BVA9506048 DOCKET NO. 93-09 948 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Whether sufficient "new" and "material" evidence has been presented to reopen a claim for service connection for a left knee disorder on a "direct" basis. 2. Entitlement to service connection for psoriatic arthritis secondary to a service-connected skin disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Associate Counsel INTRODUCTION The veteran served on active duty from January 1963 to January 1969; December 1971 to January 1977 and January 1983 to January 1988. This case comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from adverse rating action by the Milwaukee, Wisconsin, Regional Office (hereinafter RO). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that he experienced left knee instability during service that bothers him to this day. He also alternatively argues that he has developed psoriatic arthritis in the left knee as a result of his service connected skin disorder or degenerative joint disease in the left knee as a result of in- service-trauma. 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 veteran's claims. FINDINGS OF FACT 1. All relevant available evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. None of the additional evidence submitted in an attempt to reopen the veteran's claim for service connection for a left knee disorder on a "direct" basis is so probative as to create a reasonable possibility of a change in the outcome of the December 1988 rating decision which denied service connection for instability of the left knee. 3. The weight of the evidence shows that the veteran does not have psoriatic arthritis as a result of his service-connected skin disorder. CONCLUSIONS OF LAW 1. "New" and "material" evidence sufficient to reopen the veteran's claim for service connection for a left knee disorder on a "direct" basis has not been presented. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107, 5108, (West 1991); 38 C.F.R. §§ 3.156, 3.303, 3.307, 3.309 (1994). 2. It has not been shown that the veteran has psoriatic arthritis as a proximate result of his service connected skin disorder. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.310 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds that the veteran has presented sufficient evidence to conclude that his claims are "well-grounded" 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 as there is no indication that there are other records available that would be pertinent to the veteran's appeal. In adjudicating a well-grounded claim, the Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: The appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet.App. 49 (1990). I. Whether "New" and "Material" Evidence has been Presented to Reopen a Claim for Service Connection for a Left Knee Disorder on a "Direct" Basis. 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, 1131; 38 C.F.R. § 3.303. Where a veteran served continuously for ninety days or more during a period of war or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 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). A December 1988 rating decision denied service connection for instability of the left knee. Evidence before the RO at that time included service medical records, which were entirely negative for instability of the left knee or any other musculoskeletal disorders involving the left knee. Also of record at that time were reports from VA examinations conducted in June 1988. The veteran reported to an examiner at that time that he had been experiencing pain around the medial aspect of his left knee for the previous 18 months and "giving way" of the left knee five times over the previous two years. No clinical evidence obtained from any of the VA examinations conducted at that time confirmed these symptoms, although a July 1988 electromyogram showed dullness to pinprick in the distribution of the left laterofemoral cutaneous nerve. This was felt by a neurologist to be related to a low back injury. The deep tendon reflexes were at "2+" in both knees and sensation in the knees was intact. An X-ray of the left knee was negative. Having summarized the evidence which was before the RO at the time of its December 1988 rating decision, all the evidence of record submitted after that time must now be analyzed to determine whether it contains any evidence that is both "new" and "material." The additional evidence includes VA outpatient treatment reports received in November 1990. These records showed treatment for left knee pain. Mild collateral ligament laxity was shown on March and June 1990 VA outpatient records and a June 1990 X-ray of the left knee showed mild degenerative joint disease. While these records are "new" to the extent that they show evidence of a current left knee disability that is not cumulative of other evidence previously considered, they are not "material" as there is no reasonable possibility that this evidence, in light of the other evidence of record, both old and new, would change the outcome of this case: This evidence contains no objective findings linking any current disability to in-service symptomatology or pathology. Smith v. Derwinski, 1 Vet.App. 178 (1991). Also submitted were additional service medical records, none of which referred to treatment for or symptoms of a musculoskeletal disability involving the left knee. Thus, while "new", these records are obviously not "material" as rather than showing the existence of an in-service musculoskeletal disability involving the left knee, they suggest no such disability existed during service. Id. at 178. Reports from a December 1991 VA special orthopedic examination are of record. Objective findings at that time included minimal crepitus of the left knee and mild atrophy of the left leg. No ligamentous laxity was shown. The impression was that the veteran's left knee pain was consistent with a combination of early degenerative changes and a possible anterior knee component. While "new," this evidence is not "material" because it provided no probative information concerning the etiology of the left knee pathology shown at that time or any relationship to an incident in service. Id. Also of record is a report from an August 1992 VA examination. The veteran repeated his contention that he first noticed pain in his left knee during service. An X-ray of the left knee showed minimal joint space narrowing with no evidence of osteophyte formation. The physical examination of the left knee showed a positive medial McMurray's sign with pain and a palpable click in the left medial joint line. It was the examiner's impression that the veteran had a meniscal tear, "suffered in 1986," to be confirmed by an arthrogram or Magnetic Resonance Imaging. This evidence is also "new" but not "material." There is no objective evidence contained in the service medial records or elsewhere of a left meniscal tear, knee trauma or symptoms in 1986 or at any other time during service. Thus, the VA examiner's opinion that the veteran suffered a meniscal tear in 1986 is based on uncorroborated history, and as such has no probative value. See Reonal v. Brown, 5 Vet.App. 458 (1993); Swann v. Brown, 5 Vet.App. 229 (1993); Black v. Brown, 5 Vet.App. 177 (1993). Reports from a January 1993 VA examination showed tenderness upon palpation of the left medial joint line and superior patellar region. The McMurray's sign on this examination was negative as was a neurological examination of the lower extremities. Although this evidence is "new", it is not material as it contains no findings linking any current left knee pathology to service. Smith, 1 Vet.App. at 178. The veteran has contended that currently existing left knee arthritis is the result of in-service trauma. While this contention is "new" as it was not considered by the RO in its December 1988 rating decision, such lay assertions as to facts requiring medical knowledge are of insufficient evidentiary value to be considered "material" evidence. Moray v. Brown, 5 Vet.App. 211 (1993). As none of the evidence discussed above is both "new" and "material", the claim for service connection for a left knee disorder on a "direct" basis is not reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Therefore, no further adjudication of this claim is warranted. See, Kehoskie v, Derwinski, 2 Vet.App. 31 (1991). II. Entitlement to Service Connection for Psoriatic Arthritis Secondary to a Skin Disorder. Service connection is warranted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Service connection is in effect for "tinea manum, eczematous rash, elbows, left thigh, hands and feet." The rating for this disability was increased to 10 percent by a February 1992 rating decision after a November 1991 VA dermatologic examination showed scaly, papulosquamous looking lesions with associated pronounced blisters on both knees. The VA physician who examined the veteran in December 1991 stated that a diagnosis of psoriatic arthritis in the left knee could not be confirmed or ruled out at that time. He indicated that the existence of psoriatic arthritis was a possibility, but that it was more likely that the veteran had degenerative arthritis of the left knee. In August 1992, another VA physician concluded that the veteran's disability picture was inconsistent with psoriatic arthritis and that it was "unlikely" that he had such a disability. Further evidence against a conclusion that the veteran has psoriatic arthritis is found in the report from the January 1993 VA examination, which showed the VA examiner concluding that there were no radiographic findings consistent with psoriatic arthritis. The Board notes that service connection has not been established for psoriasis. That distinct skin disease was assessed on one occasion in service but on no dermatology consult examinations and on no postservice examinations. For the sake of argument for purposes of this claim, however, the result would be the same even if he were service connected for psoriasis. As indicated above, while the existence of psoriatic arthritis was considered to be possible after the December 1991 VA examination, further VA examinations did not confirm the existence of this condition, and instead tended to show that such a diagnosis would not be accurate. Thus, the Board concludes that the weight of the objective clinical evidence as to the existence of psoriatic arthritis is "negative." As the "positive" evidence is essentially limited to the veteran's uncorroborated contention that he currently has psoriatic arthritis that is the result of his service connected skin disorder, which is a statement of minimal probative value under the holding of Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992), the Board concludes that the weight of the "negative" evidence is greater than the "positive" evidence of record. Therefore, under the holding of Gilbert, 1 Vet. App. at 49, the veteran's claim for service connection for psoriatic arthritis secondary to his service-connected skin disorder must be denied. ORDER "New" and "material" evidence having not been submitted, the claim for service connection for a knee disorder on a "direct" basis is not reopened and the benefit sought is denied. Entitlement to service connection for psoriatic arthritis secondary to a service-connected skin disorder is denied. (CONTINUED ON NEXT PAGE) 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.