Citation Nr: 1321192 Decision Date: 07/02/13 Archive Date: 07/12/13 DOCKET NO. 09-49 395 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Whether new and material evidence has been submitted sufficient to reopen the previously denied claim of entitlement to service connection for chronic left knee strain, to include as secondary to service-connected right knee internal derangement, and if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active military service from September 1991 to January 1994. This appeal comes to the Board of Veterans' Appeals (Board) from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran was scheduled for a Travel Board hearing in November 2011 but did not appear for the hearing. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. In July 2002 the RO denied service connection for chronic left knee strain, to include as secondary to service-connected right knee internal derangement, because the evidence did not show the condition was related to the Veteran's service 2. A statement of the case was sent the Veteran in June 2003. 3. A substantive appeal from the Veteran in the form of a VA-9 was received by the RO in September 2003, more than a year after the letter notifying him of the rating decision and more than 60 days after he was sent a statement of the case. 4. No new evidence pertinent to the claim was received by VA within one year from the date that the RO mailed notice of the determination to the Veteran. 5. Evidence presented since the July 2002 rating decision does not related to a previously unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The July 2002 rating decision is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 2. New and material evidence has not been presented to reopen the Veteran's previously denied claim for chronic left knee strain. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. 3.156. The Board is neither required nor permitted to analyze the merits of a previously denied claim if new and material evidence has not been submitted. Butler v. Brown, 9 Vet. App. 167, 171 (1996). New evidence means existing evidence not previously submitted to VA. 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) (2012). The Court has 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, 24 Vet. App 110 (2010). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for 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 claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). If new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the AOJ by the Board without consideration in that decision in accordance with the provisions of 38 C.F.R. § 20.1304(b)(1)), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). If VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the record when VA first decided the claim, VA will reconsider the claim as an original claim for benefits. 38 C.F.R. § 3.156(c). In July 2002 the RO denied the Veteran's claim for service connection for chronic strain of the left knee, to include as secondary to his service-connected right knee internal derangement, on the basis that the evidence did not show his left knee condition was related to his right knee condition or to service. The Veteran filed a timely notice of disagreement in March 2003. The RO issued a statement of the case on June 12, 2003. The Board notes that the record reflects that the Veteran called the VA on August 14, 2003 requesting two additional weeks to submit his VA-9 (August 27) as there was a delay in his receiving the form due to having a temporary address. However, even if the Board gave the Veteran the two week he requested, the Veteran did not file his substantive appeal, form VA-9, until September 30, 2003. As the Veteran had one year from the date of the rating decision or 60 days from the day of the statement of the case to file his substantive appeal, his substantive appeal was not timely filed. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302. No new service department records have been associated with the file since the July 2002 rating decision. Nor was any additional evidence received prior to the expiration of the appeal period. Therefore, the July 2002 rating decision is final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. New and material evidence must have been submitted to reopen the claim. After reviewing the evidence associated with the record since the prior final denial, the Board finds that it does not qualify as new and material evidence sufficient to reopen the previously denied claim. In January 2009 the Veteran filed a claim stating that his right knee was becoming more difficult to walk on, causing him to shift his balance to his left knee, which has caused pain in his left knee. That contention is identical to the one the Veteran made in connection with his 2002 claim, thus is duplicative. Other than the Veteran's statement, the only other evidence added to the record since the July 2002 denial is a March 2009 VA examination. However, the examination only addressed the Veteran's claims for service connection for his right hip, lower back, and right ankle and an increased rating for his right knee. Therefore, none of the new evidence associated with the record since July 2002 relates to a previously unestablished fact necessary to substantiate the Veteran's claim. Therefore, the Board finds that new and material evidence has not been presented sufficient to reopen the previously denied claim. In this regard, it is important for the Veteran to understand that even if the Board did reopen the claim, there is still no evidence other than the Veteran's statement that one service connected disability has caused another. In fact, the examination of June 2002 only provided evidence against such a finding. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In regard to claims to reopen, the RO must provide notice as to what evidence is necessary to substantiate the element(s) of service connection that was found insufficient in its previous denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). Notice was provided to the Veteran in a February 2009 letter. Accordingly, the duty to notify has been fulfilled. VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. This duty has also been met, as the Veteran's service treatment records and VA treatment records have been associated with the claims folder and he was afforded an appropriate VA examination in June 2002. The Board acknowledges that the Veteran was not afforded a VA examination in conjunction with his claim to reopen. However, VA is not required to provide an examination in the absence of new and material evidence. See 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran submitted no new evidence and the record does not suggest the existence of additional, pertinent evidence that has not been obtained. For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or assistance is necessary, and deciding the appeal at this time is not prejudicial to the Veteran. ORDER New and material evidence has not been received to reopen the claim for service connection for chronic left knee strain. The request to reopen this claim is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs