BVA9508321 DOCKET NO. 93-14 167 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim for service connection for a right knee disorder. 2. Entitlement to service connection for a left knee disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Constance C. Hickey, Associate Counsel INTRODUCTION The veteran had active service from March 1944 to February 1946. This appeal to the Board of Veterans' Appeals (Board) arises from the August 1992 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland which denied the veteran's claim for service connection for a left knee disorder and the subsequent September 1992 rating decision which continued the denial of service connection for a left knee disorder and found that new and material evidence had not been presented to reopen the veteran's claim for service connection for a right knee disorder. The veteran's claim for service connection for a right knee disorder had previously been denied by an unappealed August 1981 rating decision. CONTENTIONS OF APPELLANT ON APPEAL It is essentially contended by and on behalf of the veteran that she has presented new and material evidence to reopen her claim for service connection for a right knee disorder and that she is entitled to service connection for a left knee disorder. The veteran states that during service she sustained injuries to both knees for which she was hospitalized and placed on light duty. She contends that her disability is directly related to her in service injury. The veteran also asserts that because of her current knee disability she is unable to work more than part- time. 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 folder. Based on our review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the veteran has not presented new and material evidence to reopen her claim for service connection for a right knee disorder and has not submitted a well-grounded claim for service connection for a left knee disorder. FINDINGS OF FACT 1. In September 1981 the veteran was notified of the August 1981 rating decision, which denied entitlement to service connection for a right knee disorder, and was given notice of her appellate rights. She did not file a notice of disagreement within the allowable one year period. 2. The additional evidence received since August 1981, with regard to the issue of service connection for a right knee disorder, is new. However, it is not shown that this evidence, when viewed in the context of all the evidence, both new and old, would change the outcome. 3. The veteran has not submitted evidence sufficient to justify a belief by a fair and impartial individual that a chronic left knee disorder was present in service or otherwise attributable to military service. CONCLUSIONS OF LAW 1. The August 1981 rating decision which denied service connection for a right knee disorder is final. 38 U.S.C.A. § 7105 (1991); 38 C.F.R. § 3.104(a) (1994). 2. New and material evidence has not been presented to reopen the veteran's claim for service connection for a right knee disorder. 38 U.S.C.A. § 5108 (1991); 38 C.F.R. § 3.156 (1994). 3. The veteran has not submitted a well-grounded claim for service connection for a left knee disorder. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.303, (1994) REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background The veteran's pre-enlistment examination in February 1944 reflects no abnormalities of the bones, joints or muscles. Service medical records in July 1945 indicate that the veteran was hospitalized for seven days due to traumatic synovitis of the right knee incurred in a jeep accident approximately five weeks earlier. The veteran reported that her knee had struck the dash board and had been painful and swollen after the accident. Pain was absent when the veteran was admitted to the hospital in July 1945, however, she complained of stiffness and swelling. The examiner noted that the veteran had carried on full duty following the accident. Physical examination disclosed that effusion was present, but there was no laxity or tenderness. No abnormalities were revealed on X-ray. A profile of L2 was assigned. Some puffiness was noted approximately five days after the veteran was first seen. Physical therapy and an ace bandage were recommended and on the disposition in early August was return to duty. The report of the veteran's January 1946 separation physical examination notes a history of knee sprain, and states that there was no significant pathology present. The examination report specifies that there were no abnormalities of bones, joints, or muscles at the time of separation from service. In 1948 the veteran filed a claim for dental treatment. The veteran submitted a claim for disability compensation and non-service connected pension benefits in May 1981. She reported treatment for her right knee in service in 1945. There was no mention of a left knee injury or disease. Evidence submitted in conjunction with the claim indicates that the veteran fractured her left hip in a May 1981 fall and underwent surgical repair. Medical records of treatment related to that fall reflect that the veteran "just passed out," after climbing six flights of steps when returning home from a dinner of steamed crabs and five beers. She had no prior history of syncopal episodes and there was no mention of any knee problem. By rating decision of August 1981 service connection for right knee disorder was denied on the basis that there was no evidence of continuity of the disorder subsequent to active service. The record reflects that the veteran received notice of the rating decision and was notified of her appellate rights in September 1981, but failed to file an appeal within one year of notification. In March 1992 the veteran filed a claim for service connection for a left knee disorder. The veteran's supporting statements suggest that weakness she had experienced in her left knee since active service caused her to fall in 1981 injuring her left hip. She also asserted that residuals of 1988 arthroscopic surgery to her left knee prevented her from working more than part time. The evidence received in September 1992 in support of the veteran's current claims include duplicate copies of private medical records related to the veteran's May 1981 left hip injury and surgery. Also included are copies of private medical records reflecting treatment in April 1982 through April 1983 for traumatic synovitis of the left knee and contusion to the left hip, incurred during an April 1982 assault. No right knee complaints are reported. Additionally, the veteran submitted private medical records of her May 1987 treatment for traumatic chondromalacia of the left knee, and a right knee contusion, which were sustained in a fall that reportedly occurred on May 22, 1987, when her left knee buckled causing her to land on her right knee. Records reflect that in May 1987 the veteran complained of right knee pain, which was less severe than the pain in her left knee. Physical examination of the right knee revealed a resolving bruise, with tenderness. Range of motion was zero to 140 degrees, with pain at the extremes of motion. The doctor found no evidence of laxity, underlying fracture or internal derangement. Left knee examination revealed one plus effusion and tenderness. Records of the veteran's November 1987 arthroscopic surgery to the left knee and post-operative care through March 1988 were also submitted by the veteran in September 1992. In a March 1988 statement the veteran's physician, Edward R. Cohen, M.D. expressed the opinion that she has permanent left knee disability. At her December 1992 personal hearing the veteran, with her representative, testified under oath that she filed a claim for service connection for her right knee disability at the time of her discharge in 1946, but did not receive a copy of the claim. She remarked that she is sure that she injured both knees in the 1945 jeep accident during service. The veteran alleged that her right knee gave way in May 1981 causing her to injure her left hip. It was also her testimony that her first major left knee problems occurred when she was knocked down at the ocean in 1967. The veteran indicated that she has had difficulty with both knees for 20 years. New and Material Evidence to Reopen the Claim for Service Connection for a Right Knee Disorder The record demonstrates that in September 1981 the veteran received notice of the August 1981 rating decision, which denied service connection for a right knee disorder, and was notified of her appellate rights. She did not file a timely appeal of that rating decision. Absent the filing of a notice of disagreement and a substantive appeal within one year of the date of mailing of the notification of the denial of a veteran's claim, a rating determination is final. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104(a). However, the claim will be reopened upon presentation of "new and material evidence." 38 U.S.C.A. § 5108. If new and material evidence has been received, the second step, involving a de novo review of all the evidence, both old and new, is to be undertaken to determine if there is a basis for granting the claim. "New" evidence is that which is not merely cumulative of other evidence of record. Cox v. Brown, 5 Vet.App. 95, 98 (1993). "Material" evidence is that which is relevant to and probative of the issue at hand and which is of sufficient weight or significance that there is a reasonable possibility that the new evidence, when viewed in the context of all the evidence, new and old, would change the outcome. Id. In determining the issue of new and material evidence the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet.App. 510, 513 (1992). The Court of Veteran's Appeals has determined that the benefit of the doubt rule operates to lower the threshold of whether new and material evidence is sufficient to change the outcome of a case. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). The evidence pertaining to the veteran's right knee disorder which has been submitted subsequent to the August 1981 rating decision is contained in treatment records related to her May 1987 right knee contusion, and in her December 1992 hearing testimony. The treatment records constitute new evidence in that they do not duplicate evidence previously of record, and they are relevant to and probative of a right knee disorder. However, this evidence relates only to signs of a right knee disorder, - resolving bruise, tenderness, and pain on motion, which were clinically noted following an injury in May 1987, more than forty years after separation from service, and nearly five years before the veteran filed her claim. No further complaint related to the right knee is noted, although the veteran was seen by her orthopedic surgeon on repeated occasions through March 1988. The May 1987 records provide no etiological link between a current right knee disorder and events in service. Accordingly they are not of such evidentiary significance or weight as to raise the possibility of a changed outcome, and do not constitute material evidence to reopen the veteran's service connection claim. Pertinent testimony is limited to the veteran's assertion that her right knee gave way in May 1981, causing her to fall and injure her left hip. This testimony is not duplicative or cumulative of evidence previously of record and is therefore new evidence. However, even when assumed to be true, the report of one incident of giving way, more than thirty five years after service, is not sufficient to establish a current right knee disorder attributable to service. When viewed in relation to all of the evidence of record, new and old, the veteran's statement is not supported by the contemporaneous medical reports related to the accident in 1981, which shows that the veteran "just passed out" after climbing six flights of stairs following the consuming of five beers during dinner. Additionally we note that in May 1987, the veteran reported that her left knee buckled and she fell on her right knee. Accordingly, the veteran's testimony coupled with the evidence, is not of such significance as to constitute material evidence to justify reopening her claim for service connection for a right knee disorder. On the basis of our review, the Board concludes that new and material evidence has not been presented to warrant reopening the veteran's claim for service connection for a right knee disorder. Entitlement to Service Connection for a Left Knee Disorder In any application for benefits the veteran has the initial burden of presenting a plausibly valid claim. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The applicant must submit evidence "sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a). The Board does not have jurisdiction to adjudicate any claim which is not well grounded. Boeck v. Brown, 6 Vet. App. 14, 17(1993). A well grounded claim has been defined as "a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Service connection connotes many factors, but basically it means that the facts, as shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C.A. §§ 1110. Such a determination requires a finding of a current disability which is related to an injury or disease incurred in service. Watson v. Brown, 4 Vet.App. 309, 310 (1993); Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.304(d) (1994). The veteran's service medical records are negative for complaints, findings or treatment of a left knee disorder. In the absence of objective medical evidence, the veteran's testimony that she injured her left knee during service is not sufficient to establish service incurrence of an injury. Cf. Wood v. Derwinski, 1 Vet.App. 190, 193 (1991); see also, Smith v. Derwinski, 2 Vet.App. 137, 140 (1992). Although the record contains substantial evidence indicating left knee disability as recently as March 1988, the earliest objective medical evidence of a left knee disorder was recorded in April 1982, in relation to an injury sustained more than thirty five years after the veteran's separation from service. The veteran has not presented any medical opinion or evidence linking a current left knee disorder to events in service. The veteran has not met her initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that her left knee disorder was incurred or aggravated in service. See Montgomery v. Brown 3 Vet.App. 343 (1993). Therefore the veteran's appeal, on this issue, must be dismissed for failure to submit a well grounded claim. Because her claim is not well grounded, VA's duty to assist the veteran in the development of evidence which would support her claim does not arise under 38 U.S.C.A. § 5107(a). ORDER The veteran's claim for service connection for a right knee disorder, is not reopened, new and material evidence not having been submitted. The appeal on this issue is denied. The veteran's claim for service connection for a left knee disorder is dismissed. S. L. COHN Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) 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.