Citation Nr: 0521276 Decision Date: 08/08/05 Archive Date: 08/19/05 DOCKET NO. 02-16 433 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased rating for service-connected hypertension, currently rated as 10 percent disabling. 2. Whether new and material evidence has been presented to reopen a claim of service connection for gouty arthritis with podagra, claimed as foot swelling. 3. Whether new and material evidence has been presented to reopen a claim of service connection for degenerative joint disease of the left knee. 4. Whether new and material evidence has been presented to reopen a service connection claim for a back disorder. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD S. Barial, Associate Counsel INTRODUCTION The veteran had active military service from October 1971 to October 1991. This matter comes to the Board of Veterans' Appeals (Board) from an October 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The veteran requested a Board hearing on his VA Form 9, but later withdrew this request. After this case was certified to the Board, additional evidence was submitted without a waiver of RO consideration, regarding the claim to reopen service connection for a back disorder based on new and material evidence. The Board sent the veteran a VA letter requesting that he notify VA whether he wants this claim remanded to the RO for review of the new evidence, or whether he wants to waive this right and have the Board consider the newly submitted evidence in the first instance. The veteran did not respond, thus, the issue of back disorder is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. In May 2004, the RO denied various claims of service connection and an increased rating claim. In July 2004, the veteran submitted what the Board construes as a timely notice of disagreement to these issues. However, a Statement of the Case addressing these issues is not of record. See Manlicon v. West, 12 Vet. App. 238 (1999). Therefore, these issues are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The veteran's hypertension is controlled by medication and is not manifested by diastolic blood pressure readings predominantly of 110 or more; or systolic blood pressure readings predominantly of 200 or more. 2. In March 1994, the RO denied service connection for gouty arthritis with pedagra and degenerative joint disease of the left knee, on the basis that there was no evidence that these disabilities were incurred in or aggravated by service. The RO notified the veteran of this decision and his appellate rights, but the veteran did not submit a timely appeal. 2. Evidence received since the March 1994 RO decision is neither cumulative nor redundant and is so significant that it must be considered in order to fairly decide the merits of the service connection claims for gouty arthritis with pedagra and degenerative joint disease of the left knee. 3. The competent medical evidence of record shows that the veteran's gouty arthritis with pedagra is related to service. 4. The competent medical evidence of record shows that the veteran's degenerative joint disease of the left knee is related to service. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for hypertension were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.3, 4.7, 4.104, Diagnostic Code 7101 (2004). 2. The March 1994 RO decision denying the claims of service connection for gouty arthritis with pedagra and degenerative joint disease of the left knee is final. 38 U.S.C.A. §§ 5108, 7105 (West 2002). 3. The evidence received subsequent to the March 1994 RO decision is new and material, and the claims of service connection for gouty arthritis with pedagra and degenerative joint disease of the left knee are reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2001). 4. Gouty arthritis with pedagra was incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1131, 1133, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2004). 5. Degenerative joint disease of the left knee was incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1131, 1133, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2004) redefined the obligations of VA with respect to the duty to assist, and imposed on VA certain notification requirements. The final regulations implementing the VCAA were published on August 29, 2001, and they apply to most claims for benefits received by VA on or after November 9, 2000, as well as any claim not decided as of that date. 38 C.F.R. § 3.159 (2004). The United States Court of Appeals for Veteran Claims (CAVC) in Pelegrini v. Principi, 18 Vet. App. 112 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and that the VCAA notice consistent with 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should provide any evidence in his possession pertaining to the claim. The Board has considered the veteran's claims of service connection for gouty arthritis with podagra and degenerative joint disease of the left knee with respect to the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5100 et. seq. (West 2002). Given the favorable outcomes of these claims as noted below, no conceivable prejudice to the veteran could result from the adjudication of these matters. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). Thus, the additional delay in the adjudication of these issues, which would result from a remand solely to allow the RO to apply the VCAA concerning the claims of service connection for gouty arthritis with podagra and degenerative joint disease of the left knee would not be justified. Therefore, the only RO's actions concerning the VCAA to be reviewed apply to the increased rating claim for hypertension. I. Duty to Notify In this case, the agency of original jurisdiction notified the veteran of the information and evidence necessary to substantiate the increased rating claim for hypertension and the respective responsibilities of each party for obtaining and submitting evidence. This was accomplished by way of a March 2001 VA letter, which is prior to the October 2001 rating decision. The RO notified the veteran of the responsibilities of VA and the veteran in developing the record. Specifically, the RO notified the veteran that VA would obtain all relevant evidence in the custody of a federal department or agency. The RO notified the veteran of his responsibility to respond in a timely manner to VA's requests for specific information and to provide a properly executed release so that VA could request the records for him. The RO also requested the veteran to advise VA if there was any other information or evidence he considered relevant to his increased rating claim for hypertension, so that VA could help by getting that evidence. The Board notes that the March 2001 VA letter provided the evidence necessary to show entitlement to a service connection claim, rather than increased rating. However, the RO correctly referenced an increased rating claim in the section of the letter addressing the information and evidence needed from the veteran, specifically noting medical records the veteran had submitted regarding his hypertension increased rating claim. Moreover, the veteran also was notified of the laws and evidence necessary to show entitlement to an increased rating for hypertension in the May 2002 statement of the case and August 2003 supplemental statement of the case. The RO notified the veteran why he was not entitled to an increased rating for hypertension in the October 2001 rating decision, the May 2002 statement of the case, and supplemental statements of the case dated in August 2003 and July 2004. The RO notified the veteran of the laws and regulations pertaining to an increased rating and provided a detailed explanation why an increased rating was not warranted for hypertension under the applicable laws and regulations based on the evidence provided. Upon a review of the claims folder, the Board finds that the veteran and his representative were notified of the evidence and information necessary to substantiate his increased claim for hypertension; were notified of the respective responsibilities of VA and himself as it pertained to who was responsible for obtaining such evidence; and also were notified to submit all relevant evidence he had to the RO. Thus, the Board concludes that the duty to notify the veteran has been satisfied under 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159. II. Duty to Assist VA also must make reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2004). In the present case, the evidence includes service medical records, VA medical records dated from September 1994 to September 2003, and private medical records dated in October 2000. The Board finds that there are no additional medical treatment records necessary to proceed to a decision in this case. In addition, for disability compensation, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4). Here, VA provided VA medical examinations in August 2001 and April 2003, and the examiners rendered considered medical opinions regarding the pertinent issues in this matter. In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the veteran in developing the facts pertinent to the issue of an increased rating for hypertension is required to comply with the duty to assist under the VCAA. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Increased rating for hypertension In March 1994, the RO granted service connection for hypertension and assigned a 10 percent evaluation, effective September 24, 1993. In November 2000, the veteran filed an increased rating claim for hypertension. On his VA Form 9 dated in October 2002, the veteran contended that his hypertension is more severe than noted. He stated that his hypertension is uncontrolled due to insufficient medication, rather than non-compliance, as indicated in the medical evidence. He stated that he was taking his blood pressure medication and not using salt on meals, and was on a higher dosage of medication, but continued to have chest pain and felt like there was cardiac involvement. In sum, the veteran contends that the level of his hypertension disability is more severe than addressed by a 10 percent rating. 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. Where entitlement to compensation has already been established and an increased disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2004). The veteran's hypertension is currently rated under 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101. DC 7101, pertaining to hypertensive vascular disease (hypertension and isolated systolic hypertension), provides as follows: An evaluation of 60 percent is warranted when diastolic pressure is predominantly 130 or more. An evaluation of 40 percent is warranted when diastolic pressure is predominantly 120 or more. An evaluation of 20 percent is warranted when diastolic pressure is predominantly 110 or more, or; systolic pressure predominantly 200 or more. An evaluation of 10 percent is warranted when diastolic pressure is predominantly 100 or more, or systolic pressure predominantly 160 or more. A minimum evaluation also is warranted for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. Note (1) to DC 7101 provides that: Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. Note (2) to DC 7101 provides that: Hypertension due to aortic insufficiency of hyperthyroidism, which is usually the isolated systolic type, should be evaluated as part of the condition causing it rather than by a separate evaluation. 38 C.F.R. § 4.104, DC 7101 (2004). As noted, the veteran's hypertension is currently evaluated as 10 percent disabling under DC 7101. In order to receive the next higher 20 percent rating, the evidence must show diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more. DC 7101. A September 1994 VA medical record shows blood pressure of 128/84. A September 1996 VA medical record shows blood pressure of 144/98. A January 2000 VA clinical record shows a history of hypertension for five years, and a blood pressure reading of 180/107. In October 2000, a private medical record shows blood pressure of 166/110. The impression was that the hypertension had improved. It was noted that the veteran was not on medication. A March 2001 VA medical record shows blood pressure of 180/100. A June 4, 2001 VA medical record shows blood pressure of 160/104. An increase in medication was recommended. A June 4, 2001 VA nurse walk-in note shows a blood pressure reading of 191/108 in the left arm, and 183/125 in the right arm. A repeat reading in 15 minutes showed 181/114. Another repeat in 15 minutes showed 167/112. A July 2001 VA medical record shows blood pressure of 138/100. The veteran's blood pressure 15 minutes later was 142/100. An August 8, 2001 VA medical examination report shows blood pressure of 190/130, taken with a blood pressure machine, and a blood pressure reading of 180/120, taken manually. The diagnosis was hypertension, uncontrolled, most likely due to noncompliance with medications. A second August 8, 2001 VA medical record shows that after the veteran was allowed to sit and relax for five minutes, his blood pressure was 138/100 in the left arm, and 146/102 in the right arm. An August 9, 2001 VA addendum shows that after being allowed to sit for five minutes, the blood pressure in the left arm was 140/100; blood pressure in the right arm was 142/98. An August 15, 2001 VA medical record shows blood pressure of 128/80. On August 17, 2001, his blood pressure was 148/96 in the left arm. After resting, it was 136/88. On August 24, 2001, his blood pressure was 147/109. A repeat reading was 156/110. An August 29, 2001 VA medical record shows a blood pressure of 157/94. It was noted that the veteran had just taken his antihypertensive medication. An August 30, 2001 VA medical record shows blood pressure of 157/94. In November 2001, a VA medical record shows blood pressure of 130/82. A December 2001 Army hospital emergency room note shows blood pressure of 162/85. A January 2002 VA medical record shows blood pressure of 132/74. On March 12, 2002, the veteran's blood pressure was 144/80. On March 26, 2002, his blood pressure was 136/84. The veteran's blood pressure was 124/80 on April 17, 2002. The veteran stated that he was compliant with medication. On April 25, 2002, his blood pressure was 120/70. In August 2002, the veteran's blood pressure was 140/88. His hypertension was found to be controlled. A November 2002 VA medical record shows his blood pressure was 124/76. An April 2003 VA examination report shows his blood pressure was 142/96 supine, 140/92 sitting, and 140/88 standing. The diagnosis was essential hypertension. A May 2003 VA medical record shows blood pressure of 141/78. On July 25, 2003, his blood pressure was 160/96. An July 29, 2003 VA medical record shows blood pressure of 155/93. A repeat reading showed blood pressure of 151/96. The veteran stated that he was compliant with his medication. A September 2003 VA medical record shows a blood pressure reading of 148/78. Upon review, the medical evidence of record does not show that the veteran's hypertension warrants a rating higher than 10 percent. While the veteran had periods of elevated diastolic blood pressure readings over 110 in June 2001 and August 2001, this was found to be most likely due to noncompliance with medication. Moreover, the veteran's blood pressure was found to be lower corresponding to the veteran's reports of taking his medication in July 2001, August 2001, and July 2003. Overall, from January 2000 to September 2003, the veteran's diastolic blood pressure ranged from 130 to 70, but predominantly fell below 110. The overall systolic blood pressure ranged from 191 to 120. In the absence of findings establishing diastolic pressure readings predominantly of 110 or more or systolic pressure readings predominantly of 200 or more, the preponderance of the evidence is against an evaluation in excess of 10 percent for the veteran's hypertension. Moreover, an extra-schedular rating under 38 C.F.R. § 3.321(b) is not warranted, as the evidence does not show that the veteran's hypertension caused marked interference with employment or frequent periods of hospitalization. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. The record does not show that the veteran's hypertension disability is so unusual as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b). Therefore, the Board concludes that the veteran's hypertension more closely resembles a 10 percent rating under DC 7101, and the increased rating claim for hypertension is denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.7. In making this decision, the Board has considered the benefit- of-the-doubt doctrine, but it does not apply. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). New and material evidence In November 1991, the veteran filed claims of service connection for gouty arthritis with podagra, claimed as foot swelling, and degenerative joint disease of the left knee. Evidence considered at that time included the veteran's service medical records, and a February 1994 VA examination report. The service medical records showed findings of gout and reports of left knee swelling. The February 1994 VA examination report showed findings of gouty arthritis with high levels of uric acid, recurrent left knee pain and swelling, and x-ray evidence of degenerative joint disease of the left knee. In March 1994, the RO denied the veteran's claims of service connection for gouty arthritis with podagra, and degenerative joint disease of the left knee, on the basis that there was not a definite diagnosis of gout in service, and there was no evidence of a left knee injury in service, or any other evidence that these diseases were incurred in service. The veteran did not initiate an appeal, and this decision became final. 38 U.S.C.A. § 7105(c). In April 2001, the veteran filed claims to reopen service connection for gouty arthritis with podagra and degenerative joint disease of the left knee. Prior unappealed decisions of the RO are final. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 3.160(d); 38 C.F.R. §§ 20.302(a), 20.1104. However, if new and material evidence is presented or secured with respect to a claim that has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Manio v. Derwinski, 1 Vet. App 145 (1991). The Board notes that 38 C.F.R. § 3.156 was amended, and that the standard for finding new and material evidence has changed as a result. 66 Fed. Reg. 45,620, 45,630 (August 29, 2001) (codified at 38 C.F.R. § 3.156(a)). With respect to applications to reopen finally denied claims, the amendments at 38 C.F.R. § 3.156(a), the second sentence of 38 C.F.R. § 3.159(c), and 38 C.F.R. § 3.159(c)(4)(iii) redefine "new and material evidence" and "the duty to assist." These amendments were made effective as of the date of publication (August 29, 2001) and only apply to applications to reopen filed on or after August 29, 2001. Because the veteran's application to reopen was filed in April 2001, the new regulations do not apply. According to the applicable VA regulations, "new and material evidence" means evidence not previously submitted to agency 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). I. New and material evidence for gouty arthritis with podagra Evidence received since the final March 1994 RO decision includes VA medical records dated in June 2001, November 2002, and July 2003 showing a painful, swollen, and red right hallux and painful left toe, with an assessment of gout. The evidence is new because it was not previously of record. The evidence is also material because it reports on the detailed nature of the veteran's gout disability, which was not established at the time of the last RO decision. This evidence bears directly and substantially upon the issue of service connection, and in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. Accordingly, the Board finds that the evidence submitted since the final March 1994 RO decision is both new and material. Therefore, the claim of service connection for gouty arthritis with pedagra is reopened. II. New and material evidence for degenerative joint disease of the left knee Evidence received since the final March 1994 RO decision includes a July 2003 VA medical record showing reports of pain radiating around the left knee cap. The evidence is new because it was not previously of record. The evidence is also material because it reports on the detailed nature of the veteran's left knee disability, which was not established at the time of the last RO decision. This evidence bears directly and substantially upon the issue of service connection, and in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. Accordingly, the Board finds that the evidence submitted since the final March 1994 RO decision is both new and material. Therefore, the claim of service connection for degenerative joint disease of the left knee is reopened. Service connection As discussed above, the Board has determined that new and material evidence has been submitted to reopen the veteran's claims of entitlement to service connection for gouty arthritis with podagra and degenerative joint disease of the left knee. In light of the Board's decision, the entire record must be reviewed on a de novo basis. Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304, 3.306. Service connection also may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation. 38 C.F.R. § 3.304(d). Where a veteran served ninety days or more during a period of war and certain chronic diseases, including arthritis, become manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The U.S. Court of Appeals for Veterans Claims (Court) has held that in order to prevail on the issue of service connection on the merits, there must be medical evidence of a (1) 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. Hickson v. West, 12 Vet. App. 247, 253 (1999). I. Service connection for gouty arthritis with podagra Initially, the Board notes that the veteran has a present gout disability. A February 1994 VA medical examination report shows a diagnosis of gouty arthritis with pedagra and high levels of uric acid. A June 2001 VA addendum shows right great toe swollen and history of gout. It was noted that the right great hallux was painful and red. The assessment was gout. A November 2002 VA medical record shows an assessment of gout and recent left and big toe pain and swelling. A July 2003 VA nursing note shows several previous episodes of gout treated with medication. The next issue is whether there is evidence of in-service incurrence of gout. The service medical records show that at his enlistment examination in October 1971, the veteran's feet and other lower extremities were normal. An October 1988 treatment report showing complaints of bilateral foot pain. The assessment was rule out gouty arthritis. A May 1990 medical record shows complaints of swelling in the right foot and left knee, with an assessment of rule out gout. An August 1990 medical record showing an assessment of gouty arthritis. The report also shows right foot redness, warmth, tenderness, and swelling, as well as pain on range of motion of the great toe. A September 1991 clinical record shows complaints of bilateral first metatarsophalangeal joint swelling and pain. The assessment was possible mechanical pain-capsulitis, and possible arthritic collagen vascular process. The evidence shows a current diagnosis of gout and an in- service finding of gouty arthritis. Thus, the determinative question becomes whether there is a relationship between the present gout disability and the finding of gout in service. A February 1994 VA medical examination report shows a finding of gouty arthritis with an onset in service. The examiner noted that he was treated and told he had gout, and that he had recurrent episodes in the right big toe since that time. The examiner also noted that the veteran had recurrent swelling of the left knee, which may be related to gout. The final diagnosis was gouty arthritis with podagra, beginning in 1976. The uric acid levels were reported as abnormally high. Resolving all doubt in the veteran's favor, the Board finds that the February 1994 VA examination report is sufficient evidence of a nexus between the veteran's gout disability and service. Therefore, this record along with the other medical evidence of record entitles the veteran to service connection for gouty arthritis. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. Service connection for degenerative joint disease of the left knee Initially, the evidence shows a current left knee disability. A February 1994 VA x-ray examination report shows degenerative joint disease of the left knee. A July 2003 VA medical record shows pain in the back of the left knee radiating around under the kneecap. The next issue is whether there is evidence of in-service incurrence of a left knee disability. The service medical records show complaints of left knee pain and swelling in May 1990 and August 1990. The veteran reported in April 2001 that he was injured in service in 1973 when his left knee was squeezed between a revolving gun turret and a blast shield. He also noted that he was in a combat military occupational specialty the whole time he was in active duty and all the physical activity of running seemed to aggravate the left knee problem. The DD-214 Form shows that the veteran earned a National Defense Service Medal with 1 Bronze Service Star for his service in the U.S. Army. The Board accepts this as confirmation of the veteran's reports of combat status, and his reports of injury to his left knee in service are presumed credible. See 38 C.F.R. § 3.304(d). As the evidence shows a current left knee disability and credible evidence of in-service incurrence of a left knee injury, the determinative issue is whether there is medical evidence of a link between the two. The February 1994 VA examination report shows a finding of left knee pain and swelling that began in 1975 when a gun turret struck his knee and pinned it between the turret and the machinery. The veteran indicated that he had recurrent pain and swelling since that time. The examiner noted swelling at the time of the examination. Thus, the examiner apparently took the veteran's report of in-service injury to be true and found that the veteran's current left knee pain and swelling were subsequent to traumatic injury in 1975. The examiner noted the x-ray examination report showing degenerative joint disease of the left knee, and noted that gout and degenerative joint disease were considered. In sum, the February 1994 VA examination report is considered probative evidence that the veteran's current left knee disability is related to service. Thus, resolving all doubt in the veteran's favor, and on the basis of the evidence of record, service connection for degenerative joint disease of the left knee is granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an increased rating for hypertension, currently rated as 10 percent disabling is denied. Entitlement to service connection for gouty arthritis with pedagra is granted, subject to the rules and payment of monetary benefits. Entitlement to service connection for degenerative joint disease of the left knee is granted, subject to the rules and payment of monetary benefits. REMAND In May 2004, the RO denied an increased rating claim for renolithiasis, as well as service connection claims for tinnitus, residuals of gasoline in eyes, chest pains with numbness to left fingers, a right knee condition, and anxiety. In July 2004, the veteran submitted a statement on a VA Form 9, which the Board considers a valid Notice of Disagreement with the May 2004 rating decision. The RO has not issued a statement of the case or supplemental statement of the case, which addresses this issue and the Board finds that a remand for this action is necessary. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 19.26, 19.29, 19.30; Manlincon v. West, 12 Vet. App. 238 (1999). In April 2005, after the case was certified to the Board, the veteran submitted VA outpatient treatment records pertaining to his claim to reopen his claim for service connection for his back disorder. A waiver of RO jurisdiction was not submitted. In a June 9, 2005 letter, the Board advised the veteran that he had 45 days to submit a waiver of RO jurisdiction of this evidence. The veteran was advised that if a waiver was not received the issue of whether new and material evidence to reopen the claim for service connection for a back disorder would be returned to the RO for adjudication. As of August 1, 2005, the veteran did not respond. Accordingly, the Board has no choice but to remand the issue of whether new and material evidence to reopen the claim for service connection for a back disorder to the RO for adjudication in light the receipt of additional evidence. In light of the foregoing, these issues are REMANDED to the RO for the following: 1. The RO should readjudicate the issue of whether new and material evidence to reopen the claim for service connection for a back disorder in light of the receipt of additional medical evidence. 2. The RO should issue a statement of the case to the veteran and his representative addressing the claims denied in the May 2004 rating decision. The statement of the case should include all relevant law and regulations pertaining to the claims. The veteran must be advised of the time limit in which he may file a substantive appeal. See 38 C.F.R. § 20.302(b) (2004). Thereafter, if an appeal has been perfected, these issues should be returned to the Board. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). ______________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs