BVA9507462 DOCKET NO. 93-10 832 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for a right knee disorder. 2. Whether new and material evidence has been received to reopen a claim for service connection for a right foot disorder. 3. Entitlement to service connection for varicose veins. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. B. Weiss, Associate Counsel INTRODUCTION The veteran had active military service from June 1941 to December 1945. A January 1946 rating decision denied service connection for injury to the right knee or residuals thereof. The veteran was notified of this decision the same month. He did not appeal within one year thereafter. A December 1969 rating decision denied service connection for injury to the right foot or residuals thereof. The veteran did not appeal within one year thereafter. In a December 1992 letter, the representative raised the issue of an increased rating for appendectomy scars. This issue is not developed for appellate review and is not inextricably intertwined with the instant claims. Therefore, it is referred to the regional office (RO) or adjudication. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he fell on his right knee into a bayonet hole in service and that he has disabling residuals of his right knee from that incident. The veteran submitted argument in April 1993 that an injured knee which is not repaired gets worse with age. DECISION OF THE BOARD The Board of Veterans' Appeals (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 new and material evidence has been received to reopen the claim for service connection for a right knee disability. FINDINGS OF FACT 1. The veteran's claim for service connection for a right knee disorder was denied in an unappealed January 1946 rating decision on the basis that injury to the right knee or residuals of same were not found on the final service examination in November 1945. 2. The additional evidence added to the record since the January 1946 rating decision contains a diagnosis of traumatic arthritis of the right knee and is so significant that it must be considered in order to fairly decide the merits of the claim. CONCLUSION OF LAW The January 1946 rating decision that denied service connection for residuals of a right knee injury became final; evidence received since then is new and material, and the claim is reopened. Veterans Regulation No. 2(a), pt. II, par. III; Department of Veterans Affairs Regulations 1008 and 1009; effective January 25, 1936, to December 31, 1957; 38 U.S.C.A. §§ 5107, 5108 (West 1991); 38 C.F.R. § 3.156(a) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. Each disabling condition shown by a veteran's service records, or for which he seeks service connection must be considered on the basis of the places, types and circumstances of service as shown by service records, the official history of each organization in which he served, the medical records and all pertinent medical and lay evidence. Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of the Department of Veterans Affairs (VA) to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 C.F.R. § 3.303(a) (1994). The law grants a period of 1 year from the date of the notice of the result of the initial determination for the filing of an application for review on appeal; otherwise, that decision becomes final and is not subject to revision in the absence of new and material evidence. Veterans Regulation No. 2(a), pt. II, par. III; Department of Veterans Affairs Regulations 1008 and 1009; effective January 25, 1936 to December 31, 1957. If new and material evidence has been received with respect to a claim which has become final, then the claim is reopened and decided on a de novo basis. 38 U.S.C.A. § 5108. New and material evidence means evidence not previously submitted to agency decisionmakers which bears directly and substantially on the specific matter under consideration, which is neither cumulative nor redundant and which is, by itself or in combination with other evidence, so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). The credibility of additionally received evidence is presumed for purposes of reopening a claim on the basis of new and material evidence. Justus v. Principi, 3 Vet.App. 510, 512-513 (1992). If the Board determines that new and material evidence has been received to reopen a claim, then it must determine whether the veteran will be prejudiced if the Board resolves the case on the merits. Further, if the Board addresses in its decision a question that had not been addressed by the RO, it must consider whether (1) the claimant has been given adequate notice of the need to submit evidence or argument on that question and (2) an opportunity to submit such evidence and argument and (3) to address that question at a hearing and, if not, (4) whether the claimant has been prejudiced thereby. Bernard v. Brown, 4 Vet.App. 384 (1993). Evidence available at the time of the January 1946 rating decision included the service medical records. At examination for discharge in November 1945, the right knee was noted to have "crysitates" on motion. This was reported in the veteran's history to be a 1941 injury which was disabling. In the veteran's claim for compensation received in December 1945, he asserted that his right knee had been injured at Ft. Leonard Wood in August 1941. The January 1946 rating decision denied service connection for injury to the right knee or residuals of same as not found on the last service examination. The RO notified the veteran of this the same month. He did not appeal within one year thereafter. Therefore, the Board finds that the January 1946 rating decision became final. Evidence received after the January 1946 rating decision is as follows. In January 1947, the veteran advised that his right knee gave him considerable trouble in bad weather and that a service doctor had told him that the cartilage in the knee was broken. Additional service records were received which did not refer to the right knee. In November 1968, the veteran advised his congressional representative that he had crippled his knee in service. In a letter dated in October 1969, the veteran stated that his right knee had given him trouble since his injury in July 1941. At VA examination in December 1969, there were no complaints or findings pertinent to the right knee. A January 1989 letter from the veteran states that his right knee was injured in a fall in service, and that his knee seemed to be getting worse over the years. At VA examination in January 1989, the veteran complained of pain in his right knee. On examination, the right knee was thought to be painful but without limitation of motion. The pertinent diagnosis was right knee traumatic arthritis. The veteran has submitted duplicates of some of his service medical records and a morning report indicating that he was sent to sick duty. The statement of [redacted], received in July 1992, indicates that he served with the veteran, and he recalled that the veteran fell on the parade ground and injured his foot and knee. He was reportedly hospitalized for a while, and then moved out of Mr. [redacted]'s division prior to its going on maneuvers in August 1941. (Mr. [redacted] updated this statement in September 1992 to indicate that the right foot and knee were the injured parts.) At his personal hearing in March 1993, the veteran testified that Ft. Leonard Wood was being built at the time that he fell in the hole in service, so that the parade ground and the bayonet course were the same area. Mr. [redacted]'s statement, he added, should be interpreted in that light. (transcript of hearing at page 2 or t. 2.) He asserted that after hospitalization for injury to the right foot and knee, he was reassigned to a job he could do sitting down so that he could stay off the foot. He claimed that he was barred from hiking, running, or drilling. He said that he bought a brace for his right knee in service and continued to wear it after service. (t. 4-5.) He testified that the right knee was X-rayed in service and that he had been told that the knee had a slipped cartilage. (t. 6.) After service, his knee caused him to fall, but less so if he wore his brace. (t. 7.) He had used an assistive device to walk for 10 years due to his knee. He had never finished basic training because of his service injuries. (t. 7-8.) He felt that he would have been discharged from service for his injuries but for the declaration of war. (t. 4-5.) The Board has reviewed all of the relevant evidence. The evidence discussed above casts significant new light on this case that raises a reasonable possibility in changing the outcome. In particular, received subsequent to the 1946 rating decision are a VA examiner's diagnosis of traumatic arthritis of the right knee and testimony that the knee has been painful and disabling since a service injury. Given that the veteran injured the knee in service and was thought by the service separation examiner to be disabled by it, the later received evidence of traumatic arthritis is so significant that it must be considered in order to decide the merits of the claim. The Board has considered whether to move forward to decide the claim on the merits. However, the Board finds that it cannot do so without prejudice to the veteran. See Bernard v. Brown, 4 Vet.App. 384 (1993). As discussed below, additional development would be helpful in providing a sound basis for rendering a fair determination in this case. Consequently, the appeal is granted to the extent that new and material evidence has been presented, and the claim is reopened. ORDER New and material evidence having been received, the claim of entitlement to service connection for a right knee disorder is reopened and must be decided on the basis of de novo review. To this extent, the issue on this appeal is granted. REMAND To ensure that the VA has met its duty to assist the claimant in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. The RO should obtain from the veteran the names and addresses of all medical care providers who treated him for a right knee disorder since service. After securing the necessary release, the RO should attempt to obtain any outstanding records. 2. The veteran should be afforded a VA orthopedic examination to determine whether any right knee disorder now present is related to trauma sustained to that knee in service or to symptoms shown during service. The claims folder must be made available to the examiner for review before the examination, and the examiner is specifically requested to provide an opinion as to whether any current right knee disability found is causally or etiologically related to the symptoms shown during service or to any service incident. All indicated diagnostic studies are to be accomplished, including X-rays of the right knee. 3. After the development requested above has been completed to the extent possible, the RO should again review the record and decide the issue of service connection for a right knee disability on a de novo basis. The issues of whether new and material evidence has been submitted to reopen a claim of service connection for a right foot disorder and service connection for varicose veins are deferred, pending the aforementioned development. The RO should insure that the record includes all necessary medical opinions pertinent to any findings that are made on readjudication. See Crowe v. Brown, No. 93-550, slip op. at 16 (U. S. Vet. App. December 20, 1994); 38 C.F.R. § 3.328 (1994). If any benefit sought on appeal remains denied, the appellant and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant and representative need take no action until otherwise notified. M. SABULSKY 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) (1994).