BVA9501966 DOCKET NO. 93-09 033 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for hearing loss disability. 2. Entitlement to service connection for tinnitus. 3. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for residuals of injury to the left knee. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. A. Dowdell, Associate Counsel INTRODUCTION The veteran served on active duty from May 1971 to June 1974. Service connection for residuals of injury to the left knee was denied by a rating action dated in March 1975. The veteran was advised of this determination by a letter dated in April 1975. No appeal was taken from this determination. This matter came before the Board of Veterans' Appeals (hereinafter the Board) on appeal from a February 1991 rating decision from the Huntington, West Virginia, Regional Office (RO), which held that new and material evidence had not been received to reopen the veteran's claim for service connection for residuals of injury to the left knee. This appeal also arises from a December 1991 rating action, which, in part, denied service connection for bilateral hearing loss disability and tinnitus. It should be noted that this case was originally developed on the additional issue of entitlement to a permanent and total disability rating for pension purposes. However, at the personal hearing held before a hearing officer at the RO in May 1992, the veteran testified that he wished to withdraw this issue from appellate consideration. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the RO committed error when it determined that new and material evidence had not been submitted to reopen his claim for service connection for residuals of injury to the left knee. The veteran alleges that he suffers from residuals of injury to the left knee as a result of his active military service. 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 veteran'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 new and material evidence has been received with regard to the claim for service connection for residuals of injury to the left knee, and that this claim has been reopened. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. Service connection for residuals of injury to the left knee was denied by a rating action dated in March 1975. This decision was not appealed. 3. The evidence received subsequent to the March 1975 rating action, if accepted as true, tends to establish that there is current disability that may be due to old injury. CONCLUSION OF LAW The unappealed March 1975 rating action which denied service connection for residuals of injury to the left knee is final, and new and material evidence has been received to reopen the claim for service connection for residuals of injury to the left knee. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.156, 20.200 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that the veteran's claim is "well-grounded" within the meaning of 38 U.S.C.A. § 5107. That is, the Board finds that he has presented a claim which is plausible. We are also satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. The veteran's current appeal involves a request to reopen a claim for service connection for residuals of injury to the left knee. Service connection for residuals of injury to the left knee was denied by a rating action dated in March 1975. The veteran did not appeal that determination. At the time of the March 1975 RO denial, the evidence included the service medical records and the report of Department of Veterans Affairs (VA) conducted in February 1975. A treatment record dated in November 1971 demonstrated that the veteran was seen for complaints of bilateral knee stiffness for approximately 3 weeks. The veteran reported to the examiner that he had a previous injury in high school, but that he received no specific treatment. On physical examination, the veteran had full range of motion of both knees. There was no localized tenderness, effusion or laxity. The McMurray's test was negative. The examiner's diagnostic impression was knee pain, etiology undetermined. In May 1974, the veteran was seen for complaint of stiff knees. He indicated no specific pain or discomfort except "crackling" sound around both knees. The veteran reported that he had sustained trauma to both knees during auto accidents. On physical examination, there was no effusion or edema. There was some crepitus bilaterally. The McMurray's test and Drawer's sign were negative. Anteroposterior patella press was without discomfort. The veteran had good range of motion. Lateral collateral ligaments and cruciate ligaments were intact. A diagnostic impression was deferred pending further evaluation. The report of the veteran's separation medical examination conducted in May 1974 shows that his lower extremities were clinically evaluated as normal. The report does not indicate any inservice history of "trick" or locked knee problems or that he had complaints pertaining to such problems. The veteran reported to an examiner that he had injured the knees in two car wrecks prior to service. The veteran stated that the car wrecks occurred in May 1970 and December 1970. He indicated that he was given first aid treatment and released. He stated that he was not hospitalized and did not have any definite therapy for his knees. On examination, there were no functional defects or dysfunction of his lower extremities. Both knees were stable in all planes without pain or complaints to vigorous manual examination. The veteran was able to do vigorous hops up and down on both knees with no complaint or difficulty. There was no impairment of any joint or lower extremity. There was no atrophy or decreased muscle strength. X-rays of both knees showed no bony or joint pathology. The examiner's diagnostic impression was knee condition, bilateral, not found. The March 1975 RO denial of service connection for the residuals of injury to the left knee was based on findings that residuals of injury to the left knee had not been demonstrated in service and was not "aggravated" by active service. The March 1985 RO denial was supported by the evidence then of record. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§ 3.105, 3.303, 3.306 (1993). Since the March 1975 denial by the Huntington, West Virginia, RO was not appealed to the Board, it is a final decision that is binding upon the Board. The laws and regulations that pertain to unappealed rating decisions are for application. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a), 20.200, 20.302 (1993). Claims that have been the subject of prior unappealed rating actions may be reopened, and the entire evidentiary record thereafter considered, only upon the submission of additional evidence which, under applicable laws and regulations, is both new and material. "New" evidence means more than evidence that has not been previously included in the claims folder, and must be more than merely cumulative, in that it presents new information. Colvin v. Derwinski, 1 Vet.App. 171 (1991). In addition, the evidence, even if new, must be material, in that it is relevant and probative. To reopen the claim, there must be a reasonable possibility that the outcome would differ when the new evidence is considered in light of all the evidence. Since the RO determination in March 1975, the veteran has petitioned to reopen his claim. Additional evidence that has been received includes the reports of VA examinations conducted in September 1991 and October 1991, VA outpatient treatment records dated from February 1990 to May 1992, and testimony provided by the veteran at a personal hearing held before a RO hearing officer in May 1992. A VA outpatient treatment record dated in September 1990 disclosed that the veteran was seen for complaints of left knee pain for 14 years and indicated that it was operated on at the VA Medical Center. On physical examination of the left knee, there was no acute swelling. The diagnosis was status post left meniscectomy. In addition, a December 1990 VA outpatient treatment record reflected that the veteran had a left medial and lateral meniscectomy in 1976. The examiner's diagnostic impression was degenerative joint disease of the left knee with possible synovitis. Further, the report of VA examination performed in September 1991 included diagnostic impressions of status post lateral meniscectomy of the left knee with degenerative joint disease and osteolytic lesion of the head and neck of the left fibula, nature of lesion undetermined. X-rays performed in conjunction with the September 1991 VA examination revealed findings consistent with degenerative joint disease of the left knee, possible slight deformity of the intercondyloid eminence of the tibia raising the possibility of old trauma which should be clinically correlated, and osteolytic lesion of the head and neck of the left fibula, nature of lesion undetermined. Sworn testimony provided by the veteran at the RO hearing in May 1992 was essentially an elaboration of previously mentioned contentions. In Justus v. Principi, 3 Vet.App. 510 (1992), the Court held that a physician's statement was clearly new and material because it contained information, not previously of record, which was relevant and probative of the issue at hand. The Court held that, if believed, the letter would present a reasonable possibility of changing the outcome of the claim. In determining [whether evidence is new and material to reopen a claim], the credibility of the evidence is to be presumed. This presumption is made only for the purpose of determining whether the case should be reopened. Once the evidence is found to be new and material and the case is reopened, the presumption that it is credible and entitled to full weight no longer applies. In the adjudication that follows the reopening, the Board . . . then must determine, as a question of fact, both the weight and credibility of the new evidence in the context of all the evidence, new and old. Justus v. Principi, 3 Vet.App. 510, 513 (1992). The Board is of the opinion that the additional evidence in the instant case is both new and material and serves to reopen the veteran's claims for service connection for residuals of injury of to the left knee. The prior final March 1975 RO denial of service connection for residuals of injury to the left knee was based on a finding that there had been no demonstration of residuals of injury to the left knee. The additional evidence received includes VA clinical records which initially provides a diagnosis of status post lateral meniscectomy of the left knee with degenerative joint disease and osteolytic lesion of the head and neck of the left fibula, nature undetermined. Equally important is the impression that current findings may be consistent with injury. When viewed in the context of the prior decision, evidence of current disability which may be due to injury, must be considered new and material. With this decision, the Board is not finding that residuals of injury to the left knee was incurred in or aggravated by active service. Rather, it has been determined that the evidence submitted since March 1975 is new and material with regard to his request to reopen the claim, and raises a reasonable possibility that his claim could be granted, based upon a review of the complete evidentiary record pursuant to Colvin and Justus. The Board accordingly finds that new and material evidence has been received with regard to the veteran's claim for service connection for residuals of injury to the left knee, and that his claim is reopened. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.156, 20.200 (1993). ORDER New and material evidence has been received with regard to the question of service connection for residuals of injury to the left knee. The veteran's claim for service connection for this disability has been reopened. REMAND As indicated above, the Board has determined that new and material evidence has been received with regard to the veteran's claims for service connection for residuals of injury to the left knee, and that the claim has accordingly been reopened. It is now incumbent upon the RO to review the entire evidentiary record as it pertains to that issue, in accordance with the regulatory and statutory procedures that govern adjudication of a reopened claim, prior to any further Board consideration of the issue. See Bernard v. Brown, 4 Vet.App. 384 (1993). This case is therefore being returned to the RO for such action. The Board believes that additional development of the record is requisite prior to further review of this case. We note that the United States Court of Veterans Appeals (Court) has held that the duty of the VA to assist veterans in the development of facts pertinent to their claims, under 38 U.S.C.A. § 5107(a) (West 1991) and 38 C.F.R. § 3.103(a) (1993), as set forth by the Court in Littke v. Derwinski, 1 Vet.App. 90 (1990), requires that the VA accomplish additional development of the record, to include obtaining the report of an adequate VA examination, if it finds that the record currently before it is inadequate. Pursuant to the Board's determination that the veteran's claim for service connection for residuals of injury to the left knee has been reopened, this case is REMANDED for the following: 1. The regional office should take appropriate steps to contact the veteran in order to obtain information about all hospitalization and treatment he has received for any residuals of injury to the left knee. The regional office should then attempt to obtain copies of all records, not already included in the claims folder, referable to any identified treatment and associate these records with the veteran's claims file. Any authorization necessary for the release of additional documents shall be obtained from the veteran. 2. Thereafter, the regional office should request that the veteran be examined by an orthopedist to determine the nature and etiology of any residuals of injury to the left knee that may be manifested. All indicated tests and studies should be conducted. The examiner is to set forth all findings with the reasons and bases therefore, in a clear, comprehensive and legible manner on the examination report. The claims folder must be made available to the examiner prior to the examination in order to facilitate study of this case. The examiner should review the file and render an opinion as to whether the current findings are consistent with the inservice complaints. 3. Following completion of the above, the RO should again review the veteran's claim, and determine whether service connection for residuals of injury to the left knee can now be granted. In reviewing the veteran's claim for service connection, the RO should ensure that the complete evidentiary record is considered, in accordance with Colvin. 4. If the decision remains adverse to the veteran, he and his representative should be provided with a supplemental statement of the case, and afforded a reasonable opportunity to respond. The case should thereafter be returned to the Board for further review, as appropriate. 5. The veteran is to be informed that if he has evidence attributing hearing loss or tinnitus to service, such evidence should be submitted. The veteran need take no action until he is so informed. The purposes of this REMAND are to obtain additional medical evidence and to ensure compliance with due process considerations. 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. 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) (1993).