Citation Nr: 1320781 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 07-20 924A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a bilateral knee disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD McBrine, M., Counsel INTRODUCTION The Veteran served on active duty from October 1977 to November 1978. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 decision rendered by the Cleveland, Ohio Regional Office (RO) of the Department of Veterans Affairs (VA). The Board points out that this issue, along with the issue of service connection for a left ankle disability, were remanded for further development by a March 2011 Board decision. As the Veteran was granted service connection for a left ankle disability by a May 2012 RO decision, this issue is no longer before the Board, and the remaining issue in appellate status is as noted above. FINDINGS OF FACT 1. In an unappealed January 2004 rating decision, the RO denied the Veteran's claim of entitlement to service connection for bilateral knee disabilities. 2. The evidence associated with the claims folder subsequent to the RO's January 2004 rating decision, either by itself or considered with the previous evidence of record, does not relate to an unestablished fact necessary to substantiate the Veteran's claim of entitlement to service connection for bilateral knee disabilities. CONCLUSIONS OF LAW 1. The January 2004 rating decision that denied the Veteran's service connection claim for bilateral knee disorders is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1103 (2012). 2. Since the January 2004 rating decision, new and material evidence has not been received with respect to the Veteran's claim of entitlement to service connection for bilateral knee disorders. Therefore, the claim is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (finding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Stegall concerns Under Stegall v. West, 11 Vet. App. 268, 271 (1998), where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. As noted in the Introduction above, the Board remanded the Veteran's claim in March 2011 so that he might be provided adequate VCAA notice in compliance with the Veterans Claims Assistance Act of 2000 (VCAA), to include notice of the evidentiary requirements for reopening his previously denied bilateral knee claims as required by Kent v. Nicholson, 20 Vet. App. 1 (2006). As noted in further detail below, the Veteran was sent numerous further emails addressing this issue, specifically in April 2011, June 2011, November 2011, and May 2012. Further, the Veteran's claim was readjudicate in a May 2012 Supplemental Statement of the Case (SSOC). As such, there is compliance with the Board's prior remand instructions. See Stegall, 11 Vet. App. at 271. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. In the case at hand, the record reflects that the RO provided the Veteran with the notice required under the VCAA by letters dated in March 2005, September 2006, May 2008, April 2011, June 2011, November 2011, and May 2012, as well as the March 2011 remand. As discussed above, these letters also adequately advised the Veteran of the bases for the previous denial of this claims, to determine what evidence would be new and material to reopen the claim as required by Kent v. Nicholson, 20 Vet. App. 1 (2006). To the extent that the Veteran may not have been provided with complete notice until after the initial adjudication of his claim, the Board finds that there is no prejudice to him in proceeding with the issuance of a final decision. Following the provision of the required notice and the completion of all indicated development of the record, the AMC readjudicated the Veteran's claims in the above-referenced April 2012 SSOC. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) [a timing error may be cured by a new VCAA notification followed by a readjudication of the claim]. There is no indication or reason to believe that the ultimate decision of the originating agency on the merits of the claims would have been different had complete VCAA notice been provided at an earlier time. Accordingly, with respect to VCAA notice, there is no prejudice to the Veteran in the Board's proceeding with the issuance of a decision as to this new and material evidence claim. Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) (finding that "no error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been continuously represented by an experienced Veterans Service Organization (VSO) and has submitted argument in support of his claims. These arguments have referenced the applicable laws and regulations. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claims and is not prejudiced by a decision in this case. As such, a further remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (noting that remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The VCAA duty to assist requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim, and in claims for disability compensation requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. 38 C.F.R. § 3.159 (2012). In this case, the available record includes service treatment records, service personnel records, post-service VA medical treatment reports, private medical treatment reports, and the Veteran's own statements. The Board finds that the notice requirements pertinent to the issues on appeal have been met and all identified and authorized records relevant to the matters have been requested or obtained. There is no evidence that any additional relevant treatment records exist, and the Veteran has not so alleged. The Board adds that VA examinations need not be provided for the Veteran's application to reopen his service-connection claim for a bilateral knee disability. In the absence of new and material evidence of record, the duty to assist by affording the Veteran a VA examination is not triggered. See 38 U.S.C.A. § 5103A(d), (g); Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1353 (Fed. Cir. 2003) [holding that VA need not provide a medical examination or medical opinion until a claim is reopened]; Anderson v. Brown, 9 Vet. App. 542, 546 (1996) [holding that unless the Veteran has submitted new and material evidence warranting the reopening of his claim, the duty to assist does not attach]. As discussed below, the Board finds that new and material evidence has not been received, and reopening the Veteran's claims is not warranted. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). In general, VA rating decisions or Board decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.1100, 20.1103 (2012). Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence is defined as 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 the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a) (2012). An adjudicator must follow a two-step process in evaluating a previously denied claim. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA's statutory duty to assist the appellant in the development of her claim has been fulfilled. See 38 U.S.C.A. § 5108 (West 2002); Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The Court has recently stated that the language of VA regulations does not require the submission of new and material evidence as to each previously unproven element of a claim for that claim to be reopened. See Shade v. Shinseki, 24 Vet. App 110 (2012). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Analysis The question of whether new and material evidence has been received is one that must be addressed by the Board, notwithstanding any favorable decision [or lack of decision] as to this matter which may have been rendered by the RO. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The Veteran's claim for bilateral knee disabilities was last finally denied by a January 2004 RO decision. The Veteran's claim was previously denied, not because there was no evidence of current disability, but because the evidence of record showed that the Veteran had bilateral knee pain prior to service, and periodic complaints of bilateral knee pain during service, but no diagnosed knee disability or knee pain on discharge examination, nor had any current knee disability been related to the Veteran's pre-service bilateral knee pain being aggravated during military service, or the knee pain noted in military service. After reviewing the record, and for the reasons set forth below, the Board finds that new and material evidence sufficient to reopen the claim of entitlement to service connection for a bilateral knee disability has not been received. The newly submitted evidence of record simply continues to show that the Veteran has complaints of bilateral knee pain, and diagnoses related to his knees, but no newly submitted evidence links these knee disabilities to service, to include as aggravated by service. Private and VA treatment records continue to show complaints of knee pain, particularly in the left knee, and as well a diagnosis of left knee strain. A November 2008 X-ray of the Veteran's left knee shows early degenerative changes in the patellofemoral compartment. However, while this evidence continues to show a diagnoses related to the Veteran's knees, none of the evidence of record relates any current knee disability to service, to include as being aggravated by service. Thus, the newly submitted evidence is not material. This evidence is essentially cumulative of information previously of record at the time of the most recent final denial. The Board is aware that 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). In light of the fact that the Veteran has not submitted any new lay statements of argument in support of his bilateral knee disabilities, nor has he submitted medical evidence that demonstrates a potential relationship between such disabilities and his military service, this low threshold is not met. The Board accordingly finds that the evidence added to the file since January 2004, with respect to the Veteran's bilateral knee disability, is either cumulative of evidence already considered by the RO in its last final denial, or is simply not material. The evidence does not relate to unestablished facts necessary to substantiate the Veteran's claim. Accordingly, in the absence of such evidence, the claim may not be reopened, and the benefits sought on appeal remain denied. ORDER The application to reopen a claim of entitlement to service connection for a bilateral knee disability is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs