Citation Nr: 0810967 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 05-11 066 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. Jeng, Associate Counsel INTRODUCTION The veteran had active duty from August 1952 to January 1953. This matter comes before the Board of Veterans' Appeals (Board) from an October 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. In June 2004, the Board determined that new and material evidence had not been submitted to reopen a service connection claim for a right knee disability; the Chairman of the Board has not ordered reconsideration of the matter and that decision became final. 2. Evidence received since the June 2004 Board decision does not raise a reasonable possibility of substantiating the service connection claim for a right knee disability. CONCLUSIONS OF LAW 1. A June 2004 Board decision, determining that new and material evidence had not been submitted to reopen a service connection claim for a right knee disability, is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2003); currently 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2007). 2. Evidence received since the June 2004 Board decision is not new and material, and the veteran's service connection claim for a right knee disability is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In correspondence dated in August 2004, the RO satisfied its duty to notify the veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2007). Specifically, the RO notified the veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the veteran was expected to provide. The veteran was instructed to submit any evidence in his possession that pertained to his claim. In light of the Board's denial of the appellant's claim, no disability rating or effective date will be assigned, so there can be no possibility of any prejudice to the appellant under the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). For the above reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide the issue discussed in this decision. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); Quartuccio, 16 Vet. App. 183; Sutton v. Brown, 9 Vet. App. 553 (1996); Bernard v. Brown, 4 Vet. App. 384 (1993); see also 38 C.F.R. § 20.1102 (2007) (harmless error). Additionally, the requirements set forth in Kent v. Nicholson, 20 Vet. App. 1 (2006) regarding new and material evidence claims have been met. The veteran has been notified of the evidence and information necessary needed to reopen his claim, to substantiate each element of the underlying service connection claim, and to substantiate the elements needed for service connection that were found insufficient in the prior denial on the merits. VA has done everything reasonably possible to assist the veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2007). All identified and available treatment records have been secured. The duties to notify and assist have been met. Analysis Initially, the RO denied service connection for a right knee disability in May 1960. Subsequently, in a June 2004 decision, the Board determined that new and material evidence had not been submitted to reopen a service connection claim for the veteran's right knee disability. The Chairman of the Board has not ordered reconsideration and the June 2004 decision became final. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. Since the June 2004 Board decision is final, the veteran's service connection claim for a right knee disability may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. See 38 U.S.C.A. §§ 5108, 7104; 38 C.F.R. § 3.156; Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of he claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). With respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the service connection claim. In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), 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. The evidence associated with the claims folder at the time of the June 2004 rating decision included the veteran's service medical records, private medical records, VA medical records, and the veteran's lay statements. The Board declined to reopen the claim on that basis that no new and material evidence had been submitted suggesting the onset or increase in severity of a right knee disability occurred during active service. As the last final disallowance of the appellant's service connection claim for right knee disability was a June 2004 decision, the Board must now determine whether new and material evidence sufficient to reopen the claim has been received subsequent to the June 2004 Board decision. On review, the Board finds that the veteran has not submitted new and material evidence since the June 2004 Board decision sufficient to reopen the service connection claim for the veteran's right knee disability. The newly submitted evidence consists of VA treatment records dated in July 2004 showing complaints related to the right knee and also an x- ray report showing residuals of a right knee arthroplasty. However, none of these records demonstrate onset or increase in severity of a right knee disability during active service. Thus, the Board concludes that the evidence submitted after the final decision in June 2004, either by itself or when considered with the previous evidence of record, does not relate to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156. It does not raise a reasonable possibility of establishing the claim. Id. Therefore, the evidence is not considered new and material for the purpose of reopening the service connection claim for a right knee disability. Accordingly, the claim is not reopened. ORDER New and material evidence having not been submitted to reopen a service connection claim for a right knee disability, the appeal is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs