Citation Nr: 0007302 Decision Date: 03/17/00 Archive Date: 03/23/00 DOCKET NO. 98-08 389A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent for a left knee disability, currently diagnosed as residuals of left knee arthroplasty. 2. Whether new and material evidence has been submitted to reopen a claim of service connection for a right knee disorder. WITNESSES AT HEARING ON APPEAL The veteran and his spouse. ATTORNEY FOR THE BOARD R. A. Seaman, Associate Counsel INTRODUCTION The veteran served on active duty from January 1945 to July 1946. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 1998 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which increased the disability rating assigned to the veteran's left knee disability from 10 percent to 30 percent. In the same decision, the RO denied a claim of service connection for a right knee disorder based on a finding that new and material evidence had not been submitted to warrant reopening said claim, which was previously denied by an RO decision issued in December 1994. The veteran appeared for a personal hearing before the RO in August 1998. A transcript of that hearing is of record. The veteran was scheduled for a personal hearing before the undersigned Member of the Board in St. Louis, Missouri, and given notice of the date and time thereof. However, the veteran failed to appear for the hearing, and there is no indication of record that he requested a postponement of said hearing. Thus, this appeal continues as though the veteran's request for a hearing had been withdrawn. 38 C.F.R. § 20.704(d) (1999). FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's claim for an disability rating in excess of 30 percent for a left knee disability. 2. The veteran's left knee disability is productive of complaints of pain related to the veteran's daily activities. 3. The veteran's left knee disability is principally manifested by a total knee arthroplasty which is grossly intact and slightly to moderately disabling; physical examination is negative for showing left leg extension limited to 30 degrees or more; physical examination is negative for showing ankylosis of the left knee, or malunion of the tibia and fibula. 4. The veteran's claim of entitlement to service connection for a right knee disorder was last denied by the RO in December 1994; the veteran was notified of this decision, but did not appeal. 5. Evidence submitted since the December 1994 decision does not bear directly and substantially upon the issue of service connection for a right knee disorder, and by itself or in combination with the evidence previously of record, is not so significant that it must be considered in order to fairly decide the merits of said claim. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 30 percent for a left knee disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003-5257 (1999). 2. The RO's December 1994 decision denying the veteran's claim of entitlement to service connection for a right knee disorder is final. 38 U.S.C. § 4005(c) (1988); 38 C.F.R. § 20.1103 (1994). 3. Evidence submitted since the RO's December 1994 decision is not new and material as to the claim based on a right knee disorder, and the veteran's claim of entitlement to service connection for the same is not reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Background. Service medical records show that the veteran experienced an injury to his left knee during active duty, but do not reveal the cause of the injury. The in-service diagnosis was internal derangement and pain in the left knee on exertion. The service medical records are negative for showing any complaint, diagnosis, or treatment related to the veteran's right knee either prior to or during service. The veteran filed a compensation claim in July 1946, alleging that he injured his left knee during obstacle course training in February 1945. He asserted that overuse of his left knee caused it to ache and slip out of joint. By an August 1946 decision, the RO awarded the veteran service connection for "residual of injury, left knee, internal derangement and pain on exertion." The disability was evaluated as 20 percent disabling under Diagnostic Code 5258. On follow-up VA examination in May 1949, the diagnosis was "[n]o orthopedic pathology found." By a May 1949 decision, the RO noted that VA examination had shown material improvement in the veteran's left knee disability. Accordingly, the RO reduced the evaluation for the veteran's left knee disability from 20 percent to zero percent. In September 1994, the veteran wrote the RO and stated that he had severely injured both knees during basic training, resulting in cartilage and ligament damage. He contended that the condition of his knees had deteriorated over the years to the point that he experienced constant bilateral knee pain. The RO obtained private medical records reflecting treatment the veteran received between January 1978 and September 1994, primarily for conditions other than his bilateral knee disorders. The medical records revealed that the veteran had stepped on a rock in November 1989, which caused him to fall on both knees and his right hand. Treatment for that accident was primarily for the right thumb and lower back. Instability of both knees was indicated in a June 1990 medical record, and degenerative arthritis was diagnosed. A September 1994 medical record noted the veteran's self- reported history of a "previous cartilage injury while paratrooping in 1945." Also recorded was the veteran's self-reported history of being "[d]ischarged from [s]ervice with disability with knees." The veteran's history of cartilage and ligament repair, and arthroscopy of the right knee by another private physician was noted. The veteran complained of being increasingly limited with pain in both knees. The physician found that he was unable to fully extend the left knee. More bowing and lateral motion was found in the right knee, along with locking, giving way, pain, and nearly bone-on-bone erosion of the right knee cartilage. These private medical records were negative for findings or opinions, other than those provided by the veteran, pertaining to the etiology of the veteran's bilateral knee disorders. By a December 1994 rating decision, the RO increased the evaluation for the veteran's service-connected left knee disability from zero percent to 10 percent. The RO recharacterized the left knee disability as "[i]nternal derangement, left knee with degenerative arthritis and [limitation of motion]," and rated the disability under Diagnostic Codes 5003-5257. In the same decision, the RO denied the veteran's claim of service connection for a right knee disorder, as the service medical records were negative for any complaint, treatment, or diagnosis of a right knee disorder. The veteran did not initiate an appeal of the December 1994 decision. In November 1997, the veteran wrote to the RO and requested an increase in the disability rating assigned to his right knee disability, stating that the condition of both knees had worsened. He complained of numbness and continued pain in the left knee, and that the left knee easily fatigued. The veteran was afforded VA examination in January 1998. He reported to the VA physician that he injured both knees in- service after being pushed during a simulated parachute jump. He complained of continuous and constant pain in both knees which was related to his daily activities, and which worsened in the evening. It was noted that the veteran walked with a limp, and used a cane approximately once a month. Objective examination revealed a two inch anterior right knee scar that was well healed and nontender. A 12 inch anterior left knee scar was found well healed and nontender. Bilaterally, the VA physician found no joint heat, swelling, subluxation, or lateral instability. Range of motion tests on the right knee revealed that flexion was to 140 degrees; extension was to zero degrees. Flexion on the left knee was to 130 degrees; extension was to 10 degrees. Diagnosis was degenerative joint disease, right knee, slightly disabling; and status post total left knee replacement, slightly to moderately disabling. X-rays taken by VA in January 1998 revealed a total knee arthroplasty of the left knee. Prosthetic tibial and femoral components appeared intact in a nearly normal anatomical alignment. Soft tissues were unremarkable. X-rays of the right knee showed moderate to severe degenerative changes in the right knee. The left knee arthroplasty prosthesis appeared grossly intact. By a rating decision in February 1998, the RO recharacterized the veteran's service-connected left knee disability as status post left knee arthroplasty. Finding that the evidence was sufficient to warrant an increased evaluation, the RO increased said evaluation from 10 percent to 30 percent under Diagnostic Code 5055. In the same decision, the RO held that new and material evidence had not been submitted to reopen the claim of service connection for a right knee disorder, as "there is no possibility that the new evidence submitted in connection with the current claim would change our previous decision." The veteran initiated a timely appeal of the February 1998 determination. Subsequent to the February 1998 decision, the RO obtained additional records reflecting outpatient treatment the veteran received at Hickman Mills Clinic between September 1995 and December 1997. Finding that said medical reports were negative for demonstrating a worsening of the left knee disability that would warrant an increased disability rating, the RO continued the 30 percent evaluation previously assigned thereto. At an October 1998 hearing, the veteran reported that he injured both knees simultaneously while performing simulated parachute jumps during service. He testified that after the initial injury he experienced very severe pain lasting for two days, with morning stiffness, but without swelling or locking. He reported that service medical personnel informed him that he had torn ligaments in both knees. He stated that he used an Ace bandage on his right knee throughout his service. Symptoms he continued to experience bilaterally included progressive pain and stiffness, difficulty ambulating, occasional crepitus, and an inability to fully extend the left knee. He denied that swelling had ever been a problem with either knee. To the contrary, his spouse testified that the veteran had experienced swelling in both his knees. When asked whether he underwent any kind of physical examination at separation from service, the veteran answered that he did not recall an examination. He testified that on separation, a "sergeant" had asked him whether he incurred any service-connected injuries, and the veteran answered "yes, both knees were injured." The veteran stated that "[the sergeant] told me well I can't write all that down. He said which knee is the worst? At that time my left knee was the worst and I said the left knee." Thus, the veteran contended at the hearing that the more obvious left knee condition caused his right knee injury to be overlooked. The veteran testified that he sought no medical treatment for his right knee disorder between separation from service and approximately December 1984 because he was told that knee operations were "pretty iffy." Subsequent to the hearing, the RO obtained additional medical evidence, including outpatient reports reflecting treatment the veteran received at Suburban Medical Center between December 1984 and March 1985. A clinical report dated in December 1984 noted the veteran's self-reported history of in-service injury to both knees, and noted that "[h]e recovered from those injuries and then after the service injured his right knee again." The same report reflects that the veteran presented with chief complaint of pain and swelling in the right knee. The veteran weighed 245 pounds, with a calculated ideal weight of 151 pounds. Examination of the left knee was "essentially normal." Examination of the right knee revealed an effusion, diffuse generalized tenderness medially and laterally, and some tenderness superiorly over the pouch. The right knee showed a slight increase warmth, but no redness. Right knee pain was experienced with any motion of the knee anywhere near extremes of motion. The right knee lacked about 30 degrees of full extension and could flex to only about 90 to 95 degrees. Diagnosis was degenerative arthritis of the right knee, possibly secondary to degenerative or torn meniscal cartilages. The private physician noted that the veteran had a "rather sudden and acute onset of his knee pain without trauma." The physician noted that he had "discussed with [the veteran] the importance of a weight reduction program." Diagnosis after further X-ray examination in March 1985 was degenerative arthritis, bilaterally, worse on the right knee than the left, with possible meniscal degeneration of the right knee. A medical record dated in March 1985 reflects that the veteran underwent arthroscopy, arthrotomy, debridement, and partial medial meniscectomy of the right knee. The medical records from Suburban Medical Center were negative for findings or opinions, other than those provided by the veteran, pertaining to the etiology of the veteran's bilateral knee disorders. Additional medical records were also obtained from Hickman Mills Clinic which reflect treatment the veteran received between March 1998 and August 1998. Two reports from that clinic, dated in October and December 1997, were duplicates of reports already associated with the claims file and considered by the RO in previous decisions. The medical records from Hickman Mills Clinic that were not duplicative of records previously obtained reflect treatment for conditions other than the veteran's bilateral knee disorders. In October 1998, the hearing officer issued a supplemental statement of the case which continued the 30 percent rating previously assigned to the service-connected left knee disability, as the evidence of record, including the testimony of the veteran and his spouse, did not warrant a rating in excess of 30 percent for said disability. Additionally, the RO held that no new and material evidence had been submitted since the issuance of the December 1994 decision which warranted reopening the veteran's claim of service connection for a right knee disorder, as "there is no possibility that the new evidence submitted in connection with the current claim would change our previous decision." In August 1998, the veteran informed the RO that he received medical care at Raytown Clinic between 1954 and approximately 1970, and that the records of said treatment were being kept by Parkway Family Care Center. The RO attempted to obtain those records, but received a letter from Parkway Family Care Center stating that the medical facility "only keep[s] records for ten years and then they are destroyed. Therefore, they [sic] are no records to be sent." Legal Criteria for the Increased Rating Claim. Under the applicable criteria, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (1999). Separate diagnostic codes identify the various disabilities. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The requirements set forth in these regulations, mandating an evaluation of the complete medical history of the veteran's claimed disability, operate to protect veterans against adverse decisions based on a single, incomplete or inaccurate report, and to enable VA to make a more precise evaluation of the level of the disability and of any changes in the condition. 38 C.F.R. §§ 4.1, 4.2 (1999); Schafrath, 1 Vet. App. at 593-94. The veteran's disability, however, must be reviewed in relation to its history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (1999); where there is a question as to which or two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (1999); and evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (1999); Schafrath, 1 Vet. App. 589. In any case, with particular regard to the veteran's request for an increased schedular evaluation, the Board will only consider the factors as enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). The evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14 (1999). The United States Court of Appeals for Veterans Claims (Court) has held that a claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. The Court has acknowledged, however, that when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different diagnostic codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). In evaluating disabilities of the musculoskeletal system, additional rating factors include functional loss due to pain supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 (1999). Inquiry must also made as to weakened movement, excess fatigability, incoordination, and reduction of normal excursion of movements, including pain on movement. 38 C.F.R. § 4.45 (1999). The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. 38 C.F.R. § 4.59 (1999). Total knee replacement is evaluated under 38 C.F.R. § 4.71(a), Diagnostic Code 5055, which provides that intermediate degrees of residual weakness, pain, or limitation of motion are to be rated by analogy to Diagnostic Codes 5256 (ankylosis of the knee); 5261 (limitation of extension); and 5262 (impairment of the tibia and fibula), with a minimum 30 percent rating assigned under Diagnostic Code 5055. The next higher evaluation under Diagnostic Code 5055, a 60 percent rating, requires evidence of chronic residuals consisting of severe painful motion or weakness in the affected extremity. A total evaluation of 100 percent is given for the period of one-year following prosthetic replacement of the knee joint. 38 C.F.R. § 4.71(a), Diagnostic Code 5055 (1999). A knee impairment with recurrent subluxation and lateral instability is rated 10 percent when slight, 20 percent when moderate, and 30 percent when severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (1999). Evidence of dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint will result in the assignment of a 20 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5258. The symptomatic removal of semilunar cartilage will result in a 10 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5259 (1999). Limitation of flexion of a leg is rated zero percent when limited to 60 degrees, 10 percent when limited to 45 degrees, 20 percent when limited to 30 degrees, and 30 percent when limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (1999). Limitation of extension of a leg is rated zero percent when limited to 5 degrees, 10 percent when limited to 10 degrees, 20 percent when limited to 15 degrees, and 30 percent when limited to 20 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (1999). 38 C.F.R. § 4.71, Plate II (1999), reflects that normal flexion and extension of the knee is from 0 to 140 degrees. Analysis of the Increased Rating Claim. A claim for an increased rating is regarded as a new claim and is subject to the well-groundedness requirement. Proscelle v. Derwinski, 2 Vet. App. 629, 631 (1992). In order to present a well- grounded claim for an increased rating of a service-connected disability, the veteran need only submit competent testimony that symptoms, reasonably construed as related to the service-connected disability, have increased in severity since the last evaluation. Id. at 631-632; Jones v. Brown, 7 Vet. App. 134, 138 (1994). The veteran has asserted that his service-connected left knee disability has increased in severity, and thus is more disabling than contemplated by the current evaluation. The Board holds that his claim of increasing severity of said disability establishes a well- grounded claim for an increased evaluation. See Proscelle, 2 Vet. App. at 631. VA has afforded the veteran VA medical examination; VA has obtained the pertinent medical records from the veteran's treating physicians; and the veteran has not identified any additional pertinent evidence that is not of record, or that has not yet but can be obtained. The Board is satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required in order to comply with the duty to assist him as mandated by 38 U.S.C.A. § 5107. As noted, the RO has assigned a 30 percent rating for the veteran's right knee disability under Diagnostic Code 5055, which contemplates intermediate degrees of residual weakness, pain, or limitation of motion; rated by analogy to Diagnostic Codes 5256, 5261, and 5262. As outlined above, VA examination in January 1998, in conjunction with the private medical reports of record, reflect that the veteran's left knee disability, i.e., the residuals of the total knee arthroplasty, is manifested by prosthetic tibial and femoral components that appeared intact in a nearly normal anatomical alignment, and with soft tissues unremarkable. Despite the veteran's reports of pain and stiffness, difficulty ambulating, occasional crepitus, and an inability to fully extend the left knee, the physical examinations were negative for subluxation, instability, varus or valgus laxity, heat, redness, swelling, effusion, locking, or weakness. The record clearly supports the RO's decision to rate the veteran's left knee disability pursuant to Diagnostic Code 5055. The Board has considered the veteran's statements describing the symptoms of his left knee disability. However, his statements must be viewed in conjunction with the medical evidence of record. The veteran's left knee disability is currently evaluated as 30 percent disabling under Diagnostic Code 5055 based upon the arthroplasty of the left knee the veteran underwent in 1996. Because Diagnostic Codes 5258, 5259, and 5260 do not allow for a disability rating in excess of 30 percent, the Board finds that they are not for application in the instant case. To be entitled to a rating in excess of 30 percent under Diagnostic Codes 5261 (limitation of extension of the leg), the evidence must show that the veteran's service-connected disability is productive of leg extension limited to 30 degrees. The Board finds that the January 1998 VA examination report, along with the records obtained from private physicians, have not demonstrated that the veteran's left leg is limited in extension to 30 degrees, such that would warrant a 40 percent disability rating under Diagnostic Code 5261. This does not end the Board's inquiry of course, as the Board must consider functional loss and the impact of pain upon the disability. In applying sections 4.40, and 4.45, the Board must consider the veteran's functional loss and clearly explain what role pain plays in the rating decision. Smallwood v. Brown, 10 Vet. App. 93, 99 (1997). See also Quarles v. Derwinski, 3 Vet. App. 129, 140 (1992) (section 4.45 requires analysis of effect of pain on the disability). The functional loss due to pain is to be rated at the same level as the functional loss where motion is impeded. Schafrath, 1 Vet. App. at 592. As shown, the record reflects that the veteran underwent total knee arthroplasty in 1996. Subsequent examinations, however, including VA examination in January 1998, found no evidence of heat, redness, swelling, effusion, instability, or weakness and stated that there was no evidence of limited function of standing or walking related to his left knee. The Board finds that the VA examination report and the records from private physicians adequately portray the veteran's functional loss due to pain, as well as the degree of loss of function due to weakened movement, excess fatigability, or incoordination in accordance with 38 C.F.R. §§ 4.40, and 4.45, and demonstrate that any such functional loss is contemplated by the currently assigned 30 percent disability rating under Diagnostic Code 5055. Further, the Board finds that a separate compensable rating for the post-operative scars resulting from the veteran's left knee arthroplasty is not warranted inasmuch as the scar has not been described as poorly nourished, tender and painful, or productive of any limitation of function. See 38 C.F.R. § 4.118, Diagnostic Codes 7803, 7804, 7805. In rendering this determination, the Board has considered all pertinent aspects of 38 C.F.R. Parts 3 and 4 as required by the Court in Schafrath, 1 Vet. App. 589. The current evidence does not provide a basis which permits an evaluation in excess of 30 percent under Diagnostic Code 5055. Specifically, the medical findings do not demonstrate that the degree of impairment resulting from the veteran's left knee disability meets or more nearly approximates the criteria for a disability rating in excess of the 30 percent already assigned under Diagnostic Code 5055. It is noted that when there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). The Board, for the reasons set forth above, and in accordance with the provision of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1999), concludes that the veteran's symptoms, manifestations, and residuals of his left knee disability are consistent with the 30 percent rating currently assigned, and that the preponderance of the evidence is against the assignment of an evaluation in excess of 30 percent. The evidence is not in relative equipoise, and the disability picture, as discussed above, does not approximate the criteria for a higher rating. Accordingly, the provisions of 38 U.S.C.A. § 5107(b) and 38 C.F.R. §§ 4.3, 4.7 are not for application. Legal Criteria for New and Material Evidence. As noted above, the veteran's claim of entitlement to service connection for a right knee disorder was last denied in December 1994. The veteran was properly notified of that determination, and he did not appeal. As such, the December 1994 decision became final pursuant to applicable VA law and regulations in effect on that date. 38 U.S.C. § 4005(c) (1988); 38 C.F.R. § 20.1103 (1994). However, despite the finality of a final decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or obtained with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The Board notes that in the RO's February 1998 decision, and in the hearing officer's October 1998 supplemental statement of the case, the veteran was provided with both the definition of "new and material evidence" contained in 38 C.F.R. § 3.156(a), and also with the definition of "new and material evidence" from Colvin v. Derwinski, 1 Vet. App. 1 Vet. App. 177 (1991). The articulated basis for the RO's determination as to whether the veteran had submitted "new and material evidence" was based on the Colvin standard of whether the new evidence would provide a reasonable possibility of changing the outcome since overruled by the Court of Appeals for the Federal Circuit in Hodge v. West, 115 F.3d 1356, 1363 (Fed. Cir. 1998). The Federal Circuit in Hodge has indicated that evidence may be considered new and material if it contributes "to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it will not eventually convince the Board to alter its ratings decision." Notably, the RO applied the Hodge standard when it issued a supplemental statement of the case in April 1999. The Court, in Elkins v. West, 12 Vet. App. 209 (1999), announced post-Hodge a three-step analysis to apply in determining whether to reopen previously and finally denied claims. Under the Elkins test, the Board must first determine whether the veteran has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108. Second, if new and material evidence has been presented, immediately upon reopening the claim, the Board must determine whether, based upon all the evidence of record in support of the claim, the claim as reopened (as distinguished from the original claim) is well grounded pursuant to 38 U.S.C.A. § 5107(a) (West 1991). Third, if the claim is well grounded, the Board may then proceed to evaluate the merits of the claim but only after ensuring the VA's duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. In Winters v. West, 12 Vet. App. 203 (1999), the Court held that even assuming the Board had committed error in refusing to reopen a claim by application of the now invalid Colvin test of materiality, such error would not be prejudicial if it is clear on the record that claim would not be well grounded. In Vargas-Gonzales v. West, 12 Vet. App. 321 (1999), the Court further concluded that a determination as to whether evidence is new is separate from a determination as to whether the evidence is material. If the Board determines that the evidence is not new, that should end the Board's analysis as to whether the evidence is "new and material." Accordingly, if the evidence is not new, it is not necessary to go on and determine whether it is material, and thus any error arising from the application of the now invalid Colvin test of materiality would be harmless and a remand for readjudication consistent with Hodge would not be warranted. New and material evidence is defined as 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). Pursuant to 38 U.S.C.A. § 5107(a), a person who submits a claim to VA has the burden of providing evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The Court defines a well- grounded claim as one that is plausible; a claim that is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A well-grounded claim generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In Savage v. Gober, 10 Vet. App. 488 (1997), the Court held that the chronicity provision of 38 C.F.R. § 3.303(b) is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. If the chronicity provision is not applicable, a claim may be still be well grounded under the continuity standard if (1) the condition is observed during service, (2) continuity of symptomatology is demonstrated thereafter, and (3) competent evidence relates the present condition to that symptomatology. Savage, 10 Vet. App. at 498. Where the determinative issue involves medical etiology or a medical diagnosis, competent medical evidence that a claim is "plausible" or "possible" is required for the claim to be well grounded. See Epps v. Gober, 126 F.3d 1464, 1469 (Fed. Cir. 1997) (adopting the Courts prior definition of a well- grounded claim as set forth in Caluza, 7 Vet. App. at 506); Grottveit, 5 Vet. App. at 93. This burden may not be met merely by presenting lay testimony, as lay persons are not competent to offer medical opinions. See, e.g., Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Analysis of New and Material Evidence Claim. As shown above, the veteran was denied service connection for a right knee disorder by a December 1994 decision. It has also been shown that service medical records are negative for showing complaint, diagnosis, or treatment of a chronic right knee disorder. The only evidence submitted demonstrating a continuity of symptoms related to a right knee disorder from the veteran's separation from service to the present are the veteran's contentions and those of his spouse. The veteran's evidentiary assertions as to causation were considered by the RO prior to the issuance of the December 1994 decision. Accordingly, the Board finds that the veteran's testimony at the August 1998 hearing is merely duplicative of evidence already of record. Because the veteran's testimony and additional statements are duplicative, they are therefore redundant, and thus are not "new" as that term is defined in 38 C.F.R. § 3.156(a). Although the Board notes that the veteran and his spouse have testified as to their belief that his right knee disorder is related to the same in-service injury that was found to have caused his service-connected left knee disability, such lay testimony does not constitute competent evidence inasmuch as opinions regarding such matters require medical expertise. See Espiritu, 2 Vet. App. at 494. In the instant case, no party with medical competence has linked the veteran's right knee disorder, shown years after service, with his period of active duty. Medical evidence is required to establish such a relationship, the assertions of the veteran and his spouse regarding these matters are not "material" as that term is used in 38 C.F.R. § 3.156(a). The medical records reflecting treatment by private physicians are "new" in the sense that they contain evidence which the RO did not have before it when issuing the December 1994 decision. The Board notes, however, that in regard to the right knee claim, all such medical records simply reflect that the veteran presented with complaints related to right knee pain, and was treated for the same as early as December 1984, more than 35 years after service. Significantly, all the medical records generated since the December 1994 final decision are negative for any etiological finding or opinion by a medical professional regarding the veteran's right knee disorder. The Board is aware that some of the medical reports of record refer to the veteran's "in-service" injuries to his knees and his post-service history of bilateral knee disorders. However, the Board notes that those medical records appear to be bare transcriptions of a lay history, and therefore do not constitute competent medical evidence that the veteran currently has a right knee disability that is related to his service. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute "competent medical evidence". . . and cannot enjoy the presumption of truthfulness accorded by Justus v. Principi, 3 Vet. App. 510, 513 (1992)). Here, as noted, the medical evidence of record does contain references to a lay history of an in-service injury to both knees. However, no diagnosis of record has enhanced the veteran's history by an additional medical comment by a physician that relates the diagnosis to any in- service injury. The Board recognizes the veteran's sincere belief that his right knee disorder is due to a trauma he sustained while on active duty, but the veteran is not a physician, and he is not qualified to express a medical opinion as to such a relationship. See Espiritu, supra. Thus, even acknowledging that the VA medical records and private physician reports are "new," they are not material because they do not bear directly and substantially upon whether the veteran's right knee disorder is of service origin. By themselves or in connection with evidence previously assembled, they are not so significant that they must be considered in order to fairly decide the merits of the claim. Accordingly, the veteran has not submitted "new and material evidence" to reopen the claim based on a right knee disorder. See Barnett v. Brown, 83 F.3d. 1380 (Fed. Cir. 1996). Additionally, the Board notes that the treatment record the RO obtained from Hickman Medical Clinic subsequent to the August 1998 hearing, reflecting the examination of the veteran's knees in December 1997, is a photocopy of the exact same record submitted since the December 1994 decision. That evidence was previously considered by the RO, and accordingly, the Board finds that said medical record is merely duplicative of evidence already of record. Because the photocopy of the medical record dated in December 1997 is duplicative, it is therefore redundant, and thus is not "new" as that term is defined in 38 C.F.R. § 3.156(a). Likewise, the veteran's evidentiary assertions as to causation are redundant to his assertions that were considered at the time of the December 1994 final determination and thus are not "new." In sum, the Board finds that no item of the additional evidence received subsequent to the RO's December 1994 decision bears directly and substantially upon the specific matters under consideration or is so significant that it must be considered in order to fairly decide the merits of the right knee claim. 38 C.F.R. § 3.156(a). The new evidence does not contribute to a more complete picture of the circumstances surrounding the origin of the right knee disorder which the veteran currently experiences. Accordingly, inasmuch as the Board concludes that the additional evidence is not material, the veteran's claims of service connection for a right knee disorder is not reopened. Finally, the Board recognizes that the RO refused to reopen the veteran's claims by application of the now invalid Colvin materiality standard as to whether there was a reasonable possibility that the additional evidence could change the outcome. As the Court held in Winters, however, since the record lacks competent medical evidence linking any current right knee disorder to an injury incurred or aggravated in service, the veteran also has not met his burden of submitting a well-grounded claim as to this issue. Thus, any error in the RO's determination with respect to the question of whether new and material evidence has been submitted is not prejudicial, and this issue must not be remanded for readjudication by the RO. See Meyer v. Brown, 9 Vet. App. 425 (1996); Bernard v. Brown, 4 Vet. App. 384 (1993). ORDER Entitlement to a disability rating in excess of 30 percent for a left knee disability, currently diagnosed as residuals of left knee arthroplasty, is denied. The veteran not having submitted new and material evidence to reopen the claim of entitlement to service connection for a right knee disorder, the appeal is denied. WAYNE M. BRAEUER Member, Board of Veterans' Appeals