BVA9504610 DOCKET NO. 93-15 370 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for arthritis of the left knee. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD S. P. Candelmo, Associate Counsel INTRODUCTION The veteran had active military service from June 1951 to June 1954. This matter came before the Board of Veterans' Appeals (hereinafter "the Board") on appeal from a December 1991 rating decision of the Philadelphia, Pennsylvania Regional Office and Insurance Center (hereinafter "the RO") which determined that new and material evidence had not been submitted to reopen the veteran's claim for service connection for arthritis of the left knee. The veteran has been represented throughout this appeal by the Disabled American Veterans. CONTENTIONS OF APPELLANT ON APPEAL The veteran asserts on appeal that the RO erred in failing to reopen and grant his claim for service connection for arthritis of the left knee as new and material evidence has been submitted which establishes that his current left knee disability is attributable to an automobile accident during active military service. He contends that his doctor has diagnosed him with trauma induced arthritis of the left knee probably secondary to the automobile accident. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material of record in the veteran's claims file, it is the Board's decision that he has submitted new and material evidence sufficient to reopen his claim for service connection for arthritis of the left knee. For the reasons and bases discussed below, the veteran's claim is remanded to the RO for further action. FINDINGS OF FACT 1. In May 1965, the RO denied service connection for a disorder characterized as hypertrophic osteoarthritis of the left knee. The RO notified the veteran in writing of the adverse decision and his appellate rights in May 1965. The veteran did not perfect a substantive appeal within one year of notice of the adverse decision. 2. The additional documentation submitted since the RO's May 1965 rating decision includes evidence not previously considered which when viewed in the context of record as a whole, could lead to a decision favorable to the veteran. CONCLUSION OF LAW The additional documentation received since the May 1965 RO decision constitutes new and material evidence sufficient to reopen the veteran's claim for service connection for arthritis of the left knee. 38 U.S.C.A. §§ 5107(a), 5108, 7105(c) (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, it is necessary to determine if the veteran has submitted a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), and if so, whether the Department of Veterans Affairs (hereinafter the "VA") has properly assisted him in the development of his claim. A "well-grounded" claim is one which is plausible. In review of the record, the Board observes that the veteran's claim is plausible and that all relevant facts have been properly developed as to the issue of whether new and material evidence has been submitted to reopen the veteran's claim for service connection for arthritis of the left knee. I. Prior RO Decision In May 1965, the RO denied service connection for hypertrophic osteoarthritis in the veteran's left knee. The RO notified the veteran in writing of its denial and his appellate rights in May 1965. The veteran did not perfect a substantive appeal within one year of notice of the adverse decision. The evidence upon which the RO formulated its May 1965 denial may be briefly summarized. The veteran's service medical records show that he lacerated his left leg when he slipped and fell off a truck in April 1952. In addition, the veteran's service medical records indicate that he sustained a left knee laceration in an auto accident in February 1954. The report of the June 1954 physical examination for service separation notes a scar on the veteran's left patella. A March 1965 X-ray report from Dr. Joseph Israel relates that the veteran exhibited moderate hypertrophic osteoarthritic changes of the left knee. II. New and Material Except as provided in 38 U.S.C.A. § 5108 (West 1991), if a notice of disagreement is not filed within one year from the date of mailing of notice of the RO's denial, the action or determination shall become final and the claim will not thereafter be reopened or allowed. 38 U.S.C.A. § 7105(c) (West 1991). Pursuant to 38 U.S.C.A. § 5108 (West 1991), the VA must reopen a previously and finally disallowed claim when "new and material evidence" is presented or secured with respect to that claim. Once a claim is reopened, the VA must then review the new evidence in the context of the old evidence to determine whether the claim should be granted. The VA is required to review all of the evidence submitted by the veteran since the last final denial of the merits of a claim. Glynn v. Brown, 6 Vet.App. 523, 528, 529 (1994). Therefore, the issue presently before the Board is whether new and material evidence has been submitted since the RO's May 1965 decision denying service connection for arthritis of the left knee. The United States Court of Veterans Appeals (hereinafter "the Court") has clarified on what constitutes "new and material evidence." New evidence is evidence which is not "merely cumulative" of other evidence in the record. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). Evidence is "material" when it is relevant to and probative of the issue at hand and there is a "reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome." Id. The evidence received since the May 1965 rating decision consists of VA treatment records; statements by the veteran in support of his claim; the transcript from the March 1993 hearing; and an October 1991 letter from Robert Greenhalgh, M.D. Dr. Greenhalgh conveys that the veteran suffers from trauma induced degenerative joint disease in the left knee. He supports this finding by stating that he found no similar arthritic condition in the veteran's right knee. Dr. Greenhalgh relates that the veteran's current arthritic condition was probably caused by the same trauma which caused the scar on the left patella. Dr. Greenhalgh's letter is new and material as to the issue of service connection for arthritis of the left knee and is therefore sufficient to reopen the veteran's claim. ORDER The veteran's application to reopen his claim of entitlement to service connection for arthritis in the left knee is granted. REMAND In light of reopening the veteran's claim, the Board observes that the veteran's entitlement to service connection for arthritis of the left knee is to be determined following a de novo review of the entire record. In reviewing the record, the Board observes that the clinical record is conflicting as to the etiology of the veteran's osteoarthritis of the left knee. A September 1991 VA medical report relates that the veteran suffers from degenerative joint disease in both knees. As noted above, Dr. Greenhalgh states that the veteran had no arthritis in his right knee. Given these facts, an orthopedic examination would be helpful in determining the etiology of all left knee disorders. In light of the VA's duty to assist the veteran in the proper development of his claim as mandated by the provisions of 38 U.S.C.A. § 5107(b) (West 1991) and as interpreted by the Court in Bernard and Littke v. Derwinski, 1 Vet.App. 90, 92-93 (1990), this case is REMANDED for the following action: 1. The RO should contact the accredited representative and inform the veteran that he may submit additional evidence and argument in support of his claim for service connection for arthritis of the left knee and may request an additional personal hearing. The veteran should be allowed an adequate period of time to respond to the RO's notice. 2. The RO should then schedule the veteran for a VA orthopedic examination in order to determine the present nature of his left knee disorder. The examination should be conducted in accordance with the Physician's Guide to Disability Evaluation Examinations. All indicated tests and studies should be accomplished and the findings then reported in detail. The examiner should express an opinion as to the etiology of all identified left knee disorders, and the likelihood that any arthritis of the knee is related to the in service knee injury. The claims folder should be made available to the examiner prior to the examination. 3. The RO should then adjudicate the veteran's claim for service connection for arthritis of the left knee on a de novo basis. When the requested action has been completed, and if his claim continues to be denied, the RO should afford the veteran a reasonable period of time in which to respond to a supplemental statement of the case. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration if appropriate. The veteran need not take any action unless he is further informed. The purpose of this REMAND is to allow for further development of the record and due process of law. No inference should be drawn from it regarding the final disposition of the veteran's claim. _________________________________ E. W. SEERY 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 Court. 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).