judge_norm: WARREN W RICE, JR

condition: knee

text:
Citation Nr: 0202001
Decision Date: 02/28/02    Archive Date: 03/05/02

DOCKET NO.  96-06 165	)	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 to
reopen a claim of entitlement to service connection for the
residuals of a left knee injury.

2.  Entitlement to service connection for a right knee
disability.

3.  Entitlement to service connection for bilateral foot skin
disability, to include as secondary to Agent Orange exposure.

REPRESENTATION

Appellant represented by:	The American Legion

WITNESS AT HEARINGS ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

C. Trueba-Sessing, Associate Counsel

INTRODUCTION

This case comes before the Board of Veterans' Appeals (BVA or
Board) on appeal from an August 1995 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Chicago, Illinois.  The veteran served in active service from
March 1969 to March 1973.

As discussed below, the Board has reopened the veteran's
claim of service connection for the residuals of a left knee
injury.  The Board is undertaking additional development with
respect to this issue, as well as to the issues of service
connection for a right knee disability, and for bilateral
foot skin disability to include as secondary to Agent Orange
exposure, pursuant to the authority granted by 67 Fed. Reg.
3,099, 3,104 (Jan. 23, 2002) (to be codified at 38 C.F.R. �
19.9(a)(2)).  When such development is completed, the Board
will provide notice of the development as required by Rule of
Practice 903.  (67 Fed. Reg. 3,099, 3,105 (Jan. 23, 2002) (to
be codified at 38 C.F.R. � 20.903.).  And, after giving
notice and reviewing the veteran's response to the notice,
the Board will prepare a separate decision addressing these
issues.

FINDINGS OF FACT

1.  In an April 1973 rating decision, the veteran was denied
service connection for the residuals of a left knee injury.
In a letter dated that same month, he was advised of the
denial decision and his appellate rights.  The veteran did
not file a timely appeal.

2.  The evidence associated with the claims file since the
April 1973 decision, when considered alone or in conjunction
with all of the evidence of record, is so significant that it
must be considered in order to fairly decide the merits of
the veteran's claim of service connection for the residuals
of a left knee injury.  The claim is reopened.

CONCLUSIONS OF LAW

1.  The unappealed April 1973 decision which denied service
connection for the residuals of a left knee injury is final.
38 U.S.C.A. � 7105 (West 1991); 38 C.F.R. � 3.104 (2001); 66
Fed. Reg. 45,630-45,632 (Aug. 29, 2001) (to be codified as
amended at 38 C.F.R. � 3.159).

2.  The evidence received since the RO's April 1973 decision
is new and material, and the veteran's claim of service
connection for the residuals of a left knee injury is
reopened.  38 U.S.C.A. � 5108 (West 1991); 38 C.F.R.
� 3.156(a) (2000).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

There has been a significant change in the law during the
pendency of this appeal. On November 9, 2000, the Veterans
Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475,
114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. �� 5100,
5102, 5103, 5103A, 5106, 5107, 5126) became law.  Among other
things, this law eliminates the concept of a well-grounded
claim, redefines the obligations of VA with respect to the
duty to assist, and supersedes the decision of the United
States Court of Appeals for Veterans Claims (CAVC) in Morton
v. West, 12 Vet. App. 477 (1999), withdrawn sub nom.  Morton
v. Gober, 14 Vet. App. 174 (2000) (per curiam order), which
had held that VA cannot assist in the development of a claim
that is not well grounded.  This change in the law is
applicable to all claims filed on or after the date of
enactment of the VCAA, November 9, 2000, or filed before the
date of enactment and not yet final as of that date.
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
� 7(b), 114 Stat. 2096, 2099-2100 (Nov. 9, 2000).  To
implement the provisions of the law, VA promulgated
regulations published at 66 Fed. Reg. 45,620 (Aug. 29,
2001)(to be codified as amended at 38 C.F.R. �� 3.102,
3.156(a), 3.159, and 3.326(a)).  This law and its
implementing regulations, in pertinent part, provide that VA
shall make reasonable efforts to assist a claimant in
obtaining evidence necessary to substantiate his or her claim
for benefits under the laws administered by VA.

While the VCAA and the regulations do not serve as a basis to
reopen a claim (unless new and material evidence is
presented), the law does include an enhanced duty to notify a
claimant as to the information and evidence necessary to
substantiate a claim for VA benefits.  The Board specifically
finds that the RO has informed the appellant of the evidence
needed both to reopen his claim and to establish service
connection for the residuals of a left knee injury, as set
forth in various correspondence to the veteran, the rating
decision, and the Statement of the Case/Supplemental
Statement of the Case.  And, although the RO did not have an
opportunity to apply the VCAA to the case, the RO essentially
met the requirements of the law, and there is no prejudice to
the veteran in proceeding with this appeal.  See Bernard v.
Brown, 4 Vet. App. 384, 394 (1993).

In this case, the veteran's initial claim of service
connection for the residuals of a left knee injury was denied
in an April 1973 rating decision.  At that time, it was
determined that, although the evidence showed the veteran was
diagnosed with mild strain of the left knee during service,
he was treated conservatively and he returned to active duty
without further complaints.  No residuals were noted at the
time of the veteran's discharge.  The veteran did not appeal
the RO's April 1973 denial.  Accordingly, that decision
became final.  See 38 U.S.C.A. � 7105(c) (West 1991).

Generally, a final VA rating decision may not be reopened and
allowed, and a claim based on the same factual basis may not
be considered.  38 U.S.C.A. � 7105(c) (West 1991); see also
38 C.F.R. �� 20.302, 20.1103 (2001).  The exception to this
rule is 38 U.S.C.A. � 5108 (West 1991), which states, in
part, that if new and material evidence is presented or
secured with respect to a claim which has been disallowed,
the Secretary shall reopen the claim and review the former
disposition of the claim.  See Thompson v. Derwinski, 1 Vet.
App. 251, 253 (1991).

Under 38 C.F.R. � 3.156(a) (2000), "new and material
evidence" means evidence not previously submitted to agency
decisionmakers which bears "directly and substantially" upon
the specific matter under consideration.  Such evidence must
be neither cumulative nor redundant, and, by itself or in
connection with evidence previously assembled, such evidence
must be "so significant that it must be considered in order
to fairly decide the merits of the claim."  See Hodge v.
West, 155 F.3d 1356, 1363 (Fed. Cir. 1998).

The amended regulation, which is effective for claims filed
on or after August 29, 2001, separately defines "new" as not
previously submitted and "material" as relating to an
unestablished fact necessary to substantiate the claim.  If
the evidence is new and material, the question becomes
whether the evidence raises a reasonable possibility of
substantiating the claim.  66 Fed. Reg. 45,620, 45,630 (Aug.
29, 2001)(to be codified as amended at 38 C.F.R. � 3.156(a)).
In this case, the Board notes that the provisions of 38
C.F.R. � 3.156(a) (2000), the version prior to the regulatory
change, are applicable in the appellant's case as the claim
was filed prior to August 29, 2001.

With respect to the evidence submitted since the April 1973
RO decision, the evidence includes the veteran's testimony
during the May 1997 RO hearing and the September 2001 travel
Board hearing before the undersigned member of the Board.
During the hearings, the veteran essentially testified that
he currently suffers from the residuals of the left knee
injury he sustained during his service.

Additionally, the evidence includes medical records from the
Union County Hospital District and Dr. Higgins showing the
veteran was treated for arthritis/tendonitis of the right
knee.   Lastly, the evidence includes a March 1995 VA joints
examination report showing a history of injury to the knees,
bilaterally, with chronic residual complaints of pain and
stiffness to the right knee, but with otherwise essentially
normal physical examination at that time.

Upon a review of the above described evidence, the Board
finds that the evidence newly presented "bears directly and
substantially upon the specific matter under consideration,"
is new as it was not of record when the RO rendered its April
1973 denial, and is significant enough in nature that it must
be considered in order to fairly decide the merits of the
claim.  See 38 C.F.R. � 3.156(a)(2000); Hodge, supra.  This
is particularly true because the evidence must be presumed
credible at this point solely for the purpose of determining
whether a claim should be reopened.  See Justus v. Principi,
3 Vet. App. 510, 513 (1992).  Because the evidence presented
by the appellant since the RO's April 1973 denial is "new and
material," the claim of service connection for the residuals
of a left knee injury is reopened.

ORDER

New and material evidence having been submitted, the claim of
service connection for the residuals of a left knee injury is
reopened; the appeal is granted to this extent only.

	WARREN W. RICE, JR.
	Member, Board of Veterans' Appeals

IMPORTANT NOTICE:  We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision.  We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001).  In the
meanwhile, please note these important corrections to the
advice in the form:

? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans Claims."
(1) A "Notice of Disagreement filed on or after November
18, 1988" is no longer required to appeal to the Court.
(2) You are no longer required to file a copy of your
Notice of Appeal with VA's General Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.


series: legacy

judge_norm: GEORGE R SENYK

judge_role: Member, Board of Veterans' Appeals

disposition: denied

condition: arthritis

disposition: granted

text:
Citation Nr: 0203001
Decision Date: 04/03/02    Archive Date: 04/11/02

DOCKET NO.  00-19 437	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California

THE ISSUES

1.  Entitlement to service connection for arthritis or
rheumatism of both legs.

2.  Entitlement to a compensable rating for osteochondritis
dissecans of the left medial femoral condyle prior to
November 17, 2000.

3.  Entitlement to a rating in excess of 10 percent for
osteochondritis dissecans of the left medial femoral condyle
from November 17, 2000.

REPRESENTATION

Appellant represented by:	State of California Department
of Veterans Affairs

ATTORNEY FOR THE BOARD

B. P. Tierney, Counsel

INTRODUCTION

The appellant is a veteran who served on active duty from
March 1981 to March 1984.

These matters are before the Board of Veterans' Appeals
(Board) on appeal from an October 1999 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Los Angeles, California that granted service connection for
osteochondritis dissecans of the left medial femoral condyle,
rated noncompensable, effective from February 26, 1999, and
denied service connection for arthritis, rheumatism, right
and left leg.  In July 2001, the RO reviewed the case and
found that the veteran was entitled to a "staged rating"
for osteochondritis dissecans of the left medial femoral
condyle.  A 10 percent rating was assigned from November 17,
2000.

FINDINGS OF FACT

1.  Arthritis or rheumatism of either leg was not manifested
in service; arthritis of either leg was not manifested in the
first post-service year; and it is not shown by competent
evidence that the veteran now has arthritis or rheumatism of
either leg resulting from disease or injury that was incurred
in service, or that became worse during service.

2.  Throughout the evaluation period, the veteran's
osteochondritis dissecans of the left medial femoral condyle,
has been symptomatic with some limitation of motion due to
pain and mild functional limitation consisting of an
inability to climb ladders or to participate in certain
household chores; limitation of leg extension to 15 degrees,
leg flexion to 30 degrees, or moderate knee disability is not
shown at any time during the evaluation period.

CONCLUSIONS OF LAW

1.  Arthritis or rheumatism of either leg was not incurred or
aggravated in active service, and may not be presumed to have
been incurred in service.  38 U.S.C.A. �� 1110, 1112, 1113,
1131, 1137, 5103, 5107 (West 1991 & Supp. 2001); 38 C.F.R.
�� 3.102, 3.303, 3.307, 3.309 (2001).

2.  A 10 percent rating for osteochondritis dissecans of the
left medial femoral condyle is warranted from February 26,
1999.  38 U.S.C.A. � 1155 (West 1991 & Supp. 2001); 38 C.F.R.
�� 4.3, 4.7. 4.10, 4.40, 4.45, 4.71a, Codes 5259, 5257, 5260,
5261 (2001).

3.  A rating in excess of 10 percent for osteochondritis
dissecans of the left medial femoral condyle is not warranted
for any period of time during the evaluation period.
38 U.S.C.A. � 1155 (West 1991 & Supp. 2001); 38 C.F.R.
�� 4.3, 4.7. 4.10, 4.40, 4.45, 4.71a, Codes 5259, 5257, 5260,
5261 (2001).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000

There has been a significant change in the law during the
pendency of this appeal with the enactment of the Veterans
Claims Assistance Act of 2000 (VCAA); codified at 38 U.S.C.A.
�� 5102, 5103, 5103A, 5107 (West Supp. 2001).  VA has now
issued final regulations implementing the VCAA.  See 66 Fed.
Reg. 45,620 (Aug. 29, 2001) (to be codified at 38 C.F.R.
�� 3.102, 3.156(a), 3.159 and 3.326(a)).  The VCAA applies to
this claim although it was filed before the date of
enactment, November 9, 2000, because it was not yet final as
of that date.  See Karnas v. Derwinski, 1 Vet. App. 308
(1991).  However, the Board finds that VA's duties under the
VCAA have been met.

The RO considered the claim of service connection on the
merits, and did not base its determination on the concept of
a well-grounded claim.

VA has a duty to notify a claimant and his or her
representative, of any information and evidence needed to
substantiate and complete a claim and of evidence that has
been obtained.  Here, the discussions in the rating
decisions, the Statement of the Case (SOC), and Supplemental
Statements of the Case (SSOC), in particular the SSOC dated
in July 2001, informed the veteran what was needed to
substantiate the claims and what evidence was of record, and
complied with VA's notification requirements.

VA also has a duty to make reasonable efforts to assist a
claimant in obtaining evidence necessary to substantiate a
claim.  Here, the veteran has not indicated that there is any
evidence outstanding relevant to the claims at issue.  He has
been provided a VA medical examination in connection with his
claims.  Further medical opinion is not necessary to consider
the issues addressed on the merits below, as the record is
adequate to fairly decide the merits of these claims.

The RO has complied with, or exceeded, the mandates of the
VCAA and its implementing regulations.  A remand to afford
the RO initial review of these claims in light of the
regulations implementing the VCAA would serve no useful
purpose.

Evidence

The veteran's service medical records reveal that his lower
extremities were normal upon his entrance examination in
February 1981.  His right knee was noted to be normal on
several occasions in December 1981 during the course of
treatment for his left knee.

The veteran had cartilage removal left knee surgery in
November 1982.  In December 1982, he complained of pain in
the plantar surface of the right foot.  At the time, he was
on crutches due to the cartilage surgery.  The diagnosis was
increased stress due to weight bearing and possible
congenital deformity.
An August 1983 Medical Board report notes the diagnosis of
and, treatment for, the veteran's osteochondritis dissecans,
left medial femoral condyle.  He had a well-healed medial
patellar scar with no swelling or effusion.  There was full
range of motion (ROM), and the knee was stable in all planes.
He was nontender to palpation over the medial condyle.  Left
knee X-rays showed healing of the lesion with no bony
defects.  The veteran was returned to full duty status.

The veteran's service medical records are otherwise negative
for complaint, treatment, or diagnosis relating to the right
lower extremity or to other segments of the left lower
extremity.

VA outpatient treatment records from 1998 to 1999 reflect
treatment for neck and shoulder complaints.  The diagnosis
was ankylosing spondylosis/spondylitis.  There was no mention
of lower extremity complaints.

Treatment records from Finnegan Chiropractic reflect
treatment for ankylosing spondylitis and acquired kyphosis.
No treatment for complaints relating to the veteran's left
knee or either lower extremity was noted.

On VA compensation examination in November 2000, the veteran
related that his left knee started locking up in 1982 for a
few weeks and eventually swelled up.  Initial treatment
consisted of draining the knee several times over the
following two weeks, followed by surgical intervention.
Osteochondritis dissecans of the left medial femoral condyle
was diagnosed.  He stated he had left knee problems for 18
years and after the left knee surgery began to have right
knee problems as well.  His symptoms were weakness,
stiffness, inflammation, instability, locking, fatigue, and
lack of endurance without recurrent subluxation, swelling, or
dislocation.  He stated that his knee joints locked up from
time to time, and became unstable, mostly on the right.

Pain symptoms flared off and on, occurring several times a
year, lasting one to three days.  He was not sure what caused
the flare-ups and nothing but time alleviated the knee pain.
His daily activities were affected, as he found it difficult
to walk, participate in most events, do gardening, ladder
work, or just plain exercise.

The examiner noted a left mid patellar scar, 8.0 centimeter
(cm) by 0.65 cm, typical of a linear surgical scar.  It was
slightly irregular with a soft texture, without elevation and
was not adhered.  It was pink, blank with the skin, without
tenderness, underlying tissue loss, disfigurement, keloid
formation, or limitation of function related to the scar.

The veteran did not use a knee brace for his left knee.  Leg
length was right 88 cm and left 89 cm.  There was no sign of
abnormal weight bearing on his feet.  There was full range of
motion of both feet.

The veteran displayed normal gait and posture.  He relied on
his right leg.  He had limited function of long term standing
and walking due to his current knee condition, coupled with a
recent diagnosis of ankylosing spondylitis of his back.
The examiner reported range of motion testing by the
following table:

				Active		Passive	Normal
	Pain
L Knee		Flexion	140		140		0-140		-
Extension	-10		 -10		0		-
McMurray's and Drawer's Tests were negative.

There was palpable crepitus at the tibial plateau,
bilaterally.  There was no left knee tenderness to palpation
or on movements during examination.

There were postsurgical changes in the left knee, which was
"stated by the veteran to be limited majorally his ROM by
pain intermittently with concurrent lack of endurance at the
use of his knees during activities such as with weight
bearing and walking."  Left knee function was stated by the
veteran to be limited by weakness, fatigue, and
incoordination due to lack of confidence and long standing
knee deterioration.

Ankle ranges of motion were normal.  There was no limitation
in range of motion of the hips observed by pain, fatigue,
weakness, lack of endurance, or incoordination.  The examiner
noted there were constitutional signs of arthritis in the
diagnosis submitted by the veteran of recent note: Ankylosing
Spondylitis.  Mild stiffness reported by the veteran was not
noted on examination.

On X-ray examination of the left knee, the  impression was
probable osteochondral defect of the medial femoral condyle.
X-rays of the left femur revealed probable synovial
herniation pits of the femoral head.

The diagnosis was osteochondritis dissecans of the left
medial femoral condyle.  It was noted that the veteran could
walk for 30 minutes without rest and could drive a car for 60
minutes without stopping, most of the time (but not during
flares due to reported pain).  He could shop, walking, for 30
to 45 minutes, and could take out the trash in smaller than
30 pound bags.  He could not push a lawn mower, but had to
use a riding lawn mower or an automated one.  He could not
garden without an increase in his knee condition.  He had to
climb stairs carefully and slowly to avoid flare ups.  His
left knee condition limited his ability to participate in
ladder work, gardening or household chores.  He regretted not
being able to walk in the same manner as before his injury
and left knee repair.

Service Connection

Service connection may be granted if the evidence
demonstrates that a current disability resulted from an
injury or disease incurred or aggravated in active military
service.  38 U.S.C.A. �� 1110, 1131 (West 1991 & Supp. 2001);
38 C.F.R. � 3.303(a) (2001).

The Court has held that, in order to prevail in a claim of
service connection on the merits, there must be: (1) medical
evidence of 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 present disability. Hickson v. West, 12 Vet. App.
247, 253 (1999).

Moreover, with certain enumerated disorders such as
arthritis, service incurrence may be presumed if such
disorder is manifested to a degree of 10 percent or more
within one year after separation from service. 38 U.S.C.A.
�� 1101, 1112, 1113, 1137 (West 1991 & Supp. 2001); 38 C.F.R.
�� 3.307, 3.309 (2001).

The veteran's service medical records are negative for
complaint, treatment or comment regarding arthritis or
rheumatism of his lower extremities.  Neither the veteran's
current treatment records nor the 2000 VA examination report
reflect a current diagnosis of arthritis, rheumatism, or any
other disorder of the lower extremities beyond what is
currently service-connected.  Consequently, service
connection for chronic leg disability (other than the left
leg disability already service-connected) on the basis that
such disability arose in service is not warranted. Arthritis
of the legs was not manifested in the first post service
year.  Consequently, service connection for arthritis of the
knees or legs, on a presumptive basis is not warranted.

The disabilities for which service connection is sought are
not shown.  Without evidence of injury or disease in service
or evidence of current disability as claimed, the threshold
criteria for establishing entitlement to service connection
are not met, and the claim must be denied.

Increased Rating

Disability ratings are determined by applying the criteria
set forth in VA's Schedule for Rating Disabilities, which is
based on average impairment of earning capacity.  Individual
disabilities are assigned separate diagnostic codes.
38 U.S.C.A. � 1155; 38 C.F.R. � 4.1.

If two evaluations are potentially applicable, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria required for that rating;
otherwise, the lower rating will be assigned.  38 C.F.R.
� 4.7.  It is not expected that cases will show all findings
specified by the Rating Schedule.  Findings sufficiently
characteristic to identify the disease and the disability
therefrom and above all, coordination of rating with
impairment of function will be expected in all cases.
38 C.F.R. � 4.21.

The Board has considered the potential application of various
other provisions of the regulations governing VA benefits,
whether or not they were raised by the veteran, as well as
the entire history of the veteran's disability in reaching
its decision.  Schafrath v. Derwinski, 1 Vet. App. 589, 595
(1991).

Disability of the musculoskeletal system is primarily the
inability, due to damage or infection in the parts of the
system, to perform the normal working movements of the body
with normal excursion, strength, speed, coordination, and
endurance.  It is essential that the examination on which
ratings are based adequately portray the anatomical damage,
and the functional loss, with respect to all these elements.
The functional loss may be due to absence of part, or all, of
the necessary bones, joints and muscles, or associated
structures, or to deformity, adhesions, defective
innervation, or other pathology, or it may be due to pain,
supported by adequate pathology and evidenced by visible
behavior of the claimant undertaking the motion.  Weakness is
as important as limitation of motion, and a part which
becomes painful on use must be regarded as seriously
disabled.  38 C.F.R. � 4.40 (2001).

The Court has held that the RO must analyze the evidence of
pain, weakened movement, excess fatigability, or
incoordination and determine the level of associated
functional loss in light of 38 C.F.R. � 4.40, which requires
the VA to regard as "seriously disabled" any part of the
musculoskeletal system that becomes painful on use.  DeLuca
v. Brown, 8 Vet. App. 202 (1995).

According to 38 C.F.R. � 4.59 (2001), painful motion is an
important factor of disability with any form of arthritis,
the facial expression, wincing, etc., on pressure or
manipulation, should be carefully noted and definitely
related to affected joints.  Muscle spasm will greatly assist
the identification.  The intent of the schedule is to
recognize painful motion with joint or periarticular
pathology as productive of disability.  It is the intention
to recognize actually painful, unstable, or malaligned
joints, due to healed injury, as entitled to at least the
minimum compensable rating for the joint.  Crepitation either
in the soft tissues such as the tendons or ligaments, or
crepitation within the joint structures should be noted
carefully as points of contact which are diseased.  Flexion
elicits such manifestations.  The joints involved should be
tested for pain on both active and passive motion, in weight
bearing and non-weight bearing and, if possible, with the
range of the opposite undamaged joint.  See also Lichtenfels
v. Derwinski, 1 Vet. App. 484, 488 (1991); Hicks v. Brown,
8 Vet. App. 417 (1995).

Inasmuch as the veteran disagreed with the initial rating
assigned for the osteochondritis dissecans of the left medial
femoral condyle, the propriety of the ratings from the
effective date of the grant of service connection, February
26, 1999, is for consideration.  Fenderson v. West, 12 Vet
App 119 (1999).  The RO granted a disability rating of 10
percent effective from the date of the November 2000 VA
examination.

The current, 10 percent, rating for osteochondritis dissecans
was assigned on a "staged" basis, effective from the date
of the veteran's VA examination to evaluate the service
connected disability.  In that regard, it is noteworthy that
the veteran's complaints regarding the left knee disability
have been fairly consistent throughout the evaluation period.
While the VA examination in November 2000 was the first
official confirmation of the degree of disability present, it
would be reasonable to conclude, in light of the consistent
nature of the veteran's complaints during the entire
evaluation period that the level of disability found on the
first thorough examination of record (in November 2000) was
present throughout the evaluation period, awaiting official
confirmation.  Consequently, the rate of disability found on
November 2000 VA examination may be assigned for the entire
evaluation period rather than just for the "stage"
beginning with the examination date.

Regarding the rating warranted, the veteran's osteochondritis
dissecans of the left medial femoral condyle is currently
rated as 10 percent disabling under Code 5259, which provides
that removal of semilunar cartilage that is symptomatic
warrants a 10 percent rating.  10 percent is the maximum
rating provided in Code 5259.  Accordingly, the Board will
proceed with an analysis of whether a higher rating is
warranted under other potentially applicable Codes.

Under Code 5257, slight recurrent subluxation or lateral
instability of the knee warrants a 10 percent rating.  A 20
percent rating contemplates moderate recurrent subluxation or
lateral instability.  A 30 percent evaluation contemplates
severe recurrent subluxation or lateral instability.
38 C.F.R. � 4.71a, Code 5257.  There is no competent
(medical) evidence of moderate subluxation or lateral
instability.  An increased rating is not appropriate under
these criteria.

Limitation of flexion of the leg to 45 degrees warrants a 10
percent rating.  A 20 percent rating requires that flexion be
limited to 30 degrees.  A 30 percent rating requires
limitation to 15 degrees.  38 C.F.R. � 4.71a, Code 5260.
Limitation of extension of the leg to 10 degrees warrants a
10 percent disability rating.  A 20 percent rating requires
that extension be limited to 15 degrees.  A 30 percent rating
requires that extension be limited to 20 degrees.  The
evidence reflects that the left knee has a full range of
motion to 140 degrees with slight hyperextension to -10
degrees.  An increased rating is not appropriate under these
criteria.  It is not shown that pain limits flexion or
extension to the degree necessary for a compensable rating.

Disability from injuries to the muscles, nerves, and joints
of an extremity may overlap to a great extent, so that
special rules are included in the appropriate bodily system
for their evaluation.  38 C.F.R. � 4.14.  In a precedent
opinion dated August 14, 1998, the Acting General Counsel of
the VA held that if a musculoskeletal disability is rated
under a specific diagnostic code that does not list
limitation of motion as part of the rating criteria, and
another Code based on limitation of motion may be applicable,
the latter Code must be considered in light of sections 4.40,
4.45, and 4.59.  VAOPGPREC 9-98 (1998).
As the veteran's disability is evaluated under Code 5259,
38 C.F.R. �� 4.40 and 4.45, with respect to pain, are not
applicable, and consideration of pain does not warrant a
separate compensable evaluation.  See Johnson v. Brown,
9 Vet. App. 7, 11 (1996).  As arthritis established by X-ray
is not shown, a separate rating under 38 C.F.R. � 4.71a, Code
5003, 5010 is not for consideration.

Finally, an additional 10 percent rating is not warranted for
the knee surgery residual scar, as it was not shown to be
tender and painful, and the veteran did not report that it
was tender and painful.

ORDER

Service connection for arthritis or rheumatism of both legs
is denied.

A 10 percent for osteochondritis dissecans of the left medial
femoral condyle is granted for the period of time from
February 26, 1999 through November 16, 2000, subject to the
regulations governing the payment of monetary awards.

A rating in excess of 10 percent for osteochondritis
dissecans of the left medial femoral condyle is denied.

	GEORGE R. SENYK
	Member, Board of Veterans' Appeals

IMPORTANT NOTICE:  We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision.  We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001).  In the
meanwhile, please note these important corrections to the
advice in the form:

? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims."  (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court.  (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.


judge_norm: ANDREW J MULLEN

condition: back

text:
Citation Nr: 0204001
Decision Date: 05/01/02    Archive Date: 05/14/02

DOCKET NO.  01-00 845	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office and Insurance
Center in Philadelphia, Pennsylvania

THE ISSUES

1.  Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for a low
back disorder.

2.  Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for a
left ankle disorder.

REPRESENTATION

Veteran represented by:  Earl G. Kauffman, Attorney at Law

WITNESS AT HEARINGS ON APPEAL

The veteran, J.H., C.M., and Dr. J.H.

ATTORNEY FOR THE BOARD

M.S. Lane, Associate Counsel

INTRODUCTION

The veteran served on active duty from March 1943 to January
1946.

Procedural history

In an April 1997 rating decision, the Department of Veterans
Affairs (VA) Regional Office (RO) in Huntington, West
Virginia, determined that new and material evidence had not
been submitted to reopen claims of entitlement to service
connection for lumbosacral strain and a left ankle injury.
The veteran was notified of that decision in a May 1997
letter issued from the Regional Office and Insurance Center
(ROIC) in Philadelphia, Pennsylvania.  He did not appeal that
decision.

In a September 1998 rating decision, the ROIC in
Philadelphia, Pennsylvania, determined that new and material
evidence had not been submitted to reopen a claim of
entitlement to service connection for lumbosacral strain.
The veteran subsequently submitted a timely Notice of
Disagreement (NOD) regarding that decision.  In a January
2000 rating decision, the ROIC also determined that new and
material evidence had not been submitted to reopen a claim of
entitlement to service connection for a left ankle
disability.  Thereafter, in February 2000, the ROIC issued a
Statement of the Case (SOC) addressing both of those issues.
In April 2000, the veteran submitted a Substantive Appeal (VA
Form 9) in which he indicated that he wished to appeal both
issues.

Pursuant to 38 U.S.C.A. � 7105(a) (West 1991), a request for
appellate review by the Board of a decision by the RO is
initiated by an NOD and completed by a Substantive Appeal
after an SOC has been furnished.  See 38 C.F.R. � 20.200
(2001).  A Substantive Appeal must be filed within 60 days
from the date that the agency of original jurisdiction mails
the SOC to the appellant, or within the remainder of the one-
year period from the date of mailing of the notification of
the determination being appealed, whichever of those two
period ends later.  38 U.S.C.A. � 7105(d)(3); 38 C.F.R. �
20.302(b).

In an April 2000 letter, the ROIC advised the veteran, with a
copy to his attorney, that he had not filed a timely
Substantive Appeal regarding the issues of whether new and
material had been submitted to reopen the claims of service
connection for low back and left ankle disabilities.  The
ROIC based its determination on the fact that the Substantive
Appeal addressing those issues was not received until April
6, 2000 (according to the postmark), more than 60 days
following the issuance of the February 2000 SOC and more than
one year following the date of the September 1998 rating
decision.  Therefore, the issue certified for appeal to the
Board of Veterans' Appeals (Board) was whether the veteran
had submitted a timely Substantive Appeal regarding those
issues.

While the ROIC is correct that the veteran did not submit his
Substantive Appeal within one year of the September 1998
rating decision, the Board notes that, as discussed above,
the September 1998 decision only addressed the veteran's
claim for a low back disorder, and not his claim for the left
ankle.  The veteran's claim of service connection for the
left ankle was not initially addressed by the RO until the
January 2000 rating decision.  Therefore, because the April
2000 Substantive Appeal was submitted within one year of the
January 2000 rating decision, the Board finds that the
veteran did perfect a timely appeal as to the issue of
whether new and material evidence has been submitted to
reopen the claim of service connection for a left ankle
disorder.  Issue number 2 on the first page of this decision
reflects that finding.

With respect to the veteran's attempt to reopen his claim of
service connection for a low back disorder, the Board again
acknowledges that his Substantive Appeal was not submitted
within one year of the September 1998 rating decision or
within 60 days of the February 2000 SOC.  However, the United
States Court of Appeals for Veterans Claims (Court) has held
that the Board may waive the timely filing of a substantive
appeal, even if the veteran has not submitted a request for
extension of the time period in which to file the substantive
appeal.  Beyrle v. Brown, 9 Vet. App. 24, 28 (1996) (citing
Rowell v. Principi, 4 Vet. App. 9, 17 (1993)).  The Board
notes that the SOC addressing the veteran's back claim was
issued on February 5, 2000, and that his Substantive Appeal
was received on April 6, 2000 (according to the postmark).
Thus, the veteran's Substantive Appeal was received only one
day after the expiration of the period in which he could
perfect his appeal.  In light of the extremely short period
of time that passed between the due date and the date on
which it was actually received, and in accordance with the
Court's holding in Beyrle, the Board waives the filing of a
timely Substantive Appeal in this case.  Issue number 1 on
the first page of this decision reflects that determination.

In November 2001, the veteran presented testimony at a
personal hearing before the undersigned Member of the Board
at the ROIC.  A transcript of this hearing has been prepared
and associated with the claims folder.

Additional matter

In a July 2000 rating decision, the ROIC denied a claim of
entitlement to service connection for bilateral brachial
plexus syndrome.  To the Board's knowledge, the veteran did
not submit a timely NOD regarding that decision.  However,
shortly thereafter, the President subsequently signed into
law the Veterans Claims Assistance Act of 2000 (VCAA), Public
Law No. 106-475, 114 Stat. 2096 (Nov. 9, 2000).  This statute
repealed the requirement that a claim be well grounded, and
created new provisions pertaining to claims development
procedures, including assistance to be provided to claimants
by the agency of original jurisdiction (here, the ROIC).  As
a result, the ROIC issued a letter to the veteran in March
2001 advising him of the passage of the VCAA and of the fact
that he was no longer required to present a well-grounded
claim in order to receive assistance in getting evidence to
support his claim.  In this letter, the ROIC requested that
he identify any additional evidence or information that may
be relevant to his claim.  As noted in a Report of Contact
dated in April 2001, the ROIC also contacted the veteran by
telephone and requested that he identify any additional
evidence or information which might be relevant to his claim.
The veteran reportedly advised the ROIC that he had no
additional evidence to submit, and that he wished for the
ROIC to reconsider his claim based upon the evidence already
of record.

In a May 2001 rating decision, the ROIC again denied the
veteran's claim of service connection for bilateral brachial
plexus syndrome.  During his November 2001 Travel Board
hearing, the veteran expressed disagreement with that
decision.  However, hearing testimony before the Board, even
though given within the one-year notice of disagreement
filing period, cannot constitute a valid NOD because it was
taken before the Board and not the ROIC.  See Beyrle, 9 Vet.
App. at 28; see also Tomlin v. Brown, 5 Vet. App. 355 (1993)
(holding that hearing testimony presented before the RO, as
opposed to the Board, can constitute an NOD when reduced to
writing).  Because the veteran's testimony at his November
2001 hearing cannot be considered a valid NOD, a remand to
the ROIC per Manlincon v. West, 12 Vet. App. 238 (1999), is
not required.  This matter is hereby referred to the ROIC for
appropriate action once the claims file is received back at
the ROIC.

FINDINGS OF FACT

1.  In an April 1997 rating decision, the RO determined that
new and material evidence had not been submitted to reopen
previously denied claims of entitlement to service connection
for lumbosacral strain and a left ankle injury.  The veteran
was advised of that rating decision in a May 1997 letter, and
did not appeal.

2.  Evidence submitted in since the April 1997 rating
decision does not bear directly and substantially upon the
specific matters under consideration; it is cumulative of
previously submitted evidence; and it is not so significant
that it must be considered in order to fairly decide the
merits of the claims.

CONCLUSIONS OF LAW

1.  The April 1997 rating decision, denying the veteran's
claims of entitlement to service connection for lumbosacral
strain and a left ankle disorder, is final.  38 U.S.C.A.
� 7105(c) (West 1991); 38 C.F.R. � 20.1103 (2001).

2.  Evidence submitted since the final April 1997 rating
decision wherein the RO denied service connection for a left
ankle disorder is not new and material; thus, that claim may
not be reopened.  38 U.S.C.A. �� 5108, 7105 (West 1991); 38
C.F.R. �� 3.156(a), 20.1103.

3.  Evidence submitted since the final April 1997 rating
decision wherein the RO denied service connection for
lumbosacral strain is not new and material; thus, that claim
may not be reopened.  38 U.S.C.A. �� 5108, 7105; 38 C.F.R.
�� 3.156(a), 20.1103.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Factual Background

In February 1948, the veteran filed a claim of entitlement to
service connection for the residuals of an ankle injury.  He
reported that he had injured his ankle while serving in
France in June 1945.  The RO in Wilkes-Barre, Pennsylvania,
was subsequently unable to obtain any service medical records
verifying that the injury had occurred, and his claim was
denied in an April 1948 rating decision.

Thereafter, the veteran filed a claim of entitlement to
service connection for a dental disability.  During the
pendency of that claim, in January 1950, the RO received
copies of the veteran's service medical records.  These
records reveal that, in June 1945, the veteran sustained a
left ankle sprain in a jeep accident while he was serving in
France.  In a report of physical examination completed at
separation, a history of a left ankle sprain, was noted but
no defects were found on examination.

In February 1953, the veteran was admitted to a VA hospital
with complaints of low back pain.  He reported having
experienced such pain since 1943, although he indicated that
he did not recall incurring any specific injury.  Physical
examination was negative, except for some tenderness in the
lumbar spine.  Neurological examination was also found to be
negative.  X-rays of the lumbar spine were also reported as
negative.  The veteran was treated with bed rest, sedation,
diathermy, and low back exercises.  A diagnosis of
lumbosacral sprain was noted.

In September 1958, the veteran filed a claim seeking service
connection for back and left ankle disabilities.  He reported
that he was treated in 1943 for back problems, and that he
had been placed on limited duty as a result.  He also
reiterated his contention that he had injured his ankle while
serving in France in 1945.  In support of his back claim, the
veteran submitted an August 1958 VA X-ray report showing that
evidence of possible disc disease had been found at the L-4,
L-5 level.  According to the text of an October 1958 rating
decision, the veteran also submitted lay statements from two
other veterans, who claimed to recall that the veteran was
treated for back problems during service.  (The Board notes
that those lay statements are not associated with the claims
folder.)

In a November 1959 decision, the Board denied entitlement to
service connection for the residuals of a back injury.  The
Board acknowledged that there was some evidence of a current
back disability, but found that there was no evidence in the
veteran's service medical records of any such injury having
occurred in service.  The Board noted that the diagnosis of
possible disc disease was not made until over twelve years
following his separation from service.

In a February 1960 rating decision, the RO again denied the
veteran's claim of entitlement to service connection for the
residuals of a left ankle injury.  The RO acknowledged that
there was evidence that he had sustained an injury to his
left ankle in service, but found that there was no medical
evidence showing that he currently had a left ankle
disability related to the in-service injury.

The record reflects that the veteran subsequently attempted
to reopen his claims for service connection for his back and
left ankle.  In support of his claims, he submitted a
September 1960 letter from a private physician, Dr. T., in
which the physician noted that the veteran had first come to
his office with back complaints in 1952.  Dr. T. found that
the veteran was suffering from a herniated disc at L4-L5.
The physician noted that the veteran had experienced back
problems in service and that he had been involved in a jeep
accident in 1945.  The physician also noted that the veteran
had been involved in an automobile accident in 1959, which
had caused a marked return of all of his symptomatology.  The
physician indicated that X-rays had recently revealed a
narrowing of the disc space in the same area where it had
been found in the past.

Thereafter, the veteran submitted lay statements from several
more individuals who averred that they had served with him
while he was on active duty.  Two of these individuals
recalled that the veteran had been in a jeep accident and
that he had received treatment for his ankle in service.
Another also recalled that the veteran had complained of back
problems during service.

In a May 1962 letter, another private physician, Dr. H.,
indicated that he was treating the veteran for severe pain
and swelling in his left ankle.  X-rays reportedly revealed
an osseous body, about 5 mm. in diameter, just above the
posterior portion of the articular surface of the trochlea of
the talus.

During a February 1963 VA orthopedic examination, the veteran
reported that he was experiencing stiffness and swelling in
his left ankle.  Examination revealed some tenderness to
palpation and limitation of motion in the left ankle.  Some
low back discomfort was also noted on flexion of the hip,
with some tenderness to palpation noted over the lumbosacral
area.  The VA examiner noted a diagnosis of residuals of an
old injury to the left ankle.  The examiner also noted a
diagnosis of chronic lumbosacral strain, cause unknown.  X-
rays obtained immediately after the examination showed no
abnormalities in the left ankle.

In a June 1964 decision, the Board denied the veteran's
claims of entitlement to service connection for a left ankle
disability and a back disorder.  With respect to his claimed
back disorder, the Board concluded that the disorder had not
manifested until several years after service and was not
related to service.  In its decision, the Board noted written
statements from C.M. and J.H., who had both served with the
veteran during service and who had both witnessed the veteran
complaining of back problems.  (These statements are not in
the claims folder.)  With respect to his left ankle
disability, the Board noted that there was evidence of an
injury to the left ankle in service, but concluded that the
veteran's current left ankle problems were not shown to be
related to the in-service injury.

The record reflects that the veteran subsequently attempted
to reopen his claims on several occasions throughout the
following decades.  During this period, the ROIC received
copies of additional service medical records.  Among these
records is a July 1943 record of a Physical Classification
Board, in which it was noted that the veteran had reported a
history of back and hip complaints for ten years.   He
reported that he was unable to perform his duties due to such
pains.  Physical examination was reportedly found to be
negative, and the Classification Board recommended no change
in his status.

In October 1996, the veteran submitted a statement indicating
that he wished to reopen both of his claims for service
connection.  He essentially reiterated his contentions, and
submitted copies of several medical records that had already
been considered in previous decisions.  He also submitted a
July 1966 letter from a private physician, Dr. K., in which
the physician noted that he had examined the veteran for
complaints of a 20-year history of pain in his low back and
left ankle.  The veteran reported that he had first
experienced back problems in service in 1943, and that he had
experienced intermittent pain throughout the remainder of his
military service.  Dr. K. noted that recent X-rays of the
lumbar spine revealed evidence of advanced degenerative
arthritis, with marked narrowing of the lumbosacral joint and
moderate narrowing of the joint between L-4 and L-5.  X-rays
of the left ankle revealed very minimal irregularity over the
tip of the medial malleolus, which the physician indicated
could be degenerative or could be the result of a sprain.
The physician noted that the ankle joint itself appeared to
be all right.  Dr. K. concluded that he could not explain the
severity of the veteran's left ankle symptoms at that time,
but that the X-ray evidence of considerable degenerative
pathology explained the low back symptoms.

In an April 1997 rating decision, the RO in Huntington, West
Virginia, determined that new and material evidence had not
been submitted to reopen the claims of entitlement to service
connection for a left ankle disability and lumbosacral
strain.  The veteran was notified of this decision in a May
1997 letter from the ROIC in Philadelphia.  He did not
initiate an appeal.

In a January 1998 statement, the veteran's representative at
that time filed a statement in which he indicating that "the
veteran is submitting this information in [an] attempt to
reopen a previously denied claim for service connection for a
back condition."  He submitted an MRI report dated in
November 1997, which was summarized in a diagnostic
impression as indicating mild spinal stenosis at L2-3; severe
spinal stenosis at L3-4 and L4-5; and moderate spinal
stenosis at L5-S1.  The reviewing physicians noted that disc
enhancement shown by the MRI was most likely related to
degenerative changes.

In the September 1998 rating decision, the ROIC determined
that new and material evidence had not been submitted to
reopen the claim of entitlement to service connection for
lumbosacral strain.

Thereafter, in June 1999, the veteran's attorney submitted a
statement indicating that he wished to make a formal request
on behalf of the veteran to reopen his claims of service
connection for his left ankle and back conditions.

The veteran subsequently submitted a number of medical
records pertaining to a right knee arthroscopy, which was
performed in September 1997.  He also submitted several
statements from Dr. J.H., his private physician.  In a
November 1999 statement, the physician discussed symptoms in
the veteran's neck, shoulder, and arms.  Enclosed with these
documents was an August 1997 X-ray report, which indicates
that X-rays of the left ankle revealed an ossified density in
the posterior aspect of the ankle joint.  It was noted that
it was uncertain whether this represented an interarticular
body.  No fractures were identified.  The veteran also
submitted a copy of the November 1997 MRI study discussed
above.

In November 1999, the veteran presented testimony at a
personal hearing before a Decision Review Officer (DRO) at
the ROIC.  During this hearing, the veteran essentially
restated his contention that he had first experienced back
problems while serving on active duty in 1943.  He also
reiterated that he had injured his left ankle in a jeep
accident in service in 1945.  The veteran described the
current severity of his symptoms and of the problems that
these symptoms were causing in his life.  During the hearing,
testimony was presented by C.M., a witness who served with
the veteran in 1943.  The witness testified that he recalled
the veteran complaining of back pain on several occasions
during service.  The veteran also read a statement from J.H.
(a different individual than the physician noted above), who
had also served with the veteran and who was also present at
the hearing.  Because J.H. had recently suffered a stroke, he
was not considered competent to offer testimony on the
veteran's behalf.  Instead, the veteran read a statement that
J.H. had written in 1959, which explained that he also
recalled the veteran complaining of back problems in service.

In the January 2000 rating decision, the ROIC determined that
new and material evidence had not been submitted to reopen
the claims of entitlement to service connection for
disabilities of the back and left ankle.

As discussed in the Introduction, above, the ROIC determined
in April 2000 that the veteran had failed to submit a timely
Substantive Appeal regarding his claims.  The veteran
subsequently perfected an appeal regarding that issue.

In November 2001, the veteran presented testimony at a Travel
Board hearing before the undersigned.  Although the veteran's
appeal was still characterized by the ROIC at that time as
the issue of the timeliness of his Substantive Appeal, the
veteran offered testimony as to the issue of whether new and
material evidence had been submitted to reopen his claims.
As reflected in the transcript, the veteran and his attorney
confirmed that they wished to have the Board proceed to
decision on both the timeliness-of-appeal issue and the
service-connection claims, and wished to waive any further
consideration of thoses issues by the ROIC.

In his testimony, the veteran essentially restated his
contention that his low back and left ankle disabilities were
incurred in service.  He also testified as to his claim of
entitlement to service connection for brachial plexus
syndrome.  In support of this claim, the veteran's private
physician, Dr. J.H., offered testimony regarding the etiology
of his brachial plexus syndrome.  Although the physician
noted that much of the veteran's documented medical history
referred to disabilities in his low back and left ankle, he
limited his discussion almost entirely to symptomatology in
the veteran's neck and upper extremities, which he described
as the result of his brachial plexus syndrome.

Analysis

A.  Preliminary matter - VCAA

As discussed in the introduction, the VCAA repealed the
requirement that a claim be well grounded, and created new
provisions pertaining to claims development procedures,
including assistance to be provided to claimants by the
agency of original jurisdiction.  The VCAA provides that,
upon receipt of a complete or substantially complete
application, the Secretary shall notify the claimant and the
claimant's representative, if any, of any information, and
any medical or lay evidence, not previously provided to the
Secretary that is necessary to substantiate the claim.  Pub.
L. No. 106-475, � 3(a), 114 Stat. 2096, 2096-97 (2000) (now
codified as amended at 38 U.S.C.A. � 5103 (West Supp. 2001)).
The Act also requires the Secretary to make reasonable
efforts to assist the claimant in obtaining evidence
necessary to substantiate a claim for benefits, unless no
reasonable possibility exists that such assistance would aid
in substantiating the claim.  VCAA � 3(a), 114 Stat. 2096,
2097-98 (codified at 38 U.S.C.A. � 5103A (West Supp. 2001)).

VA has published new regulations implementing many of the
provisions of the VCAA.  See 66 Fed. Reg. 45,620 (Aug. 29,
2001) (to be codified as amended at 38 C.F.R. �� 3.102,
3.156(a), 3.159, and 3.326(a)).  The intended effect of these
regulations is to establish clear guidelines consistent with
the intent of Congress regarding the timing and scope of
assistance VA will provide a claimant who files a
substantially complete application for VA benefits.  These
new regulations also provide guidelines regarding VA's duties
to notify claimants of necessary information or evidence and
to assist claimants in obtaining evidence.  These new
regulations, which in pertinent part are effective as of the
date of enactment of the VCAA, interpret and implement the
mandates of the statute, "and do not provide any rights
other than those provided by the VCAA."  66 Fed. Reg.
45,629.

In the comments accompanying the new regulations, it was
noted that the VCAA provides that nothing in section 5103A
"shall be construed to require the Secretary to reopen a
claim that has been disallowed except when new and material
evidence is presented or secured."  VCAA � 3(a), 114 Stat.
2096, 2097-98 (2000) (codified as amended at 38 U.S.C.
� 5103A (West Supp. 2001)).  It was further noted, however,
that the VCAA also provides that nothing in section 5103A
precludes VA from providing such assistance as the Secretary
considers appropriate.  VCAA � 3(a), 114 Stat. 2096, 2096-97
(2000) (codified as amended at 38 U.S.C. � 5103(g) (West
Supp. 2001)).  Accordingly, the Secretary determined that
some limited assistance was warranted to claimants attempting
to reopen claims.  In particular, the Secretary determined
that VA should request any existing records from Federal
agencies or non-Federal agency sources, if reasonably
identified by the claimant, in order to assist the claimant
in reopening his or her claim.  66 Fed. Reg. 45,628.

In this case, neither the veteran nor his representative has
alluded to any additional medical records that have not been
obtained and which would be pertinent to the present claim.
Therefore, the Board finds that all facts that are relevant
to these aforementioned issues have been properly developed,
and that no further action is required in order to comply
with VA's duty to assist under both the VCAA and the new
regulations.  VCAA � 3(a), 114 Stat. 2096, 2097-98 (codified
at 38 U.S.C.A. � 5103A (West Supp. 2001)); 66 Fed. Reg.
45,630 (Aug. 29, 2001) (to be codified at 38 C.F.R. � 3.159).

Because the VCAA and the new regulations were created during
the pendency of this appeal, the Board has considered the
applicability of Bernard v. Brown, 4 Vet. App. 384, 393-394
(1993).  In Bernard, the Court of Appeals for Veterans Claims
held that, before the Board addresses in a decision a
question that has not been addressed by the ROIC, it must
consider whether the claimant has been given adequate notice
of the need to submit evidence or argument, an opportunity to
submit such evidence or argument, and an opportunity to
address the question at a hearing, and whether the claimant
has been prejudiced by any denials of those opportunities.
As discussed in detail above, the Board has reviewed the
evidence of record and has determined that all notification
and development actions required by the new legislation and
the implementing regulations appear to have been completed in
full.  In addition, March 2001 and April 2001 letters advised
the veteran of the passage of the VCAA, and of the pertinent
provisions of this law.  Thus, the Board believes that we may
proceed with a decision on these issues, without prejudice to
the veteran.

Accordingly, we find that VA has satisfied its duty to assist
the appellant in apprising him as to the evidence needed, and
in obtaining evidence pertaining to his claims, under both
former law and the new VCAA.  38 U.S.C.A. � 5107(a) (West
1991); Pub. L. No. 106-475, � 3(a), 114 Stat. 2096, 2096-98
(codified as amended at 38 U.S.C.A. �� 5103 and 5103A (West
Supp. 2001)); 66 Fed. Reg. 45,630 (Aug. 29, 2001) (to
codified at 38 C.F.R. � 3.159).  The Board therefore finds
that no useful purpose would be served in remanding this
matter for yet more development.  Such a remand would result
in unnecessarily imposing additional burdens on VA, with no
benefit flowing to the appellant.  The Court has held that
such remands are to be avoided.  See Winters v. West, 12 Vet.
App. 203 (1999) (en banc), vacated on other grounds sub nom.
Winters v. Gober, 219 F.3d 1375 (Fed. Cir. 2000); Soyini v.
Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown,
6 Vet. App. 426, 430 (1994)..  In fact, the Court has stated,
"The VCAA is a reason to remand many, many claims, but it is
not an excuse to remand all claims."  Livesay v. Principi,
15 Vet. App. 165, 178 (2001) (en banc).  See also Wensch v.
Principi, 15 Vet. App. 362, 368 (2001), noting, "When there
is extensive factual development in a case, reflected both in
the record on appeal (ROA) and the BVA's decision, which
indicates no reasonable possibility that any further
assistance would aid the appellant in substantiating his
claim, this Court has concluded that the VCAA does not
apply."

B.  New and material evidence - low back and left ankle
disorders

In April 1997, the RO denied the veteran's claim of
entitlement to service connection for lumbosacral strain and
residuals of left ankle injury.  Because the veteran did not
express disagreement with that rating decision within one
year of receiving notification, the Board finds that the
April 1997 decision became final.  38 U.S.C.A. � 7105; 38
C.F.R. � 20.1103.

Pursuant to 38 U.S.C.A. � 5108, the Secretary must reopen a
finally disallowed claim when new and material evidence is
presented or secured with respect to that claim.  Kightly v.
Brown, 6 Vet. App. 200 (1994).  Only evidence presented since
the last final denial on any basis (either upon the merits of
the case, or upon a previous adjudication that no new and
material evidence had been presented) will be evaluated, in
the context of the entire record.  Evans v. Brown, 9 Vet.
App. 273 (1996).

New and material evidence is defined as evidence not
previously submitted to agency decision makers which bears
directly and substantially upon the specific matter under
consideration; which is neither cumulative nor redundant; and
which, by itself or in connection with evidence previously
assembled, is so significant that it must be considered in
order to fairly decide the merits of the claim.  38 C.F.R.
� 3.156(a).  In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir.
1998), the United States Court of Appeals for the Federal
Circuit noted that new evidence could be sufficient to reopen
a claim if it could contribute to a more complete picture of
the circumstances surrounding the origin of a veteran's
injury or disability, even where it would not be enough to
convince the Board to grant a claim.  In determining whether
evidence is new and material, the credibility of the evidence
is generally presumed.  Justus v. Principi, 3 Vet. App. 510,
512-513 (1992).

In Elkins v. West, 12 Vet. App. 209 (1999), the Court of
Appeals for Veterans Claims held the Board must first
determine whether the appellant has presented new and
material evidence under 38 C.F.R. � 3.156(a) in order to have
a finally denied claim reopened under 38 U.S.C.A. � 5108.
Then, if new and material evidence has been submitted, the
Board may proceed to evaluate the merits of the claim but
only after ensuring the VA's duty to assist has been
fulfilled.  See Vargas-Gonzalez v. West, 12 Vet. App. 321,
328 (1999).

The Board notes that 38 C.F.R. � 3.156 was recently amended,
and that the standard for finding new and material evidence
has changed as a result.  66 Fed. Reg. 45,620, 45,630 (August
29, 2001) (to be codified at 38 C.F.R. � 3.156(a)).  However,
this change in the law is not applicable in this case,
because the appellant's claim was not filed on or after
August 29, 2001, the effective date of the amendment.  66
Fed. Reg. 45,620, 45,629 (August 29, 2001).   Accordingly,
the Board will proceed to determine whether new and material
evidence has been submitted to reopen the appellant's claims
for service connection in this matter without regard to the
new version of 38 C.F.R. � 3.156(a).

Having reviewed the complete record, the Board finds that new
and material evidence has not been submitted to reopen the
veteran's claims of entitlement to service connection for a
low back disorder or a left ankle disorder.  Since the April
1997 rating decision, the veteran has submitted a number of
medical records, including records pertaining to a right knee
arthroscopy in 1997; treatment records from Dr. J.H.; an X-
ray report dated in August 1997; and an MRI report dated in
November 1997.  He has also submitted his own contentions, as
well as testimony from several individuals, including Dr.
J.H., the veteran's private physician, and C.M. and J.H., two
individuals who served with the veteran while he was on
active duty.

With respect to the testimony provided by C.M., and the
written statement of J.H. that was read aloud in lieu of his
providing testimony, the Board notes that written statements
from both of these individuals were explicitly considered by
the Board in our June 1964 decision.  While copies of those
statements are no longer associated with the record, the
Board notes that they were discussed in detail in the June
1964 decision, and it is apparent that the subject matter of
those statements was essentially the same as the testimony
that was offered during the veteran's November 1999 DRO
hearing.  In essence, both of those persons reportedly
recalled the veteran complaining of back pain during service,
and they both recalled his being treated at the hospital for
that problem.  In fact, the Board notes that the 1959
statement from J.H. that was read aloud at his recent hearing
appears to be the exact same statement that was discussed by
the Board in the June 1964 decision.  Because the contentions
of these individuals appear to have already been of record
and to have been specifically considered prior to the April
1997 rating decision, the Board finds that they are
cumulative of previously submitted evidence, and are not so
significant that they must be considered in order to fairly
decide the merits of the claims.

As for Dr. J.H.'s testimony during the November 2001 hearing,
the Board finds that this testimony is essentially irrelevant
to the veteran's claims for low back and left ankle
disabilities, as the physician limited his discussion
entirely to the veteran's claimed brachial plexus syndrome,
and the resulting impairment to his cervical spine and upper
extremities.  Although various decisions issued by the ROIC
and the Board over the last several decades occasionally
characterized the veteran's claim for a low back disorder as
being for a "back condition", it is apparent from a reading
of those decisions that the claim being considered was for a
disability in the low back or lumbar spine, and not for
disability in the thoracic or cervical spine.  In addition,
the Board notes that the medical evidence submitted by the
veteran in support of his claim for a low back disorder prior
to the April 1997 rating decision dealt exclusively with
disabilities in the lumbosacral spine, and not with
disabilities of the thoracic or cervical spine.  For these
reasons, the Board finds the testimony of Dr. J.H. to be
essentially irrelevant to the veteran's claims for low back
and left ankle disorders, as his testimony deals with the
etiology of a separate and distinct disability (brachial
plexus syndrome).  We believe that this testimony does not
bear directly and substantially upon the specific matters
under consideration (low back and left ankle disabilities)
and is not so significant that it must be considered in order
to fairly decide the merits of the claims currently before
the Board.

Similarly, the Board also finds the medical records of Dr.
J.H., including his November 1999 letter, to be irrelevant to
the veteran's claim for a low back disability, as they also
deal exclusively with his brachial plexus syndrome.  These
records are negative for any opinions regarding the etiology
of the veteran's claimed low back disorder or left ankle
disability.  We therefore find that these records do not bear
directly and substantially upon the specific matters under
consideration, and are not so significant that they must be
considered in order to fairly decide the merits of the
claims.

Because a substantial portion of the evidence submitted by
the veteran deals with brachial plexus syndrome, the Board
notes in passing that a claim of entitlement to service
connection for that disability was addressed separately by
the ROIC in rating decisions dated in January 2000 and May
2001.  This matter has also been addressed by the Board in
the Introduction section of this decision.

With respect to the MRI and X-ray reports submitted by the
veteran in support of his claims, the Board notes that these
records were apparently submitted as evidence of current low
back and left ankle disabilities.  However, we believe that
these records are essentially cumulative of previously
submitted evidence.  For example, the Board notes that the
August 1997 X-ray report showing the presence of an ossified
density in the posterior aspect of the ankle joint is
virtually identical to a May 1962 X-ray report showing that
an osseous body was observed in that area.  In addition, the
November 1997 MRI and X-ray reports showing evidence of
degenerative changes in the lumbosacral spine are similar to
earlier X-ray studies showing evidence of degenerative
changes in the lumbosacral spine.  Thus, the Board finds that
these reports are cumulative of previously submitted
evidence, and are not so significant that they must be
considered in order to fairly decide the merits of the
claims.

Regarding the veteran's own contentions, the Board notes that
he appears to have focused much of his evidence and argument
on showing that he in fact experienced low back problems and
a left ankle injury in service.  However, while VA initially
experienced a great deal of trouble locating his service
medical records after he filed his initial claim in the
1950's, it appears that the pertinent service medical records
were eventually located, and that these records do verify
that he experienced back problems in 1943 and sprained his
left ankle in a jeep accident in France in 1945.  Thus, the
Board believes that it had been well-established in the
record, prior to the April 1997 rating decision, that the
veteran did receive treatment for back pain while on active
duty and that he sustained an injury to his left ankle while
on active duty.  Moreover, substantial evidence appears to
have been associated with the record showing that the veteran
has been receiving periodic treatment for low back problems
since 1953 and for left ankle problems since the mid-1960's.
The primary question that has remained unresolved is whether
the veteran's claimed disabilities are related to the
incidents noted in his service medical records.

Since attempting to reopen his claim for low back and left
ankle disabilities, the veteran has submitted no additional
competent medical evidence showing that either of these
disabilities is related to his military service.  While he
may sincerely believe that such a relationship exists, lay
persons are not considered competent to offer medical
opinions, and testimony to that effect does not provide a
basis upon which to reopen a claim for service connection.
Moray v. Brown, 5 Vet. App. 211 (1993); see also Routen v.
Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is
generally not capable of opining on matters requiring medical
knowledge"), aff'd sub nom. Routen v. West, 142 F.3d 1434
(1998), cert. denied, 119 S. Ct. 404 (1998); Espiritu v.
Derwinski, 2 Vet. App. 492, 494-495 (1992).

The Board notes that we appreciate the veteran's effort and
his sincerity in testifying at the Travel Board hearing
before the undersigned, as well as the assistance of his
attorney.  We also appreciate the thorough testimony provided
by Dr. J.H., the veteran's private physician.  However, for
the reasons and bases set forth above, the Board finds that
the evidence submitted by the veteran, to include the
testimony of Dr. J.H., does not constitute new and material
evidence sufficient to reopen his claim of entitlement to
service connection for a low back disorder.  The Board
further finds that this evidence does not constitute new and
material evidence sufficient to reopen his claim of
entitlement to service connection for a left ankle disorder.
Thus, the benefits sought on appeal must be denied.

ORDER

New and material evidence not having been submitted, the
claim of entitlement to service connection for a low back
disorder is denied.

New and material evidence not having been submitted, the
claim of entitlement to service connection for a left ankle
disorder is denied.

	ANDREW J. MULLEN
	Member, Board of Veterans' Appeals

IMPORTANT NOTICE:  We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision.  We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001).  In the
meanwhile, please note these important corrections to the
advice in the form:

? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims."  (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court.  (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.

? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.