Citation Nr: 0001162 Decision Date: 01/13/00 Archive Date: 01/27/00 DOCKET NO. 95-09 420A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a bilateral knee disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Hinton, Associate Counsel INTRODUCTION The veteran served on active duty from April 1980 to December 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 1994 rating decision of the Department of Veterans Affairs (VA) Regional Office in Lincoln, Nebraska (RO). That rating decision denied a claim for service connection for a bilateral knee disorder. During the course of appeal, the Board determined that a January 1992 rating decision on the same issue had not been appealed and therefore was a final decision, thus requiring that new and material evidence be presented in order to reopen the claim. On this basis the Board remanded the case to the RO in October 1996 for consideration of whether new and material evidence had been submitted to reopen a claim for service connection for a bilateral knee disorder. The RO has since made a determination on this and the case has been returned to the Board for further review. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the claim decided herein has been obtained. 2. An unappealed rating decision dated in January 1992 denied service connection for a bilateral knee disorder. 3. The evidence added to the record since notification of the January 1992 rating decision denying service connection for a bilateral knee is not wholly cumulative and, when considered in connection with evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim. 4. Competent evidence has been submitted attributing a current bilateral knee disorder to service. CONCLUSIONS OF LAW 1. Evidence added to the record since notification of the January 1992 unappealed rating decision, which denied service connection for a bilateral knee disorder, is new and material, and the claim for that benefit is reopened. 38 U.S.C.A. § 5107, 5108(a) (West 1991); 38 C.F.R. § 3.156(a) (1999). 2. The veteran has submitted evidence establishing a well- grounded claim for service connection for a bilateral knee disorder. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran claims that he has provided new and material evidence to reopen his claim of entitlement to service connection for a bilateral knee disorder. As a preliminary matter, the Board notes that in the November 1994 rating decision, the RO decided the appellant's claim on a basis that did not consider whether new and material evidence had been presented since a previous final rating decision in January 1992. A March 1997 supplemental statement of the case decided the appellant's new and material claim under a standard that has since been overruled by the United States Court of Appeals for Veterans Claims (Court) in Elkins v. West, 12 Vet. App. 209 (1999) (en banc); and Winters v. West, 12 Vet. App. 203 (1999) (en banc). The RO later considered the claim under the new case law in a July 1999 supplemental statement of the case. Therefore, the Board finds that the appellant is not prejudiced by the previous bases for denial by the RO, and shall analyze the veteran's new and material claim under the new case law. It is not necessary to remand the case to the RO for consideration of whether new and material evidence has been provided. See Bernard v. Brown, 4 Vet. App. 384 (1993). Prior to the November 1994 rating decision from which this appeal arose, service connection for a bilateral knee disorder was last denied by the RO in a January 1992 rating decision. The veteran was notified of this decision in January 1992, but did not timely appeal the decision and it became final as to the claim for service connection, based on the evidence then of record. See 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (1999). However, a claim will be reopened if new and material evidence has been submitted since the last final disallowance of the claim on any basis. 38 U.S.C.A. § 5108; 38 C.F.R. §§ 3.156(a), 20.1105 (1999); Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); Smith v. West, 12 Vet. App. 312, 214 (1999). If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition. 38 U.S.C.A. § 5108. In this regard, the Board must perform a three-step analysis when a veteran seeks to reopen a claim based on new evidence. Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc). See Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998) (overruling the test set forth in Colvin v. Derwinski, 1 Vet. App. 171 (1991), which stated that "new" evidence was "material" if it raised a reasonable possibility that, when viewed in the context of all the evidence, the outcome of the claim would change); Elkins v. West, 12 Vet. App. 209, 213 (1999) (en banc) (stating that, after Hodge, new and material evidence may be presented to reopen a claim, even though the claim is ultimately not well grounded). First, the Board must determine whether the evidence is new and material. Winters, 12 Vet. App. at 206. According to VA regulation, "new and material evidence" means evidence not previously submitted to agency decisionmakers, 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 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). This definition "emphasizes the importance of the complete record for evaluation of the veteran's claim." Hodge, 155 F.3d at 1363. In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992); but see Duran v. Brown, 7 Vet. App. 216, 220 (1994) ("Justus does not require the Secretary to consider the patently incredible to be credible"). Second, if the Board determines that new and material evidence has been produced, the case is reopened. Immediately upon reopening the case the Board must determine whether, based on all the evidence of record, the reopened claim is well-grounded pursuant to 38 U.S.C.A. § 5107(a). Winters, at 206. Finally, if the claim is well-grounded, the Board may proceed to evaluate the merits of the claim after ensuring that VA's duty to assist has been fulfilled. Id. Evidence that was of record at the time of the prior unappealed rating decision in January 1992 included the veteran's service personnel and medical records, the report of a November 1991 VA examination, and the veteran's application for compensation. Service medical records show that during examinations in December 1978 and July 1979, prior to his period of active duty, the veteran did not report any complaints referable to his knees. These examination reports contain no abnormal clinical evaluations referable to the knees. Service clinical records show that during his period of active service, the veteran was seen in December 1980 for complaints of weakness and giving out of both knees. The examiner noted objective findings of mild crepitus bilaterally, and good range of motion and stability. After examination, the report shows an assessment of chondromalacia. The veteran was seen again in April 1981 for complaints of pain in both knees. The report noted a history of bad knees. The examiner noted objective findings of loose bilateral collateral ligaments, and cracking and popping in the knees bilaterally. The report contains an assessment of chondromalacia. The report of a November 1991 VA examination noted that there were no medical records available at that examination. The veteran reported a history of having a left knee injury in 1980 when he fell off a truck and reportedly suffered a cracked patella. Since that time he had had trouble with the knee locking and producing pain. He underwent VA medical treatment, including arthroscopy, in 1987. After examination, the diagnosis was left leg injury; status post arthroscopic surgery with cicatrix, mild degenerative joint disease, possible intra-articular loose body with signs and symptoms as described. An associated report of X-ray examination of the left knee contains an impression of mild degenerative joint disease, medial femoral and retropatellar compartments; possible intra-articular loose body in region of retropatellar joint space. The veteran's application to reopen his claim of entitlement to service connection for a bilateral knee disorder was received in June 1994, and evidence has been received in support of his application. The evidence pertaining to the claimed disorder and added to the record since the January 1992 rating decision includes service personnel and medical records, VA clinical and examination records, the transcript of a February 1999 hearing before a RO hearing officer, and various statements from the veteran. The evidence added since January 1992 includes a July 1987 VA medical certificate record showing that the veteran was seen for left knee pain, which was hurt while recently playing basketball. The report contains assessments of (1) strain of the medial collateral ligament of the left knee; and (2) old osteochondritis. An August 1987 VA progress note contains an assessment of recurrent strain injury, and X-ray evidence of old fracture and osteochondritis dissecans. An August 1987 VA hospital record showing that the veteran was seen for complaints of left knee pain and swelling. The assessment was loose body of the left knee. A few days later in August 1987 he underwent arthroscopy with abrasion chondroplasty and posterior arthrotomy, and meniscectomy for treatment of osteochondritis dissecans of the left knee. During that month and September 1987 he also received follow-up treatment including physical therapy. In September 1987 he fell and reinjured his left knee, and was seen for complaints assessed as a strain injury of the left knee secondary to a recent fall; and status post left knee surgery. An August 1996 VA X-ray report contains an impression of (1) large suprapatellar knee joint effusion of the right knee; (2) moderate degenerative changes bilaterally; and (3) loose joint bodies bilaterally. April and May 1997 VA hospital and outpatient clinical records shows that the veteran was seen early in April 1997 for complaints of bilateral knee pain, right worse than the left. The report noted questionable catching and locking, and loose pieces floating around his knee. After examination the impression was right knee degenerative arthrosis with possible loose bodies. He subsequently underwent arthroscopy in April 1997 followed by follow-up treatment. A May 1997 VA outpatient clinic note indicated that the arthroscopic findings including a loose body, degenerative changes in the medial side of the knee. A VA hospital discharge summary report for hospitalization from January to February 1998 records that physical examination of the right knee showed that it was swollen compared to the left knee, but was without much limitation of motion. The report noted that there were no other positive findings. The veteran testified during a February 1999 hearing regarding his claim. He testified and provided a history of the progression of his bilateral knee disorder since during service. The Board is of the opinion that the evidence received since the January 1992 rating decision is not wholly cumulative or redundant of evidence previously on file; and is sufficiently significant to the specific matters in this case that it must be considered in order to fairly decide the merits of the bilateral knee claim. Although there is some evidence that is duplicative of evidence received prior to the January 1992 rating decision, much of the evidence is new and was created since January 1992, or existed prior to that date but was not of record until later and thus not considered in the January 1992 rating decision. The evidence submitted since the January 1992 rating decision, in particular the transcript of the veteran's personal hearing and the clinical records not previously of record, bears directly and substantially on the issue of whether the veteran has a current bilateral knee disorder linked to service. This evidence is not wholly cumulative or redundant and provides a more complete picture of the circumstances surrounding the etiology of the veteran's claimed bilateral knee disorder. Elkins v. West, 12 Vet. App. 209, 214 (1999). As such, the new evidence is sufficiently significant to the issue in this case that it must be considered in order to fairly decide the merits of the claim. The additional evidence is therefore new and material, and the claim must be reopened. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Although new and material evidence has been submitted, there remains for consideration the question of whether, based on all the evidence of record, the reopened claim for service connection is well-grounded. Winters v. West, 12 Vet. App. 203, 206 (1999); Elkins v. West, 12 Vet. App. at 218-19. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). Certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1998). A well-grounded service connection claim generally requires medical evidence of a current disability; medical or, in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and medical evidence of a nexus between an inservice injury or disease and a current disability. Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998). Alternatively, a claim may be well-grounded based on application of the rule for chronicity and continuity of symptomatology, set forth in 38 C.F.R. § 3.303(b). See Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). The chronicity provision applies where there is evidence, regardless of its date, which shows that a veteran had a chronic condition either in service or during an applicable presumption period and that the veteran still has such condition. That evidence must be medical, unless it relates to a condition that the Court has indicated may be attested to by lay observation. Id. If the chronicity provision does not apply, a claim may still be well-grounded "if the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology." Id. The Board observes that for purposes of determining whether a claim is well grounded, the veteran's evidentiary assertions must ordinarily be taken as true unless the fact asserted is inherently incredible or beyond claimant's competence to assert. See King v. Brown, 5 Vet. App. 19, 21 (1993). If a claim is not well grounded, the appeal must fail with respect to it, and there is no duty to assist the claimant further in the development of facts pertinent to the claim. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). As discussed above, the collective record reflects that the veteran was initially seen for bilateral knee complaints including knee pain and weakness during his period of active service. Service medical records associated with these complaints noted a history of bad knees, with findings of bilateral crepitus, loose collateral ligaments, cracking and popping. Those records show a consistent assessment of chondromalacia at clinic visits separated by several months during service. The record also shows an assessment as early as July 1987 of old osteochondritis, and strain of the medial collateral ligament of the left knee, when the veteran was seen for knee pain after recently playing basketball. In the following month of August 1987, there is X-ray evidence of an old fracture and osteochondritis dissecans, and a clinical assessment of a loose body of the left knee, associated with the veteran's complaints of left knee pain and swelling. There are later pertinent clinical records in the 1990's, including a November 1991 VA examination report, which show complaints of bilateral knee pain, catching and locking; and which contain associated impressions including left leg injury, status post arthroscopic surgery with cicatrix [left knee], mild degenerative joint disease [left knee], possible intra-articular loose body [left knee], large suprapatellar right knee joint effusion; bilateral degenerative changes; loose joint bodies bilaterally; and degenerative arthrosis and possible loose bodies of the right knee. The veteran has provided credible and cogent testimony indicating a chronicity of knee pain symptomatology since service. He has essentially complained of knee pain and other symptomatology that he alleges began in service. He is competent to state that he has had knee pain and certain other complained of symptomatology since that time; and he has a current diagnosis of bilateral knee disorder. See Savage v. Gober, 10 Vet. App. 488 (1997). In summary, the Board has reviewed the evidence in its totality and finds that all of the elements necessary to well ground a claim under Epps v. Gober are present. Accordingly, the Board finds that the claim for service connection for a bilateral knee disorder is well grounded within the meaning of 38 U.S.C.A. § 5107(a). Therefore, based upon the evidence of record, and to provide the veteran with due process to have his claim considered by the RO in the first instance under other potential avenues for recovery, this claim is reopened and REMANDED infra. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156; Hodge; Bernard. ORDER New and material evidence having been submitted, the claim for service connection for a bilateral knee disorder is reopened, and the claim is well grounded. REMAND Since the Board has found the claim for service connection for a bilateral knee disorder to be well grounded, the duty to assist applies. 38 U.S.C.A. § 5107(a). This includes the duty to obtain a thorough and contemporaneous examination to determine the etiology of any currently claimed disorders, claimed as due to service or service connected disability. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The veteran claims a bilateral knee disorder that began during service and resulted at least in part due to an injury when jumping from a truck. On a review of the record, it appears that an examination and medical opinion is warranted. The record during service contains evidence of a bilateral knee disorder, including an assessment of chondromalacia. Associated with that assessment are complaints of bilateral knee pain and findings of mild crepitus bilaterally, good range of motion, stability, and later inservice findings of loose bilateral collateral ligaments, and cracking and popping, bilaterally. However, the record does not contain evidence of a current chondromalacia disorder. Rather, the record shows clinical evidence of a current bilateral knee disorder involving bilateral degenerative joint disease, loose bodies, and right knee joint effusion and degenerative arthrosis. The veteran has provided credible evidence of a continuity of certain symptomatology including pain since service, which he associates with his inservice and current knee disorders. However, no currently diagnosed bilateral knee disorder has been related by competent evidence to service. The Board believes that examination of the veteran would be beneficial to determine the nature and extent of the veteran's current bilateral knee disorder. Examination would also be beneficial in providing an opinion as to whether any current bilateral knee disorder is causally related to bilateral knee pathology shown in service or to service in any other way. In this regard, the Board notes that the veteran has had knee injuries and arthroscopic surgeries involving both knees since service, and an opinion as to the relationship among those injuries, surgeries and inservice knee pathology would be beneficial. Based on the foregoing, and to adjudicate fully and fairly the veteran's claim, the case is REMANDED to the RO for the following action: 1. The RO should ask the veteran to provide the names and addresses of all medical care providers, both VA and non- VA, which have evaluated or treated the veteran for any knee disorder since active service. After securing any necessary releases, the RO should obtain all pertinent examination and treatment records not already on file for inclusion in the veteran's claims folder. 2. Thereafter, the RO should arrange for the veteran to undergo an orthopedic examination to determine the nature and etiology of any bilateral knee disorders, claimed to be related to pathologies recorded in service. All appropriate tests and studies should be accomplished, and all clinical manifestations should be reported in detail. The examiner should provide an opinion as to the likelihood that any right or left knee disorder is related, directly or otherwise, to injury sustained, or symptomatology shown, in service. The examiner also is requested to provide an opinion regarding any etiological relationship among the recorded inservice knee pathology, and post-service injuries and surgeries. If the examiner is unable to provide any part of any requested opinion, that fact should be noted, together with a detailed rationale explaining why the opinion cannot be provided. A complete written rationale must be offered with any opinion expressed. The veteran's claims folder in its entirety must be made available to the examiner for review prior to examination of the veteran. When the development requested has been completed, the case should again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the veteran and his representative should be furnished a supplemental statement of the case and be afforded an opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. No action is required of the veteran until he is notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). F. JUDGE FLOWERS Member, Board of Veterans' Appeals