Citation Nr: 1125877 Decision Date: 07/11/11 Archive Date: 07/19/11 DOCKET NO. 07-06 258A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for a right knee disability. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for a right shoulder disability. 3. Whether new and material evidence has been submitted to reopen a claim for service connection for a low back disability. 4. Whether new and material evidence has been submitted to reopen a claim for service connection for a bilateral hearing loss disability. 5. Whether new and material evidence has been submitted to reopen a claim for service connection for a left knee disability. 6. Entitlement to service connection for a right knee disability. 7. Entitlement to service connection for a right shoulder disability. 8. Entitlement to service connection for a low back disorder. 9. Entitlement to service connection for a bilateral hearing loss disability. 10. Entitlement to service connection for a left knee disability. 11. Entitlement to service connection for alcohol and substance abuse. 12. Entitlement to service connection for a psychiatric disorder to include bipolar disorder and depression. 13. Entitlement to service connection for a cervical spine disability. 14. Entitlement to service connection for left shoulder disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Russell P. Veldenz, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from February 1972 to May 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in October 2006 of a Department of Veterans Affairs (VA) Regional Office (RO). In an unappealed rating decision in April 1987, the RO denied the claims of service connection for a right knee disability, a right shoulder disability, a low back disability, and a bilateral hearing loss disability. In an unappealed rating decision in May 1987, the RO denied the claim of service connection for a left knee disability. By operation of law, both unappealed rating decisions became final (hereinafter also referred to as finality). 38 U.S.C.A. § 7105. Where service connection for a disability has been denied in a final rating decision, a subsequent claim of service connection for the same disability may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. The Board has jurisdictional responsibility to consider whether it is proper for a claim to be reopened, and what the RO determined in this regard is irrelevant. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). For this reason, the Board has styled the claims of service connection for a right knee disability, a right shoulder disability, a low back disability, a bilateral hearing loss disability, and left knee disability to reflect that finality had attached to the previous rating decisions. In March 2011, the Veteran did not appear at a hearing before the Board. The Veteran has advised VA that he is currently incarcerated by the Texas Department of Corrections. In January 2011, the RO acknowledged the Veteran's situation and advised him that it was his responsibility to make arrangements with the Texas Department of Corrections to allow him to travel to the hearing site or make other alternative arrangements for his hearing such as a videoconference hearing. The Veteran has indicated to VA that his request was or would be refused and VA should initiate a request. The VA's duty to assist incarcerated veterans requires VA to tailor its assistance to meet the peculiar circumstances of confinement. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). However, the Secretary of VA does not have the legal authority by statute or by regulation to compel a warden of state correction facility to release a state prisoner to the custody of VA for a hearing. Bolton v. Brown, 8 Vet. App. 185, 191 (1995). The reopened claims of service connection for a right knee disability, a right shoulder disability, a low back disability, a bilateral hearing loss disability, and left knee disability, and the claims of service connection for a psychiatric disorder, a cervical spine disability, and a left shoulder disability are REMANDED to the RO via the Appeals Management Center in Washington, DC. A decision of the claim of service connection for alcohol and substance abuse is deferred until the claim of service connection for a psychiatric disorder is finally adjudicated. FINDINGS OF FACT 1. In a rating decision in April 1987, the RO denied the claim of service connection for a right knee disability; after the Veteran was notified of the adverse determination and of his procedural and appellate rights, he did not perfect an appeal of the adverse determination. 2. The additional evidence presented since the rating decision in April 1987 by the RO relates to an unestablished fact necessary to substantiate the claim of service connection for a right knee disability. 3. In a rating decision in April 1997, the RO denied the claim of service connection for a right shoulder disability; after the Veteran was notified of the adverse determination and of his procedural and appellate rights, he did not perfect an appeal of the adverse determination. 4. The additional evidence presented since the rating decision in April 1987 by the RO relates to an unestablished fact necessary to substantiate the claim of service connection for a right shoulder disability. 5. In a rating decision in April 1987, the RO denied the claim of service connection for a low back disability; after the Veteran was notified of the adverse determination and of his procedural and appellate rights, he did not perfect an appeal of the adverse determination. 6. The additional evidence presented since the rating decision in April 1987 by the RO relates to an unestablished fact necessary to substantiate the claim of service connection for a low back disability. 7. In a rating decision in April 1987, the RO denied the claim of service connection for a bilateral hearing loss disability; after the Veteran was notified of the adverse determination and of his procedural and appellate rights, he did not perfect an appeal of the adverse determination. 8. The additional evidence presented since the rating decision in April 1987 by the RO relates to an unestablished fact necessary to substantiate the claim of service connection for a bilateral hearing loss disability. 9. In a rating decision in May 1987, the RO denied the claim of service connection for a left knee disability; after the Veteran was notified of the adverse determination and of his procedural and appellate rights, he did not perfect an appeal of the adverse determination. 10. The additional evidence presented since the rating decision in May 1987 by the RO relates to an unestablished fact necessary to substantiate the claim of service connection for a left knee disability. CONCLUSIONS OF LAW 1. The additional evidence presented since the rating decision in April 1987 is new and material, and the claim of service connection for a right knee disability is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). 2. The additional evidence presented since the rating decision in April 1987 is new and material, and the claim of service connection for a right shoulder disability is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). 3. The additional evidence presented since the rating decision in April 1987 is new and material, and the claim of service connection for a low back disability is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). 4. The additional evidence presented since the rating decision in July 1997 is new and material, and the claim of service connection for a bilateral hearing loss disability is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). 5. The additional evidence presented since the rating decision in May 1987 is new and material, and the claim of service connection for a left knee disability is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented, in part, at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. As the applications to reopen the claims of service connection for right knee disability, a right shoulder disability, a low back disability, a bilateral hearing loss disability, and left knee disability are resolved in the Veteran's favor, the only matters disposed of in this decision, further discussion here of compliance with the VCAA with regard to the claims to reopen is not necessary. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Although the prior rating decisions in April and in May 1987 by the RO became final, a claim may nevertheless be reopened if new and material evidence is presented. 38 U.S.C.A. §§ 7105(c) and 5108. Regardless of the RO's characterization of the claims, the Board is without jurisdiction to consider the substantive merits of a claim of service connection in the absence of a finding that new and material evidence has been presented. The Board therefore must determine whether new and material evidence has been received to reopen the previously denied claims. Jackson v. Principi, 265 F. 3d 1366, 1369 (Fed. Cir. 2001). As the Veteran's application to reopen the claims of service connection was received after August 29, 2001, the current regulatory definition of new and material evidence under 38 C.F.R. § 3.156 applies. 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, 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. In determining whether the evidence is new and material, the specified basis for the last final disallowance must be considered. Hodge v. West, 155 F. 3d 1356, 1363 (Fed. Cir. 1998). In order that the additional evidence may be considered new and material under the current regulatory definition of new and material evidence, the evidence must relate to the basis for the prior denial of the claims. In determining whether evidence is new and material, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The presumption of credibility is rebuttable when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). New and Material Evidence: Right Knee Disability Procedural and Factual Background By a rating decision in April 1987, the RO denied the claim of service connection for a right knee disability, because there was no evidence that any disability of the right knee existed. After the RO notified the Veteran of the adverse determination and of his procedural and appellate rights, the Veteran did not perfect an appeal of the adverse determination and the determination became final by operation of law. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104. The pertinent evidence of record and considered by the RO at the time of the rating decision in April 1987 is summarized as follows: The service treatment records show that the entrance examination in February 1972 there was no finding or history of right knee disability. In April 1973, the Veteran complained of right knee pain. The physical examination was negative. X-rays were negative. A possible injury to the collateral ligaments was suspected, but not detected. In January 1974, the Veteran fell from a third story window. The diagnosis was head trauma although it appears the right shoulder was also involved. He was admitted to a hospital overnight for observation. On separation examination in April 1975, the Veteran gave a history of a head injury, leg cramps, broken bones, and a trick knee. Neither the history nor the examination disclosed which knee was involved. The examiner noted the report of broken bones referred to a wrist fracture that the Veteran suffered before he entered service. After service, the Veteran stated that he had arthroscopic surgery in May 1978. He did not state which joint was involved. In a rating decision in April 1987, the RO denied service connection for a right knee disability because there was no evidence of a current right knee disability. New Evidence and Analysis The additional evidence presented since the last final rating decision in April 1978 by the RO includes a VA examination in September 2006 and private medical records from the University of Texas Medical Branch from February 1995 to December 2004, Brentwood Regional Medical Center from March 1992 to April 1997; and Hillcrest Baptist Medical Center for treatment in October 1991. The evidence also includes records from the Social Security Administration, which includes additional medical records from: Dr. M. O. from October 1992 to January 1993; Dr. H. E. B. from, November 1992 to December 1992 (and a telephone report to VA in March 1993); Dr. J. B. from October 1990 to September 12, 1991; Dr. G. D. D. for treatment in August 1992; Dr. R. H. S. from September 1991 to March 1992; Dr. P. J. F., from March 1992 to September 1992; Oak Bend Hospital for treatment in November 1992, and records from the Texas Department of Mental Health and Mental Retardation. The RO has also obtained VA hospitalization records from the Albuquerque, New Mexico VAMC dated in March and April 1988. The Veteran has also submitted statements regarding his symptoms and how his current disability related to his various in-service injuries. In particular, the Veteran argues his fall from a third story window in January 1974 had "hidden consequences" or in other words, injuries from that fall that manifested at a later time. The additional evidence since April 1987 consists of VA hospital records from the Albuquerque, New Mexico VAMC for treatment in March and April 1988, which show a history of arthroscopic surgery for the right knee in 1977. On VA examination in September 2006, X-rays showed degenerative changes in the right patellofemoral joint. As the RO previously denied the claim because of a lack of evidence of a current disability, the additional evidence establishes that the Veteran has a chronic condition, namely, degenerative joint disease of the right knee, and combined with the Veteran's statements relating it to service, the additional evidence relates to an unestablished fact necessary to substantiate the claim, that is, evidence of current chronic disability, the absence of which was the basis for the previous denial of the claim. As the evidence is new and material under 38 C.F.R. § 3.156, the claim of service connection for a right knee disability is reopened, but further development is needed before reaching a decision on the merits of the reopened claim. New and Material Evidence: Right Shoulder Disability Procedural and Factual Background By a rating decision in April 1987, the RO denied the claim of service connection for a right shoulder disability, because there was no evidence that any disability of the right shoulder existed. After the RO notified the Veteran of the adverse determination and of his procedural and appellate rights, the Veteran did not perfect an appeal of the adverse determination and the determination became final by operation of law. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104. The pertinent evidence of record and considered by the RO at the time of the rating decision in April 1987 is summarized as follows: The service treatment records show that the entrance examination in February 1972 there was no finding or history of a right shoulder disability. In April 1972, the Veteran sought treatment for his right shoulder after lifting a foot locker and the assessment was muscle strain. In January 1974, the Veteran fell from a third story window. The diagnosis at that time was head trauma although it appears the right shoulder was also involved. An X-ray of the right shoulder was negative. Bruises and soft tissue swelling were noted. He was admitted to the hospital overnight for observation. In April 1975, the Veteran had pain in his right shoulder and could not lift his arm above his head. X-rays were negative and the diagnosis was a mild strain. On separation examination in April 1975, the Veteran gave a history of a head injury, leg cramps, broken bones, and a trick knee. Neither the history nor the examination disclosed any complaint or diagnosis of a right shoulder disability. The examiner noted the history of broken bones, which referred to a wrist fracture that the Veteran suffered before he entered service. After service, in a rating decision in April 1987, the RO denied service connection for a right shoulder disability because there was no evidence of a current right shoulder disability. New Evidence and Analysis The additional evidence presented since the last final rating decision in April 1978 includes a VA examination in September 2006 and private medical records from the University of Texas Medical Branch from February 1995 to December 2004, Brentwood Regional Medical Center from March 1992 to April 1997; and Hillcrest Baptist Medical Center for treatment in October 1991. The evidence also includes records from the Social Security Administration, which includes additional medical records from: Dr. M. O. from October 1992 to January 1993; Dr. H. E. B. from, November 1992 to December 1992 (and a telephone report to VA in March 1993); Dr. J. B. from October 1990 to September 12, 1991; Dr. G. D. D. for treatment in August 1992 ; Dr. R. H. S. from September 1991 to March 1992; Dr. P. J. F., from March 1992 to September 1992; Oak Bend Hospital for treatment in November 1992, and records from the Texas Department of Mental Health and Mental Retardation. Finally, the RO has a received VA hospitalization records from the Albuquerque, New Mexico VAMC dated in March and April 1988. The Veteran has also submitted statements regarding his symptoms and how his current disability is related to his various in-service injuries. In particular, the Veteran argues his fall from a third story window in January 1974 had "hidden consequences" or in other words, injuries from that fall that manifested at a later time. The additional evidence since April 1987 shows a work related accident in September 1990 when the Veteran attempted to lift a bucket weighing about 20 pounds and he felt a pop in his right shoulder. He experienced instability, pain, and limitation of motion. There was a questionable finding of a bony fragment in diagnostic studies and arthritic changes. After another work related accident in August 1991, the Veteran began to experience pain in the cervical area with radiation and diffuse numbness. The Veteran had surgery on the right acromioclavicular joint in 1993. On VA examination in September 2006, X-rays showed a separation of the acromioclavicular joint. As the RO previously denied the claim because of a lack of evidence of a current disability, the additional evidence establishes that the Veteran has a chronic condition, namely, degenerative changes and residuals of a separation of the acromioclavicular joint, and combined with the Veteran's statements relating it to service, the additional evidence relates to an unestablished fact necessary to substantiate the claim, that is, evidence of current right shoulder disability, the absence of which was the basis for the previous denial of the claim. As the evidence is new and material under 38 C.F.R. § 3.156, the claim of service connection for a right knee shoulder disability is reopened, but further development is needed before reaching a decision on the merits of the reopened claim. New and Material Evidence: Low Back Disability Procedural and Factual Background By a rating decision in April 1987, the RO denied the claim of service connection for a low back disability, because there was no evidence that any disability of the low back existed. After the RO notified the Veteran of the adverse determination and of his procedural and appellate rights, the Veteran did not perfect an appeal of the adverse determination and the determination became final by operation of law. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104. The pertinent evidence of record and considered by the RO at the time of the rating decision in April 1987 is summarized as follows: The service treatment records show that the entrance examination in February 1972 there was no finding or history of a low back disability. In July 1972, the Veteran complained of a one week history of low back pain. No trauma was noted and the Veteran did not have any radicular symptoms. The assessment was low back strain. In January 1974, the Veteran fell from a third story window. He was admitted to the hospital overnight for observation. In June1974, the Veteran complained of low back pain and stiffness. In April 1975, lumbosacral strain was noted after the Veteran fell off a chair. On separation examination in April 1975, the Veteran reported a head injury, leg cramps, broken bones, and a trick knee. Neither the history nor the examination disclosed any complaint or diagnosis of a low back disability. After service, the Veteran gave a history of back surgery in March 1978. In the rating decision in April 1987, the RO denied service connection for a low back disability because there was no evidence of a current low back disability. New Evidence and Analysis The additional evidence presented since the last final rating decision in April 1978 includes a VA examination in September 2006 and private medical records from the University of Texas Medical Branch from February 1995 to December 2004, Brentwood Regional Medical Center from March 1992 to April 1997; and Hillcrest Baptist Medical Center for treatment in October 1991. The evidence also includes records from the Social Security Administration, which includes additional medical records from: Dr. M. O. from October 1992 to January 1993; Dr. H. E. B. from November 1992 to December 1992 (and a telephone report to VA in March 1993); Dr. J. B. from October 1990 to September 12, 1991; Dr. G. D. D. for treatment in August 1992 ; Dr. R. H. S. from September 1991 to March 1992; Dr. P. J. F., from March 1992 to September 1992; Oak Bend Hospital for treatment in November 1992, and from the Department of Texas Mental Health and Mental Retardation. Finally, the RO has a received VA hospitalization records from the Albuquerque, New Mexico VAMC dated in March and April 1988. The Veteran has also submitted statements regarding his symptoms and how his current back disability is related to his various in-service injuries. In particular, the Veteran argues his fall from a third story window in January 1974 had "hidden consequences" or in other words, injuries from that fall manifested at a later time. He also stated that as artillery man his duties involved continuous and repeated heavy lifting which caused trauma to his lower back. The additional evidence since April 1987 shows that Veteran has had multiple low back surgeries. He has given a history of initial low back surgery in 1975 for a ruptured disc. By the Veteran's history, he also had a fracture of the 5th lumbar vertebra. He also had insertion of metal fixation rods in his lumbar region, which were removed in October 1991. He reinjured his lower back twice at work. He fell through a retaining wall in August 1991. He had a second injury in July 1992 when his mother fell and he tried to pick her up. On VA examination in September 2006, X-rays showed fusion of L4 through S1. As the RO previously denied the claim because of a lack of evidence of a current disability, the additional evidence establishes that the Veteran has a chronic condition, namely, residuals of low back injuries, resulting in fusion of the lumbosacral spine, and combined with the Veteran's statements relating it to service, the additional evidence relates to an unestablished fact necessary to substantiate the claim, that is, evidence of current low back disability, the absence of which was the basis for the previous denial of the claim. As the evidence is new and material under 38 C.F.R. § 3.156, the claim of service connection for a low back disability is reopened, but further development is needed before reaching a decision on the merits of the reopened claim. New and Material Evidence: A Bilateral Hearing Loss Disability Procedural and Factual Background For the purpose of VA disability compensation impaired hearing will be considered a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 decibels, and a higher threshold level indicates some degree of hearing loss, but not a hearing loss disability under 38 C.F.R. § 3.385. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). By a rating decision in April 1987, the RO denied the claim of service connection for a bilateral hearing loss disability because there was no evidence of such a disability. After the RO notified the Veteran of the adverse determination and of his procedural and appellate rights, the Veteran did not perfect an appeal of the adverse determination and the determination became final by operation of law. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104. The pertinent evidence of record and considered by the RO at the time of the rating decision in April 1987 is summarized as follows: The service treatment records show that on entrance examination in February 1972 audiology testing revealed pure tone thresholds, in decibels, at 500, 1000, 2000, 3000, and 4000 Hertz as 15, 10, 10, 10, and 25, in the right ear and 20, 25, 10, 25, and 25 in the left ear. In September 1974, the Veteran complained of a right earache and hearing loss. The impression was otitis media and otitis externa. On separation examination in April 1975, audiology testing revealed pure tone thresholds, in decibels, at 500, 1000, 2000, and 4000 Hertz as 10, 15, 10, and 25, in the right ear and 15, 15, 25, and 25in the left ear. After service, the Veteran did not offer any other evidence regarding hearing loss. In a rating decision in April 1987, the RO denied service connection because a hearing loss disability was not shown. Additional Evidence On VA audiological examination in October 2006, the Veteran complained of hearing loss, which he stated started three to five years earlier. An audiogram revealed pure tone thresholds, in decibels, at 500, 1000, 2000, 3000, and 4000, Hertz as 30, 30, 35, 40, and 45, in the right ear and 25, 30, 40, 40, and 45, in the left ear. Speech recognition scores were 100 percent in the right ear and 100 percent in the left. As the claim of service connection for a bilateral hearing loss disability was denied, in part, on the grounds that a current disability related to service was not shown, the audiogram in September 2006 is new and material evidence as the evidence relates to an unestablished fact necessary to substantiate the claim, that is, evidence of a current hearing loss disability, the absence of which was the basis for the previous denial of the claim. As the evidence is new and material under 38 C.F.R. § 3.156, the claim of service connection for a bilateral hearing loss disability is reopened, but further development is needed before reaching a decision on the merits of the reopened claim. New and Material Evidence: Left Knee Disability Procedural and Factual Background By a rating decision in May 1987, the RO denied the claim of service connection for a left knee disability, because there was no evidence that any disability of the left knee existed. After the RO notified the Veteran of the adverse determination and of his procedural and appellate rights, the Veteran did not perfect an appeal of the adverse determination and the determination became final by operation of law. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104. The pertinent evidence of record and considered by the RO at the time of the rating decision in May 1987 is summarized as follows: The service treatment records show that the entrance examination in February 1972 there was no finding or history of left knee disability. In October 1972, a car rolled over the Veteran's left leg, causing what was described as a crush injury and abrasions. X-rays were negative. The diagnosis was Grade II strain of the left medial collateral ligament. The Veteran was in a cast for three weeks. In October 1973, the Veteran complained that his left knee would pop out. X-rays were negative. The impression was chondromalacia of the patella. In January 1974, the Veteran was the passenger in car involved in an accident. An abrasion was noted over the left patella. In January 1974, the Veteran fell from a third story window. On separation examination in April 1975, the Veteran gave a history of a head injury, leg cramps, broken bones, and a trick knee. The pertinent finding was a calcium deposit on the left knee. The report does not disclose which knee was troublesome. The examiner noted that the report of broken bones referred to a wrist fracture that the Veteran suffered before he entered service. After service, in a rating decision in may 1987, the RO denied service connection, because the left knee injuries in service were acute and transitory. New Evidence and Analysis The additional evidence presented since the last final rating decision in May1987 includes a VA examination in September 2006 and private medical records from the University of Texas Medical Branch from February 1995 to December 2004, Brentwood Regional Medical Center from March 1992 to April 1997; and Hillcrest Baptist Medical Center for treatment in October 1991. The evidence also includes records from the Social Security Administration, which includes additional medical records from: Dr. M. O. from October 1992 to January 1993; Dr. H. E. B. from November 1992 to December 1992 (and a telephone report to VA in March 1993); Dr. J. B. from October 1990 to September 12, 1991; Dr. G. D. D. for treatment in August 1992 ; Dr. R. H. S. from September 1991 to March 1992; Dr. P. J. F., from March 1992 to September 1992; Oak Bend Hospital for treatment in November 1992, and from the Texas Department of Mental Health and Mental Retardation. Finally, the RO has a received VA hospitalization records from the Albuquerque, New Mexico VAMC dated in March and April 1988. The Veteran has also submitted statements regarding his symptoms and how his current left knee disability is related to his various in-service injuries. In particular, the Veteran argues his fall from a third story window in January 1974 had "hidden consequences" or in other words, injuries from that fall that manifested at a later time. On VA examination in September 2006, X-rays showed degenerative changes in the left patellofemoral joint. As the RO previously denied the claim because of a lack of evidence of a current disability, the additional evidence establishes that the Veteran has a chronic condition, namely, degenerative joint disease of the left knee, and combined with the Veteran's statements relating it to service, the additional evidence relates to an unestablished fact necessary to substantiate the claim, that is, evidence of current chronic disability, the absence of which was the basis for the previous denial of the claim. As the evidence is new and material under 38 C.F.R. § 3.156, the claim of service connection for a left knee disability is reopened, but further development is needed before reaching a decision on the merits of the reopened claim. ORDER As new and material evidence has been presented, the claim of service connection for a right knee disability is reopened, and to this extent only, the appeal is granted. As new and material evidence has been presented, the claim of service connection for a right shoulder disability is reopened, and to this extent only, the appeal is granted. As new and material evidence has been presented, the claim of service connection for a low back disability is reopened, and to this extent only, the appeal is granted. As new and material evidence has been presented, the claim of service connection for a bilateral hearing loss disability is reopened, and to this extent only, the appeal is granted. As new and material evidence has been presented, the claim of service connection for a left knee disability is reopened, and to this extent only, the appeal is granted. REMAND Before deciding the claims on the merits, further evidentiary development is necessary. On the reopened claims of service connection for a right knee disability, right shoulder disability, a low back disability, and a left knee disability, and the claims of service connection for a cervical spine disability and a left shoulder disability, on VA examination in September 2006, the VA examiner associated the disabilities to the Veteran's post-service work related injuries. The opinion however does not adequate account for the findings in service and the relationship, if any, to the post-serivce injuries. On the reopened claim of service connection for a bilateral hearing loss disability, on VA examination in September 2006, the VA audiologist did not discuss whether otitis media and otitis externa in service caused the Veteran's current hearing loss disability. On the claim of service connection for a psychiatric disorder, the service treatment records show that in August 1972 after the Veteran superficially scratched his wrist was evaluated by a psychiatrist. The report indicates that the Veteran had been seen at the Fort Hood Mental Health Hygiene clinic. The Veteran states that he received counseling on a weekly basis while he was stationed at Fort Hood and that he was court martialed on a couple of occasions. As the Veteran has identified records pertinent to the claim, further development under the duty to assist is needed. The claim for service connection for alcohol and substance abuse is deferred until the claim of service connection for a psychiatric disorder is finally adjudicated. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran either to submit or to authorize VA to obtain on his behalf: Records of surgeries in March and May 1978 from the Latter Day Saints Hospital in Salt Lake City, Utah; and, Records of Cottonwood Hospital, in Salt Lake City, Utah; records of Dr. Synedy and Dr. Rosenberg, and the records from the mental health department at Wichita Falls, Texas and at Brownwood, Texas. 2. Request from the appropriate Federal custodian: The Veteran's complete service personnel records; and, Any records of mental health consultations at Darnall Army Hospital, Fort Hood, Texas from July 1972 to September 1974. If no records can be found or further efforts to obtain the records would be futile, notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 3. If the Veteran is still incarcerated, determine whether it is feasible to send a VA examiner or fee-basis examiner to the Texas correctional facility under M21-1MR, Part III.iv.3.A.11.d, to conduct the following examinations. If it is not feasible to send a VA examiner or fee-basis examiner, then have the Veteran's file reviewed by the requested VA examiners: A). A VA orthopedic examination to determine: Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), less likely than not (probability less than 50 percent), that the current disabilities, first shown after service, of the: Cervical spine (bony fusion by X-ray), right shoulder (residuals of acromioclavicular separation), left shoulder (degenerative joint disease), low back (bony fusion by X-ray), and right and left knees (degenerative joint disease) are related to the injuries that Veteran sustained in service, including a fall from a third story window. The examiner is asked to comment on the clinical significance or causal association of the following in-service injuries in the context of the post-service intercurrent injuries: Right shoulder (a lifting-type injury in April 1972 ) and pain (April 1975); low back pain without trauma (July 1972), low back pain after heavy lifting (January 1974), back pain (after a fall during a basketball game (April 1975); left knee (rolled over by car in October 1972) and left knee chondromalacia (October and November 1973); right knee pain (February and April 1973); and a fall from window (admitted for observation in January 1974). If, however, after a review of the record, an opinion on causation is not possible without resort to speculation, the examiner is asked to clarify whether actual causation cannot be determined because an opinion on causation is beyond what may be reasonably concluded based on the evidence of record and current medical knowledge. The Veteran's file must be made available to the examiner for review. B). A VA audiological examination to determine whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), less likely than not (probability less than 50 percent), that the current hearing loss disability, first shown after service, is related to service. The examiner is asked to comment on the clinical significance of the Veteran's duties as an artillery man and treatment in September 1974 for otitis media and otitis externa associated with temporary impaired hearing. If, however, after a review of the record, an opinion on causation is not possible without resort to speculation, the examiner is asked to clarify whether actual causation cannot be determined because an opinion on causation is beyond what may be reasonably concluded based on the evidence of record and current medical knowledge. The Veteran's file must be made available to the examiner for review. C). A VA psychiatric examination to determine whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), less likely than not (probability less than 50 percent), that bipolar disorder or depression, first shown after service, is related to service. The examiner is asked to comment on whether the current psychiatric disorder or disorders represent a progression of the adjustment reaction of adolescence, which was shown in service, or the development of a new and separate condition unrelated to an injury, disease, or event in service. If, however, after a review of the record, an opinion on causation is not possible without resort to speculation, the examiner is asked to clarify whether actual causation cannot be determined because an opinion on causation is beyond what may be reasonably concluded based on the evidence of record and current medical knowledge. 4. After the development requested is completed, adjudicate the claims. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs