Citation Nr: 0004157 Decision Date: 02/16/00 Archive Date: 02/23/00 DOCKET NO. 93-19 037 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Whether new and material evidence has been submitted to reopen the claim for service connection for a left knee disability, and if so, whether that claim is well grounded. REPRESENTATION Appellant represented by: Cindy B. Smith, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael A. Pappas, Counsel INTRODUCTION The veteran served on active duty from December 1942 to October 1945. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from rating actions of the Oakland, California, Regional Office (RO) of the Department of Veterans Affairs (VA) that determined that the requisite new and material evidence had not been submitted to reopen a previously denied claim of entitlement to service connection for a left knee disability. The Board upheld the RO's decision in February 1997. Thereafter, a timely appeal of that Board decision was filed with the United States Court of Appeals for Veterans Claims (the Court). By Order issued in March 1999, citing a decision of the U.S. Court of Appeals for the Federal Circuit in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998), the Court vacated and remanded the Board's decision for further development, and issuance of a readjudicated decision. The Board notes that in his case before the Board, the appellant was represented by the service organization, Disabled American Veterans, but that he was subsequently represented before the Court by Counsel. Representation before the Court and the VA is governed by different statutes and regulations. By Attorney-Client Representation Agreement dated in March 1999, the appellant's Counsel before the Court was given authorization to represent the appellant before VA. Following the return of the appeal to the Board, the appellant's attorney submitted additional evidence and argument in January 2000. FINDINGS OF FACT 1. In March 1984, the RO considered all of the evidence then of record and denied the veteran's claim of entitlement to service connection a left knee disability. The veteran did not file a timely notice of disagreement to that decision. 2. Additional evidence received since March 1984 is neither cumulative nor duplicative, and bears directly and substantially upon the matter of service connection for a left knee disability, and 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. 3. Competent medical evidence has been submitted supporting the veteran's claim that he has a current left knee disability that had its origin in service. CONCLUSION OF LAW The March 1984 decision of the RO which denied service connection for a left knee disability is final; new and material evidence has been submitted with respect to that claim, and the claim is reopened and well grounded. 38 U.S.C.A. §§ 5107(a), 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104, 3.156 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1999). In addition, service connection may be granted for arthritis, if manifested to a compensable degree within one year following separation from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). As indicated, the appellant is seeking service connection for left knee disorder which he contends began in or was the result of service. However, inasmuch as a final decision as to that issue has been rendered, the matter currently before the Board for appellate review is whether new and material evidence has been submitted with which to reopen that claim of entitlement to service connection. In a June 1950 RO decision, service connection was denied for the residuals of acute myositis of the left lower leg, and the veteran did not appeal that decision within a year of his being notified of such decision and of his right to appeal it within one year thereof, later that month. In this case, the RO denied the veteran's request to reopen the claim for service connection for a left knee disability in March 1984, but the veteran did not file a Notice of Disagreement within the requisite time period. Therefore, the determination is a final disallowance of the claim and the veteran's claim cannot be reopened unless new and material evidence is submitted. In its March 1984 decision, the RO stated that evidence previously submitted did not show that a left knee disorder had occurred in or been aggravated by the veteran's military service. Therefore, that decision is final based upon the evidence which was then of record. 38 U.S.C.A. § 7105 (provides for finality of previously unappealed rating decisions 1 year after notice of the decision and rights to appeal have been given). To reopen the claim, the veteran must submit new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Manio v. Derwinski, 1 Vet. App. 140 (1991). Despite the finality of the prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). 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(a). The United States 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, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Stanton v. Brown, 5 Vet. App. 563, 566 (1993). The Court has reviewed and upheld the standards regarding the issue of finality. Reyes v. Brown, 7 Vet. App. 113 (1994). The Board notes previous governing case law required, in order to reopen a finally denied claim, that there be a reasonable possibility that new evidence, when viewed in the context of all the evidence, both old and new, would change the prior outcome. Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991). However, a subsequent decision by the U.S. Court of Appeals for the Federal Circuit invalidated this standard on the grounds that it could impose a higher burden on a veteran than imposed by 38 C.F.R. § 3.156. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Subsequently, the Court has held that with regard to petitions to reopen previously and finally disallowed claims, VA must conduct a three-part analysis, first, whether evidence submitted is "new and material" under 38 C.F.R. § 3.156(a), second, if it finds the evidence is "new and material" immediately upon reopening it must determine whether the claim is well grounded, based upon all of the evidence, presuming its credibility, and third, if the claim is well grounded to proceed to the merits, but only after ensuring that the duty to assist under 38 U.S.C.A. § 5107(b) had been fulfilled. Elkins v. West, 12 Vet. App. 209 (1999) (en banc); see also Winters v. West, 12 Vet. App. 203 (1999) (en banc). With respect to the issue of reopened claims, the Court held, even assuming that newly presented evidence was material, a reopened claim could be denied in the clear absence from the total record of a required element of a well-grounded claim. Winters, No. 97-2180 (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78 F.3d 604 (Fed. Cir. 1996) (table)). The credibility of new evidence is assumed for the limited purpose of determining whether it is material. Justus v. Principi, 3 Vet. App. 510 (1992). The Board must consider whether the additional evidence, 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(a). The evidence submitted since the last final disallowance of the appellant's claim in March 1984 and claimed by the veteran to be new and material consists of records from E. G., M.D., and the Palm Drive Hospital dated from January 1981 through October 1989, February 1994 notes from a VA examiner, a July 1994 VA examination report, a November 1996 statement from C. C., M.D., copies of service medical records, a picture of the crane which the veteran states caused his left knee injury, August 1993 and December 1996 hearing testimony, a copy of a March 1950 affidavit from a service colleague, a copy of a page from the veteran's March 1950 claim, a copy of a March 1983 affidavit executed by the veteran, and excerpts from the Principles and Practices of Medicine and Textbook of Rheumatology. In addition, evidence was submitted since the Board's 1997 decision that was the subject of the veteran's appeal to the Court. This includes a March 1997 statement from C. C, M.D., F.A.C.S., a January 2000 letter from R.E.S., and a January 2000, letter to the veteran from H. S., M.D., F.A.C.S. In his March 1997 statement, Dr. C. expresses his belief that "[the veteran] has a severe arthritic condition in his left knee that has resulted from . . . a service-connected injury." In explanation, Dr. C. first referred to an injury allegedly sustained by the veteran to his left lower extremity during combat in World War II, and then expressed his belief that these injuries "undoubtedly contributed to the arthritic condition that has developed and causally is related to his requiring eventual total knee arthroplasty." In her January 4, 2000 letter, R.D.S. recalled that between 1945 and the 1970's, the veteran struggled with left knee pain, at times needing to use crutches a cane, and shoe cushion pads. She stated "Dr. R.G. H., Sr. (now deceased) used cortisone shots to the knee many times to alleviate pain." In his January 2000 letter to the veteran, Dr. S. referred to a prior review of the veteran's military records, a discussion with the veteran, and a January 4, 2000 letter from R.D.S. Dr. S. expressed his understanding that the veteran's left knee remained symptomatic from the time of the original injury through the 1950's and 1960's, and concluded that the informal meetings with Dr. H. "would explain the gap in documentation regarding [the veteran's] left knee symptomatology and treatment from the time of [his] 1945 injury until the records again pick up in the late 1970's or early 1980's and would be consistent with a left knee injury that slowly progressed to severe enough degenerative changes to require joint replacement surgery." Dr. S. concluded that "with this new information, it appears as if this would logically link [the veteran's] military injury to ongoing left knee symptomatology and treatment." The newly submitted statements from Dr. C. and Dr. S. described above were generated by physicians who are deemed to possess the requisite medical knowledge to render a medical diagnosis and opinion of causation competent. These newly submitted letters are clearly material because they address whether the veteran has a left knee disability that is related to his period of service. It is evidence "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(a). It is thus new and material, and the claim may be reopened on the basis of the newly submitted private medical statements described herein. Having found this evidence to be "new and material" under 38 C.F.R. § 3.156(a), second, and having reopened the veteran's claim, it must now be determined whether the claim is well grounded, based upon all of the evidence, presuming its credibility. Elkins v. West, 12 Vet. App. 209 (1999) (en banc); see also Winters v. West, 12 Vet. App. 203 (1999) (en banc). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has set forth the parameters of what constitutes a well-grounded claim, i.e., a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of section 5107(a). See Epps v. Gober, No. 97-7014 (Fed. Cir. Oct. 7, 1997). More specifically, the Federal Circuit has held that in order for a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service disease or injury and the current disability. Id. Although the claim need not be conclusive, it must be accompanied by evidence. The VA benefits system requires more than just an allegation; a claimant must submit supporting evidence. Furthermore, the evidence must "justify a belief by a fair and impartial individual" that the claim is plausible. 38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Where the determinant issue involves a question of medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible or possible is required to establish a well-grounded claim. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Lay assertions of medical causation or diagnosis cannot constitute competent evidence to render a claim well grounded under 38 U.S.C.A. § 5107(a) (West 1991). In this case, the newly submitted medical evidence, in conjunction with the evidence previously of record, does satisfy the criteria for finding that the veteran has submitted a well grounded claim of entitlement to service connection for a left knee disability. The newly submitted medical evidence outlined above clearly represents the competent medical diagnosis of a current left knee disability, variously characterized in the past, but more recently described in the subject medical statements as a severe arthritic condition of the left knee. Moreover, the same competent medical evidence relates those disorders to service. In terms of whether there is also medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury, the Board recognizes that the evidence need not be conclusive but only possible to satisfy the initial burden of section 5107(a). See Epps v. Gober, 126 F. 3rd 1464 (Fed. Cir. 1998). To that end, the Board finds that the veteran's descriptions of those injuries, assuming their credibility [Justus v. Principi, 3 Vet. App. 510 (1992)], are sufficient to satisfy this element. Having found the claim of entitlement to service connection for a left knee disability, well grounded, the Board may proceed to the merits, but only after ensuring that the duty to assist under 38 U.S.C.A. § 5107(b) had been fulfilled. Elkins v. West, 12 Vet. App. 209 (1999) (en banc); see also Winters v. West, 12 Vet. App. 203 (1999) (en banc). To that end, the Board also finds that additional development is warranted prior to the final adjudication of this claim, and will thus remand the issue for such development. ORDER New and material evidence having been received to reopen the claim for service connection for a left knee disability, the claim is reopened and found to be well grounded. REMAND Having found the veteran's claim of entitlement to service connection for a left knee disability to be reopened and well grounded, the Board is restrained from the adjudication of this claim prior to the RO's initial consideration of the issue. Further, the Board believes that the duty to assist under 38 U.S.C.A. § 5107(b) requires that additional development is warranted prior to the final adjudication of this claim. Specifically, the Board would note that the veteran has not been afforded an examination by a VA physician who has had the benefit of a review of the medical evidence contained in the veteran's claims folder, for the purpose of obtaining an opinion on the subject of etiology. The Board believes that such an examination is necessary so that the Board may make a decision that is a fully informed one. Under the circumstances of this case, the Board is of the opinion that additional development and adjudication is required. The case is REMANDED to the RO for the following: 1. The veteran should be asked through his attorney to submit any additional evidence that he may be pertinent to the issue currently on appeal. 2. The RO should schedule the veteran for an examination by a Board certified orthopedist or orthopedic surgeon, to determine the nature and extent of any left knee disability. All indicated tests and studies should be performed. The veteran's claims file should be made available to the examiner prior to the examination, and the examiner should note its review on the report of examination. The examiner is requested to review the claims folder and provide an opinion, with complete rationale and without resort to speculation, as to whether the veteran has a current active left knee disability, and, if so, whether it is unlikely, at least as likely as not, or likely, that the veteran's left knee disability, if found, is related to his period of service. The examiner should reconcile the opinion with the reports by C.C. and H.S., M.D.. 3. When this development has been completed, the RO should review the claim to ensure that the requested development has been completed to the fullest extent possible. The RO should then adjudicate the veteran's claim of entitlement to service connection for a left knee disability on a de novo basis. If any benefit sought is not granted, the veteran and his attorney should be furnished a copy of a supplemental statement of the case, and be given an opportunity of responding thereto. The case should then be returned to the Board for further appellate consideration. No action by the veteran is required until he receives further notice. The purpose of this remand is to ensure due process, and assist the veteran in the development of his claim. The Board intimates no opinion, legal or factual, as to the disposition warranted in the case pending completion of the requested development. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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 Appeals for Veterans Claims 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. 1999) (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. Thomas J. Dannaher Member, Board of Veterans' Appeals