Citation Nr: 0121421	
Decision Date: 08/23/01    Archive Date: 08/29/01

DOCKET NO.  01-04 380	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office in 
Detroit, Michigan


THE ISSUES

1.  Whether new and material evidence has been submitted to 
reopen a claim of entitlement to compensation for a left knee 
disability under the provisions of 38 U.S.C.A. § 1151. 

2.  Entitlement to compensation for additional disability of 
the left foot under the provisions of 38 U.S.C.A. § 1151.  


REPRESENTATION

Appellant represented by:	Sean Kendall, Attorney


ATTORNEY FOR THE BOARD

James R. Siegel, Counsel


INTRODUCTION

The veteran served on active duty from July 1945 to November 
1946.

This matter comes to the Board of Veterans' Appeals (Board) 
on appeal from a March 2000 rating decision by the Detroit, 
Michigan, Regional Office (RO) of the Department of Veterans 
Affairs (VA).  

The Board notes that a decision of the Board in January 1998 
denied the veteran's claim for compensation for a left knee 
disability under 38 U.S.C.A. § 1151.  The veteran appealed 
the Board's decision to the United States Court of Appeals 
for Veterans Claims (Court) which, in July 1999, affirmed the 
Board's decision.  See Jones v. West, 12 Vet. App. 460 
(1999).  The Board further notes that, in the rating decision 
of March 2000, the RO failed to consider the veteran's 
attempt to reopen his claim for compensation benefits for a 
left knee disability under the provisions of 38 U.S.C.A. 
§ 1151 on the basis of whether new and material evidence had 
been submitted.  However, in view of the fact that the Board, 
in this decision, finds that new and material evidence to 
reopen the claim has been submitted, no prejudice will result 
to the veteran and, therefore, the Board may proceed with 
appellate review.  Bernard v. Brown, 4 Vet. App. 384 (1993).

The issue of entitlement to compensation benefits for a left 
foot disability under the provisions of 38 U.S.C.A. § 1151, 
which is a new claim and which has not been the subject of a 
prior final disallowance, will be addressed in the remand 
portion of this decision.


FINDINGS OF FACT

1.  By a decision in January 1998, the Board denied the 
veteran's claim for compensation for a left knee disability 
under the provisions of 38 U.S.C.A. § 1151.

2.  The evidence received since the January 1998 Board 
decision is new and is so significant that it must be 
considered in order to decide fairly the merits of the claim 
of entitlement to compensation under 38 U.S.C.A. § 1151 for a 
left knee disability.


CONCLUSION OF LAW

New and material evidence has been received, and the claim of 
entitlement compensation under the provisions of 38 U.S.C.A. 
§ 1151 for a left knee disability is reopened.  38 U.S.C.A. 
§§ 5108, 7104 (West 1991); 38 C.F.R. § 3.156 (2000).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Once entitlement to service connection for a disability has 
been denied by a decision of the Board, that determination is 
final.  38 U.S.C.A. § 7104(b); 38 C.F.R. § 20.1100 (2000).  
In order to later establish service connection for the 
disorder in question, it is required, as a preliminary 
matter, that new and material evidence be presented which 
provides a basis warranting reopening the claim.  38 U.S.C.A. 
§ 5108; 38 C.F.R. § 3.156(a).

"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) (2000).  Under this standard, new 
evidence may be sufficient to reopen a claim if it 
contributes to a more complete picture of the circumstances 
surrounding the origin of a veteran's injury or disability, 
even where it would not be enough to convince the Board to 
grant a claim.  Hodge v. West, 155 F.3d 1356, 
1363 (Fed. Cir. 1998).

VA is required to review for newness and materiality the 
evidence submitted by a claimant since the last final 
disallowance of a claim on any basis in order to determine 
whether a claim should be reopened and readjudicated on the 
merits.  See 
Evans v. Brown, 9 Vet. App. 273 (1996).  In the present 
appeal, the last final disallowance of the claim for 
compensation benefits under the provisions of 38 U.S.C.A. 
§ 1151 for a left knee disability was in January 1998.  
Therefore, the Board must review, in light of the applicable 
law, regulations, and case law regarding finality, the 
additional evidence submitted since that determination.  In 
order to do so, the Board will describe the evidence that was 
of record at that time, and the evidence presented 
subsequently. 
  

The "old" evidence 

The veteran was hospitalized for unrelated complaints at a VA 
facility in October 1992.  It was noted on the day of 
admission that he had arrived from the emergency room via a 
wheelchair.  The report noted that the veteran stated that he 
could walk; as he was walking, he lost his balance and was 
unable to hold onto something.  It was noted that he fell on 
his "right" knee and "right" hand.  A physician was 
notified about the veteran's fall.  The veteran then related 
that he had pain in his "right" knee after the fall.  On 
the hospital discharge summary, it was noted that the veteran 
complained of left knee pain due to a fall.  An examination 
showed that there was left knee joint tenderness.  It was 
further reported that the veteran was unable to walk normally 
due to lack of balance, and that he used a cane for walking.  
No pertinent diagnosis was made.

In June 1993, the Director of the VA Medical Center where the 
veteran had been an inpatient in October 1992 reported that a 
search of the files indicated that there were no Reports of 
Special Incident Involving a Beneficiary on VA Form 10-2633, 
or any other reports concerning the claimed fall.  

VA outpatient treatment records dated from 1992 to 1995 have 
been associated with the claims folder, which show that the 
veteran was seen for complaints involving the left knee in 
1994.  It was noted in August 1994 that he reported that his 
left leg was "giving way."  Degenerative joint disease of 
the left knee was reported on an X-ray study in September 
1995.  

In a Memorandum from VA's Deputy Assistant General Counsel, 
dated in August 1995, it was noted that the veteran had been 
awarded $3000 under the Federal Tort Claims Act as a 
settlement for a personal injury sustained in October 1992.  
It was remarked that, after being admitted to a VA hospital 
in October 1992, the veteran, while walking to his room, fell 
and injured his knee and that the veteran contended that a 
nurse should have assisted him in ambulating to his room.

The additional evidence 

In a statement dated in November 1999, Craig N. Bash, M.D., a 
neuroradiologist, reported that he had reviewed the veteran's 
medical records pertaining to his left lower extremity.  Dr. 
Bash summarized the August 1994 VA outpatient treatment 
records and indicated that in the absence of another 
diagnosis or etiology for the veteran's "leg and knee giving 
away," his complaints were likely secondary to joint pains 
from his advanced degenerative joint disease.  Dr. Bash 
concluded that the veteran's left knee disability was related 
to a fall in a VA hospital in October 1992.

Analysis 

Effective October 1, 1997, 38 U.S.C.A. §  1151 was amended by 
Congress.  In pertinent part, § 1151 now provides:

	"(a) Compensation under this chapter and dependency and 
indemnity compensation under chapter 13 of this title shall 
be awarded for a qualifying additional disability or a 
qualifying death of a appellant in the same manner as if such 
additional disability or death were service-connected.  For 
purposes of this section, a disability or death is a 
qualifying additional disability or qualifying death if the 
disability or death was not the result of the appellant's 
willful misconduct and

	"(1) the disability or death was caused by hospital 
care, medical or surgical treatment, or examination furnished 
the appellant under any law administered by the Secretary, 
either by a Department employee or in a Department facility 
as defined in section 1701(3)(A) of this title, and the 
proximate cause of the disability or death was-

	(A) carelessness, negligence, lack of proper skill, 
error in judgment, or similar instance of fault on the part 
of the Department in furnishing the hospital care, medical or 
surgical treatment, or examination; or

	(B) an event not reasonably foreseeable."

In the instant case, the veteran attempted to reopen his 
claim for compensation under 38 U.S.C.§ 1151 for a left knee 
disability in January 2000, after the effective date of the 
amendment of the statute, which includes a requirement of a 
showing of fault on VA's part before compensation may be 
awarded.  38 U.S.C. § 1151(a)(1).  The Board notes that 
Congress specifically provided that the amendments to 
38 U.S.C.A. § 1151 are applicable to all claims filed on or 
after October 1, 1997.  Id.  Therefore, the new statute is 
applicable to the appellant's reopened claim.  VAOPGCPREC 40-
97 (Dec. 31, 1997).  

The Board notes that the veteran's claim for compensation 
under 38 U.S.C.A. § 1151 for a left knee disability was 
denied in January 1998 on the basis that there was no medical 
evidence of a nexus between a left knee disability and a 
claimed fall in a VA hospital.  The Veterans Claims 
Assistance Act of 2000 (VCAA), which became law in November 
2000, eliminated the requirement that a claim be "well 
grounded", but the requirements of 38 U.S.C.A. § 1151, as 
amended, were not changed by the VCAA.  

The additional evidence in the instant case consists of Dr. 
Bash's opinion to the effect that the veteran's current left 
knee disability is related to a fall in a VA hospital in 
October 1992.  The Board finds that Dr. Bash's opinion is new 
and material evidence because it bears directly and 
substantially on the issue being considered, which is whether 
the veteran has a left knee disability related to VA 
hospitalization in October 1992.  This evidence is of such 
significance that it must be considered in order to decide 
fairly the merits of the claim.  Accordingly, the claim for 
compensation under the provisions of 38 U.S.C.A. § 1151 for a 
left knee disability is reopened.  Because the Board further 
finds that additional development of the evidence is required 
by the VCAA, the reopened claim will be remanded to the RO, 
as provided below.


ORDER

New and material evidence having been submitted, the claim 
for compensation under the provisions of 38 U.S.C.A. § 1151 
for a left knee disability is reopened, and the appeal is 
granted to that extent.  


REMAND

As noted above, the Board has concluded that the veteran's 
claim for compensation benefits under the provisions of 
38 U.S.C.A. § 1151 for a left knee disability should be 
reopened.  In addition, the veteran has asserted that he 
injured his left foot in the claimed fall in the VA hospital 
in October 1992, and he has claimed entitlement to 
compensation under 38 U.S.C.A. § 1151 for a left foot 
disability.  In his November 1999 statement, Dr. Bash opined 
that the veteran's current left foot disability was related 
to a fall in the VA hospital in October 1992. 

The Board notes that the VCAA, which applies to all pending 
claims for VA benefits, provides that VA shall make 
reasonable efforts to assist a claimant in obtaining evidence 
necessary to substantiate the claimant's claim for a benefit 
under a law administered by VA.  Assistance is required 
unless there is no reasonable possibility that such 
assistance would aid in substantiating the claim.  The VCAA 
also provides that VA shall notify the claimant of any 
information, and any medical or lay evidence not previously 
provided to VA, which is necessary to substantiate the claim.  
In the instant case, the Board finds that the VCAA requires 
that the veteran be permitted an opportunity to undergo an 
examination by a physician who will be asked to provide an 
opinion on the medical questions in this case, and the case 
will be remanded to the RO for that purpose.

In an effort to assist the RO, the Board has reviewed the 
claims file and identified certain assistance which must be 
rendered to comply with the VCAA.  However, it is the RO's 
responsibility to ensure that all appropriate development is 
undertaken in this case.  

Accordingly, this case is REMANDED for the following:

1.  The RO should contact the veteran and 
request that he identify the names and 
addresses of all physicians and medical 
facilities which have treated him for 
left knee and left foot complaints since 
October 1992.  After securing the 
necessary authorizations for release of 
this information, the RO should seek to 
obtain copies of all such treatment 
records identified by the veteran which 
have not already been associated with the 
claims folder.  In the event that any 
records identified by the veteran are not 
obtained, the RO should comply with the 
notice provisions of the VCAA.

2.  The RO should then arrange for the 
veteran to be examined by a specialist in 
orthopedics, if available, to determine 
the nature and extent of his left knee 
and left foot disabilities.  All 
necessary diagnostic tests should be 
performed.  It is imperative that the 
examiner review the pertinent medical 
records in the claims file, including the 
summary of VA hospitalization in October 
1992, records of subsequent VA treatment, 
and the opinion of Dr. Bash.  The 
examiner should offer an opinion on the 
question of whether it is more likely, 
less likely, or at least as likely as not 
that a current left knee disorder, if 
found, and a current left foot disorder, 
if found, are the result of a fall in a 
VA hospital in October 1992.  In this 
regard, the examiner should comment on 
the opinion of Dr. Bash.  In the event 
that the examiner finds that it is more 
likely or at least as likely as not that 
a fall in a VA hospital in October 1992 
resulted in a current left knee disorder 
and/or a left foot disorder, then and 
only then the examiner should offer an 
opinion as to whether it is more likely, 
less likely, or at least  as likely as 
not that the actions of VA hospital 
personnel at the time of the claimed fall 
in October 1992 involved carelessness, 
negligence, error in judgment, or lack of 
proper skill.  A rationale for all 
opinions expressed should be provided. 

3.  The RO must review the claims file and 
ensure that all notification and 
development action required by the VCAA is 
completed. 

Following completion of these actions, the RO should review 
the evidence and determine whether the veteran's claims may 
be granted.  If the decision remains adverse to the veteran, 
he and his representative should be furnished an appropriate 
supplemental statement of the case and be provided an 
opportunity to respond.  The case should then be returned to 
the Board for further appellate consideration, if otherwise 
in order.  The appellant has the right to submit additional 
evidence and argument on the matters the Board has remanded 
to the RO.  Kutscherousky v. West, 12 Vet. App. 369 (1999).





		
	James A. Frost 
	Acting Member, Board of Veterans' Appeals