Citation Nr: 0000387 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 98-12 053 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an increased rating for residuals of a left knee injury, currently rated as 10 percent disabling. 2. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for amputation of the right great toe secondary to a service- connected left knee disability. 3. Entitlement to service connection for residuals of a left wrist injury. REPRESENTATION Appellant represented by: Military Order of the Purple Heart WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD William L. Pine INTRODUCTION The appellant had active duty from March 28, 1976, to July 16, 1976, and active duty for training (ACDUTRA) May 20, 1977, to June 4, 1977; June 16, 1978, to July 1, 1978; and July 13, 1979, to July 29, 1979. This appeal is from October 1997 and June 1998 rating decisions of the Department of Veterans Affairs (VA) Chicago, Illinois, regional office (RO). The former denied an increased rating for the left knee disability. The latter denied reopening of the claim for service connection for the right great toe and service connection for residuals of a left wrist injury. In a statement of August 1997, the appellant indicated that his left knee disability interferes with his ability to hold a job. To the extent this could raise a claim of entitlement to a total disability rating based on individual unemployability, it is unadjudicated and is referred to the RO for appropriate action. In a statement of December 1998, the appellant raised a claim of entitlement to service connection for a low back condition as secondary to his service-connected left knee disorder. The matter is referred to the RO for appropriate action. The Board defers review of the merits of the increased rating claim at this time for reasons explained in the remand appended to this decision. FINDINGS OF FACT 1. VA denied a claim for service connection for amputation of the right great toe as secondary to a service-connected left knee disability in a rating decision of January 1985; the appellant did not timely appeal that rating decision. 2. The appellant's October 1998 testimony in support of his attempt to reopen the claim for service connection for amputation of the right great toe reiterates testimony of record in January 1985. 3. The appellant has not submitted competent evidence of a nexus between any currently diagnosed left wrist disorder and any injury of the left wrist sustained in service, nor of any continuous left wrist symptomatology since service. CONCLUSIONS OF LAW 1. New and material evidence has not been presented to reopen a claim of entitlement to service connection for amputation of the right great toe as secondary to a service-connected left knee disability, and the rating decision of January 1985, denying such claim remains final. 38 U.S.C.A. §§ 5108, 7105(c) (West 1991); 38 C.F.R. §§ 3.156(a), 3.160(d), 20.302(a) (1999). 2. The claim of entitlement to service connection for residuals of a left wrist injury is not well grounded. 38 U.S.C.A. § 5107(a) West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Background Service medical records are negative for complaint, treatment, or diagnosis of a left wrist injury. In an August 1984 statement, the appellant reported that while mowing the lawn, his left knee gave away and caused him to have his right great toe taken off by a lawn mower. In December 1984 he submitted a May 1984 discharge summary from Humana Hospital showing irrigation and debridement with amputation at the interphalangeal joint of the right great toe. On hospitalization he reported that the injury occurred when his left knee gave out while mowing the lawn and his right foot slipped under the lawn mower. In January 1985, the RO denied a claim of entitlement to service connection for amputation of the right great toe as proximately due to or resulting from the service-connected left knee disability. By letter of January 25, 1985, the RO informed the appellant of the denial and of his right to appeal and time within which to appeal. The appellant did not respond to the RO during the year after the date of the notice letter. In December 1985, he wrote to his United States Congress member, repeating his statement about the lawnmower accident. The member of congress forwarded the letter to the RO. October 1997 VA x-ray studies of the right foot confirmed the absence of the distal phalanx of the right great toe. In a November 1997 statement, the appellant expressed his desire to appeal the denial of service connection for the right great toe. In December 1997, the RO informed the appellant that the January 1985 denial of the claim had become final for lack of a timely appeal. The RO informed the appellant of the necessity to submit new and material evidence to reopen his claim and gave him examples of types of evidence that could be new and material. The appellant restated his claim in January 1998. In response to his report of treatment of the right great toe at the Louisville, Kentucky, VA Medical Center (VAMC), the RO requested records from that facility, receiving a negative response in April 1998. On VA examination in May 1998, the appellant reported that he strained his left wrist in service in 1977 for which he was given an ace bandage and medication, and which had been painful since. The examiner found severe degenerative joint disease with collapse and cystic degeneration of the lunate, diagnosed as Kienbock's disease with severe resultant degenerative joint disease. In October 1998, the appellant testified at a personal hearing before the undersigned. He described an injury of the left wrist while loading a projectile during an artillery exercise in service, for which he said he sought emergency treatment the next day. He described his current left wrist disability. In response to inquiry about the date of his first treatment for the left wrist after service, he variously responded it was about 1970, 1974, 1975, 1979, or 1980. He reported it was at the Louisville VAMC. Regarding his right great toe, he testified that it was amputated in a lawn mower accident that happened because his service- connected left knee gave away, causing him to fall with his right foot under the lawn mower. He requested that the record be held open for 30 days so he could submit a doctor's statement that there was a link between his service-connected left knee and his right great toe amputation. In October 1998 the appellant submitted a statement from a VA orthopedist that made no mention of his right great toe. The RO forwarded the statement to the Board with the appellant's signed waiver of his right to initial review of the evidence by the RO. II. Analysis Before the Board may proceed with appellate review of a claim on appeal, it must be determined that the application to reopen a claim or for benefits initially is complete, and if not, whether VA has discharged any duty it may have to so inform the claimant. 38 U.S.C.A. § 5103(a) (West 1991). The appellant here testified to his intent to obtain a certain medical statement as new and material evidence, thus demonstrating his knowledge of the utility of such a statement, but he did not state such a statement existed. The appellant has not identified any source of evidence not of record that might prove new and material or well ground a claim. His application for benefits is complete, and VA has no duty to inform him of the necessity to submit any evidence to complete it. Robinette v. Brown, 8 Vet. App. 69 (1995); Graves v. Brown, 8 Vet. App. 522, 525 (1996) (applying Robinette in context of application to reopen finally disallowed claim). A. Reopening the Claim for Service Connection for the Right Great Toe Initially, the Board finds that the appellant's December 1985 letter to his congress member was not a notice of disagreement with the January 1985 denial of service connection for amputation of the right great toe. It did not express intent to obtain appellate review, which is a requirement of the notice of disagreement that must be filed to initiate an appeal. 38 U.S.C.A. § 7105(a), (b) (West 1991); 38 C.F.R. § 20.201 (1999). It was forwarded to the RO by the congress member without any indication the appellant knew the congress member had done so or intended him to do so. Thus, its receipt by the RO could not have been an expression of any intent by the appellant to appeal the January 1985 denial. When the RO denied the appellant's claim for secondary service connection for amputation of the right great toe in January1985, and the appellant did not appeal within one year of the date of the letter notifying him of the denial, that decision became final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. § 3.160(d) (1999). To reopen the claim, new and material evidence must be presented or secured. 38 U.S.C.A. § 5108 (West 1991). "The Board does not have jurisdiction to consider [the previously adjudicated claim] unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find." Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). The Board is neither required nor permitted to analyze the merits of a previously disallowed claim if new and material evidence has not been submitted. Butler v. Brown, 9 Vet. App. 167, 171 (1996). No other standard than that articulated in the regulation applies to the determination whether evidence is new and material. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). 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) (1999). The evidence to be reviewed for sufficiency to reopen a claim is the evidence submitted since the most recent final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273(1996). Thus, evidence submitted since January 1985 is of concern for the purpose of reopening this claim. For the purpose of determining whether evidence is new and material, its credibility is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The regulation does not identify the qualities evidence must have to be "so significant that it must be considered in order to fairly decide the merits of the claim." 38 C.F.R. § 3.156(a). At the least, it is reasonable to require evidence submitted since January 1985 to "contribute to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it will not eventually convince the Board to alter its ratings decision." Hodge, 155 F.3d at 1363. The appellant has not satisfied the first element of new and material evidence. The entire evidence upon which he seeks to reopen the claim is his repetition of the account of the lawn mower accident that he put on record for the January 1985 rating decision. His December 1985 letter to his Congressman and his October 1998 testimony are cumulative, and therefore cannot be new. 38 C.F.R. § 3.156(a) (1999). Where evidence presented or secured to reopen a claim is not new, it cannot be material. Hodge, 155 F.3d 1356. The October 1997 VA x-ray report is new, but it is not material, because it is merely evidence of the fact of the amputation, which is not in dispute. It provides no clearer picture of the circumstances surrounding the sustaining of the injury. Where the appellant has not submitted new and material evidence, the claim cannot be reopened. 38 U.S.C.A. §§ 5108, 7105(c) (West 1991). B. Service Connection for Residuals of an Injury of the Left Wrist In seeking VA disability compensation, the appellant seeks to establish that current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 1991). Such a disability is called "service connected." 38 U.S.C.A. § 101(16) (West 1991). Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. 38 C.F.R. § 3.303(a) (1999). "[A] person who submits a claim for benefits under a law administered by the Secretary [of Veterans Affairs] shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a) (West 1991). If the appellant does not meet that burden, the Board will not consider the merits of the underlying claim. Grottveit v. Brown, 5 Vet. App. 91 (1993). "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." Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997) (quoting Epps v. Gober, 9 Vet. App. at 343-44 (citations and quotations omitted)); see Grottveit, 5 Vet. App. 91 (characterizing the type of evidence, lay versus medical, necessary to well ground a claim as dependent on the nature of the matter to be proven); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (lay individuals are competent to testify about matters of common experience, but expert qualification is necessary for VA to take cognizance of testimony that is rendered reliable only by expertise pertinent to object of inquiry). A claim may also be well grounded, after meeting the first requirement, on evidence that a condition was noted in service, evidence of continuity since service of symptomatology of that condition, and medical evidence of a nexus between the current disability and the continuity of symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). Evidence is presumed true for the limited purpose of determining if a claim is well grounded. Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995). The May 1998 VA examination report is competent medical evidence of a current left wrist disability. The appellant has satisfied the first criterion of a well-grounded claim. Epps, 126 F.3d at 1468. The appellant has testified that he had a wrist injury in service. He is competent to report the fact of an injury, Espiritu, 2 Vet. App. 492, but not to proffer his testimony as evidence of a connection between the currently diagnosed Kienbock's disease with degenerative joint disease and the injury in service. Id. To the extent he is competent to report an injury, he has submitted evidence of incurrence of the wrist injury for which he seeks service connection. Epps, 126 F.3d at 1468. Additionally, the appellant's testimony that he sought treatment in service is evidence that the condition was "noted during service." 38 C.F.R. § 3.303(b) (1999). Evidence that a condition was noted during service may be the a claimant's lay testimony; a contemporaneous medical record is not required. Savage, 10 Vet. App. at 496-97. The appellant's report to the May 1998 VA examiner and his hearing testimony are evidence of continuity of symptomatology, the symptomatology being pain and weakness. Id. Thus, through lay testimony presumed truthful, the appellant has satisfied the second element of a well-grounded claim. The appellant has not submitted any competent medical evidence of a nexus between his currently diagnosed Kienbock's disease with degenerative joint disease of the left wrist and either the injury in service to which he testified or with the continuity of symptomatology that he has reported. The May 1998 VA examiner noted the appellant's report of incurrence of an injury in service and his report of symptoms since. Evidence that is simply information recorded by a physician without additional medical comment is not competent medical evidence, see Grottveit, 5 Vet. App. 91), and it does not satisfy the Grottveit requirement that evidence of a nexus between current medical findings and a medical condition existing in service be competent medical evidence. Dolan v. Brown, 9 Vet. App. 358 (1996); Butler v. Brown, 9 Vet. App. 167 (1996). It is not transformed into competent medical evidence because the transcriber of the appellant's history happens to be a physician. LeShore v. Brown, 8 Vet. App. 406 (1995). Absent a well-grounded claim, VA has no duty to assist the appellant to develop facts pertinent to a claim, Morton v. West, No. 96-1517 (U.S. Vet. App. Jul 14, 1999), and the Board does not have jurisdiction to adjudicate the claim on the merits. Boeck v. Brown, 6 Vet. App. 14 (1993). ORDER The appeal to reopen a claim of entitlement to service connection for amputation of the right great toe as secondary to a service-connected left knee disorder is denied. Service connection for residuals of a left wrist injury is denied. REMAND The VA examination reports of the left knee of October 1997 and May 1998 are inadequate for rating purposes because they do not provide information that permits application of the rating criteria pertinent to the appellant's disability. The appellant's left knee is rated for recurrent subluxation or lateral instability. See 38 C.F.R. § 4.71a, Diagnostic Code 5257 (1999). Ratings under diagnostic code 5257 may be 10, 20, or 30 percent for slight, moderate, or severe recurrent subluxation or lateral instability, respectively. Beyond reporting the fact of subluxation, the examiner used no adjective or otherwise indicated the severity of the subluxation. The reports provide no basis to decide rationally whether to rate the subluxation as mild, moderate, or severe. The appellant testified that his knee gives way 10 to 12 times monthly. The examiner, while finding subluxation, did not find lateral instability. The reports do not inform the Board whether subluxation as observed can cause a knee to give way. The record is not clear regarding whether the appellant's reports of knee dysfunction are consistent with the degree of pathology the examiners observed. In May 1998, the examiner diagnosed left patella maltracking and recurrent subluxation with resulting degenerative joint disease. If the appellant has additional disability from his service-connected left knee, the RO should account for it in rating the disability. VA General Counsel has ruled that service-connected recurrent subluxation or lateral instability and degenerative joint disease may be separately rated. See VAOPGCPREC 9-98, VAOPGCPREC 23-97. A rating that fully accounts for the appellant's left knee disability is needed. Additionally, the appellant testified that he participated in a compensated work therapy program at Hines VA hospital, because it made allowance for his left knee. If the appellant participates in such a program, records of his participation could be informative about the functional effect of his left knee disability on his ordinary activity, which is always for consideration in disability ratings. 38 C.F.R. § 4.10 (1999). Accordingly, the case is REMANDED for the following action: 1. Obtain all available records pertaining to the appellant's participation in a compensated work therapy program and Hines VAMC and associate any information obtained with the claims folder. 2. Obtain another VA orthopedic examination to address the following questions: (1) How severe is the subluxation of the appellant's left patella? (2) Can subluxation of the type observed clinically cause or allow the knee to give way? (3) If yes, is it consistent with the severity of the observed subluxation for the knee to give way 10 to 12 times per month? (4) Does the veteran have arthritis of the left knee resulting from his service connected knee injury residuals? (5) If he indeed has such arthritis, what if any limitation of knee motion (including due to pain) is there as a result? 3. Readjudicate the claim for increased rating for residuals of a left knee injury, accounting for any disability due to arthritis resulting from the service- connected subluxation of the left knee and determining whether arthritis should be separately rated. If the claim remains denied, provide the appellant and his representative a supplemental statement of the case and afford them an appropriate amount of time to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The appellant need take no further action until he is further notified. The purpose of this REMAND is to obtain additional information and to afford due process. No inference should be drawn regarding the final disposition of the claim. The appellant has the right to submit additional evidence and argument on the matter or matters that the Board has remanded to the regional office. 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. GEORGE R. SENYK Member, Board of Veterans' Appeals