BVA9500923 DOCKET NO. 93-07 967 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a left knee disorder. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for a right knee disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Nancy R. Kegerreis, Associate Counsel INTRODUCTION The veteran served on active duty from March 1966 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) from an April 1992 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied service connection for a left knee disorder due to aggravation and denied the reopening of a claim for service connection for a right knee disorder. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, essentially, that the RO was incorrect in denying him service connection for a left knee disorder due to aggravation in service, as it had failed to rebut the presumption of soundness, failed to provide adequate reasons or bases for its decision, and had not considered the benefit of the doubt. In terms of the right knee, the veteran maintains that he was treated in service for a right knee injury and that he has continually had and still has problems with that knee. He alleges that there is a connection between his military service and his current disabilities. 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 the preponderance of the evidence is against the claim for service connection for a left knee disorder due to aggravation. It is further the decision of the Board that new and material evidence sufficient to reopen a claim for service connection for a right knee disorder has not been submitted. Therefore, the claim must be denied. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. The veteran's preexisting left knee disorder did not increase in severity in service. 3. The evidence submitted in connection with the request to reopen the claim for service connection for a right knee disorder is either cumulative and redundant of evidence provided before the RO decision in March 1978 or, where new, does not bear directly and substantially on the matter under appeal. CONCLUSIONS OF LAW 1. The veteran's current left knee disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107(a) (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1993). 2. The rating decision of March 1978 denying service connection for a right knee disorder is final. Additional evidence has been presented, but it is not new and material, and, thus, not sufficient to reopen the claim. 38 U.S.C.A. §§ 5107, 5108, 7104 (West 1991); 38 C.F.R. § 3.156 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Background As a preliminary matter, the Board notes that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). That is, the Board finds that he has presented claims which are plausible. The Board is also satisfied that all relevant and available 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. By rating decision in February 1971, the RO denied service connection for an internal derangement of the left knee. In March 1978, the RO denied service connection for a bilateral knee disorder, to include a claimed right knee condition. In February 1992, the veteran requested that the claim as to a right knee disorder be reopened. He also requested service connection for internal derangement of the left knee based on aggravation. In April 1992, the RO found that new and material evidence sufficient to reopen the right knee claim had not been submitted. In May 1992, the RO corrected what it perceived to be error in its previous decisions pertaining to the left knee disorder, determining that since there had been no timely appeal to the February 1971 denial of service connection for the left knee condition, the claim required a new and material evidence analysis. The RO in its July 1992 Statement of the Case then decided, after reviewing additionally submitted evidence, that the claim as to the left knee had not been reopened. The hearing officer's decision and the Supplemental Statement of the Case also denied the claim based on a new and material evidence analysis. The Certification of Appeal, however, in its statement of the issue, treated the left knee condition as a reopened claim. In response, the assertions of the veteran and his representative suggest that they also interpreted the claim as having been reopened. In the Board's judgment, the issue of aggravation of a left knee disorder is deemed to have been reopened. Therefore, in all fairness to the veteran and allowing him the benefit of the doubt, the Board will consider this as a reopened claim and will decide it de novo. II. Aggravation of a Preexisting Left Knee Disorder Service medical records reveal that the veteran's March 1966 enlistment examination did not list any disabilities, and the veteran was found acceptable for service. His separation examination, dated in April 1969, also showed no disabilities. The veteran began reporting left knee pain as early as April 1966, very soon after entry into service. By June 1966, he had complained several times of sore knees which hurt when he was on his feet for a long time. An outpatient visit in June 1966 noted painful and stiff knees and a reported history of injury to left knee with fracture about four years previously. Physical examination of the right knee revealed no swelling and a full range of motion, but with painful extension. The left knee was hypermobile; extension was to 150 degrees. The veteran could rotate laterally, although with pain in the medial femoral condyle. There was no swelling. Results of x-rays were unremarkable, although the left knee showed some haziness on the fibula and medially on the femur. In July 1966, the veteran again reported pain in both knees, the left greater than the right. Examination showed no effusion, but there was subpatellar crepitus with compression on the right. The left knee showed subpatellar and median joint-line pain without effusion. There was a negative McMurray's test and no atrophy of a severe nature. An outpatient treatment report, dated in January 1967, noted that the veteran had strained his Achilles tendon in jumping out of a helicopter. Although he had been put on profile for Achilles strain and had been improving, he had later become much worse. Physical examination revealed a puffy area proximal to the ankle and deep to the Achilles tendon and tenderness between heads at the origin of the gastrocnemius muscle. He was treated with Indocin for tendinitis of the left heel cord and peroneals. In January 1968, an x-ray report revealed that a week and a half prior to the examination, the veteran had fallen off a bus. He had been seen in the emergency room 12 hours after the accident with a grossly contaminated laceration of the left knee, which had been debrided and was filling in well. Although he still had marked tenderness of the medial aspect of the left knee, the x- ray showed no significant abnormalities. Just prior to separation from service, in April 1969, the veteran was seen at the Attending Surgeon's Office, Walter Reed General Hospital, in Washington, D.C., with complaints of tenderness and pain in the left knee at the anterior tibial tuberosity without known prior injury to the knee. A physical examination revealed full extension and a negative McMurray's sign, but with tenderness at the medial aspect of the tibial head, left knee. There was marked pain on internal and external rotation when the knee was flexed. An injection of Zylocaine into the tibial tuberosity relieved the pain. Reports of x-rays of the left knee were negative. There was a soft tissue mass at the medial aspect of the intra-articular, probably representing calcification of the medial meniscus. The diagnostic impression was pain of unknown etiology in the left knee . An examination of the left knee pursuant to a VA disability evaluation examination in December 1970 revealed no effusion. Transcircumferential measurements when compared to the opposite side were identical above and below the knee and transpatellar. There was, however, medium menisci tenderness on the entire medial periphery of the left knee, with equivocal loss of integrity of the medial collateral ligament. The veteran further alleged that he had difficulty with this knee on occasion, but without loss of time, work, or activity. Change of weather produced considerable pain. He had loss of approximately 10 percent range of motion in full extension and in full flexion. The pertinent diagnosis was internal derangement of the left knee, clinically evident. An x-ray of the left knee revealed a mild roughening of the articular surface of the medial condyle of the tibia; the examination was otherwise negative. No abnormalities of the right knee were noted. In October 1977, the veteran was treated by a private orthopedist, James A. Turner, M.D., of the Asheville Orthopaedic Associates, for complaints of left knee effusion and pain. Dr. Turner had previously seen the veteran in November 1974 for a probable torn medial meniscus in the right knee. The veteran, who had been working as a painter, reported that his discomfort began about a week previously after he had been working on a steep soft dirt bank. The next day his left knee was swollen and sore, and the swelling and discomfort had continued. He was unable to localize the pain except that it seemed to him to be in the center of the knee. Physical examination showed effusion of the left knee. Most of the tenderness was around the patella, and there was some subpatellar crepitation with motion. The ligaments were stable and intact. There was no significant tenderness at the joint lines. An x-ray of the left knee was negative. The diagnosis was probable chondromalacia patellae, symptomatic secondary to trauma. In a Statement in Support of Claim, dated in January 1978, requesting that his claim for a bilateral knee disorder be reopened, the veteran reported that he had had an operation on his left knee that month and that his doctor had told him that the knee joint would have to be replaced in a few years. A discharge summary, dated from February 5, 1978, to February 22, 1978, stated that the veteran was discharged approximately two days prior to readmission. At this time, he stated that he had been walking through a storm and fell, landing on his left knee, opening the surgical wound. Examination showed an acute hemarthrosis within area of dehiscence in the mid portion of the wound. The veteran was placed at bed rest with his knee in a knee immobilizer and was placed on antibiotics to prevent infection. The effusion spontaneously resorbed, and he regained his range of motion from 0 to 90 degrees. It was anticipated that he would be able to return to work in approximately three weeks. A Medical Certificate, dated in February 1987, noted that the veteran's knees had been painful and swollen intermittently for twenty years. He had had a painful flare-up for the prior two weeks and was unable to work. An orthopedic examination showed no joint laxity, but the presence of a "huge" effusion. The diagnosis was knee effusion, history of trauma. A February 1992 outpatient treatment report from a VA orthopedic clinic noted complaints of pain in both knees, which had been treated with non-steroidal anti-inflammatory drugs. Various options were discussed with the veteran, including a high tibial osteotomy, despite the fact that he had patellofemoral degenerative joint disease. In March 1992, the veteran underwent a left total knee arthroplasty. He had a reported history of a more than ten year history of left knee pain, which had progressed to the point where it was no longer controlled with anti-inflammatory medication, and he was currently unable to perform his activities of daily living. He had had left knee surgery in 1979, when a medial meniscus was removed. He denied any relief from his pain or improved function since that surgery. An x-ray examination revealed moderately severe osteoarthritis of the left knee. The discharge diagnosis was osteoarthritis of the left knee, status post left knee arthroplasty. The veteran was seen at a VA orthopedic outpatient center in October 1992, six months after the left total knee arthroplasty. He continued to complain of consistent pain and a mild effusion. Physical examination showed an antalgic gait and range of motion from 5 to 110 degrees. The left knee was stable, and x-rays showed no obvious radiolucency. An injection of Lidocaine alleviated the pain. In November 1992, the veteran testified at an RO hearing that when he enlisted in the Army he was found physically fit. Upon beginning basic training, however, he suffered from swelling and pain in the left knee, usually after a forced march or other vigorous physical exercise. He reported that during combat in Vietnam in January 1967, he injured his left knee in jumping several feet off the ground from a helicopter. He stated that the knee swelled up so badly that he could hardly walk on it for several days, but since he was in the field under fire, he was unable to get any treatment, so he just toughed it out. He also testified that he had previously injured his left knee when he broke his leg in the ninth grade, but that he had fully recovered from the injury and had never had any problems until he entered the Army. As to a right knee injury, the veteran stated that in Thailand as he was stepping off a bus, the driver accelerated, causing the veteran to lose his balance and fall. He was subsequently treated for an abrasion. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of a preexisting injury or disease. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. §§ 3.303, 3.306 (1993). Regulations provide that a preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 1991); C.F.R. § 3.306(a)(1993). In deciding a claim based on aggravation, after having determined the presence of a preexisting condition, the Board must first determine whether there has been a measured worsening of the disability during service and then whether this constitutes an increase in disability. See Browder v. Brown, 5 Vet.App. 268, 271 (1993); Hensley v. Brown, 5 Vet.App. 155, 163 (1993). Under 38 U.S.C.A. § 1111 (West 1991), a veteran is afforded a presumption of sound condition upon entry into service, except for any defects noted at the time of examination for entry into service. That presumption can be rebutted by clear and unmistakable evidence that a disability existed prior to service and was not aggravated by such service. See Id., 38 C.F.R. § 3.304(b) (1993); Monroe v. Brown, 4 Vet.App. 513, 515 (1993); Green v. Derwinski, 1 Vet.App. 320, 322 (1991). As the veteran's service medical records show, a left knee disorder was not detected during his enlistment examination. Therefore, the Board must presume that he was sound upon entry into the Army. A VA regulation relative to preservice disabilities noted in service provides that there are medical principles so universally recognized as to constitute fact, and when, in accordance with these principles, existence of a disability prior to service is established, no additional or confirmatory evidence is necessary. Consequently, when such a residual condition is discovered during service, with no evidence of injury during service, the conclusion must be that it preexisted service. See 38 C.F.R. § 3.303(c) (1993). In this respect, the Board notes that within a few weeks after entrance into the Army, the veteran reported severe pain in his left knee and was found to have distinct abnormalities of that knee. Additionally, he reported a preexisting injury which had been incurred several years previously. Since there had been no reported injury during those few initial weeks of service, it must be concluded that these symptoms, following so closely the date of enlistment, could not have originated in such a short period of time and, therefore, must be causally related to the preexisting injury. It must next be determined whether the veteran's preexisting condition was aggravated in service. The Board has considered the veteran's testimony during his hearing that he injured his left knee jumping from a helicopter in Vietnam. Relative to this contention, the evidence does indeed show an injury due to a fall in exiting a helicopter. The injury, however, involved an Achilles tendon strain, not a knee injury. He was treated for tendinitis and the injury resolved without evidence of chronicity. The veteran's testimony, based on memory many years after the incident, does not approach the probative weight of the medical records made at the time of the actual treatment. The determination of the credibility of the veteran's testimony is a function of the Board. See Junstrom v. Brown, 264, 267 (1993); Smith v. Derwinski, 1 Vet.App. 235, 237-38 (1991). At this juncture, the Board notes another discrepancy in the record. The January 1968 x-ray report reveals an x-ray of the left knee because of a fall from a bus. The veteran testified at the hearing that he had injured his right knee in that fall. Since the injury consisted of an abrasion, without apparent impairment of the knee joint, the condition evidently resolved without residuals. The veteran has provided no evidence demonstrating any deterioration in service of his preservice disability of the left knee. Service medical records reveal no serious injuries or accidents involving the left knee joint itself, nor any permanent impairment. His separation physical examination shows no abnormalities. Although the veteran's left knee was intermittently symptomatic with activity during service, temporary flare-ups are not sufficient to be considered aggravation in service. See Hunt v. Derwinski, 1 Vet.App. 292, 197 (1991). While the April 1969 examination at Walter Reed Hospital revealed the presence of a soft tissue mass, this additional symptom appears to relate to the normal progression of a long-standing left knee disorder and does not demonstrate a worsening of the underlying disorder. The Board can find no measured worsening of the disability during service such as to constitute an "increase in disability." See Browder v. Brown, 5 Vet.App. 268, 271 (1993). Accordingly, service connection by aggravation for a left knee disorder is denied. II. New and Material Evidence Relative to a Right Knee Disorder The United States Court of Veterans Appeals has recently held that when determining whether new and material evidence has been submitted to warrant reopening under 38 U.S.C.A. § 5108, consideration must be given to all of the evidence submitted since the last final denial on the merits. See Glynn v. Brown, No. 92-1347 (U.S. Vet.App. June 21, 1994). Accordingly, the Board has reviewed all of the evidence submitted relevant to the issue of service connection for a right knee disorder since the RO decision of March 1978. New and material evidence means evidence not previously submitted to agency decision makers 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 (1993). In order for a claim to be reopened and the entire record reviewed, the evidence must be "new" and "material." See Manio v. Derwinski, 1 Vet.App. 140, 145 (1991); Jones v. Derwinski, 1 Vet.App. 210, 214 (1991). In Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991), the United States Court of Veterans Appeals stated that new evidence may not be merely cumulative of other evidence on the record. To be material, evidence must be relevant and probative. Rule 401 of the Federal Rules of Evidence defines relevant evidence as "[e]vidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Additionally, there must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome. Colvin, 1 Vet.App. at 174. To support his claim for reopening his appeal as to a right knee disorder, the veteran has submitted the following evidence: (1) service medical records from the National Personnel Records Center (NPRC), received in September 1980; (2) outpatient treatment records and consultation report, dating from June 1972 through November 1974, from a private physician, James A. Turner, M.D., of the Asheville Orthopaedic Associates, in Asheville, North Carolina; (3) a hospitalization summary, dating from August 3, 1978 to August 8, 1978, from the VA Medical Center in Asheville, North Carolina; (4) VA outpatient treatment reports, dating from February 1987 to December 1988; (5) a hospitalization summary, dating from November 7, 1991, to December 10, 1991, from the VA Medical Center in Charleston, South Carolina; (6) VA outpatient treatment reports, dating from November 1991 to March 1992; (7) a hospitalization summary, dating from March 23, 1992, to April 22, 1992, from the VA Medical Center in Charleston, South Carolina, with attachments; and (8) the veteran's hearing testimony, dated in November 1992. Based upon analysis of these records, the Board finds that the service medical records from the NPRC, Item (1), are essentially duplicates, with the exception of a January 1968 x-ray report, which revealed no significant abnormalities after the veteran's fall from a bus. The Board notes that this record states that the injury was to the left knee, not the right. Therefore, this evidence, while new, is not material to the issue of a right knee disorder. The remainder of the evidence, Items (2) through (7), is also new, but not material. Dr. Turner's records show that in 1974, several years after service, the veteran was found to have a torn meniscus in his right knee, which had been incurred about a week previously, when the veteran was out walking and his knee suddenly gave out on him. This evidence, while relevant to a right knee disorder, does not establish any link to service which might possibly support the veteran's contention of service connection. There is no possibility that this new evidence, when viewed in the context of all the evidence, would change the outcome of the appeal. Items (3) through (7) provide evidence of treatment for a number of disorders other than a right knee disorder, including an arthroplasty of the left knee in March 1992. Item (8), the veteran's hearing testimony, reports his belief that he had no problems with either of his knees before entering into the Army, but that after induction he suffered swelling and pain, which has continued to the present time. In this respect, the Board notes that lay assertions of medical causation cannot serve as a predicate to open a previously disallowed claim. See Moray v. Brown, 5 Vet.App. 211, 214 (1993). Thus, the veteran's opinion that his knee disorders were incurred in service may not be considered as probative evidence. The Board acknowledges that the veteran's representative has requested that the full benefit of reasonable doubt be afforded. However, since the veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen his finally disallowed claim for a right knee disorder, the benefit of the doubt doctrine does not apply to this claim. See Annoni v. Brown, 5 Vet.App. 463 (1993); Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). Accordingly, the Board finds that the additional evidence submitted by the veteran to reopen his claim for service connection is not new and material, and thus, not sufficient to reopen this claim. ORDER Service connection for a left knee disorder is denied. New and material evidence not having been submitted to reopen a claim for service connection for a right knee disorder, service connection for such disorder is denied. WARREN W. RICE, JR. 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.