Citation Nr: 0810332 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 05-34 181 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an increased rating for bilateral pes cavus with plantar fasciitis, currently assigned a 10 percent evaluation. 2. Entitlement to an increased rating for varicose veins of the left leg, currently assigned a 10 percent evaluation. 3. Entitlement to an increased (compensable) evaluation for retropatellar pain syndrome of the right knee with traumatic arthritis. 4. Entitlement to service connection for ankylosis of the right knee. 5. Entitlement to service connection for ankylosis of the left knee. 6. Entitlement to service connection for bilateral leg thrombophlebitis. 7. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a chronic left knee disability. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The veteran had active service from September 1984 to March 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of September 2004. In the course of appellate development, a noncompensable rating for varicose veins of the left leg was increased to 10 percent, in an October 2005 rating decision. That issue remains on appeal, as a grant of less than the maximum available rating does not terminate the appeal, unless the veteran expressly states he is satisfied with the assigned rating. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The most recent VA examination found that the veteran had varicose veins in both lower extremities. A Note to Diagnostic Code 7120 provides that if more than one extremity is involved, each extremity is to be rated separately and combined (under 38 C.F.R. § 4.25), using the bilateral factor (38 C.F.R. § 4.26), if applicable. 38 C.F.R. § 4.104. However, service connection is not in effect for bilateral varicose veins. This matter is referred to the RO for appropriate development. The issue of service connection for a left knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Bilateral pes cavus with plantar fasciitis is manifested by sight dorsiflexion of the toes, without metatarsal tenderness, limitation of dorsiflexion of the ankle, or shortened plantar fascia. 2. Varicose veins of the left leg are manifested by varicosities, with intermittent symptoms of edema with pain and fatigue with prolonged walking or standing, relieved by elevation, without persistent edema, stasis, or eczema. 3. Since March 1, 2004, retropatellar pain syndrome of the right knee with traumatic arthritis is manifested by tenderness with effusion, with functional impairment comparable to noncompensable limitation of motion. 4. The veteran does not have ankylosis of the left or right knee. 5. The veteran does not have thrombophlebitis of the left or right leg. 6. Evidence received since a November 1996 RO decision, which denied service connection for a left knee condition, includes evidence which relates to an unestablished fact necessary to substantiate the claim for service connection for residuals of a left knee disability, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for bilateral pes cavus with plantar fasciitis have not been met. 38 U.S.C.A. §1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5278 (2007). 2. The criteria for a rating in excess of 10 percent for varicose veins of the left lower extremity have not been met. 38 U.S.C.A. §1155 (West 2002); 38 C.F.R. § 4.104, Diagnostic Code 7120 (2007). 3. Since March 1, 2004, the criteria for a 10 percent rating for retropatellar pain syndrome of the right knee with traumatic arthritis are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010 (2007). 4. Ankylosis of the right or left knee was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). 5. Thrombophlebitis of the right or left lower extremity was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). 6. New and material evidence has been received to reopen the claim for service connection for a left knee disability. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005)), imposes obligations on VA in terms of its duties to notify and assist claimants. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). For an increased compensation claim, the veteran must be notified that he or she must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. Vazquez- Flores v. Peake, No. 05-0355 (Jan. 30, 2008). In this case the veteran was provided a letter in April 2004, which advised him of the information necessary to substantiate his service connection and increased rating claims. The RO advised the claimant of his and VA's respective duties for obtaining different types of evidence, and told him to provide any relevant evidence in his possession. With respect to claims for increased ratings, he was told that in order for an increased rating, evidence must show his condition had increased in severity, or gotten worse. The notice also provided examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., treatment records, or statements discussing his disability symptoms from people who had witnessed how they affected him. This notice did not specifically inform him that a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. However, in the statement of the case in October 2005, this information was provided, as well as the specific diagnostic criteria pertaining to the disabilities at issue. Moreover, the claims were subsequently readjudicated as indicated by a supplemental statement of the case in July 2006. Thus, cumulatively, the veteran was fully informed as to the increased rating claims, and the claims were readjudicated after all notification had been sent. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). Thus, the duty to notify has been satisfied. Although he was not provided with information regarding ratings and effective dates, as there are no ratings or effective dates to be assigned as a result of this decision, the failure to provide notice of these two elements prior to the initial adjudication is harmless error. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Therefore, the Board finds that there was no prejudicial error in the notice error in this case. See Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Service medical records and post-service VA medical records identified by the veteran have been obtained. He has submitted private medical records, and has not identified any additional potentially relevant medical records or other evidence which has not been obtained. The veteran was provided VA examinations in June 2004 and August 2004. There is no evidence indicating that there has been a change in the service-connected disorder(s) since the claimant was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. As to the service connection issues, in determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4); see McLendon v. Nicholson, 20 Vet. App. 79 (2006). Although the VA examinations did not expressly address the nexus question, as discussed below, the examinations clearly established that the veteran does not have the claimed conditions, and he has not subsequently provided any competent evidence to counter this medical evidence. Accordingly, an additional examination is not warranted. Thus, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A § 1155; 38 C.F.R. Part 4. Although the disability must be considered in the context of the whole recorded history, including service medical records, the present level of disability is of primary concern in determining the current rating to be assigned. See 38 C.F.R. § 4.2 (2007); Francisco v. Brown, 7 Vet. App. 55 (1994); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending, staged ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). A. Bilateral Pes Cavus With Plantar Fasciitis During service, the veteran was treated for difficult to diagnose pain in the feet. X-rays in January 1995 disclosed flexible bilateral pes cavus, and in March 1995, chronic plantar fasciitis was diagnosed. In November 1996, service connection for bilateral pes cavus with plantar fasciitis was granted, with a 10 percent rating assigned under diagnostic code 5278. Diagnostic Code 5278 provides ratings for acquired claw foot (pes cavus). Slight acquired claw foot is rated noncompensably (0 percent) disabling. Acquired claw foot with the great toe dorsiflexed, some limitation of dorsiflexion at the ankle, definite tenderness under metatarsal heads, bilateral or unilateral, is rated 10 percent disabling. Acquired claw foot with all toes tending to dorsiflexion, limitation of dorsiflexion at the ankle to right angle, shortened plantar fascia, and marked tenderness under the metatarsal heads, is rated 20 percent disabling for unilateral involvement, and 30 percent disabling for bilateral involvement. Acquired claw foot with marked contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, marked varus deformity, is rated 30 percent disabling for unilateral involvement, and 50 percent disabling for bilateral involvement. 38 C.F.R. § 4.71a, Code 5278. On VA examination in June 2004, the veteran had a high arch in the left foot without evidence of clubfoot. He did not have hammertoes. There was no significant hallux valgus, and no flat foot. On a VA examination in August 2004, there were mild cock-up deformities of the second through fifth toes on the left, and 6 degrees of hallux abductor valgus of the left great toe. There was no limitation of motion of the toes. He had heavy calluses over the instep medially at the left foot. There was no abduction of the left forefoot. There was 7 degrees of valgus at the alignment of the insertion of the Achilles tendon. On the right foot, he had heavy calluses over the first, second, and third metatarsophalangeal (MTP) joints at the sole and some at the instep as well. He had 6 degrees of hallux abductor valgus of the right great toe and mild cock-up deformities of the second through fifth toes on the right. There was 6 degrees of valgus deviation. He did not have any limitation of motion in the toes, including with repetitions. There was no pain on manipulation of the veteran's right or left midfoot. Range of motion of the ankles was from 20 degrees of dorsiflexion to 45 degrees of flexion, unchanged with repeated movements. Thus, while the veteran's toes tend to dorsiflexion, no limitation of dorsiflexion of the ankle has been shown, nor has there been marked tenderness under the metatarsal heads, or indication of shortened plantar fascia. On his examinations, he said that he did not use any corrective shoes or inserts, due to his foot condition. He said, in June 2004, that his foot condition affected his occupation in the sense that he could not stand or sit in one position for a long time, but he said he had not lost any work from his job. Activities of daily living were not affected. He said symptoms were not present at rest, but were with standing and walking. He said he did not receive any treatment for his foot condition. In August 2004, he said that flare-ups in his feet occurred with prolonged standing and walking, which might last a day or two. Prolonged standing and walking during work could be causative of foot discomfort, but he took no particular measures during those periods. Moreover, on the examination, there was no additional impairment due to repetitive use, there was no fatigability, incoordination, or weakness, including with repetitive movements. Thus, a higher rating based on functional impairment is not warranted. See C.F.R. §§ 4.40, 4.45 (2007), DeLuca v. Brown, 8 Vet. App. 202 (1995). In sum, the veteran's symptoms involving his service- connected bilateral foot disorder are contemplated by the 10 percent rating currently in effect. While he has some tendency to dorsiflexion, in view of the absence of any limitation of dorsiflexion at the ankle, or definite tenderness under metatarsal heads, both of which are contemplated by the 10 percent rating currently in effect, the symptoms do not more closely approximate the criteria for the next higher rating, which include limitation of dorsiflexion at the ankle to right angle, shortened plantar fascia, and marked tenderness under the metatarsal heads. Additional functional impairment has not been shown. As the preponderance of the evidence is against the claim for a higher rating, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir.); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). B. Varicose Veins During service, in August 1994, the veteran underwent surgical stripping and ligation of varicose veins in the left lower extremity. Currently, he is in receipt of a 10 percent rating for left leg varicose veins, and he claims entitlement to a higher rating. Diagnostic Code 7120 provides ratings for varicose veins. Asymptomatic palpable or visible varicose veins are rated noncompensably (0 percent) disabling. Varicose veins with findings of intermittent edema of extremity or aching and fatigue in leg after prolonged standing or walking, with symptoms relieved by elevation of extremity or compression hosiery, are rated 10 percent disabling. Varicose veins with findings of persistent edema, incompletely relieved by elevation of extremity, with or without beginning stasis pigmentation or eczema, are rated 20 percent disabling. Varicose veins with findings of persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration, are rated 40 percent disabling. Varicose veins with findings of persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration, are rated 60 percent disabling. Varicose veins with findings of massive board-like edema with constant pain at rest are rated 100 percent disabling. The VA examination in June 2004 disclosed varicose veins on the right posterior thigh and over the popliteal fossa. Some of the veins over the posterior thigh were large, about 1.5 centimeters in diameter, but the veins were situated deeply and not prominently visible. There was a cluster of veins over the posterior aspect to f the right thigh. There was no ulceration, edema, stasis, pigmentation, or eczema. Edema was not present in the left lower extremity. He said that he had symptoms of stinging, itching, and aching at times. He had feelings of fatigue with prolonged standing. He said that there was swelling of the lower extremity, which was relieved by elevation. There was no swelling on examination. He currently received no treatment for the condition, and it had no effect on his usual occupation or daily activities. In August 2004, he had some scattered superficial varicosities over the medial saphenous system bilaterally, worse on the left, and some on the popliteal fossa at the left knee as well. There was no tenderness to palpation, or ulceration or evidence of cellulitis of the skin. He said that with prolonged standing, he felt a sensation of itching and prickling of the veins in the calf. He treated this by wearing a rather tight pair of long underwear. Flare-ups might last 12 to 24 hours. However, the intermittent symptoms, including edema, with symptoms relieved by elevation of extremity or compression hosiery, are contemplated by the 10 percent rating in effect. There is no evidence, lay or medical, of persistent edema, incompletely relieved by elevation of extremity, beginning stasis pigmentation, or eczema. Thus, the preponderance of the evidence is against the claim for an increased rating for varicose veins of the left leg. The benefit-of-the-doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C. § 5107(b); see Ortiz, supra; Gilbert, supra. C. Right Knee Outpatient treatment records show that in September 2002, the veteran complained of knee pain. On examination, the right knee was not tender. On the VA examination in August 2004, the veteran said that sometimes repetitive postural changes such as crouching, kneeling, and squatting in the course of his job as a telephone repairman would cause discomfort in the right knee. He treated flare-ups with rest and elevation of the extremity, sometimes applying ice to the right knee. A flare might last a day or two at most. On examination, range of motion was from 140 degrees of flexion to 0 degrees of extension. McMurray's drawer and Lachman's signs were all negative. Direct patellar compression produced mild discomfort. There was no effusion or palpable heat. There was no instability. There was no fatigability, incoordination or weakness at the right knee. X-rays disclosed mild osteoarthritis with small joint effusion. Degenerative or traumatic arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003 (degenerative arthritis) and DC 5010 (traumatic arthritis). Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Limitation of a leg (knee) flexion is rated 0 percent when limited to 60 degrees, 10 percent when limited to 45 degrees, 20 percent when limited to 30 degrees, and 30 percent when limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Limitation of extension of a leg (knee) is rated 0 percent when limited to 5 degrees, 10 percent when limited to 10 degrees, 20 percent when limited to 15 degrees, 30 percent when limited to 20 degrees, 40 percent when limited to 30 degrees, and 50 percent when limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. Factors affecting functional impairment, such as pain on motion, weakened movement, excess fatigability, lost endurance, swelling, or incoordination, must also be considered, in evaluating a disability based on limitation of motion. See 38 C.F.R. §§ 4.40, 4.45 (2006), DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional impairment must be supported by adequate pathology. Johnson v. Brown, 9 Vet. App. 7, 10 (1996). Although the veteran did not exhibit limitation of motion on examination, he has X-ray proven arthritis, there was patellar tenderness on examination, and effusion was shown on X-ray. In view of these findings, the Board is of the opinion that the pain in the right knee is sufficient to cause functional impairment, to the extent that the disability more closely approximates a 10 percent rating, under diagnostic code 5010. Accordingly, a 10 percent rating for retropatellar pain syndrome of the right knee with traumatic arthritis is warranted. In reaching this determination, the benefit-of-the-doubt rule has been applied. See 38 U.S.C.A. § 5107(b). However, in view of the full range of motion shown on examinations, with the absence of any additional impairment on repetitive use, and the absence of any additional functional impairment, a higher rating based on limitation of motion, either flexion or extension is not warranted. The medical evidence also shows that no instability is present, and so a separate rating is not warranted under diagnostic code 5257. In sum, the veteran's right knee disability merits a 10 percent rating, but no higher. Further, the 10 percent rating is warranted throughout the appeal period, from March 1, 2004, the date of receipt of claim for service connection for arthritis of the right knee, to the present. See Hart, supra. III. Service Connection Service connection may be established for chronic disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110; 1131; 38 C.F.R. § 3.303. Generally, to establish service connection, there must be (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in- service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247, 253 (1999). A. Ankylosis of the Right and Left Knees Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Colayong v. West, 12 Vet App 524 (1999) (citing Dorland's Illustrated Medical Dictionary 86 (28th Ed. 1994). Ankylosis in either knee has not been shown, either during or after service. Moreover, the veteran has not described symptoms of ankylosis. In June 2004, it was specifically noted that the veteran did not have ankylosis in the left knee. In August 2004, he had full range of motion in the right knee, as discussed above. At that time, he was less than 2 weeks post-operative left knee surgery, but still he had range of motion from -5 degrees of extension to 95 degrees of flexion in the left knee. Private medical records of his post-surgical follow-up noted, later in August 2004, that he had excellent range of motion in the left knee. Therefore, the evidence establishes that the veteran does not have ankylosis in the left or the right knee. Without medical evidence of the current existence of a claimed condition, there may be no service connection. Degmetich v. Brown, 104 F.3d 1328 (1997). Accordingly, the preponderance of the evidence is against the claim, the benefit-of-the- doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C. § 5107(b); see Ortiz, supra; Gilbert, supra. B. Bilateral Leg Thrombophlebitis Similarly, thrombophlebitis of either the right or left leg has not been shown. In August 2004, he said he had had no recent episodes of thrombophlebitis and no history of deep vein thrombosis in the left lower extremity. To the extent this may indicate a past history of a diagnosis of thrombophlebitis, there is no medical evidence of the current presence of the condition, and the veteran declined to provide any additional medical evidence, or to identify any medical evidence that would show the condition. The VA examination itself did not result in a diagnosis of thrombophlebitis. Thus, in the absence of a current, chronic disability, service connection may not be granted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim is denied. 38 U.S.C. § 5107(b); see Ortiz, supra; Gilbert, supra. III. New and Material Evidence-Left Knee Disorder To the extent required for a decision as to whether the claim is reopened, the Board finds that the notice and duty to assist provisions of the law have been met. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007). In a duty to assist letter dated in April 2004, the RO informed the veteran that a claim for service connection for a left knee disability had been previously denied in an unappealed November 1996 rating decision, and, hence, new and material evidence was required to reopen his claim. Subsequently, however, the claim for service connection for arthritis of the left knee was decided on the merits, without regard to finality. See Ephraim v. Brown, 82 F.3d 399, 401 (Fed. Cir. 1996) (a claim based on a new diagnosis is a new claim). However, VA's duty to assist a claimant with the development of evidence extends to all applicable theories of a claim, whether asserted by the claimant or not. Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000); see also Robinette v. Brown, 8 Vet. App. 69, 76 (1995) (claim documents must be read in a liberal manner so as to identify and carry out the required adjudication of all claims that are reasonably raised by the evidence of record whether or not formally claimed in a VA application). In this case, the RO discussed the veteran's left knee condition as a whole in its decisions, and the Board agrees with that approach, as the conditions cannot be separated, based on the evidence of record. As a result, the Board must still determine whether new and material evidence has been submitted. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (reopening after a prior Board denial); Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the veteran's previously and finally denied claims). Service connection for a left knee condition was previously denied in an RO rating decision dated in November 1996. The veteran did not appeal that decision, and it is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.104 (2007). However, a previously denied claim may be reopened by submission of new and material evidence, and if so reopened, the claim will be reviewed on a de novo basis. 38 U.S.C.A. §§ 5108, 7105; Evans v. Brown, 9 Vet. App. 27 (1996); Manio v. Derwinski, 1 Vet. App. 140 (1991). Further, whether a claim is reopened is a jurisdictional matter, and, therefore, the Board must independently address the issue, regardless of the actions of the RO. See, e.g., Barnett, supra. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished 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. 38 C.F.R. § 3.156(a). Evidence of record at the time of the previous decision included service medical records, which showed that the veteran complained of pain in his knees in March and August 1995, but that a bone scan in October 1995 had been normal. There was no medical evidence of the presence of a chronic left knee disability after service. Evidence received since that decision includes medical evidence of the presence of a left knee disability, including a torn medial meniscus, Grade 4 chondromalacia, and mild degenerative joint disease, in 2004. In addition, in September 2002, the veteran said that he had had knee pain for the past 11 years, and the left knee was noted to be swollen and tender at that time. This medical evidence of a chronic knee disability in 2004, together with the veteran's complaints and history of symptoms since service reported in 2002, is neither cumulative nor redundant of the evidence of record at the time of the prior final denial of the claim. Moreover, the evidence relates to an unestablished fact necessary to substantiate the claim, specifically, current disability, as well as a nexus to service. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). (The appellant is competent to give evidence about what he experienced; for example, he is competent to report that he had certain injuries during service or that he experienced certain symptoms.) In this regard, evidence is weighed and credibility assessed after a claim is reopened. See Justus v. Principi, 3 Vet. App. 510 (1993). Accordingly, the claim is reopened with the submission of new and material evidence, and VA must review the claim in light of all the evidence, new and old. 38 C.F.R. § 3.156. ORDER Entitlement to an increased rating for bilateral pes cavus with plantar fasciitis, currently assigned a 10 percent evaluation, is denied. Entitlement to an increased rating for varicose veins of the left leg, currently assigned a 10 percent evaluation, is denied. Entitlement to a 10 percent rating for retropatellar pain syndrome of the right knee with traumatic arthritis is granted. Entitlement to service connection for ankylosis of the right knee is denied. Entitlement to service connection for ankylosis of the left knee is denied. Entitlement to service connection for bilateral leg thrombophlebitis is denied. New and material evidence to reopen the claim for service connection for a left knee disability has been received; to that extent only, the appeal is granted. REMAND Because the claim for service connection for residuals of a left knee disability has been reopened with the submission of new and material evidence, additional assistance in developing evidence pertinent to the veteran's claim must be provided. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007). Specifically, he must be provided a nexus opinion, which includes a claims file review by the examiner. See Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, 20 Vet. App. 79 (2006); Charles v. Principi, 16 Vet.App. 370, 374-75 (2002); 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In addition, any available post- service medical records should be obtained, as well, since there is no contemporaneous evidence of the condition from 1996 to 2002. Accordingly, the case is REMANDED for the following action: 1. Undertake all notification and development actions required by law for the reopened claim for service connection for a left knee disability. Specifically, the veteran should be notified of the evidence and information necessary to substantiate his reopened claim. Such notice should inform him of the respective obligations that he and VA bear in the production or obtaining that evidence or information. The notice should also request that he provide VA with any evidence in his possession that pertains to the claim, and provide information regarding assigned ratings and effective dates. The veteran should be asked to identify all treatment or evaluations of his left knee from the time of his discharge to the present. He should be asked to either obtain himself and submit to VA, or authorize VA to obtain, all records of treatment for a left knee condition. 2. Thereafter, schedule the veteran for an appropriate VA examination to determine whether he has a current chronic left disability, to include traumatic arthritis, that is related to service. The entire claims folder and a copy of this REMAND must be made available the physician. The examiner should provide a diagnosis for all left knee disabilities currently present, and express an opinion as to whether any current chronic low back disability is related to bilateral knee pain shown in service in 1995. Any indicated tests should be conducted, and the results reviewed prior to the final opinion. The complete rationale for all opinions expressed should be provided. In would be helpful if the physician would use the following language in his or her opinion, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 3. After assuring compliance with the above development, as well as with any other notice and development action required by law, the RO should review the reopened claim for service connection for a left knee disability, to include traumatic arthritis, on a de novo basis. If the claim is denied, the veteran and his representative should be provided with a supplemental statement of the case, and given an opportunity to respond, before the case is returned to the Board. The appellant 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs