Citation Nr: 1118292 Decision Date: 05/12/11 Archive Date: 05/17/11 DOCKET NO. 09-42 014 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for cirrhosis of the liver. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hepatitis C. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for neuritis. 4. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for missing bones in the feet. 5. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a jaw disorder. 6. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hypertension. 7. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for diabetes mellitus. 8. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a psychiatric disorder. 9. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for polysubstance abuse. 10. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left knee disorder. 11. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right knee disorder. 12. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a low back disorder. 13. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for generalized osteoarthritis. 14. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for arthralgia. 15. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bursitis. 16. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran served on active duty from June 1976 to June 1979. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Veteran testified at a Central Office hearing in October 2010. At the hearing, the Veteran submitted additional evidence with a waiver of initial RO consideration of the evidence. FINDINGS OF FACT 1. Claims for entitlement to service connection for cirrhosis of the liver, hepatitis C, neuritis, missing bones in the feet, a jaw disorder, hypertension, diabetes mellitus, a psychiatric disorder, polysubstance abuse, left knee disorder, right knee disorder, low back disorder, generalized osteoarthritis, generalized arthralgia and bursitis were last denied in a May 2007 rating decision. 2. Evidence received since May 2007 regarding claims for service connection for cirrhosis of the liver, hepatitis C, neuritis, missing bones in the feet, a jaw disorder, hypertension, diabetes mellitus, a psychiatric disorder, polysubstance abuse, a left knee disorder, a right knee disorder, a low back disorder, generalized oseotharthritis, arthralgia and bursitis, is cumulative or redundant of evidence previously of record and is not sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claims. 3. The Veteran is not in receipt of service-connected benefits for any disability. CONCLUSIONS OF LAW 1. As new and material evidence has not been received since the May 2007 rating decision, the criteria for reopening the claim for service connection for cirrhosis of the liver are not met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). 2. As new and material evidence has not been received since the May 2007 rating decision, the criteria for reopening the claim for service connection for hepatitis C are not met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). 3. As new and material evidence has not been received since the May 2007 rating decision, the criteria for reopening the claim for service connection for neuritis are not met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). 4. As new and material evidence has not been received since the May 2007 rating decision, the criteria for reopening the claim for service connection for missing bones in the feet are not met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). 5. As new and material evidence has not been received since the May 2007 rating decision, the criteria for reopening the claim for service connection for a jaw disorder are not met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). 6. As new and material evidence has not been received since the May 2007 rating decision, the criteria for reopening the claim for service connection for hypertension are not met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). 7. As new and material evidence has not been received since the May 2007 rating decision, the criteria for reopening the claim for service connection for diabetes mellitus are not met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). 8. As new and material evidence has not been received since the May 2007 rating decision, the criteria for reopening the claim for service connection for a psychiatric disorder are not met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). 9. As new and material evidence has not been received since the May 2007 rating decision, the criteria for reopening the claim for service connection for polysubstance abuse are not met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). 10. As new and material evidence has not been received since the May 2007 rating decision, the criteria for reopening the claim for service connection for a left knee disorder are not met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). 11. As new and material evidence has not been received since the May 2007 rating decision, the criteria for reopening the claim for service connection for a right knee disorder are not met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). 12. As new and material evidence has not been received since the May 2007 rating decision, the criteria for reopening the claim for service connection for a low back disorder are not met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). 13. As new and material evidence has not been received since the May 2007 rating decision, the criteria for reopening the claim for service connection for generalized osteoarthritis are not met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). 14. As new and material evidence has not been received since the May 2007 rating decision, the criteria for reopening the claim for service connection for arthralgia are not met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). 15. As new and material evidence has not been received since the May 2007 rating decision, the criteria for reopening the claim for service connection for bursitis are not met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). 16. The criteria for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.25 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). In claims to reopen, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy this requirement, the Secretary is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. Here, the Veteran was sent a letter in September 2008 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter advised the Veteran of the evidence necessary to substantiate the element or elements required to establish service connection for the disabilities on appeal that was found insufficient in the previous denial. Moreover, the letter informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date. Furthermore, the evidence necessary to substantiate a claim for a TDIU was discussed. Accordingly, no further development is required with respect to the duty to notify. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claims. While the Veteran was afforded a VA examination with respect to the bilateral knee, low back, generalized osteoarthritis, arthralgia and bursitis claims, solicitation of a medical opinion is not required in a claim to reopen until new and material evidence is presented or secured. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran was also provided the opportunity to present pertinent evidence and testimony. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. New and Material Evidence Claims The Veteran's claims for service connection for cirrhosis of the liver, hepatitis C, neuritis, missing bones in the feet, a jaw disorder, hypertension, diabetes mellitus, a psychiatric disorder, polysubstance abuse, a left knee disorder, a right knee disorder, a low back disorder, generalized osteoarthritis, arthralgia, and bursitis were last denied by the RO in May 2007. The Veteran did not perfect an appeal of this decision. Therefore, the May 2007 rating decision is final. 38 C.F.R. §§ 20.204(c), 20.1103. The present claims were initiated by the Veteran in August 2008. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides 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. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). "New and material evidence" can be construed as that which would contribute to a more complete picture of the circumstances surrounding the origin of a Veteran's disability or injury, even when it would not be enough to convince the Board to grant the claim. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The Court recently interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, No. 08-3548 (U.S. Vet. App. Nov. 2, 2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). If the prior final denial and the currently claimed disability involve different diagnostic codes, they are different claims for the purpose of VA adjudication. A claim for one diagnosed disease or injury cannot be prejudiced by a claim for another diagnosed disease or injury; rather, the two claims must be considered independently. Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008), citing Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996). Cirrhosis of the Liver and Hepatitis C The evidence available at the time of the May 2007 rating decision included service treatment records that were silent for any treatment or indication of a liver disorder and numerous VA treatment records dated from 2003 to 2007 which showed that the Veteran was diagnosed with chronic hepatitis C with cirrhosis of the liver. The bases of the prior final denials of entitlement to service connection for cirrhosis of the liver and for hepatitis C was that there was no showing that the Veteran had a diagnosis of cirrhosis of the liver or hepatitis C which was etiologically related to active service. The additional evidence added to the record since May 2007 concerning the Veteran's complaint of cirrhosis of the liver and hepatitis C, includes additional VA treatment dated in 2008; the Veteran's testimony provided at the October 2010 Board hearing; and internet articles pertaining to hepatitis C and cirrhosis of the liver submitted by the Veteran at the hearing. The VA outpatient treatment reports continue to show ongoing treatment and evaluation of the Veteran's cirrhosis of the liver and hepatitis C. The Veteran's statements of personal belief that the hepatitis C and cirrhosis of the liver are etiologically related to service, while no doubt sincere, are not new in that such statements merely repeat what he had stated to VA prior to the May 2007 rating action. Moreover, the internet articles and general medical literature which has been submitted by the Veteran is general in nature and does not specifically relate to the facts and circumstances pertaining to these claims. Absent evidence of a nexus between any currently shown cirrhosis of the liver or hepatitis C and service, the newly received evidence does not raise a reasonable possibility of substantiating either claim. As new and material evidence has not been received, the claims for service connection for cirrhosis of the liver and for hepatitis C are not reopened. See 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2010). Neuritis The evidence at the time of the May 2007 rating decision included the Veteran's active service treatment records which were negative for any treatment or complaints related to neuritis and numerous post-service VA treatment records. The records included an August 2005 VA report of hospitalization which indicated that the Veteran had a past medical history of neuritis. The claim was denied because there was no evidence of neuritis in service and there was no evidence of an etiological relationship between any current disability and active service. The subsequently received evidence includes various VA outpatient treatment dated in 2008 which show ongoing diagnoses of neuritis and October 2010 hearing testimony in which the Veteran reported that the neuritis is related to his active service. The newly submitted evidence continues to show complaints of neuritis. However, none of the new evidence links this disability to the Veteran's period of active service. Therefore, the newly submitted evidence is merely cumulative of the evidence already of record or it does not raise a reasonable possibility of substantiating the claim. In this regard, the newly added evidence showing headaches is essentially cumulative or redundant of the evidence of record at the time of the prior denial. As such, it is not new and material and reopening of the claim for service connection for neuritis is not warranted. Missing Bones in the Feet The evidence at the time of the May 2007 rating decision included the Veteran's active service treatment records which were negative for any treatment or complaints related to missing bones in either foot and post-service VA treatment records which showed treatment for flat feet but no evidence of missing bones in the feet. Additional private and VA medical records do not contain any complaints or findings related to a disability manifested by missing bones in the feet. What is necessary to reopen the Veteran's claim of service connection for missing bones in the feet is medical evidence of a current disability and/or medical evidence suggesting a link between the claimed disability and the Veteran's service or a service-connected disability. The Veteran testified at the October 2010 Board hearing that he had lost bones in his feet due to wearing ill fitting shoes during service. He reported that he had corns so severe that the bones within the toes had to be removed. The Board notes that lay assertions regarding medical diagnoses and medical causation cannot suffice to reopen a claim under 38 U.S.C. § 5108. See generally Routen v. Brown, 10 Vet. App. 183, 186 (1997) (citing Wilkinson v. Brown, 8 Vet. App. 263, 268 (1995)); see also Moray v. Brown, 5 Vet. App. 211, 214 (1993) (lay assertions of medical causation cannot serve as a predicate to reopen a Veteran's claim). Thus, the Board finds that the evidence received in conjunction with the claim to reopen entitlement to service connection for missing bones in the feet is not new and material, and does not serve to reopen the claim of service connection. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156(a). Jaw Disorder The evidence at the time of the May 2007 rating decision included the Veteran's active service treatment records which were negative for any treatment or complaints related to a jaw disorder and post-service VA treatment records which were also negative for any treatment of a jaw disorder. Additional private and VA medical records do not contain any complaints or findings related to jaw disability. What is necessary to reopen the Veteran's claim of service connection for a jaw disorder is medical evidence of a current disability and/or medical evidence suggesting a link between the claimed disability and the Veteran's service or a service-connected disability. The Veteran testified at the October 2010 Board hearing that during service, he underwent oral surgery aboard a ship in which he had four teeth and his jaw bone cut. During the surgery, one of his teeth had cracked and he now has a large hole in the back of the molar which is very painful. The Board notes that lay assertions regarding medical diagnoses and medical causation cannot suffice to reopen a claim under 38 U.S.C. § 5108. See generally Routen v. Brown, 10 Vet. App. 183, 186 (1997). The evidence received in conjunction with the claim to reopen entitlement to service connection for a jaw disorder is not new and material, and does not serve to reopen the claim of service connection. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156(a). Hypertension The evidence available at the time of the May 2007 rating decision included service treatment records that were silent for any treatment or indication of hypertension and numerous VA treatment reports dated from 2004 to 2007 showing diagnoses of hypertension. As the evidence showed that the Veteran was first diagnosed with hypertension several years following discharge from service, the RO determined that the disorder was neither incurred in or caused by service or was manifested to a compensable degree within one year following discharge from service. The additional evidence added to the record since May 2007 concerning the Veteran's complaint of hypertension include additional VA outpatient treatment reports dated in 2008 which show ongoing treatment and evaluation for hypertension and Veteran's testimony provided at the October 2010 Board hearing. The Veteran's statements of personal belief that his hypertension is etiologically related to service are not new in that such statements merely repeat what he had stated to VA prior to the May 2007 rating action. Absent evidence of a nexus between any currently shown hypertension and service, the newly received evidence does not raise a reasonable possibility of substantiating the claim. As new and material evidence has not been received, the claim for service connection for hypertension is not reopened. See 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2010). Diabetes Mellitus The evidence available at the time of the May 2007 rating decision included service treatment records that were silent for any treatment or indication of diabetes mellitus and numerous VA treatment reports dated from 2004 to 2007, showing diagnoses of diabetes mellitus. As the evidence showed that the Veteran was first diagnosed with diabetes mellitus several years following discharge from service, the RO determined that the disorder was neither incurred in or caused by service or was manifested to a compensable degree within one year following discharge from service. Based on the above, to reopen this claim the Veteran must show a relationship between active duty service and the claimed disorder. However, the Veteran has not submitted such evidence. Additional VA medical treatment reports dated in 2008 reveal ongoing treatment and evaluation for diabetes mellitus. The Veteran further testified at the October 2010 Board hearing that he believes that his diabetes mellitus is related to service and that that the condition is secondary to his hepatitis C. There is no indication, aside from the Veteran's allegations, that his diabetes mellitus is attributed to service. Thus, new and material evidence has not been received to reopen the claim of service connection for diabetes mellitus. Hence, this claim must be denied. See 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2010). Psychiatric Disorder Evidence of record at the time of the May 2007 decision included: service medical records that were silent for any treatment or indication of a psychiatric disorder and post-service VA treatment reports dated from 2003 to 2007 which show that the Veteran was diagnosed with bipolar disorder with depression and borderline personality disorder. The basis of the prior final denial of entitlement to service connection for a psychiatric disorder was that there was no showing that the Veteran had a diagnosis of a psychiatric disorder which was etiologically related to active service. A personality disorder is not a disease or injury within the meaning of applicable legislation, and service-connected compensation benefits may not be paid for this defect. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2010). The additional evidence added to the record since May 2007 concerning the Veteran's complaint of a psychiatric disorder, includes additional VA treatment reports dated in 2008 and testimony at the October 2010 Board hearing. The VA treatment reports document ongoing treatment and evaluation for bipolar disorder. The Veteran's testimony that he has a psychiatric disorder which is etiologically related to service, while no doubt sincere, is not new in that such statements merely repeat what he had stated to VA prior to the May 2007 rating action. There is no other competent evidence linking a current psychiatric disorder with service. Absent evidence of a nexus between any currently shown psychiatric disorder and service, the newly received evidence does not raise a reasonable possibility of substantiating the claim. As new and material evidence has not been received, the claim for service connection for a psychiatric disorder is not reopened. See 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2010). Polysubstance Abuse At the time of the May 2007 rating decision, the RO had noted that the evidence included diagnoses of polysubstance abuse/dependence. The Veteran was informed that the law prohibits a grant of direct service connection for drug or alcohol abuse on the basis of incurrence or aggravation in the line of duty during service. Pub. L. No. 101-508, § 8052, 104 Stat. 1388, 1388- 351 (1990); VAOPGCPREC 2-98 (Feb. 10, 1998), 63 Fed. Reg. 31263 (1998). The Veteran has not submitted any treatment reports that would change the outcome of this determination. As new and material evidence has not been received, the claim for service connection for polysubstance abuse is not reopened. Right Knee, Left Knee, Low Back, Osteoarthritis, Arthralgia and Bursitis Evidence of record at the time of the May 2007 decision included: service medical records that showed treatment for bursitis, osteoarthritis, arthralgia, bilateral knee pain and lumbar spine pain; post-service private treatment reports dated in 1992 which showed treatment for a low back injury; private treatment reports dated in 2000 which showed right shoulder treatment due to trauma; private treatment records dated in 2000 which showed surgery for the right knee and 2004 treatment reports which indicated an injury to the right knee; and post-service VA treatment reports dated from 2003 to 2007 which show that the Veteran was diagnosed with osteoarthritis, arthralgia and bursitis. The bases of the prior final denials of entitlement to service connection for a right knee disorder, a left knee disorder, a low back disorder, generalized osteoarthritis, arthralgia and bursitis were that there was no showing that the Veteran had a diagnosis of any of these disorders which was etiologically related to active service. The additional evidence added to the record since May 2007 concerning the Veteran's complaint of a psychiatric disorder, includes additional VA treatment reports dated in 2008, a September 2009 VA examination repot and testimony at the October 2010 Board hearing. The VA treatment reports document ongoing treatment and evaluation for right and left knee pain, a low back disorder, osteoarthritis, arthralgia and bursitis. The Veteran's testimony that he has right and left knee disorders, a low back disorder, osteoarthritis, arthralgia and bursitis which are etiologically related to service, while no doubt sincere, is not new in that such statements merely repeat what he had stated to VA prior to the May 2007 rating action. Further, the evidence includes a VA medical opinion asserting that it is less likely than not that the Veteran's conditions pertaining to his knees and lumbar spine are related to his treatment during active service. The VA examiner's opinion, therefore, does not relate any of the Veteran's claims to service. There is no other competent evidence linking a right or left knee disorder, a low back disorder, generalized osteoarthritis, arthralgia or bursitis with service. Absent evidence of a nexus between any currently shown a right or left knee disorder, a low back disorder, generalized osteoarthritis, arthralgia or bursitis and service, the newly received evidence does not raise a reasonable possibility of substantiating the claim. As new and material evidence has not been received, the claims for service connection for a right and left knee disorder, a low back disorder, generalized osteoarthritis, arthralgia, and bursitis are not reopened. See 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2010). Benefit of the Doubt Based on the evidence and analysis above the Board has concluded that new and material evidence to reopen the claims for service connection on appeal has not been received, and the rating decision of May 2007 remains final. As the veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen these finally disallowed claims, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). TDIU A total rating based on unemployability due to service-connected disabilities may be granted if the service-connected disabilities preclude the Veteran from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). For those Veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), total disability ratings for compensation may nevertheless be assigned when it is found that the service-connected disabilities are sufficient to produce unemployability; such cases should be referred to the Director, Compensation and Pension Service, for extra-schedular consideration. 38 C.F.R. § 4.16(b). As discussed above, the Board has determined that service connection is not warranted for any of the Veteran's claimed disabilities. Moreover, he is not otherwise in receipt of service-connected benefits. As such, TDIU is not for application in this case. The law in this matter is dispositive; therefore, the Veteran's claim must be denied based on a lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER As new and material evidence has not been received, reopening of the claim for service connection for cirrhosis of the liver is denied. As new and material evidence has not been received, reopening of the claim for service connection for hepatitis C is denied. As new and material evidence has not been received, reopening of the claim for service connection for neuritis is denied. As new and material evidence has not been received, reopening of the claim for service connection for missing bones in the feet is denied. As new and material evidence has not been received, reopening of the claim for service connection for a jaw bone disorder is denied. As new and material evidence has not been received, reopening of the claim for service connection for hypertension is denied. As new and material evidence has not been received, reopening of the claim for service connection for diabetes mellitus is denied. As new and material evidence has not been received, reopening of the claim for service connection for a psychiatric disorder is denied. As new and material evidence has not been received, reopening of the claim for service connection for polysubstance abuse is denied. As new and material evidence has not been received, reopening of the claim for service connection for a left knee disorder is denied. As new and material evidence has not been received, reopening of the claim for service connection for a right knee disorder is denied. As new and material evidence has not been received, reopening of the claim for service connection for a low back disorder is denied. As new and material evidence has not been received, reopening of the claim for service connection for generalized osteoarthritis is denied. As new and material evidence has not been received, reopening of the claim for service connection for generalized arthralgia is denied. As new and material evidence has not been received, reopening of the claim for service connection for bursitis is denied. Entitlement to a TDIU is denied. ____________________________________________ JOHN H. NILON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs