Citation Nr: 1313330 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 07-31 147 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a left knee disorder. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a right ankle disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The Veteran had active service from October 1976 to November 1976. This matter comes before the Board of Veterans' Appeals (Board) from an April 2007 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which denied service connection for a left knee disorder and which found that new and material evidence had not been submitted to reopen a claim of entitlement to service connection for a right ankle disorder. The Board notes that before it may reopen a previously denied claim, it must conduct an independent review of the evidence to determine whether new and material evidence has been submitted sufficient to reopen a prior final decision. Barnett v. Brown, 8 Vet. App. 1 (1995); 83 F.3d 1380 (Fed. Cir. 1996). Furthermore, if the Board finds that new and material evidence has not been submitted, it is unlawful for the Board to reopen the claim. McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). In April 2011, the Board remanded this matter in order to schedule the Veteran for a DRO (decision review officer) hearing at the RO. Subsequently, the Veteran submitted a letter indicating he wished to withdraw his request for a DRO hearing. In light of the Veteran's request, the Board finds that there has been substantial compliance with the remand directives set out in April 2011. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The preponderance of the more competent, probative, and persuasive evidence of record is against a finding that during the appeal period the Veteran has had a left knee disorder that is related to his active service. 2. By January 2006 rating decision, the RO found that new and material evidence had not been submitted to reopen the claim of entitlement to service connection for a right ankle disorder, essentially based on findings that there was no competent evidence showing that the Veteran's pre-existing right ankle condition was aggravated beyond the normal progression during his active service. The Veteran was notified of that rating decision, but did not appeal, and the January 2006 rating decision became final. It is the last final disallowance of this claim. 3. The additional evidence added to the record, since the RO's January 2006 rating decision, includes duplicative evidence and evidence that was not previously submitted to agency decisionmakers, but which does not relate to an unestablished fact necessary to substantiate the claim for service connection for a right ankle disorder, and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. A left knee disorder was not incurred in or aggravated by the Veteran's active service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 2. The January 2006 RO rating decision, which found that new and material evidence had not been submitted to reopen the claim of entitlement to service connection for a right ankle disorder, is the last final disallowance of the claim. 38 U.S.C.A. §§ 5108, 7104 (West 2002). 3. With regard to the right ankle claim, new and material evidence has not been received since the final January 2006 RO rating decision, and the claim for entitlement to service connection for a right ankle condition may not be reopened. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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), as amended, 73 Fed. Reg. 23,353 (April 30, 2008). This notice must be provided prior to an initial 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). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that any error in VCAA notice should be presumed prejudicial, and that VA bears the burden of proving that such an error did not cause harm. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). However, the U.S. Supreme Court reversed that decision, finding it unlawful in light of 38 U.S.C.A. § 7261(b)(2). The Supreme Court held that - except for cases in which VA failed to meet the first requirement of 38 C.F.R. § 3.159(b) by not informing the claimant of the information and evidence necessary to substantiate the claim - the burden of proving harmful error rests with the party raising the issue, the Federal Circuit's presumption of prejudicial error imposed an unreasonable evidentiary burden upon VA and encouraged abuse of the judicial process, and determinations on the issue of harmless error should be made on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in February 2007 that fully addressed the notice elements and was sent prior to the initial RO decision in this matter. This letter informed the Veteran of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. The Board also notes in the February 2007 letter, the Veteran was advised of how disability ratings and effective dates are assigned. See Dingess v. Nicholson, supra. Moreover, he has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. See Sanders v. Nicholson, supra. Thus, the Board concludes that all required notice has been given to the Veteran. The Board also notes that in the case of Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that VA must notify a claimant of the evidence and information that is necessary to reopen the claim and VA must notify the claimant of the evidence and information that is necessary to establish his entitlement to the underlying claim for the benefit sought by the claimant. The VCAA requires, in the context of a claim to reopen, the Secretary to look at the bases for the denial in the prior decision and to respond with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish the claim that were found insufficient in the previous denial. In this case, in the letter dated in February 2007, the Veteran was informed of the evidence necessary to establish his eligibility for VA benefits and of the necessity of presenting new and material evidence along with that definition. The Board concludes that this letter received by the Veteran adequately complied with the VCAA and subsequent interpretive authority, and that he has not been prejudiced by the notice and assistance provided. The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claims. The RO has obtained all identified and available service and post-service treatment records for the Veteran. The Board notes that the Veteran was not scheduled for a VA examination to determine whether he has a left knee condition that may be related to service. Pursuant to 38 C.F.R. § 3.159(c)(4), VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim but (1) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (2) establishes that the veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service. The third part could be satisfied by competent evidence showing post- service treatment for a condition or other possible association with military service. As delineated in 38 C.F.R. § 3.159(c)(4), a VA examination to address the question of etiology as related to service is required when the Veteran presents a claim for service connection in which there was a pertinent event, injury, or disease in service; there is evidence of current disability; the medical evidence of record does not contain sufficient competent medical evidence to decide the claim; and the Veteran indicates that the claimed disability or symptoms may be associated with service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Thus, with regard to the claim for service connection for a left knee disability, as explained below, there is no competent medical evidence of a current disability. Although the Veteran has contended he has a left knee condition that had an onset in service, his lay statements alone are not competent evidence to support a finding on a medical question (such as diagnosis or etiology) requiring special experience or special knowledge. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011 With regard to the new and material evidence claim, the Board notes that VA's responsibility extends to requesting evidence from any new source identified by the Veteran, and if that evidence is not new and material, the claim is not reopened, and VA has no further duties with respect to that particular claim. Thus, VA does not have a duty to provide the Veteran a VA examination if the claim is not reopened. The VCAA explicitly stated that, regardless of any assistance provided to the claimant, new and material evidence must still be submitted to reopen a claim. 38 U.S.C. § 5103A(f); 38 C.F.R. § 3.159(c)(4)(C)(iii). Since the RO has informed the Veteran of the information and evidence needed to substantiate his claim, and since no new and material evidence has been submitted, a VA examination is not required. With regard to the claim for service connection for a left knee condition, as noted above, a VA examination was not obtained and was found to be not necessary in order for the Board to adjudicate this claim. It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims folder, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. The Board concludes that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, supra. The Board concludes that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claims under the VCAA. 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 additional benefit flowing to the Veteran. The United States Court of Appeals for Veterans Claims (Court) has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Service Connection for a Left Knee Condition Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). In order to prevail on the issue of service connection, there must be medical evidence of a (1) 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 disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). The threshold requirement for service connection to be granted is competent medical evidence of the current existence of the claimed disorder. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Board recognizes that the Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). The Federal Circuit Court recently held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). While the Board notes that arthritis is listed under 38 C.F.R. § 3.309(a), however, there is no indication or report that the Veteran may have left knee arthritis; thus the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) is not applicable. Further, service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, supra, as to the specific issue in this case - diagnosis of a left knee condition - service falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, supra. Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The Veteran essentially contends that he injured his left knee in service which has resulted in his current left knee disability. Service treatment records (STRs) show that on October 26, 1976, the Veteran was seen for left knee pain and the impression was Osgood-Schlatter's disease. Two days later he was seen again, and it was noted to be "same as above no relief from treatment." He was referred to PT (physical therapy) for an EPTS evaluation, and the referral to PT noted "prior cond L knee." The PT consultation report, dated October 28, 1976, noted that the Veteran had left knee pain for three weeks after he fell, striking his knee on the ground. There was a notation of "no EPTS". The impression was pain tibial tuberosity left knee, secondary to trauma. On an x-ray report it was noted that the Veteran had a history of Osgood-Schlatter's and that the x-ray of the left knee revealed fibrous cortical defect in posterior medial cortex of distal femur. In November 1976, he filed a request for separation from active duty, claiming he had a physical reason (painful feet) that existed prior to his enlistment in October 1976. A report of Medical Board Proceedings dated in November 1976, showed that the Veteran was found to be "medically fit" but was noted to have the following medical conditions: pes planovalgus, symptomatic, foot, bilateral, which was noted to be the "underlying cause;" and painful scar, right anterior ankle, symptomatic. The Veteran did not undergo a separation examination, but signed a document indicating he had undergone a medical examination in the past 180 days, and had been medically cleared for enlistment, and that the only medical change in his condition since that time was "pes plano-valgus, symptomatic", which he understood to be an EPTS condition. Post-service records show that in April 1996 the Veteran was seen at St. Mary's Health Services emergency care for a complaint of left knee pain. He reported he had been walking down some steps when his left knee gave out, which caused him to fall forward. He reported pain in the medial aspect of the left knee without swelling. He reported having this problem for many years, but it had become worse over the last few days. The impression was left knee strain. Thereafter, however, there appears to be no further report of left knee complaints, treatment, or findings. As noted above, the threshold requirement for service connection to be granted is competent medical evidence of the current existence of the claimed disorder. Brammer v. Derwinski, supra. In this case, however, the record does not show the Veteran has, or has had at any point during the claims process, a diagnosis of any left knee disability. McClain v. Nicholson, supra. While the Veteran was treated for left knee pain in service, and left knee strain in 1996, it appears that these conditions had resolved, as thereafter, the record does not show any complaint, finding, or treatment related to his left knee. The Board notes that the Veteran reported, in a second substantive appeal (VA Form 9) received in September 2009, that it was obvious, after receiving medical statements from VA medical doctors, that he had current problems with his left knee. However, a review of the VA and private treatment records that are of record, the Board finds no report of, treatment for, or finding of any left knee condition. Moreover, long lists of the Veteran's medical conditions in September 2008 and June 2009 do not include any mention of a left knee disorder. In addition, at the time of VA outpatient consultation in June 2009, evaluation of the lower extremities revealed no edema, intact sensation, and good muscle strength and tone. Further, as noted above, the Veteran did not undergo a VA examination in conjunction with this issue, and it has been found that such an examination is not necessary or warranted at this stage based on all of the foregoing considerations. Full consideration has also been given to the Veteran's own assertions that he has a left knee disability, which he claims is related to a knee injury in service. As noted above, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. See Jandreau v. Nicholson, supra; Buchanan v. Nicholson, supra. While the Veteran would be competent to report any left knee symptoms or complaints he experienced, as a layperson, the Veteran simply does not have the competency to render a medical opinion on the diagnosis or etiology of a left knee condition. Kahana v. Shinseki, supra. Based upon the foregoing and the lack of competent medical evidence of any current left knee disability, the Board concludes that the Veteran is not entitled to service connection for this disorder. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection for a left knee condition must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). III. New and Material Evidence Claim The Veteran essentially contends that his claim for service connection for a right ankle condition should be reopened. To reopen a claim following a final decision, the Veteran must submit new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) . The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. By way of history, the Board notes that in January 1992, the Veteran initially filed a claim for service connection for a right ankle condition, which he claimed was aggravated by military injury received when he fell down some stairs and re-injured a pre-existing condition. Therein, he indicated he received treatment for a right ankle injury on November 2, 1976, at Moncrief Army Hospital at Fort Jackson. By August 1992 rating decision, the RO denied service connection for a right ankle condition, finding that "asymptomatic pes planovalgus foot condition" was known to have preceded service but there was no indication of aggravation during service. The RO concluded that service connection for a right ankle condition was denied as not shown to have been incurred in or aggravated by active military service. The Veteran did not appeal this rating decision and it became final. Thereafter, the Veteran attempted to reopen the claim for service connection for a right ankle condition on numerous occasions, however, these claims were denied, and the Veteran did not pursue any appeals. In that regard, the record reflects that in final rating decisions dated in August 1994, October 1994, October 1996, and December 1995, the RO found that new and material evidence had not been submitted to reopen a claim of entitlement to service connection for a right ankle condition, essentially based on findings that there was no new and material evidence submitted to show that a pre-existing right ankle condition was permanently aggravated during active service. At issue here is the January 2006 RO rating decision, which also found that new and material evidence had not been submitted to reopen the claim of entitlement to service connection for a right ankle condition, essentially based on findings that there was no showing that a pre-existing right ankle condition was permanently aggravated during active service. The Veteran was notified of this rating decision, but did not file an appeal. Thus, the January 2006 RO rating decision became final. It is the last final disallowance of the claim for service connection for a right ankle condition. The evidence of record at the time of the January 2006 RO rating decision basically included the Veteran's STRs, service personnel records, private treatment records, and VA treatment records. STRs included an enlistment examination dated October 4, 1976, at which time physical examination revealed the Veteran had a scar of the right foot and after which there appears to be a notation of N.S.N.C.D. (not symptomatic not considered disabling). On a report of medical history prepared in conjunction with the enlistment examination, the Veteran responded "yes" to having or having had foot trouble, and it was noted that he had flat feet. On November 2, 1976, he was seen in the podiatry clinic for bilateral arch pain. The assessment was flexible planovalgus. An x-ray of the feet dated in November 1976, showed no abnormality. Thereafter, an in-service Report of Medical Board Proceedings dated in November 1976, shows that the Veteran was found to be "medically fit" but was noted to have the following medical conditions: pes planovalgus, symptomatic, foot, bilateral, which was noted to be the "underlying cause"; and painful scar, right anterior ankle, symptomatic. The Veteran did not undergo a separation examination, but signed a document indicating he had undergone a medical examination in the past 180 days, and had been medically cleared for enlistment, and that the only medical change in his condition since that time was "pes plano-valgus, symptomatic," which was understood to be an EPTS condition. Treatment records from St. Mary's Health Services dated in February and March 1994 show that the Veteran was seen for right ankle pain. In March 1994, he reported that his problems with his right, non-dominant ankle started in 1969, at which time he was running and ran into a stake protruding from the ground, which lacerated his anterior tendons and sprained his lateral anterior ligaments. He reported that his leg was surgically repaired and he went through a long six month period of physical therapy. He reported he entered service in 1976 and was in the military for approximately 20 days when symptoms, weakness, and instability reappeared in his right lower extremity, ankle, and distal leg. He reported he was sent to a physician, x-rays were taken, and he was discharged from service and told he would probably never be able to do any sporting activities. The diagnosis was right ankle pain and stiffness, tibialis anterior tendonitis, and he was to undergo physical therapy. In a statement received in December 2004, the Veteran noted that his service discharge indicated he had a heavy scar on the right ankle and pes planus. He indicated that the scar at his right ankle was where he did not have tendons or ligaments, and that military service aggravated his right leg. He claimed that while he was in basic training, he jumped in a fox hole and his ankle "burst open". He claimed he had right leg paralysis that hindered his everyday living. In a statement dated in December 2004, the Veteran indicated he injured his right leg/ankle during basic training at Fort Jackson. In another statement he indicated that while in basic training, the strenuous exercise aggravated his right ankle/leg. Subsequent VA and private treatment records, showed that the Veteran periodically received treatment related to his right ankle/leg. In January 2005, he was seen for complaints of right ankle pain when walking, which had been present for several years. It was noted that the Veteran had a history of a bullet injury to his ankle in childhood and then later when he entered the Army he reportedly jumped into a trench and reinjured the ankle. He reported he was hospitalized in the Army for 14 days. He claimed he was having trouble using stairs. In April 2005, he was treated for right ankle strain and an x-ray showed minimal arthritis of the right ankle. Evidence submitted subsequent to the RO's January 2006 rating decision includes additional VA treatment records and in-service clinical records, dated in November 1976, from Fort Jackson. For the purpose of determining whether evidence is new and material, the credibility of the evidence is presumed. Cox v. Brown, 5 Vet. App. 95, 98 (1993); Justus v. Principi, 3 Vet. App. 510, 513 (1992). In considering evidence submitted after the RO's January 2006 rating decision, the Board notes that the clinical records received from Fort Jackson, at first glance, appear to fall under the provisions of 38 C.F.R. § 3.156(c), which provide that where "relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim" were associated with the file, the claim was to be reconsidered de novo. In effect, such service department records would be defined as being new and material. Service department records include reports developed and generated based on official records. Vigil v. Peake, 22 Vet. App. 63 (2008). If reconsideration is warranted, finality of the prior rating decision is vitiated and the claim will be addressed de novo. The Board emphasizes, however, that the mere submission of additional service department records does not require reconsideration. In that regard, the Board notes that the clinical records received in January 2007 appear to be the original copies and are included in what appears to be a file from the medical facility. While these original copies of the records had not been previously associated with the claims folder, the Board notes that there have been duplicate copies of these specific records in the claims folder since the Veteran's claim was initially filed in 1992. Thus, the Board finds that these relevant clinical/service records had been previously considered. Although the originals of these records have been maintained elsewhere in the intervening years, the receipt of these original records in January 2007 is in fact duplicative of the original claims file content. As such, the Board finds that these service records are not new to the file. Thus, reconsideration is not warranted based on the submitted service treatment records. 38 C.F.R. § 3.156(c). The Board also concludes that the January 2006, and prior rating decisions are final, and that finality has not been vitiated by submission of additional service department records. The Board also notes that additional VA treatment records were added to the claims folder since the January 2006 rating decision. These VA records, while new, are not material because such evidence, while continuing to acknowledge the Veteran's current complaints of and treatment for right ankle/leg pain, do not include competent medical evidence suggesting that a pre-existing right ankle condition as aggravated by the Veteran's period of active service, or that any current right ankle condition is related to aggravation in service. The new evidence in this case as it relates to the right ankle not only does not address the bases on which the claim has been previously denied, but such evidence would not reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, supra. With regard to the Veteran's statements, the Board notes that he has essentially contended that his current right ankle condition and complaints are related to service, and that he had a pre-existing right ankle condition that was aggravated during active service. While the Veteran's statements are presumed credible, he is not shown to have expertise in diagnosing a current right ankle disability, or in relating any current right ankle condition to service, or in diagnosing aggravation of a pre-existing condition during service. While the Veteran is certainly competent to report his right ankle symptoms and experiences in service, as a layperson, without the appropriate medical training or expertise, he is not competent to render a probative opinion on a medical matter, to include whether he has a current right knee disability that might be related to service. Kahana v. Shinseki, supra. Accordingly, where, as here, the claim turns on a medical matter, unsupported lay statements, even if new, cannot serve as a predicate to reopen a previously disallowed claim. Moray v. Brown, 5 Vet. App. 211, 214 (1993). Thus, the Board concludes that new and material evidence to reopen the claim for service connection for a right ankle disorder has not been received. ORDER Service connection for a left knee disorder is denied. New and material evidence has not been received to reopen the previously denied claim of service connection for a right ankle disorder, and the appeal is denied ______________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs