BVA9501420 DOCKET NO. 90-27 100 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been submitted to reopen a previously denied claim seeking service connection for a right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D.P. Dean, Counsel INTRODUCTION The appellant is a veteran of active military service from September 1964 to March 1969. This matter comes before the Board of Veteran's Appeals (Board) on appeal from rating determinations by more than one Regional Office (RO) of the Department of Veterans Affairs (VA). The current appeal was initiated from a rating determination in 1986 by the Jackson, Mississippi, RO. However, since the appellant is married to a member of the Armed Forces serving on active duty, he has frequently moved during the course of this appeal, and jurisdiction over the claims file has been transferred at various times to the RO located in Waco, Texas; in New York, New York; and in Montgomery, Alabama. The claims file is currently under the jurisdiction of the St. Petersburg, Florida, RO. The case was last before the Board in December 1992, at which time it was remanded by letter to the New York RO in order to sever a claim seeking benefits under 38 U.S.C.A. § 1151 (West 1991) from the remainder of the current appeal pending resolution of the Department's appeal of Gardner v. Derwinski, 1 Vet.App. 584 (1991) and the lifting of a Department-wide stay on the processing of such claims. Although the Supreme Court of the United States recently ruled in that appeal, the Department-wide stay on the processing of claims under 38 U.S.C.A. § 1151 has not yet been lifted. Accordingly, this issue is referred to the attention of the RO for appropriate further action when that stay is lifted. By rating action dated in October 1994, the St. Petersburg RO denied claims by the appellant seeking service connection for peripheral neuropathy due to exposure to Agent Orange and seeking an increased rating for the service-connected left knee disability. As will be discussed below, an appeal on the increased rating issue was initiated by the appellant long before this last rating action. However, the record presently certified to the Board does not reflect any document which might qualify as a Notice of Disagreement with the RO's determination on the Agent Orange issue. During the course of this appeal, the appellant also appears to have raised additional issues relating to his entitlement to arch supports (which would be under the jurisdiction of the appropriate VA Medical Center) and to service connection for a right knee disability as secondary to the service-connected left knee disability. These additional issues are also referred to the attention of the RO for further development or other action deemed appropriate. REMAND Entitlement to service connection for a right knee disability has been previously denied by the Board in appellate decisions dated in December 1974 and September 1980. Both of those decisions were based upon a review of the entire evidentiary record at that time and represent adjudications of the appellant's claim on it merits. By rating action dated in March 1986, the Jackson RO denied an attempt by the appellant to reopen the claim for service connection for a right knee disability by the submission of new evidence, and also denied a claim seeking an increased rating for the service-connected left knee disability. The appellant was notified of these determinations by letter dated in April 1986, and a written communication received from him in March 1987 indicates that he disagreed with the RO's decision concerning his "knees" (emphasis added). This would appear to constitute a valid and timely Notice of Disagreement with regard to both issues. However, the increased rating issue has never been the subject of a Statement of the Case; and the Statement of the Case and Supplements thereto issued relative to the attempt to reopen the right knee claim do not go back further than an October 1988 rating action which was concerned with an entirely separate issue. In addition, it is now well-settled that the determination of whether new and material evidence has been submitted to reopen a claim must be based upon a review of all additional evidence received since the last adjudication of the claim on its merits: in this case since the Board decision in September 1980. Glynn v. Brown, 6 Vet.App. 523, 528-29 (1994); Duran v. Brown, No.93- 338 (U.S. Vet. App. Dec. 13, 1994). In reaching its determination on this issue, the RO has also failed to discuss the presumption of credibility for newly submitted evidence mandated by Justus v. Principi, 3 Vet.App. 510, 513 (1992). However, with regard to the notation dated November 24, 1978, by T.J. Dewey III, M.D., and the September 1985 notation by an individual identified by the appellant as Major Sheen at the military hospital at Sheppard Air Force Base, Texas, the principle concerning such speculative medical opinions set forth in Tirpak v. Derwinski, 2 Vet.App. 609, at 611 (1992) is also applicable. One of the main problems revealed by a review of the claims files is that some of the appellant's VA outpatient treatment records, especially those from Dr. Dewey, a fee-basis physician,, appear to have been regularly sent to the relevant VA Medical Centers for inclusion in his medical records, but copies of these records were not always forwarded to the relevant RO for inclusion in his claims files as well. Sometimes, even when these records did eventually find their way into the claims files, it was not until years later. This was the case, for example, with the November 1978 notation by Dr. Dewey referred to above, which was not placed in the claims files until February 1986. It thus appears that a review of the appellant's complete VA medical records will give the RO the most accurate picture available of both his medical history and also of exactly when certain records were first received by VA. Although the Board very much regrets the additional delay which the necessary evidentiary and procedural development will require, it is noted that the appellant, himself, recently requested that the claims files be returned to the RO so that he can be accorded a contemporary VA medical examination and also "to add evidence to my cases." Accordingly, this case is hereby remanded to the RO for the following further actions: 1. The RO should invite the appellant to submit any additional evidence in support of his claims which he cares to submit. 2. The RO should obtain and associate with the claims files copies of the contents of all VA medical records pertaining to the treatment or evaluation of the appellant, either inpatient or outpatient, since his discharge from service in March 1969. 3. The RO should next schedule the appellant for a contemporary VA medical examination by a specialist in orthopedics (board certified, if available) in order to determine the current nature and severity of the service-connected left knee disability and in order to identify the nature of any right knee disability which may be currently present. All necessary x- ray studies or other laboratory procedures should be accomplished as part of this examination. The claims files must be made available to the examiner for review prior to this examination. The examiner should also be requested to give an opinion, based upon a review of the material in the claims files, as to the etiology of any right knee disability which may be present, if it is possible to determine this from the available information without resorting to speculation. 4. The RO should next review all of the relevant evidence and readjudicate the issue currently on appeal based upon the guidelines set forth in Glynn v. Brown, 6 Vet.App. at 528-29; Justus v. Principi, 3 Vet.App. at 513; and Tirpak v. Derwinski, 2 Vet.App. at 611, as previously discussed in this decision. The RO should also review all evidence relevant to the issue of an increased rating for the service-connected left knee disability from 1986 up until the present. If the benefits sought on appeal are not granted to the appellant's satisfaction, if an increased rating retroactive to 1986 cannot be granted for the service-connected left knee disability, or if a timely Notice of Disagreement is received with respect to any other matter, including any additional issues raised by the appellant, a Supplemental Statement of the Case addressing all issues in appellate status should be prepared and furnished to the appellant and his representative. They should be provided an opportunity in which to respond. Thereafter, in accordance with proper appellate procedures, the case should be returned to the Board for further appellate review, if otherwise in order. All issues properly in appellate status should be returned to the Board at the same time. In taking this action, the Board implies no conclusion, either legal or factual, as to any final outcome warranted. No action is required of the appellant until he is otherwise notified by the RO. SAMUEL W. WARNER 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. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1993).