service connection for residuals of a left knee injury because it was found that any left knee symptomatology experienced by the veteran during service was no more than acute and transitory in nature, and not a manifestation of a chronic knee disability, especially in view of the fact that no abnormalities of the left knee were found when the veteran was examined at separation in January 1978 or by the initial post- service VA examination in June 1978. The evidence added to the record since the RO rating determination in February 1980 and Board decision in January 1982, includes supplemental private treatment records through St. Vincent's Hospital and Dr. Rettig regarding treatment between March 1979 and February 1980 for a left ankle fracture incurred on March 31, 1979, while the veteran was skating. At that time the veteran was noted to have also have complained of left knee problems which he related to Army days when he claimed to have injured his left knee when jumping off of a truck. Negative twist injury was indicated. He noted that his knee was painful walking up stairs, and rising from a sitting position. He had grinding in the left knee when walking. An examination of the left knee revealed full range of motion with all ligaments intact; nontender to palpation or patellar movement, but pain to forced contact between patella and femur was noted along with crepitus to left knee motion. Impression was chondromalacia, left knee. Also submitted was a statement dated in April 1982, from Martha L. Moore who reported that she first met the veteran in 1978 and that he told her of an injury to his left knee while in the Army. She noted that at one time they were out rollerskating and that the veteran's left knee gave out and he fell and broke his ankle and was incapacitated most of the summer of 1979 due to the injury. She indicated that she was convinced that the veteran fell and broke his ankle due to the injury he received in the Army. Additional records received into the veteran's claims folder include private hospital and treatment records from Canyon General Hospital referring to treatment between November 1983 and February 1984 for injuries primarily to the right shoulder, right ankle and upper spine incurred in a fall from a 15-foot ladder in November 1983. Pertinent evaluations at that time did not show other than a normal left lower extremity. In a statement dated in July 1985, the veteran's father indicated that when his son enlisted in the Army there was nothing physically wrong with him. In an undated statement from the president of [redacted] Construction Company it was noted that the veteran had worked for that company between 1970 and 1971 and that the veteran was not shown to be other than in perfect physical health. In a statement dated in July 1985, [redacted] and [redacted] indicated that, as landlords, they knew the veteran from June 1984 and that he always limped very badly on account of his leg which always was painful. A VA clinical record with X-ray in November 1985 referred to treatment for complaints of painful left knee; however, no obvious external abnormality was seen. Range of motion was noted as intact. An X-ray of the left knee was negative for any significant bone or joint abnormality. A report from a VA orthopedic clinic evaluation in approximately April 1987 reflected active range of motion of the left knee from 0 to 135 degrees; no tenderness; stable varus/valgus; negative Lachman's; no effusion; and 5/5 strength. An X-ray revealed a normal knee. In October 1988, the veteran was seen by the VA for complaints of left knee pain for many years with no recent injury. A VA clinical record dated in January 1989 listed a diagnosis of traumatic arthritis of the left knee. In May 1990, the veteran gave testimony before a hearing officer at the RO. He essentially indicated that he did not have any illnesses or complaints or injuries while he was in the Reserves prior to active duty. (T-1, 2). He stated that in January 1972 he injured his left leg and knee while in training. (T-1, 2). He had been running and walking a lot, 12 hours per day, on his feet and bailing out of the back of a truck (T-1, 3). He also noted that he never asked for a profile nor was he given one. (T-1, 4). VA clinical records dated in the 1990's include records referring to complaints of left knee pain which the veteran stated he had for the past 18 years which he attributed to an injury he received in service when jumping from a truck. X-rays revealed slight degenerative disease of the left knee. Diagnosis included arthritic knee due to past trauma. Information from Morgantown Orthopedic Associates in January 1992 indicate that the veteran related a history that as far as his left knee was concerned, approximately 20 years earlier, he fell on his knee while in the service and sustained injury to the kneecap. He was told then that he had chondromalacia of the patella. He did have intermittent pain in his left knee. He did not have swelling, locking, or giving way. An examination of the knee revealed a mild varus deformity. Full range of motion was demonstrated without pain. There was no effusion or heat in the joint. Quadriceps muscles worked well. Mild medial instability was noted. X-rays of the left knee showed evidence of a mild varus deformity, slight lateral tilting of the patella and slight narrowing of the medial compartment. It was indicated that while the veteran may have had some damage to the patellofemoral joint with a history of having fallen on it 20 years earlier, he had minimal findings in the knee at that time. The veteran attended a hearing at the Board in Washington, D.C., during April 1992. His testimony indicated that in addition to injury and treatment in service for a left knee disorder he was also treated at the Indianapolis VA Hospital in 1978, shortly following separation from service. (T-2, 8). Information received from the VA Medical Center in Indianapolis, Indiana, during March 1993 indicated that no records of treatment of the veteran for 1978 or 1979 were found at that facility. In a statement dated in February 1994, [redacted] noted that the veteran worked under his supervision from 1975 through March 1976 and remembered that when the veteran arrived at the unit, he made it known of the problem he was having with his left knee resulting from an accident a few years earlier. As a result of a bad knee he was assigned to the hospital to preclude field duty. He noted that the veteran walked with a limp and after several hours on his feet, he suffered much pain. In order to keep him off his feet he was assigned as night baker. He could rest his leg and still work. In May 1994, the veteran gave sworn testimony before a hearing officer at the RO. His testimony included that pertinent outstanding records of treatment for 1978 and 1979 existed at the Clarksburg VA facility. (T-3, 10). Subsequent information received from the Clarksburg VA Medical Center shows that no records were found regarding the veteran's treatment from the VA Medical Center, Indianapolis, Indiana, during 1978 and 1979 and the VA Medical Center, Long Beach, California, between 1980 and 1984 for left leg and knee condition. A statement dated in January 1992 and received in August 1994, from a former service comrade, [redacted], reflects that while Mr. [redacted] remembered the veteran, he did not remember any knee injury. He recalled that the veteran had difficulty staying with the company while running to the rifle range. A statement dated and received in August 1994, from a former service comrade, [redacted], indicates that while the veteran's letter was helpful in refreshing Mr. [redacted]'s memory, that he was still unable to verify whether the details were factually correct. However, he recalled that the veteran was one of the older enlistees at the time and was amazed that the veteran reenlisted. He noted that the drill sergeants were equally surprised by the veteran's decision to re- enter the service. He noted that while he was not personally aware of the veteran's injuries and personal hardships that he remembered that the veteran had a positive attitude and was not a disciplinary problem. Mr. [redacted] further noted that his memory did not serve him well for specifics regarding an event that occurred more than 20 years ago. A comprehensive analysis of the record shows that the evidence submitted continues to lack evidence of an objectively demonstrated chronic left leg or knee disorder during service or an etiologic link between the chondromalacia patellae of the left knee first suspected in approximately March 1979, a finding previously considered by the RO and Board, or to arthritis of the left knee first noted many years following separation from service. The Board notes that the tracing of the onset of left knee symptoms to service or attributing any current knee disorder to service is based upon the veteran's claimed medical history which is clearly unsupported by the evidence of record and, therefore, any opinion based upon such history is not considered as probative or material to the central issue. See Reonal v. Brown, 5 Vet.App. 458 (1993). The medical records contemporaneous with service, as well as the initial post service VA examination, do not substantiate the veteran's claim. Likewise the lay statements submitted in this case are clearly unsupported when viewed in light of the service medical records and initial VA examination reflecting clinical findings to the contrary which are more probative than statements based upon memory. We recognize that neither Mr. [redacted] nor Mr. [redacted] remember any pertinent injury in service. Moreover, the Board notes that neither the veteran nor any other lay person who has submitted a statement is shown competent to make any such diagnosis or finding as to medical causation in this case. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Accordingly, such documents are not sufficient to reopen the veteran's claim of service connection for residuals of left leg and knee injuries. Also, the Board notes that the veteran's testimony given at recent hearings at the RO and Board merely reflects a continuation of similar arguments previously considered and therefore are cumulative and otherwise unsupported by the contemporaneous medical records. Since the additional evidence is not new and material, it does not permit a reopening of the veteran's claim. Accordingly, the RO rating determination of February 1980 and Board decision of January 1982 remain final. ORDER New and material evidence not having been submitted to reopen a claim of entitlement to service connection for residuals of left leg and knee injury, the appeal is denied. WILLIAM J. REDDY 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. 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.