Citation Nr: 0000156 Decision Date: 01/05/00 Archive Date: 12/28/01 DOCKET NO. 96-30 315 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Whether new and material evidence has been received to reopen the veteran's claim of entitlement to service connection for bilateral knee disability. 2. Whether new and material evidence has been received to reopen the veteran's claim of entitlement to service connection for eye disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Kelli A. Kordich, Associate Counsel INTRODUCTION The veteran had active military service from May 1960 to February 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1995 rating decision by the Phoenix, Arizona, Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in October 1995, a statement of the case was issued in November 1995, and a substantive appeal was received in May of 1996. An RO hearing was conducted in October 1996. The Board also notes that the veteran was scheduled for a Board hearing in Washington, D.C. in September 1999, but he failed to appear. In December 1989, the Board upheld a VA administrative determination that left leg injuries suffered by the veteran in a June 1962 accident were not incurred in line of duty and were the result of the veteran's own willful misconduct. Of record is a June 1993 rating decision which found no new and material evidence to reopen his left leg injury claim. A statement of the case (which does not refer to or list a notice of disagreement under a summary of evidence and adjudicative actions) was issued, and the veteran responded to the statement of the case. However, although statements by both the veteran and the RO refer to the determination regarding willful misconduct in the context of the current bilateral knee and eye disability issues, the record does not show any further action with regard to what may have been the veteran's attempt to reopen or otherwise prevail on the question of whether willful misconduct was involved in the June 1962 accident. The Board is thus unable to find that any willful misconduct issue is properly in appellate status at this time. This matter is hereby referred to the RO for clarification and any necessary action. FINDINGS OF FACT 1. By rating decision in May 1988, entitlement to service connection for eye disability was denied; the veteran was notified of that determination and of his appellate rights, but he did not initiate an appeal. 2. By rating decision in October 1990, entitlement to service connection for arthritis of the knees was denied, and it was also determined that no new and material evidence had been received to reopen the veteran's claim of entitlement to service connection for eye disability; the veteran was notified of that determination and of his appellate rights, but he did not initiate an appeal. 3. Evidence pertinent to the veteran's bilateral knee disability claim which has been received since the October 1990 rating decision is essentially cumulative of evidence already of record and is not, by itself or in connection with evidence previously of record, so significant that it must be considered to fairly decide the merits of the claim. 4. Evidence pertinent to the veteran's eye disability claim which has been received since the October 1990 rating decision is essentially cumulative of evidence already of record and is not, by itself or in connection with evidence previously of record, so significant that it must be considered to fairly decide the merits of the claim. CONCLUSIONS OF LAW 1. The October 1990 rating decision which denied entitlement to service connection for arthritis of the knees and for an eye disability is the most recent final determination as to both issues. 38 U.S.C.A. § 7105(c) (West 1991). 2. Evidence pertinent to the veteran's bilateral knee disability claim which has been received since the October 1990 rating decision is not new and material, and the veteran's claim of entitlement to service connection for bilateral knee disability has not been reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). 3. Evidence pertinent to the veteran's eye disability claim which has been received since the October 1990 rating decision is not new and material, and the veteran's claim of entitlement to service connection for eye disability has not been reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Introduction As noted in the introduction, a VA Administrative decision in June 1973 held that a left leg injury sustained when the veteran was hit by a car while in service in June 1962, was not incurred in the line of duty, and was the result of the veteran's own willful misconduct. The veteran subsequently appealed this decision, and the Board upheld this determination in a December 1989 decision. It appears that with regard to the bilateral knee and eye disability issues, certain contentions have been advanced with regard to inservice injuries other than any related to the June 1962 accident. As noted in the introduction, the issue regarding whether injuries suffered in the June 1962 accident were in line of duty and not due to the veteran's willful misconduct is not properly before the Board at this time. Accordingly, the following decision of the Board is limited to consideration of whether bilateral knee and eye disabilities are related to service on a basis other than due to the June 1962 accident. As hereinafter more particularly discussed, both issues in the present case as the subject of prior rating decisions from which timely appeals were not initiated. See 38 U.S.C.A. § 7105. However, claims which are the subject of prior final decisions may nevertheless be reopened if new and material evidence is presented or secured. 38 U.S.C.A. § 5108. When a veteran seeks to reopen a final decision based on new and material evidence, a three-step analysis must be applied. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); Winters v. West, 12 Vet. App. 203 (1999); Elkins v. West, 12 Vet. App. 209 (1999). The first step is to determine whether new and material evidence has been received under 38 C.F.R. § 3.156(a). In this regard, there must be new and material evidence presented or secured "since the time that the claim was finally disallowed on any basis, not only since the time that the claim was last disallowed on the merits." Evans v. Brown, 9 Vet.App. 273, 285 (1996). Secondly, if new and material evidence has been presented, then immediately upon reopening the veteran's claim, the VA must determine whether the claim is well-grounded under 38 U.S.C.A. § 5107(a). In making this determination, all of the evidence of record is to be considered and presumed to be credible. Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995). Third, if the claim is found to be well grounded, then the merits of the claim may be evaluated after ensuring that the duty to assist under 38 U.S.C.A. § 5107(a) has been met. New and material evidence means evidence not previously submitted 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 the 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); see also Hodge, 155 at 1363. Further, when determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). II. Bilateral Knee Disability. A claim by the veteran for entitlement to service connection for arthritis of the knees was denied by rating decision in October 1990. The veteran was notified of that determination and apprised of appellate rights and procedures, but he did not initiate an appeal. Accordingly, the October 1990 rating decision became final. 38 U.S.C.A. § 7105(c). In December 1994, the veteran attempted to reopen his claim for bilateral knee condition. By a rating decision dated June 1995, the RO determined that new and material evidence had not been presented or secured and that the veteran's claim had therefore not been reopened. The present appeal ensued. The veteran essentially contends that his present knee condition was caused by participation in exercises where he was on his knees removing land mines and also due to an incidence when he walked into a parked bulldozer. At the time of the October 1990 rating decision, the evidence included, in part: the veteran's service medical records (which documented a September 1961 injury to the right knee when he ran against a bulldozer suffering a contusion); a report of magnetic resonance imaging (MRI) of left knee dated March 1990; statement from J.F. Waters, M.D. (documenting advanced degenerative arthritis of bot knees); certificate of total and permanent disability from R.T. Salzman, M.D.; letter to congressman by veteran's wife dated March 1990. Based on this evidence, the RO essentially determined that there was no basis for relating the veteran's arthritis of the knees to his military service. The evidence received subsequent to the October 1990 rating decision includes, in part: medical reports from Dr. Salzman from February 1960 to January 1964, Dr. Sandrow from February 1990 to October 1993, Dr. Waters from January 1990 to February 1990, Dr. Levitt from April 1990 to July 1994, Dr. Keyes from February 1990 to October 1994, Dr. Lazzarin from July 1994 to August 1994; VA examinations dated November 1996; VA outpatient treatment reports from October 1994 to February 1995; testimony from a personal hearing conducted in October 1996; General Medical Evaluation/Authorization Form dated October 1994 from Arizona Department of Economic Security. With regard to the newly received items of evidence, while not of record in 1990, are nevertheless not new and material since they essentially confirm what was already known in 1990; that is, that the veteran suffers from a bilateral knee condition. The veteran asserted during his October 1996 RO hearing that his present knee condition was caused by participating in exercises, while assigned to construction engineers, where he was on his knees removing land mines, and due to an incident in which he walked into a parked bulldozer. Although the bulldozer incident was noted on service medical records as causing abrasions to the right knee and left ear, this incident was known at the time of the October 1990 rating decision. There is no new evidence suggesting any link between any of the claimed inservice injuries and the development of arthritis of the knees many years after service. In sum, what is lacking to reopen the veteran's claim is evidence (not before the RO in October 1990) which shows that a bilateral knee disability (to include arthritis) was either manifested during service, manifested within one year of discharge from service, or is otherwise related to service (excluding the 1962 automobile accident which was found not to have occurred in the line of duty.) Although the veteran now asserts that the current disorder is also due to other incidents while in service, the veteran has presented no new evidence other than his own testimony and written statements regarding these assertions. 38 U.S.C.A. § 3.156(a); Hodge, supra. III. Eye Disability. A claim by the veteran for entitlement to service connection for an eye condition was denied by rating decision in May 1988. The veteran did not initiate an appeal, and the May 1988 decision became final. 38 U.S.C.A. § 7105(c). The veteran later requested that his claim be reopened, and by rating decision in October 1990, it was determined that no new and material evidence had been received. The veteran did not initiate an appeal from the October 1990 rating decision, and it too became final. 38 U.S.C.A. § 7105(c). In July 1993, the veteran attempted to reopen his claim for eye disability (claimed as blindness due to a head injury). By a rating decision dated June 1995, the RO determined that new and material evidence had not been presented or secured and that the veteran's claim had therefore not been reopened. The present appeal ensued. The veteran essentially contends that his head injury and resulting blindness was caused by an injury due to an incident in which he walked into a parked bulldozer. At the time of the October 1990 rating decision, the evidence included, in part: the veteran's service medical records; statement from J.H. Cook, M.D; statement from J.F. Waters, M.D.; certificate of total and permanent disability from R.T. Salzman, M.D.; letter to congressman by veteran's wife dated March 1990. Based on this evidence, the RO determined that no new and material evidence had been received to reopen the eye disability claim. The RO noted that there was no evidence to suggest that the veterans' blindness had been caused by any incident of military service. The evidence received by the RO subsequent to the October 1990 rating decision includes, in part: medical reports from Dr. Salzman from February 1960 to January 1964, Dr. Waters from January 1990 to February 1990, Dr. Levitt from April 1990 to July 1994, Dr. Keyes from February 1990 to October 1994; VA examinations dated November 1996; VA outpatient treatment reports from October 1994 to February 1995; testimony from a personal hearing conducted in October 1996; General Medical Evaluation/Authorization Form dated October 1994 from Arizona Department of Economic Security; records dated October 1989 from Bascom-Palmer Eye Institute in Miami, Florida; private medical report from Dr. Howard B. Purcell dated May 1989. These items of evidence, while not of record in 1990, are also not new and material since they essentially confirm what was already known in 1990; that is, that the veteran suffers from blindness of unknown etiology. Again, what is lacking to reopen the veteran's claim is evidence (not before the RO in October 1990) which shows that the veteran's current blindness is related to service or to an injury during service. Service medical records which document contusions to the right knee and left side of the head in the 1961 bulldozer incident were already of record in October 1990, and nothing received since October 1990 tends to show any relationship between the 1961 accident and the veteran's current blindness. In fact, some of the newly received medical evidence refers to head trauma sometime in the 1980's with gradual loss of vision due to retinopathy. IV. Conclusion The Board observes that the RO has not determined initially whether the evidence submitted is "new" and "material," as defined by 38 C.F.R. § 3.156 in view of the Hodge decision. However, regardless of whether or not the RO might determine in view of Hodge that new and material evidence has been received, the Board would not be bound by that determination. It would remain the Board's function to review the RO's new and material evidence determination. See generally Barnett v. Brown, 8 Vet.App. 1 (1995), aff'd 83 F.3d. 1380 (Fed. Cir. 1996). Since (for the reasons outlined in this decision) the Board is unable to find that new and material evidence has been received, no purpose would be served by remanding the case to the RO for a preliminary finding on the new and material evidence question. Further, as the veteran's representative has been afforded the opportunity to present argument subsequent to the Hodge decision, the Board finds that there is no prejudice to the veteran by its rendering of this decision without preliminary consideration by the RO. The Board views the above discussion as sufficient to inform the veteran of the elements necessary to reopen his claim for service connection for the claimed disabilities. See Graves v. Brown, 8 Vet. App. 522, 524-525 (1996); Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995). ORDER The appeal is denied as to both issues. ALAN S. PEEVY Member, Board of Veterans' Appeals