BVA9503185 DOCKET NO. 93-08 808 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Whether new and material evidence has been submitted to establish service connection for a left knee disorder. REPRESENTATION Appellant represented by: Washington Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sandra L. Smith, Associate Counsel INTRODUCTION The veteran served on active duty from January 1967 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from action of the Department of Veterans Affairs (VA) Seattle, Washington, Regional Office (RO) which denied the veteran's attempt to reopen a claim for service connection for a left knee disorder. The case is now before the Board for appellate review. The Board notes that the veteran in his Notice of Disagreement, dated in March 1992, raised the additional issue of service connection for a left knee disorder secondary to the service- connected right knee disorder. As this additional issue has not been adjudicated and developed, and as it is not intertwined with the issues developed, it is referred to the RO for appropriate action. See Kellar v. Brown, 6 Vet.App. 157 (1994). CONTENTIONS OF APPELANT ON APPEAL It is contended by and on behalf of the veteran that he developed the claimed condition in service or because of service, and not prior to service, and that he has presented new and material evidence to support the claim. 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 to reopen the claim for service connection for a left knee disorder has not been presented and the claim is not reopened. FINDINGS OF FACT 1. All relevant available evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. In April 1985 the Board denied service connection for a left knee disorder. 3. Additional evidence submitted by the veteran consisting of statements from private physicians and VA examination reports is new but is not material because it is not probative as to service incurrence of a chronic left knee disorder. 4. The evidence contained in the transcript from the October 1992 hearing is either not new because it is cumulative of statements previously made by the veteran and considered in April 1985 or not material because it is not probative as to service incurrence of a chronic left knee disorder. 5. Additional evidence submitted by the veteran consisting of lay statements from friends and family is new but is not material because there is not a reasonable possibility that the evidence, when considered with all of the evidence, both new and old, would change the outcome of the previous decision. CONCLUSION OF LAW Evidence received since the Board denied service connection for a left knee disorder in April 1985 is not new and material, and the claim is not reopened. 38 U.S.C.A. §§ 1110, 5107, 5108, 7104 (West 1991); 38 C.F.R. § 3.156 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board concedes that the veteran has presented a claim which is "well-grounded" or plausible within the meaning of 38 U.S.C.A. § 5107(a). The Board is also satisfied that the duty to assist mandated by 38 U.S.C.A. § 5107(a) has been fulfilled. The April 1985 Board decision is the last Board decision on the merits of the case and under Glynn v. Brown, 6 Vet.App. 523 (1994), evidence received since that decision will be considered as to newness and materiality. The evidence which was of record in this case when the Board considered it in April 1985 may be briefly summarized. The service entrance examination was negative for any left knee disorder or disability; however, service medical records contain contemporaneous statements of the veteran as to problems with his knees prior to service. In addition, the service medical records show that the veteran began complaining of knee pain within one month of service entry. There are a few complaints of left knee pain but the vast majority of the complaints of knee pain are related to the right knee, especially in the latter half of the veteran's period in service. At separation, the service medical examination report noted a right knee disorder but there was no reference to any left knee disorder or disability. VA examination reports, dated in May 1969, January 1970, and April 1983 disclosed no left knee diagnosis. The VA examination report, dated in October 1983 showed a diagnosis of left knee chondromalacia with chronic pain. For service connection to be granted, it is required that the facts, as shown by the evidence, establish that a particular injury or disease resulting in chronic disability was incurred in service, or, if pre-existing service, was aggravated therein. 38 U.S.C.A. §§ 1110 (West 1991); 38 C.F.R. § 3.303 (1994). Except as provided in 38 U.S.C.A. § 5108, when a claim is disallowed by the Board, the claim may not thereafter be reopened and allowed and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7104. If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. The United States Court of Veterans Appeals has held that the Board must perform a two-step analysis when a veteran seeks to reopen a claim based on new evidence. First, the Board must determine whether the additional evidence is "new" and "material." Second, if the Board determines that new and material evidence has been added to the record, the claim is reopened and the Board must evaluate the merits of the veteran's claim in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet.App. 140 (1991). "New" evidence means more than evidence which was not previously of record. To be "new", the additional evidence must be more than merely cumulative. Colvin v. Derwinski, 1 Vet.App. 171 (1991). To be "material", the additional evidence must be probative of the issue at hand. Also, to be "material", there must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both old and new, would change the outcome of the previous decision. Smith v. Derwinski, 1 Vet.App. 178 (1991). Using these guidelines, the Board has reviewed the evidence associated with the claims folder since the August 1986 decision. A VA examination report, dated in May 1986; a VA hospital summary report, dated in October 1986; and a VA examination report, dated in March 1991, are "new" evidence in that they were not in the record at the time of the April 1985 Board decision. However, these medical records are not "material" in that they contain redundant history as given by the veteran but no clinical evidence or medical opinion as to inservice incurrence or aggravation. Numerous written statements from the veteran are of record stating that his left knee disorder did not pre-exist service, was incurred in service, and that the service medical notes as to a pre-existing condition were incorrect. The Board finds that these statements are cumulative of evidence considered by the Board in April 1985; therefore, they are not new and material. The Board finds that the private medical report, dated in March 1986, the private medical report, dated in August 1989, the private medical record dated in February 1990, and the letter from a physician, dated in September 1989, relate only to the veteran's current symptomatology and treatment. They contain no additional relevant evidence as to the issue of inservice incurrence or aggravation. Therefore, although the evidence is "new" it is not "material" as to the issue of service connection for a left knee disorder. In addition, the letter from the veteran's rehabilitative physician, dated in September 1992, is not new and material evidence. The letter contains no evidence of left knee pathology; thus, it is not "material" to the issue before the Board. The veteran also submitted a copy of a medical record which contained two lab reports, dated in 1964 and 1969, which showed blood lab work. In addition there was a medical note, presumably dated in October 1969, which indicates that the veteran was seen for complaint of bilateral intermittent knee pain. The examiner noted that the veteran seemed to carry his right lower extremity in some degree of flexion. X-rays were normal. The doctor noted that the veteran had been seen in the past with different things in 1960 and then in 1964 and that a lot of therapy was given to him in 1964. The Board finds that this medical record is "new" in that it was not considered in the prior Board decision. However, it is not "material' in that it contains no clinical evidence or medical opinion as to left knee pathology or as to inservice incurrence or aggravation of a left knee disorder. The veteran testified at personal hearings in March 1986 and October 1992. He stated that the left knee disorder did not exist prior to his military service. He recalled no specific trauma to the left knee other than the activities of military service. He claimed that the numerous entries in his service medical records for treatment of complaints for his right knee were actually for treatment of a bilateral knee condition. He claimed that the entries in his service medical records as to a pre-existing disorder were incorrect. He described the history of his disability as well as his current symptoms. The Board finds that the veteran's testimony is not new and material. The testimony as to the medical treatment during service and his memory of events prior to and during service is cumulative in that the Board considered similar evidence in the decision of April 1985. The additional testimony as to current symptomatology is "new"; however, it provides no additional relevant evidence as to the issue of inservice incurrence or aggravation. Therefore, we conclude that the veteran's testimony is not new and material. Following his October 1992 hearing the veteran submitted a copy of a medical report, dated in September 1967, which showed a diagnosis of osteochondromalacia of the right patella. It contained no reference to any left knee disorder or disability; therefore, the Board concludes that it is merely "new", not "new and material." The veteran also submitted copies of statements from members of his family which indicated that no one else in the family had problems with knee disorders. In addition, beginning in 1985, the veteran submitted statements from family members, college instructors, a former employer and friends all to the effect that he had no problems with his legs prior to his period of active service. The Board finds these statements are new in that they were not considered by the Board in its April 1985 decision. However, the Board further finds that they are not material. This evidence does goes toward the issue of whether the veteran’s left knee disorder preexisted his active service. Nonetheless, the Board has determined that when this evidence is viewed in the context of all the evidence of record, especially the contemporaneous service records and statements of the veteran, there is not a reasonable possibility of a changed outcome in the previous Board decision. These statements were made many years after service and are directly contradicted by the inservice statements, contemporaneous to the time in question and made on more than one occasion, of preservice knee symptoms. The Board further notes, as the prior Board decision found, that whether or not the veteran had a pre-existing left knee condition, the service medical records show neither aggravation or evidence of a chronic left knee disorder during service. Thus, this evidence is not "new and material." The Board further finds that a statement from a service buddy of the veteran's, received in April 1993, is not new and material. The individual knew the veteran from either May or June 1967 until 1968 when he was transferred. The individual remembered that the veteran did complain of pain in both legs during that time period. It appeared to him that the veteran's condition was getting worse and interfered with the performance of the veteran's duties. This statement was not considered previously by the Board; however, the service medical records contain subjective complaints of pain in both legs during that time period and since this information was already known , the statement is cumulative. Thus, the Board finds that this statement is not "new and material" as to the issue of service connection for a chronic left knee disorder. Consequently, the evidence presented since the April 1985 decision is not new and material and the veteran's claim must be denied. ORDER New and material evidence not having been submitted to reopen a claim of entitlement to service connection for a left knee disorder, the benefit sought on appeal is denied. HOLLY E. MOEHLMANN 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.