Citation Nr: 0810280	
Decision Date: 03/28/08    Archive Date: 04/09/08

DOCKET NO.  05-16 937	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, 
Illinois


THE ISSUES

1.  Whether new and material evidence has been received which 
is sufficient to reopen a previously denied claim of 
entitlement to service connection for bipolar disorder.

2.  Whether new and material evidence has been received which 
is sufficient to reopen a previously denied claim of 
entitlement to service connection for degenerative joint 
disease of the right knee.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

D. Sigur, Associate Counsel


INTRODUCTION

The veteran served on active duty in the United States Army 
from August 1955 to November 1957, when he was honorably 
discharged.  

Procedural history
  
The veteran's initial claims of entitlement to service 
connection for degenerative joint disease of the right knee 
and bipolar disorder were denied in a February 1996 decision 
of the Department of Veterans' Affairs (VA) Regional Office 
(RO) in Chicago, Illinois.  The veteran initiated a notice of 
disagreement (NOD) in November 1996 as to those denials.  A 
statement of the case (SOC) was issued in December 1996.  
However, the veteran did not file a substantive appeal.

An October 1997 RO decision found that new and material 
evidence sufficient to reopen the previously denied claim of 
entitlement to service connection for degenerative joint 
disease of the right knee had not been submitted and denied 
service connection for bipolar disorder, evidently without 
consideration of the matter of the submission of new and 
material evidence.  The veteran disagreed with that decision 
in September 1998, and the RO issued a SOC.  The veteran did 
not appeal that decision.  

This case comes before the Board of Veterans' Appeals (Board) 
on appeal of a May 2003 rating action of the RO which 
declined to reopen previously denied claims of entitlement to 
service connection for degenerative joint disease of the 
right knee and bipolar disorder.

The veteran declined a Board hearing.  

The claim of entitlement to service connection for 
degenerative joint disease of the right knee is REMANDED to 
the RO via the VA Appeals Management Center (AMC) in 
Washington, DC. 

FINDINGS OF FACT

1.  In a decision dated in October 1997, the RO denied 
service connection for bipolar disorder; the veteran did not 
appeal the October 1997 decision.  

2.  Evidence submitted since the October 1997 RO decision 
with regard to the issue of bipolar disorder does not raise a 
reasonable possibility of substantiating the claim.

3.  In the October 1997 decision, the RO declined to reopen a 
claim of service connection for degenerative joint disease of 
the right knee; the veteran did not appeal the October 1997 
decision within one year of being notified.  

4.  The evidence associated with the claims folder subsequent 
to the RO's October 1997 decision, with regard to the issue 
of degenerative joint disease of the right knee, includes a 
statement from a comrade, which raises a reasonable 
possibility of substantiating the claim.


CONCLUSIONS OF LAW

1.  The October 1997 RO decision is final.  38 U.S.C.A. § 
7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1103 (2007).

2.  New and material evidence has not been received, and the 
claim of entitlement to service connection for bipolar 
disorder is not reopened.  38 U.S.C.A. § 5108 (West 2002); 38 
C.F.R. § 3.156 (2007).

3.  Since the October 1997 RO decision, new and material 
evidence has been received which is sufficient to reopen the 
claim of entitlement to service connection for degenerative 
joint disease of the right knee.  38 U.S.C.A. § 5108 (West 
2002); 38 C.F.R. § 3.156 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The veteran ultimately seeks entitlement to service 
connection for degenerative joint disease of the right knee 
and bipolar disorder.

As was described in the Introduction, the denied the 
veteran's claims in unappealed decisions in February 1996 and 
again in October 1997.  The veteran did not appeal those 
denials, and so the RO's decisions are final.  See 38 
U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2007).  The 
veteran now seeks to reopen his claims of entitlement to 
service connection for degenerative joint disease of the 
right knee and bipolar disorder.

The Board must determine whether new and material evidence 
has been received which is sufficient to reopen the 
previously denied claims.  The United States Court of Appeals 
for the Federal Circuit has held that if service connection 
for a claimed disability has been previously denied and that 
decision became final, the Board does not have jurisdiction 
to review the claim on a de novo basis in the absence of a 
finding that new and material evidence has been submitted.  
See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 
2001).

The Board will first discuss certain preliminary matters.  
The issues on appeal will then be analyzed and a decision 
rendered.

The Veterans Claims Assistance Act of 2000

The Board has given consideration to the provisions of the 
Veterans Claims Assistance Act of 2000 (VCAA).  The VCAA 
includes an enhanced duty on the part of VA to notify a 
claimant as to the information and evidence necessary to 
substantiate a claim for VA benefits.  The VCAA also 
redefines the obligations of VA with respect to its statutory 
duty to assist claimants in the development of their claims.  



Notice

The VCAA requires VA to notify the claimant and the 
claimant's representative, if any, of any information and any 
medical or lay evidence not previously provided to VA that is 
necessary to substantiate the claim.  As part of the notice, 
VA is to specifically inform the claimant and the claimant's 
representative, if any, of which portion, if any, of the 
evidence is to be provided by the claimant and which part, if 
any, VA will attempt to obtain on behalf of the claimant.  
See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. 
Principi, 16 Vet. App. 183 (2002) [a letter from VA to an 
appellant describing evidence potentially helpful to the 
appellant but not mentioning who is responsible for obtaining 
such evidence did not meet the standard erected by the VCAA].  
After careful review, the Board has concluded that the notice 
requirements of the VCAA have been satisfied with respect to 
the issues on appeal.

In Kent v. Nicholson, 20 Vet. App. 1 (2006), the United 
States Court of Appeals for Veterans Claims (the Court) 
specifically addressed VCAA notice requirements in the 
context of a veteran's request to reopen a previously and 
finally denied claim. The Court found that VA must notify a 
claimant of the evidence and information that is necessary to 
reopen the claim, and must provide notice that describes what 
evidence would be necessary to substantiate the element or 
elements required to establish service connection that were 
not found in the previous denial.  After having carefully 
reviewed the record, the Board has concluded that the notice 
requirements of the VCAA have been satisfied with respect to 
the issues on appeal of whether the veteran submitted new and 
material evidence.

In an April 2003 letter, the veteran was informed that to 
establish entitlement to service connection, the evidence 
must show:

a.	An injury in military service or a disease that began 
in or was made worse during military service, OR an 
event in service causing injury or disease. 

b.	A current physical or mental disability.
c.	A relationship between your current disability and an 
injury, disease, or event in service.

The veteran was further informed in the April 2003 VCAA 
letter that his previous claims of entitlement to service 
connection were denied and that the decision was final.  He 
was informed that in order for VA to reconsider the issues, 
he must submit "new and material evidence."  Specifically, 
he was informed:

New evidence is evidence that has not previously 
been considered.  

Evidence that is merely cumulative and tends to 
reinforce a previously well-established point is 
not considered new.  
		
Material evidence is evidence that is relevant to 
the issue of service connection. 

The Board notes that the language used in the letter 
substantially follows the regulatory language of 38 C.F.R. § 
3.156.  See the law and regulations section below.  
Therefore, the Board finds that the notice provided to the 
veteran complies with the requirements of Kent.

The April 2003 VCAA letter informed the veteran of 
information needed to support his claims.  Specifically, the 
veteran was notified that "you may be able to furnish 
documents that can substitute for service medical records.  
Submit any original or certified copies of . . . documents 
you have that relate to your disability during service."  
This notice satisfies the VCAA obligation to inform a 
claimant of the evidence required to substantiate a claim.

The veteran was also informed in the April 2003 VCAA letter 
that "if they are needed for your claim, we're requesting 
all records held by Federal agencies to include your service 
medical records or other military records, and medical 
records at VA hospitals.  We're making reasonable efforts to 
help you get private records or evidence necessary to support 
your claim."  

In a March 2006 VCAA letter, the veteran was further informed 
as follows:  "If you have any information that you have not 
previously told us about or given to us, and that information 
concerns . . . when [the disability] began, please tell us or 
give us that evidence now."  The letter complied with the 
"give us everything you've got" requirement of 38 C.F.R. § 
3.159(b)(1) because the letter informed the veteran that he 
could submit or identify evidence other than what was 
specifically requested by VA.

In short, the record indicates that the veteran received 
appropriate notice under 38 U.S.C.A. § 5103 and Quartuccio.

Finally, there has been a significant recent Court decision 
concerning the VCAA.  In Dingess v. Nicholson, 19 Vet. App. 
473 (2006), the Court observed that a claim of entitlement to 
service connection consists of five elements: (1) veteran 
status; (2) existence of a disability; (3) a connection 
between the veteran's service and the disability; (4) degree 
of disability; and (5) effective date.  Because a service
connection claim is comprised of five elements, the Court 
further held that the notice requirements of section 5103(a) 
apply generally to all five elements of that claim.  

Therefore, upon receipt of an application for a service 
connection claim, section 5103(a) and section 3.159(b) 
require VA to review the information and the evidence 
presented with the claim and to provide the claimant with 
notice of what information and evidence not previously 
provided, if any, will assist in substantiating or is 
necessary to substantiate the elements of the claim as 
reasonably contemplated by the application.  This includes 
notice that a disability rating and an effective date for the 
award of benefits will be assigned if service connection is 
awarded.

The veteran received Dingess notice in the letter fro the RO 
dated March 20, 2006.  

In short, the record indicates that the veteran received 
appropriate notice pursuant to the VCAA.

Because there is no indication that there exists any evidence 
which could be obtained which would have an effect on the 
outcome of this case, no further VCAA notice is necessary.  
See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001)
[VCAA notice not required where there is no reasonable 
possibility that additional development will aid the 
veteran].

Duty to assist

In general, the VCAA provides that VA shall make reasonable 
efforts to assist a claimant in obtaining evidence necessary 
to substantiate claims for VA benefits, unless no reasonable 
possibility exists that such assistance would aid in 
substantiating the claim.  See 38 U.S.C.A. § 5103A (West 
2002); 38 C.F.R. § 3.159 (2007).

However, VA's statutory duty to assist a claimant in the 
development of a previous finally denied claim does not 
attach until the claim has been reopened based on the 
submission of new and material evidence.  Once a claim is 
reopened, the VCAA 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, unless no reasonable possibility 
exists that such assistance would aid in substantiating the 
claim.  

The Board additionally observes that all appropriate due 
process concerns have been satisfied.  See 38 C.F.R. § 3.103 
(2007).  The Board notes that the veteran and his 
representative have provided argument in support of the 
claim.  The veteran declined a Board hearing.  

Accordingly, the Board will proceed to a decision.




Pertinent law and regulations 

Missing service medical records

The veteran's service medical records are unable to be 
located and appear to have been destroyed in a July 1973 fire 
at the national Personnel Records Center in St. Louis, 
Missouri.  Efforts to locate those records have been 
fruitless.  See Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999) 
[VA's efforts to obtain service department records shall 
continue until the records are obtained or unless it is 
reasonably certain that such records do not exist or that 
further efforts to obtain those records would be futile]. 

Under such circumstances, the Court has held that there is a 
heightened obligation on the part of VA to explain findings 
and conclusions.  See Cuevas v. Principi, 3 Vet. App. 542, 
548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).

It is further noted, however, that the case law does not 
lower the legal standard for proving a claim for service 
connection, but rather increases the Board's obligation to 
evaluate and discuss in its decision all of the evidence that 
may be favorable to the claimant.  See Russo v. Brown, 9 Vet. 
App. 46 (1996).  Moreover, there is no presumption, either in 
favor of the claimant or against VA, arising from missing 
records.  See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 
(2005) [the Court declined to apply an "adverse 
presumption" where records have been lost or destroyed while 
in Government control which would have required VA to 
disprove a claimant's allegation of injury or disease in 
service in these particular cases].

Service connection

In general, service connection may be granted for disability 
or injury incurred in or aggravated by active military 
service.  See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 
38 C.F.R. § 3.303 (2007).

Service connection may also be granted on a presumptive basis 
for certain chronic disabilities, including psychoses and 
arthritis, when manifested to a compensable degree within the 
initial post-service year.  See 38 U.S.C.A. §§ 1101, 1110, 
1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.307, 
3.309(a) (2007).

In addition, service connection may be granted for any 
disease diagnosed after discharge from service when all the 
evidence, including that pertinent to service, establishes 
that the disease was incurred in service.  See 38 C.F.R. § 
3.303(d) (2007).

In order to establish service connection for the claimed 
disorder, there must be (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 current 
disability.  See Hickson v. West, 12 Vet. App. 247, 253 
(1999).

Finality/new and material evidence

In general, VA rating decisions that are not timely appealed 
are final.  
See 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1103 
(2007).  Pursuant to 38 U.S.C.A. § 5108, a finally disallowed 
claim may be reopened when new and material evidence is 
presented or secured with respect to that claim.

The Board notes that the definition of material evidence was 
revised in August 2001 to require that the newly submitted 
evidence relate to an unestablished fact necessary to 
substantiate the claim and present the reasonable possibility 
of substantiating the claim.  See 66 Fed. Reg. 45,620, 45,630 
(Aug. 29, 2001) [codified at 38 C.F.R. § 3.156 (2007)].  This 
change in the law pertains only to claims filed on or after 
August 29, 2001.  Because the veteran's claims to reopen were 
initiated after August 2001 (specifically in February 2003), 
the claims will be adjudicated by applying the revised 
section 3.156.

The revised regulation provides that new evidence means 
existing evidence not previously submitted to agency decision 
makers.  Material evidence means existing evidence that, by 
itself or when considered with previous evidence of record, 
is related to an unsubstantiated fact necessary to 
substantiate the claim.  New and material evidence can be 
neither cumulative nor redundant of the evidence of record at 
the time of the last prior final denial of the claim sought 
to be reopened, and must raise a reasonable possibility of 
substantiating the claim.  See 38 C.F.R. § 3.156(a) (2007).

For the purpose of establishing whether new and material 
evidence has been submitted, the credibility of the evidence, 
although not its weight, is presumed.    See Justus v. 
Principi, 3 Vet. App. 510, 513 (1992).

1. Whether new and material evidence has been received which 
is sufficient to reopen a previously denied claim of 
entitlement to service connection for bipolar disorder.

Analysis

The October 2007 RO decision in essence denied the veteran's 
claim of entitlement to service connection for bipolar 
disorder on the bases that none of the elements of service 
connection -- current disability, in-service incurrence or 
disease and medical nexus -- had been met. 

As discussed above, the unappealed October 1997 RO decision 
is final.  See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. 
§§ 3.104, 20.1103 (2007).  The veteran's claim of entitlement 
to service connection for bipolar disorder may only be 
reopened if he new and material evidence has subsequently 
been added to the record.  See 38 U.S.C.A. § 5108; Barnett v. 
Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996).  Therefore, the 
Board's inquiry will be directed to the question of whether 
any additionally received(i.e. after October 1997) evidence 
bears directly and substantially upon the specific matter 
under consideration.  

Subsequent to the October 1997 RO decision, the veteran 
submitted VA outpatient reports which included diagnoses of 
bipolar disorder in September 2002, January 2003, March 
2003); a letter from F.D., M.D. dated in March 2003 that 
included a diagnosis of bipolar disorder; and a letter from 
L.P., M.D. dated in March 2006 that also included a diagnosis 
of bipolar disorder.    

After reviewing the record, and for reasons expressed 
immediately below, the Board is of the opinion that new and 
material evidence sufficient to reopen the claim of 
entitlement to service connection for bipolar disorder has 
not been submitted.

With respect to the first element of service connection, 
current diagnosis, there have been added to the record a 
number of diagnoses of bipolar disorder.  This evidence is 
obviously new and material, as it tends to substantiate an 
unestablished fact. 

With respect to element (2), in-service disease or injury, 
there has been added to the record nothing which would 
indicate that the veteran's psychiatric disability began 
during (to include during the one year presumptive period 
after service) or was due to his military service.  The 
veteran himself continues to so claim.  However, the 
veteran's statements to this effect are reiterative of 
similar contentions which were of record in October 1997.  
These contentions are not new.   See Reid v. Derwinski, 2 
Vet. App. 312, 315 (1992). 

There has been added to the record no new evidence as to the 
element of in-service disease or injury, and the claim may 
not be reopened on that basis alone.  See Evans v. Brown, 9 
Vet. App. 273 (1996) [there must be new and material evidence 
as to each and every aspect of the claim that was lacking at 
the time of the last final denial in order for there to be 
new and material evidence to reopen the claim].

With respect to the third element, medical nexus, there has 
been added to the record no medical opinion which suggests 
that the veteran's currently diagnosed bipolar disorder is 
related to his military service.  To the extent that the 
veteran himself claims that his bipolar disorder began in 
military service, it is now well-established that lay persons 
without medical training, such as the veteran, are not 
competent to comment on medical matters such as date of onset 
or cause of a disability.  See Espiritu v. Derwinski, 2 Vet. 
App. 491, 494-5 (1992) see also 38 C.F.R. § 3.159 (a)(1) 
[competent medical evidence means evidence provided by a 
person who is qualified through education, training, or 
experience to offer medical diagnoses, statements, or 
opinions].  In Moray v. Brown, 5 Vet. App. 211, 214 (1993), 
the Court specifically stated that lay persons are not 
competent to offer medical opinions and that such evidence 
does not provide a basis on which to reopen a claim for 
service connection.  

Accordingly, new and material evidence has not been submitted 
to reopen the claim of entitlement to service connection for 
bipolar disorder.  The benefit sought on appeal remains 
denied.

Additional comment

The Board views its discussion above as sufficient to inform 
the veteran of the elements necessary to reopen his claim 
should he desire to do so in the future. 
See Graves v. Brown, 8 Vet. App. 522, 524 (1996). In 
particular, it is incumbent upon him to submit to VA 
competent medical evidence which connects the veteran's 
diagnosed bipolar disorder to his military service.  See 
Boyer v. West, 
210 F.3d 1351, 1353 (Fed. Cir. 2000), [a veteran seeking 
disability benefits must establish a connection between the 
veteran's service and the claimed disability].

2. Whether new and material evidence has been received which 
is sufficient to reopen a previously denied claim of 
entitlement to service connection for degenerative joint 
disease of the right knee. 

Analysis

In February 1996, the RO initially denied service connection 
for degenerative joint disease of the right knee on the basis 
that, although there was evidence of a current disability, 
there was no evidence of this condition in military service.  
The evidence of record did not include the veteran's service 
medical records, as previously noted.   

The October 1997 rating decision apparently declined to 
reopen the veteran's claim of entitlement to service 
connection for degenerative joint disease of the right knee 
because no new and material evidence was submitted as it 
related to element (2), in-service disease or injury.  He did 
not appeal that decision, and it became final.  See 38 C.F.R. 
§ 20.1103 (2007).

Since that decision, the veteran submitted a statement from a 
comrade that indicates that the veteran injured his right 
knee in military service.  In a March 2003 letter, the 
comrade stated that the veteran was hurt ". . . at the river 
site . . . he [was] struck on his right knee by a piece of 
balk . . . ."  This evidence had not been previously 
submitted.  This new evidence is also material.  As 
previously noted, material evidence means existing evidence 
that, by itself or when considered with previous evidence of 
record, is related to an unsubstantiated fact necessary to 
substantiate the claim.  Here, the matter unsubstantiated as 
of the time of the October 1997 RO decision was whether there 
was an in-service incurrence of a right knee injury.  
The comrade's statement notes just such an injury.  

Thus, the Board finds that the comrade's statement qualifies 
as new and material evidence.  The claim is therefore 
reopened.

As discussed above, VA's statutory duty to assist the veteran 
in the development of his claim attaches at this juncture.  
For reasons set out below, the Board finds that a remand is 
required.


ORDER

New and material evidence not having been submitted, the 
claim of entitlement to service connection for bipolar 
disorder is not reopened.  The benefit sought on appeal 
remains denied.

New and material evidence having been submitted, the claim of 
entitlement to service connection for degenerative joint disease 
of the right knee is reopened.  To that extent only, the appeal 
is allowed.

REMAND

For reasons stated below, the Board finds that this case must be 
remanded for a medical examination and opinion.  

The veteran, in essence, contends that he injured his right 
knee during military service and that injury caused his 
current degenerative joint disease of the right knee.  

The medical evidence of record includes diagnoses of 
degenerative joint disease of the right knee (see, i.e., the 
report of a December 1995 VA medical examination).  As 
discussed above, the veteran has submitted a March 2003 
"buddy" statement to the effect that his right knee was 
injured in approximately 1955.  

Under these circumstances, the Board finds that a medical 
examination and opinion are necessary to determine whether 
the veteran currently has a right knee disorder and, if so, 
whether this disorder can be linked to the reported incident 
during the veteran's military service.  See Charles v. 
Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 
3.159(c)(4) (2005) [a medical examination or opinion is 
necessary if the information and evidence of record does not 
contain sufficient competent medical evidence to decide the 
claim].

Accordingly, the case is REMANDED to the Veterans Benefits 
Administration (VBA) for the following action:

1.	The veteran should be accorded an 
examination by an appropriate medical 
provider.  The veteran's VA claims 
folder should be made available to the 
examiner, who should determine whether 
or not the veteran currently has a 
right knee disorder.  If a right knee 
disability is diagnosed, the examiner 
should render an opinion, based on the 
veteran's history and what is known 
about the progression of degenerative 
disease, as to whether it is as likely 
as not that the veteran's right knee 
disorder was caused by the reported 
incident during the veteran's military 
service.  A report should be prepared 
and associated with the veteran's VA 
claims folder.

2.	After undertaking any additional 
development which it deems to be 
necessary, VBA should then readjudicate 
the veteran's claim.  If the benefit 
sought on appeal remains denied, the 
veteran and his representative should 
be provided with a supplemental 
statement of the case (SSOC) and given 
an appropriate opportunity to respond.  

Thereafter, the veteran's claims folder should be returned to 
the Board, if otherwise in order.  

The veteran has the right to submit additional evidence and 
argument on the matters the Board has remanded.  See 
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 for 
additional development or other appropriate action must be 
handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 
7112 (West Supp. 2007).



_________________________________________________
Barry F. Bohan
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs