Citation Nr: 0001862 Decision Date: 01/24/00 Archive Date: 02/02/00 DOCKET NO. 98-11 578 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUE Whether there is new and material evidence to reopen a claim for service connection for a bilateral knee disability. ATTORNEY FOR THE BOARD R. T. Jones, Counsel INTRODUCTION The veteran served on active duty from March 1955 to March 1957 and from October 1961 to September 1984. This case is before the Board of Veterans' Appeals (Board) on appeal from an April 1998 rating decision by the VA RO which held that new and material evidence had not been submitted to reopen a claim for service connection for a bilateral knee disorder. The case was remanded to the RO in October 1999; it was returned to the Board in January 2000. FINDINGS OF FACT 1. In September 1988, the Board denied service connection for a bilateral knee disorder. 2. The evidence submitted since the September 1988 Board decision, in support of the current application to reopen the claim for service connection for a bilateral knee disorder, is either redundant or cumulative of previously considered evidence, or by itself or with evidence previously assembled is not so significant that it must be considered in order to fairly decide the merits of the claim. CONCLUSION OF LAW The additional evidence received since the Board's decision of September 1988, denying service connection for a bilateral knee disorder, is not new and material; the claim for service connection is not reopened; and the September 1988 Board decision is final. 38 U.S.C.A. §§ 5108, 7104 (West 1991); 38 C.F.R. § 3.156 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Background The veteran served on active duty from March 1955 to March 1957 and from October 1961 to September 1984, at which time he retired from the Army. Numerous physical examinations during service showed no complaints relative to the knees, and clinical evaluations of the lower extremities were normal. The veteran's service medical records show occasional complaints of leg cramps without any knee abnormality. In January 1983, he had posterior leg discomfort; the assessment was muscular strain. In April 1984, he was seen for tenderness behind the left knee and heel; the physical examination showed no knee abnormality. On the medical history portion of the June 1984 service separation examination, the veteran reported he had not had arthritis, rheumatism, or bursitis, or bone, joint, or other deformity. He indicated he had not had a "trick" or locked knee. Clinical examination of the lower extremities was normal. Records from Harry McCarthy, M.D. and Riverside Hospital show the veteran underwent arthroscopic surgery with repair of a torn medial meniscus of the left knee in October 1985. It was noted that he had a twisting injury of the knee 6 weeks earlier and that he was an avid jogger. In June 1987, Dr. McCarthy reported that the veteran had recurrent right knee pain that came on while he was running. He was sent to Riverside Hospital where he underwent a right medial meniscectomy for a torn menicus in June 1987. In statements in 1987 and 1988, the veteran claimed that extensive running during his many years of service, including running in combat boots during physical training, led to his current knee problems. He related he had intermittent knee problems during service for which he did not go on sick call; he had no knee problems at the time of service discharge; and extreme knee pain began about 6 months after he retired from service. At a March 1988 VA examination, the veteran related he had some problems with his knees in service but was able to continue to run 15 miles or more a week up to the time of his service retirement. He said he continued to run after service, but he then developed knee pain and had to undergo surgeries for cartilage damage of both knees. Current examination findings were essentially normal; X-rays of both knees were normal; and the impression included residuals of bilateral meniscectomies. In September 1988, the Board denied service connection for a bilateral knee disorder. Since the September 1988 Board decision, the following evidence has been received. In August 1997 the veteran applied to reopn his claim for service connection for a bilateral knee condition. In statements in August and October 1997, he said he ran every day in the Army, sometimes up to 5 miles a day and in combat boots. He noted that after service he had a left knee operation in 1985, a right knee operation in 1987, and another left knee operation in 1996. The veteran reported he now had knee arthritis. He maintained that extensive running in service was a direct cause of his knee problems. In March 1998, the veteran submitted November 1996 to February 1997 treatment records from Cherie Holmes, M.D. In November 1996, it was reported that that the veteran was a former Army staff sergeant and a runner. It was reported that that he had stopped running the preceding week because of pain. Following X-rays, the diagnosis was degenerative joint disease of the knees. An exercise program other than running was recommended. The records from Dr. Holmes show the veteran underwent arthroscopic surgery with debridement of the torn medial meniscus of the left knee in December 1996. At an office visit in February 1997, impressions included medial meniscus tear, status post arthroscopy and debridement, and degenerative joint disease of the knees. In his May 1998 notice of disagreement and his July 1998 substantive appeal, the veteran reiterated his previous assertions. He said that although he continued to run after service, he believed that extensive running during service, including running in combat boots, led to current knee problems which included arthritis. II. Analysis 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; 38 C.F.R. § 3.303. Service incurrence will be presumed for certain chronic diseases, including arthritis, if manifest to a compensable degree within the year after active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The claim for service connection for a bilateral knee condition was previously denied by the Board in September 1988; that decision is considered final, with the exception that the claim may be reopened if new and material evidence is submitted. 38 U.S.C.A. §§ 5108, 7104; Evans v. Brown, 9 Vet. App. 273 (1996); Manio v. Derwinski, 1 Vet. App. 140 (1991). "New and material evidence" means evidence not previously submitted to VA 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 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); Hodge v. West, 155 F.3d 1356 (Fed.Cir. 1998). When the Board denied the claim for service connection for a bilateral knee disorder in September 1988, it considered service medical records from the veteran's many years of active military service (which ended with retirement in 1984) which show some lower extremity complaints but which are negative for a chronic knee disorder. The Board also considered post-service medical records which show left knee cartilage damage and surgery following a post-service 1985 injury and right knee cartilage damage and surgery following a post-service 1987 injury. X-rays of the knees in 1988 were normal; arthritis was not shown. The Board considered statements by the veteran in which he alleged that his current knee problems were due to extensive running in service. At the time of the September 1988 Board decision, there was no medical evidence linking the bilateral knee disorder with the veteran's service. Since the September 1988 Board decision, the veteran has again asserted that his bilateral knee disorder is due to many years of running in service. His assertions are not new, as they are duplicative of his statements that were of record at the time of the prior Board denial of the claim for service connection. Reid v. Derwinski, 2 Vet. App. 312 (1992). Moreover, his lay assertions as to medical causality are not competent nor material evidence to reopen the previously denied claim. Moray v. Brown, 5 Vet. App. 211 (1993). The veteran has submitted additional medical evidence since the September 1988 Board decision, showing additional knee treatment in 1996-1997, including additional left knee surgery for cartilage damage and treatment for arthritis of both knees. The existence of the bilateral knee disorder was of record at the time of the 1988 Board decision, and evidence of a continuing bilateral knee disorder since then is cumulative and redundant, not new, evidence. Vargas- Gonzalez v. West, 12 Vet.App. 321 (1999). The more recent medical evidence shows the veteran now has arthritis of the knees, but does not link this additional knee pathology, first shown years after active duty, with his service. This evidence is not material evidence since by itself, or in connection with earlier evidence, is not so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156. The Board concludes that new and material evidence has not been submitted since the September 1988 Board decision which denied service connection for a bilateral knee disorder. Thus, the claim has not been reopened, and the September 1988 Board decision remains final. ORDER The application to reopen a claim for service connection for a bilateral knee disorder is denied. L. W. TOBIN Member, Board of Veterans' Appeals