92 Decision Citation: BVA 92-24425 Y92 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 91-18 663 ) DATE ) ) ) THE ISSUE Whether new and material evidence has been presented to reopen the veteran's claim for service connection for a left knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The veteran ATTORNEY FOR THE BOARD J. L. Prichard, Associate Counsel INTRODUCTION The veteran had active service from April 1976 to October 1984. The Montgomery, Alabama, Regional Office (hereinafter RO) denied service connection for a left knee disability in July 1986. The veteran disagreed with the decision but after a statement of the case was issued, a substantive appeal was not timely received. By rating decision of September 1989 service connection was again denied for a left knee disability, the veteran disagreed, a statement of the case was issued, and a hearing held in February 1988 was accepted in lieu of a substantive appeal form. The case was not transferred to the Board because of the veteran's request for an extension of time to submit additional evidence. The case now comes before the Board on appeal from a February 1990 rating decision which refused to reopen the veteran's claim for service connection for a left knee disability. The notice of disagreement was received in March 1990. A statement in support of the claim was received in June 1990. A statement of the case was issued in August 1990. A substantive appeal was received in January 1991. A personal hearing before a hearing officer was held in February 1991. The case was originally received and docketed at the Board in April 1991. In July 1991, the Board remanded the veteran's claim to the RO. The Board noted that the veteran had not yet been provided with the appropriate laws and regulations concerning the finality of prior unappealed rating decisions and the reopening of claims. A supplemental statement of the case was issued in January 1992. The case was returned to the Board in May 1992. The veteran's representative, the Disabled American Veterans, submitted additional written argument in June 1992, and the case is now ready for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has submitted new and material evidence sufficient to reopen his claim for service connection for a left knee disability. The veteran argues that he injured his left knee during basic training when he fell on a stone while practicing hand-to-hand combat. He states that he continued to receive treatment for his left knee disability throughout his period of service, and has also received continuous treatment for this disability since discharge. He believes that his current left knee disability is the direct result of the injury initially received during active service. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. 7104 (West 1991), following review and consideration of all evidence and material of record in the veteran's claims file, and for the following reasons and bases, it is the decision of the Board that the veteran has submitted new and material evidence sufficient to reopen a claim for service connection for a left knee disability, but that the preponderance of the evidence is against the veteran's claim for service connection for a left knee disability. FINDINGS OF FACT 1. The RO has obtained all evidence necessary for an equitable disposition of the veteran's appeal. 2. The veteran was initially denied service connection for a left knee disability in a July 1986 rating decision, from which a substantive appeal was not timely filed. 3. The evidence considered by the July 1986 rating decision included the veteran's service medical records, Department of Veterans Affairs (VA) outpatient treatment records from February 1985 to February 1986 and the findings of a May 1986 VA orthopedic examination. 4. The new evidence presented by the veteran since the July 1986 rating decision, which includes VA outpatient treatment records and hospital records from November 1986 through August 1988, a report of private examination in November 1987 and testimony of the veteran obtained at personal hearings conducted in February 1988 and February 1991, is not cumulative and is relevant and probative. 5. The evidence of record does not demonstrate the veteran has developed a chronic left knee disability as a result of an injury received in active service. CONCLUSIONS OF LAW 1. Evidence received since the July 1986 rating decision denied entitlement to service connection for a left knee disability is new and material to reopen the veteran's claim. 38 U.S.C.A. 1101, 1112, 1113, 1131, 1137, 5107, 5108, 7105 (West 1991); 38 C.F.R. 3.104 (1991). 2. A chronic left knee disability was neither incurred in nor aggravated by active service. 38 U.S.C.A. 1101, 1112, 1113, 1131, 1137, 5107 (West 1991); 38 C.F.R. 3.307, 3.309 (1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This section of the Board notes that the veteran has presented a claim which is "well grounded" within the meaning of 38 U.S.C. 5107. That is, we find that he has presented a claim which is plausible. We are also satisfied that all relevant facts have been properly developed. The veteran has been provided with ample opportunity to present additional evidence. The developments requested by the July 1991 remand have been completed. The record is devoid of any indication that there are other records available which might assist this section in reaching a determination. The record is complete, and no further assistance to the veteran is required to comply with the duty to assist the veteran mandated by 38 U.S.C.A. 5107. Service connection may be granted for a chronic disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. 1131. If arthritis of the knee becomes manifest to a degree of 10 percent within one year from the end of active service, then this disability will be presumed to have been incurred in service, even without evidence of the disability in service. 38 U.S.C.A. 1101, 1112, 1113, 1137; 38 C.F.R. 3.307, 3.309. The veteran was initially denied service connection for his claimed left knee disability in a July 1986 rating decision. The evidence considered by this decision included the veteran's service medical records and a May 1986 VA orthopedic examination as well as VA outpatient treatment records from February 1985 to February 1986. A review of the service medical records reveals only that he was treated for left knee pain after hitting his knee with a chisel in October 1977. He was noted to have a small amount of swelling and tenderness over the left tibial plateau. The examination was otherwise normal. He was also treated for a contusion and abrasion of the left knee after he hit it on a door in April 1980. A July 1984 discharge examination was negative for a left knee disability, and the veteran did not report any left knee disability on his medical history. The remainder of the service medical records are quite extensive, and show treatment for many other disabilities, but are entirely negative for treatment of left knee pain. However, it should be noted that the treatment records covering the period of the veteran's basic training were lost in service. A December 1976 physical examination conducted following basic training was negative for a left knee disability. Again, the veteran did not report any disability on his medical history, and he denied having had a "trick or locked knee". In May 1986 VA examinaton reflected an impression of negative left knee except for the possibility of a torn meniscus. Service connection was denied on the basis that the injury to the veteran's knee during service was acute and left no chronic residuals. While the veteran submitted a timely notice of disagreement for the July 1986 rating decision, he did not submit a timely substantive appeal. He requested an extension in which to file an appeal, and was informed by the RO that he had until July 31, 1987, to submit a substantive appeal. The veteran did not submit a substantive appeal within one year of notice of the July 1986 rating decision. 38 U.S.C.A. 7105; 38 C.F.R. 3.104. If new and material evidence is presented or secured with respect to a claim which has been disallowed, then the VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. 5108. "New" evidence means more than evidence which was not previously physically of record. To be "new" additional evidence must be more than merely cumulative. Colvin v. Derwinski, 1 Vet.App. 171 (1991). In addition, "material" evidence is evidence that, when considered in the context of all the evidence, both new and old, presents a reasonable possibility that the outcome of the prior decision will be changed. See Colvin, supra, and Smith v. Derwinski, 1 Vet.App. 178 (1991). Additional evidence submitted by the veteran subsequent to the July 1986 rating decision includes VA treatment records from November 1986 to August 1988, a November 1987 statement from Ronald W. Hillyer, M.D., and the veteran's testimony at February 1988 and February 1991 personal hearings. A November 1986 X-ray study of the left knee was within normal limits. In February 1987, the veteran underwent an arthrogram of the left knee in order to determine whether or not he had a meniscal tear. The arthrogram was negative for a meniscal tear, but did find a popliteal cyst. The cruciate ligament was normal. He was issued a knee brace. He continued to complain of pain and a hospital summary from July 1987 to August 1987 noted that the veteran was admitted for pain in the left knee joint. He underwent an exploration of the left popliteal fossa. No cyst was discovered. On a November 1987 examination, the veteran was noted to have a positive McMurray's sign and medial joint line tenderness. The impression was of a torn medial meniscus. A November 1987 examination report from Ronald W. Hillyer, M.D., stated that the veteran had complained of left knee problems since 1976. He had full range of motion in his knee. The ligaments were grossly intact. There was a marked McMurray's over the medial joint line, particularly with marked flexion and rotation of the tibia on the femur. The gait was slightly antalgic to the left. X-ray study was normal. The impression was a posterior horn tear of the medial meniscus. At a February 1988 personal hearing, the veteran stated that he had injured his left knee during basic training in 1976 when he fell on a rock during hand-to-hand combat training. He received immediate treatment, consisting of pain pills and an ACE bandage. He indicated that one of his physicians had told him he had a bad cartilage. He noted that he wore a knee brace. He indicated that he worked in a textile mill, and that his work required a lot of walking and bending. He stated he had no swelling of the knee, but did have pain. The knee would occasionally give way. The veteran stated that he had been bothered on and off by his knee during his entire period of service, and had several return appointments for knee treatment during service. VA treatment records from August 1987 through August 1988 noted the veteran was seen in February 1988 for left knee pain. There was no swelling and all ligaments were stable. The McMurray's sign was negative, and the pivot shift was also negative. The diagnosis was of possible internal derangement of the left knee. In August 1988, the veteran again had no effusion or appreciable crepitus. There was swelling in the popliteal space. All signs, including McMurray's sign, were negative. The diagnosis was of Baker's cyst of the left knee and rule out internal derangement. In February 1991, the veteran was afforded a second personal hearing. The veteran noted that he had undergone surgery in July 1987, but that his doctors had been unable to find anything wrong with his left knee. The remainder of the veteran's testimony was essentially the same as that presented at the February 1988 hearing. The additional evidence submitted by the veteran is both new and material. The treatment records show that the veteran has been seen consistently for left knee pain since discharge from active service. In addition, some of these records note that the veteran has had a positive McMurray's sign, and has also undergone exploratory surgery on the left knee. Finally, the veteran's testimony at his personal hearings contains new contentions regarding the origin of his disability. None of this information was before the RO at the time of its July 1986 rating decision. Similarly, this additional evidence is also material. It demonstrates that the veteran possibly has a chronic knee disability, and that he has received treatment on a basis consistent enough to possibly establish continuity of symptomatology. This presents a reasonable possibility that the decision of the July 1986 rating decision will be changed. Therefore, the veteran's claim is reopened. After a thorough consideration of the veteran's contentions and all the medical evidence of record, both new and old, this section is unable to find that service connection is warranted for a left knee disability. Since the service medical records which show treatment for the initial injury of the veteran's left knee in 1976 are missing, this section will accept the veteran's contentions regarding the circumstances of this injury. However, the evidence indicates that this injury was acute and transitory since there was no history or complaint concerning the left knee and the knee was normal on a December 1976 examination, after basic training. The remainder of the records are negative for any treatment of a left knee disability, with the exception of two incidents, in October 1979 and April 1980, in which he hit his knee. Chronic residuals again were not shown. June 1980 records do show treatment for a soft tissue trauma to one of the veteran's legs, but the leg that was injured is not specified. There was no followup treatment for this injury nor was it shown to involve the left knee joint. Therefore, while the records are clear that the veteran was seen for a variety of other complaints during service, the final four and a half years of active duty are entirely negative for any indication of a chronic left knee disability. In addition, although the veteran complained of left knee pain during the one-year presumptive period following discharge from active service, a May 1986 VA examination was entirely negative for a left knee disability, with the exception of a positive McMurray's sign. Many subsequent examinations have yet to positively identify the existence of a chronic disability. While the McMurray's sign has on occasion been positive, the January 1987 arthrogram showed that the veteran did not have a meniscal tear. Likewise, when a popliteal cyst was believed to have been discovered, additional surgery in July 1987 was again unable to find any abnormality of the knee. The majority of the medical examinations have been negative for a chronic knee disability, and all X-ray studies have been negative. There is no evidence of arthritis of the knee. Both exploratory surgeries have been negative for a knee disability. Therefore, in the absence of service medical records to show that the veteran developed a chronic disability during service, the absence of post service medical records to show that the veteran developed arthritis of the knee during the one-year presumptive period following active service, and the absence of medical records to indicate that the veteran has current knee pathology, service connection must be denied. ORDER Entitlement to service connection for a left knee disability is denied. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * (MEMBER TEMPORARILY ABSENT) H. STERLING, M.D. HOLLY E. MOEHLMANN *38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional Member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. CONTINUED ON NEXT PAGE NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.