**UNITED STATES COURT OF VETERANS APPEALS**

No. 91-427

[William E. Harder, Appellant,]{.smallcaps}

[v.]{.smallcaps}

[Jesse Brown,]{.smallcaps}

[Secretary of Veterans Affairs, Appellee.]{.smallcaps}

On Appeal from the Board of Veterans\' Appeals

(Decided June 2, 1993 )

*William E. Harder, pro se*.

*James A. Endicott*, General Counsel, *Barry M. Tapp*, Assistant General
Counsel, *Pamela L. Wood*, Deputy Assistant General Counsel, and *Angela
Foehl* were on the pleadings for appellee.

Before NEBEKER, *Chief Judge*, and MANKIN and IVERS, *Associate Judges*.

IVERS, *Associate Judge*: William E. Harder appeals from a November 19,
1990, Board of Veterans\' Appeals (BVA or Board) decision denying
service connection for a right knee disorder. The Court has jurisdiction
of the case under 38 U.S.C.A. § 7252(a) (West 1991). The Court finds
that the Board\'s decision is clearly erroneous. Accordingly, we reverse
and vacate the decision of the BVA and remand the case for
readjudication consistent with this opinion.

**FACTUAL BACKGROUND**

Appellant served in the United States Army from September 15, 1953, to
July 8, 1955. R. at 1. In 1948, prior to his enlistment, appellant had
injured his left and right knees while playing football. R. at 6.
Appellant\'s preinduction examination noted that appellant\'s right knee
was \"abnormal\" but was \"within normal limits as to function and
stability and size.\" R. at 2. Otherwise, appellant was considered
medically fit for duty with no limitations listed. R. at 2-3.

On November 9, 1953, while in the service, appellant\'s left knee locked
while he was squatting. R. at 13. This injury resulted in \"\[i\]nternal
derangement, left knee,\" requiring orthopedic surgery. R. at 4. On
November 27, 1953, appellant underwent surgery on the left knee to
repair the tear of his left medial meniscus (crescent-shaped layer of
fibrocartilage bordering and partly covering the articulating surfaces
of the tibia and femur at the knee, [Webster\'s Medical
Dictionary]{.smallcaps} 422 (1986)). R. at 14, 23. Clinical records
indicate that appellant also had an \"\[i\]nternal derangement, right
knee; football injury, 1952.\" R. at 14. On January 15, 1954, appellant
fell again and reinjured his left knee. R. at 35. On January 18, 1954,
an Army physician gave appellant a physical profile which prevented him
from marching, kneeling, or stooping, or participating in physical
training. R. at 31.

On February 1, 1954, appellant was diagnosed with moderate synovitis
(\"inflammation of a synovial membrane usually with pain and swelling of
the joint,\" [Webster\'s Medical Dictionary]{.smallcaps} 699) of the
left knee. From February 1, 1954, through March 22, 1954, appellant
received additional, continuing treatment for effusion of the left knee.
R. at 44-45, 47-51. On March 19, 1954, appellant underwent surgery again
on his left knee to remove the entire lateral cartilage. R. at 35, 53.
According to May 28, 1954, clinical records, the surgical treatment
resulted in an infection of the left knee wound. R. at 35.

An October 4, 1954, physical condition report stated that appellant had
traumatic arthritis without specifying which knee was affected. R. at
74. Additional examinations on March 1, 1955 (R. at 75), July 6, 1955
(R. at 76), September 7, 1955 (R. at 83‑84), September 9, 1955 (R. at
85-86), and October 3, 1955 (R. at 88), revealed a continuing disorder
in appellant\'s left knee.

Several examinations also noted problems in appellant\'s right knee. A
July 6, 1955, examination gave a diagnosis of \"\[t\]raumatic arthritis,
mild, left knee\" and \"\[p\]ossible osteochondrotic loose body\" in
appellant\'s right knee. R. at 76. On September 7, 1955, appellant was
again diagnosed as having a \"loose body\" in his right knee joint.
R. at 84, 86, 88. However, a September 9, 1955, radiographic report
stated that certain observed irregularities in appellant\'s right knee
were \"not very convincing for a defect such as that from
osteochondritis dissecans. The bones on the right\[\] otherwise appear
to be normal.\" R. at 85.

On July 18, 1955, appellant filed a claim with a Veterans\'
Administration (now Department of Veterans Affairs) (VA) regional office
(RO). R. at 89. On October 17, 1955, the RO granted service connection
for appellant\'s left knee condition, rated as 10% disabling, but denied
service connection for his right knee condition. R. at 90. Appellant
apparently did not appeal this decision, and the decision thus became
final.

Many years after the October 1955 rating decision, appellant continued
to receive treatment for his left knee and right knee conditions. On
September 29, 1972, X-rays of both knees revealed a \"small joint
effusion on the right \[knee\]\" and a \"larger joint effusion\" on the
left knee. R. at 94. The radiologist reported finding \"rather marked
hypertrophic changes for a patient of this age on the left side.\"
*Ibid.* An April 12, 1988, radiographic report stated:

> There are very advanced degenerative changes of both knees especially
> considering the age of 55 years. Especially the medial compartments of
> both knee joints and the patellofemoral joints are involved. There are
> large spurs and the joint spaces are narrow.

R. at 158.

On May 4, 1988, when appellant applied to an RO for an increase in the
disability rating for his left knee condition and sought service
connection for his right knee condition, he wrote:

> \[Left\] \[k\]nee increasingly became less mobile and flexible and
> suffered loss of range of motion. As this progressive deterioration
> occurred, it increased disproportionately the use of right leg as a
> compensating factor. Right knee experienced problems about 1960 and
> those progressively got worse. . . .
>
> It is clear to me that what started as a problem with my left knee has
> now caused a problem with the right knee also and in combination they
> present a very serious debilitation.

R. at 95-96.

Appellant also submitted a treating physician\'s statement that his left
knee condition had caused the problems in his right knee as well as his
own statements recounting similar statements made by the physician
directly to him. In a June 15, 1988, letter to the RO, appellant
described a visit to the Minneapolis VA Medical Center, where he was
seen by Dr. Raymond Bonnabeau, Jr. (R. at 101). According to appellant,
Dr. Bonnabeau stated that the arthritic condition in the appellant\'s
right knee \"was a result of the disability \[he\] had suffered to
\[his\] left knee while in the armed services.\" *Ibid.* A July 11,
1988, diagnosis by Dr. Bonnabeau found \"\[t\]raumatic injury to the
left knee with internal derangement, operated three times (with removal
of semilunar cartilage), with subsequent development of severe traumatic
arthritis with residual.\" R. at 108. On August 19, 1988, the RO
increased to 20 percent the disability rating for the left knee
condition; however, the RO did not reopen the claim for the right knee
condition because appellant had not submitted new and material evidence.
R. at 112.

In response, appellant wrote a letter to the RO on November 10, 1988, in
which he stated:

> Quite obviously, and in conformance with what I have been told by your
> own attending physician, Doctor Bonnabeau, the problems with my right
> knee occurred, over time, by reason of the deterioration of my left
> knee\[,\] which was a service\[-\]connected disability and the
> attendant traumatic arthritis which impacted that knee and therefore,
> unduly stressed, aggravated and deleteriously undermined my right
> knee.

R. at 116. On November 28, 1988, appellant wrote another letter, in
which he stated:

> \[C\]learly the basis for the claim with regard to the right knee
> arises by reason of the constantly deteriorating condition of the left
> knee\[,\] which was service connected and was immediately beset by
> traumatic arthritis after having been treated by United States Army
> doctors. The medical records clearly reflect no arthritic or other
> debilitating problem with the right knee at any time during my
> military service period.

R. at 119. On February 1, 1989, the RO requested that appellant \"submit
a medical statement from a doctor showing that \[the\] current right
knee condition is the result of over compensation for \[the\]
service-connected left knee condition.\" R. at 124. Appellant responded
with a February 20, 1989, letter, reiterating that Dr. Bonnabeau had
twice stated that he had \"reported in his medical notes that the
arthritic condition of \[the\] right knee was caused by the compensable
disability in the left knee and the stress placed on the right knee over
a protracted period of time by reason thereof.\" R. at 126-27.

On April 11, 1989, the RO wrote to appellant that VA had found the June
15, 1988, progress notes in which Dr. Bonnabeau wrote, \"\'\[R\]ight
knee bad secondary to service\[‑\]connected left knee.\'\" R. at 130.
However, the RO also stated: \"At this point, we view this statement as
medical opinion, and not direct medical evidence.\" *Ibid.*

In progress notes dated April 17, 1989, Dr. Bonnabeau gave a diagnosis:

> Severe arthritis both knees. Very advanced. . . . \[Left\] knee injury
> \[service-connected\]. Has severe arthritis \[right\] knee. Secondary
> to initial \[left\] knee injury, supported by X-ray. Any damage
> pre\[-\]service aggravated in \[service\] and by \[service-connected\]
> injury. May eventually need bilateral knee replacements.

R. at 128. On April 20, 1989, appellant wrote to the RO again, reprising
his examination of April 17, 1989, and his conversation with Dr.
Bonnabeau that same day. R. at 133. Appellant stated:

> \[On April 17, 1989,\] I showed \[Dr. Bonnabeau\] your April 11
> letter, and I believe he was as dumbfounded by your observations as I
> was. He has once again medically examined me, and as of that date
> entered into my medical records his medical opinion concerning the
> direct causation of my right knee condition to the trauma occasioned
> to my left knee while in the United States Army service.

*Ibid.*

A May 30, 1989, rating decision, apparently rejecting Dr. Bonnabeau\'s
diagnosis regarding causation, stated: \"This statement is, at best,
pure speculation and does not provide any reasonable factual basis for a
change in our prior denials of service connection.\" R. at 138.

On June 22, 1989, a radiographic report from a private medical center
describing a new set of X-rays of appellant\'s knees stated:

> Right knee: There is marked narrowing of the medial joint space with
> hypertrophic spurring. There is also narrowing of the patellofemoral
> joint space with spurring. When compared to previous study from 2/87,
> there has been further progression and narrowing of the patellofemoral
> joint space.
>
> Left knee: There is severe narrowing of the medial joint space with
> mild narrowing of the lateral joint space. There is marked
> hypertrophic spurring present. There is also narrowing in the
> patellofemoral joint space with extensive spurring present. When
> compared to the previous study from 2/87, there has been further loss
> in the medial joint space.

R. at 140.

In its November 19, 1990, decision, in light of the various arguments
made by both appellant and his service representative, the Board
considered appellant\'s claim as both a reopened claim for direct
service connection of the right knee condition and as an original claim
for secondary service connection. *William E. Harder*,
BVA 90‑\_\_\_\_\_, at 4 (Nov. 19, 1990). Upon reviewing the evidence,
the Board continued the denial of service connection for the right knee
disorder. *Harder*, BVA 90‑\_\_\_\_\_, at 7.

**ANALYSIS**

The Board\'s November 19, 1990, decision presents two issues arising
from the same right knee disorder: whether appellant submitted new and
material evidence to reopen the October 1955 decision denying direct
service connection; and whether the Board\'s November 1990 decision
denying secondary service connection was clearly erroneous.

**A. *Direct Service Connection***

Despite his protests to the contrary, appellant\'s statements indicate
that he wished to reopen a claim. In a brief filed with the BVA prior to
its November 1990 decision, appellant stated that he was not seeking
direct service connection but that he was presenting new and material
evidence to reopen his claim on the basis that the right knee disability
was proximately due to the service-connected left knee condition. R. at
167. In his brief to the Court, appellant argues for direct service
connection when he states:

> \[T\]hough there was no radiographic evidence at the time of
> \[appellant\'s\] discharge from the service as to the right knee
> arthritic condition, the very nature of the progressive disease, being
> as it was secondary to the left knee disability, would have had to
> have commenced in some degree during that latter period of the
> \[a\]ppellant\'s military service after he incurred the
> service-connected left knee disability.

Br. at 10-11. The Board addressed the issue whether appellant had
presented new and material evidence to reopen his claim. Consequently,
we address this issue as well.

Appellant\'s claim for direct service connection for the right knee
disorder was denied by a final decision of the BVA in October 1955.
Pursuant to 38 U.S.C.A. § 5108 (West 1991), the Secretary of Veterans
Affairs must reopen a previously and finally disallowed claim when \"new
and material evidence\" is presented or secured with respect to that
claim. *See* 38 U.S.C.A. § 7104(b) (West 1991). On claims to reopen
previously and finally disallowed claims, the BVA must conduct a
two-part analysis. *See Manio v. Derwinski*, 1 Vet.App. 140, 145 (1991).
First, it must determine whether the evidence presented or secured since
the prior final disallowance of the claim is \"new and material.\" *See
Colvin v. Derwinski*, 1 Vet.App. 171, 174 (1991). \"New evidence\" is
evidence that is not \"merely cumulative\" of other evidence on the
record. *Ibid.* Evidence is \"material\" where it is \"relevant and
probative\" and where there is \"a reasonable possibility that the new
evidence, when viewed in the context of all the evidence, both new and
old, would change the outcome.\" *Ibid.* Whether evidence is \"new and
material\" is a conclusion of law which this Court reviews de novo under
38 U.S.C.A. § 7261(a)(1) (West 1991). *See Masors v. Derwinski*, 2
Vet.App. 181, 185 (1992).

The Court holds that appellant did not present new and material evidence
to reopen his claim for direct service connection. Appellant\'s and
Dr. Bonnabeau\'s statements all relate to diagnoses in 1988 and after,
and are certainly \"new.\" However, the evidence is not \"material.\"
Although many of these statements concern the causal effect of the left
knee condition on the right knee condition, they do not demonstrate that
the right knee condition was incurred in or aggravated during service or
within one year after separation from service. *See* 38 U.S.C.A.
§§ 1110, 1112(a)(1) (West 1991); 38 C.F.R. §§ 3.307(a)(3), 3.309(a)
(1992). The Court therefore affirms the BVA\'s decision regarding the
newness and materiality of appellant\'s evidence.

**B. *Secondary Service Connection***

Appellant\'s primary argument has been that he is entitled to secondary
service connection for the right knee condition. Since this is a new
claim, the Board\'s findings and determination are subject to the
\"clearly erroneous\" standard of review. *See* 38 U.S.C.A. § 7261(a)(4)
(West 1991); *Gilbert v. Derwinski*, 1 Vet.App. 49, 53 (1990). The Court
holds that the Board\'s denial of secondary service connection is
clearly erroneous.

Appellant\'s evidence in support of service connection included his
recounting of Dr. Bonnabeau\'s statements directly to him and Dr.
Bonnabeau\'s own statements and reports. R. at 116, 118, 126-28, 130.

Under 38 C.F.R. § 3.310(a) (1992), secondary service connection is
available for a disability

> which is proximately due to or the result of a service-connected
> disease or injury . . . . When service connection is thus established
> for a secondary condition, the secondary condition shall be considered
> a part of the original

condition.

The Board rejected statements by Dr. Bonnabeau regarding the causal
relationship between the service-connected left knee condition and the
right knee condition. However, much of the Board\'s reasoning is
speculative and has no independent basis in the record. *See Colvin*,
1 Vet.App. at 175 (\"BVA panels may consider only independent medical
evidence to support their findings. . . . \[H\]aving reached a contrary
conclusion, it was necessary for the panel to state its reasons for
doing so and, more importantly, point to a medical basis other than the
panel\'s own unsubstantiated opinion which supported the decision.\");
*Paller v. Principi*, 3 Vet.App. 535, 538-39 (1992). The requirement
that the Board point to independent medical evidence flows from
38 U.S.C.A. § 7104(d)(1) (West 1991), which directs that the Board
provide adequate reasons or bases for its findings and conclusions. *See
Murphy v. Derwinski*, 1 Vet.App. 78, 81 (1990) (citing *Gilbert*,
1 Vet.App. at 57). This Court recently rejected the broad application of
the \"treating physician rule\" that gives the opinions of treating
physicians greater weight in evaluating veterans\' claims. *Guerrieri v.
Brown*, \_\_ Vet.App. \_\_, No. 90‑679, slip op. at 8 (U.S. Vet. App.
Apr. 7, 1993). Here, however, the Board gave Dr. Bonnabeau\'s diagnoses
lesser weight in the face of *no* contrary evidence. *See also Smith v.
Derwinski*, 2 Vet.App. 137, 141 (1992) (BVA may not ignore or disregard
opinions of treating physicians); *Gleicher v. Derwinski*,
2 Vet.App. 26, 29 (1991) (BVA may not ignore or disregard medical
conclusions of examining physicians); *Hanson v. Derwinski*, 1 Vet.App.
512, 516 (1991) (same); *Caldwell v. Derwinski*, 1 Vet.App. 466, 470
(1991) (same). In place of the medical opinion of appellant\'s treating
VA physician, the Board substituted its own factually and analytically
erroneous interpretation of the record and cited no evidence from the
record, no medical treatises, and no independent medical opinions in
support of its conclusion.

On February 1, 1989, the RO specifically requested that appellant
\"submit a medical statement from a doctor showing that \[the\] current
right knee condition is the result of over compensation for \[the\]
service-connected left knee condition.\" R. at 124. However, the RO
rejected just such a medical statement by Dr. Bonnabeau because it
viewed \"this statement as medical opinion, and not direct medical
evidence.\" R. at 130. In its November 1990 decision, the BVA also
rejected Dr. Bonnabeau\'s statements regarding causation. *Harder*,
BVA 90‑\_\_\_\_\_, at 5. The RO\'s and the Board\'s statements regarding
Dr. Bonnabeau\'s diagnoses and appellant\'s statements ignore VA\'s
regulation regarding evidence of service connection. *See* 38 C.F.R.
§ 3.303(a) (1992) (service connection determinations shall be based on
entire evidence of record, including \"medical records and all pertinent
medical and lay statements.\") \"Nowhere do VA regulations provide that
a veteran must establish service connection through medical records
alone.\" *Cartright v. Derwinski*, 2 Vet.App. 24, 25 (1991); *see also*
*Espiritu v. Derwinski*, 2 Vet.App. 492, 495 (1992) (witness with
medical knowledge might provide probative evidence as to causation of a
condition in certain instances). Because Dr. Bonnabeau has treated
appellant for several years, has been privy to radiographic reports, and
has been responsible for making diagnoses and treatment plans for
appellant, he is in a position to opine on the cause of appellant\'s
right knee condition. In rejecting Dr. Bonnabeau\'s diagnoses, the Board
relied in part on a faulty analysis of the record. The Board stated:
\"While we have no doubt about the sincerity of the veteran, we are also
mindful that statements of medical history as to remote events are of
inherently much lesser probative value than contemporaneous clinical
records.\" *Harder*, BVA 90-\_\_\_\_\_, at 6. Appellant contends that
his condition arose after service and has continued during Dr.
Bonnabeau\'s treatment. Therefore, Dr. Bonnabeau\'s statements do not
relate to a remote event that is outside the scope of his treatment and
knowledge. Just as Dr. Bonnabeau\'s diagnoses in 1988 and 1989 did not
establish a new factual basis for direct service connection, the service
medical records and other records relied upon by the Board have no
bearing on Dr. Bonnabeau\'s diagnoses regarding secondary service
connection.

The Board\'s analysis of the medical evidence is also clearly erroneous.
Commenting on appellant\'s theory of causation, the Board observed:

> Where a disorder of one lower extremity proximately causes disability
> in the opposite extremity, there ordinarily are distinctly different
> degrees of radiographic changes. In other words, if the theory of
> causation advanced by the veteran and expressed by the VA physician
> were correct, we would reasonably expect to see lesser changes on the
> right than the left. The radiographic interpretations of record
> describe extensive bilateral changes, with no indication of any
> substantial differences. It follows that this objective evidence
> points to the conclusion that there is no direct causal relationship
> between the two knee disorders.

*Harder*, BVA 90‑\_\_\_\_\_, at 6. However, the medical records conflict
with the Board\'s evaluation. A September 29, 1972, radiographic report
indicated \"minimal hypertrophic changes involving all three
compartments\" of the right knee with \"a small joint effusion.\" R. at
94. However, the left knee presented \"a larger joint effusion\" with
\"\[r\]ather marked hypertrophic changes for a patient of this age on
the left side.\" *Ibid.* In addition, the June 22, 1989, radiographic
report also revealed differences of degree in the respective
deterioration of the left and right knees. R. at 142. The report noted
\"*marked* narrowing of the medial joint space with hypertrophic
spurring\" and \"narrowing of the patellofemoral joint space with
spurring\" on the right knee. *Ibid.* (emphasis added). By contrast, the
report noted that the left knee exhibited \"*severe* narrowing of the
medial joint space with *mild narrowing of the lateral joint space*\"
accompanied by \"*marked* hypertrophic spurring\" and \"narrowing in the
patellofemoral joint surface with *extensive* spurring present.\"
*Ibid.* (emphasis added). These two radiographic reports demonstrate
that the right knee has exhibited different, lesser degrees of
deterioration than the left knee. Thus, the Board\'s finding that the
\"radiographic interpretations of record describe extensive bilateral
changes, with no indication of any substantial differences,\" *Harder*,
BVA 90‑\_\_\_\_\_, at 6, is clearly erroneous. On the contrary, as the
reports excerpted above demonstrate, appellant has a history of
progressive changes in both knees with different degrees of
deterioration.

In addition, although appellant\'s statements recounting what
Dr. Bonnabeau told him about his condition\'s cause may not be
sufficient to establish service connection, they do add to Dr.
Bonnabeau\'s own statements supporting service connection. In fact, the
Board apparently believed that appellant was sincere in his claim.
*Harder*, BVA 90-\_\_\_\_\_, at 6. Taken together, the sum total of all
this credible evidence dictated one result: granting service connection.

After a review of the record, we conclude that there is no plausible
basis for the BVA\'s decision. \"\[B\]ecause there is no evidence to
support the BVA determination, it is obvious that a mistake has been
committed, the finding is not plausible, there can be only one
permissible view of the evidence, and, thus, the finding is clearly
erroneous.\" *Karnas v. Derwinski*, 1 Vet.App. 308, 311 (1991); *see
also Caldwell*, 1 Vet.App. at 470 (reversing clearly erroneous BVA
decision). Appellant\'s right knee condition merits secondary service
connection. Therefore, we reverse the BVA\'s November 19, 1990,
decision. On remand, the only matter before the Board will be the
assignment of an appropriate disability rating on the basis of all the
evidence including a contemporaneous medical examination to determine
the extent of appellant\'s right knee condition. *See Green (Victor) v.
Derwinski*, 1 Vet.App. 121, 124 (1991).

**CONCLUSION**

For the reasons stated above, the Court AFFIRMS the November 19, 1990,
decision of the BVA with respect to the newness and materiality of
appellant\'s evidence, but REVERSES and REMANDS the case for assignment
of an appropriate disability rating for appellant\'s secondarily
service-connected right knee condition.