Citation Nr: 1342235 Decision Date: 12/20/13 Archive Date: 12/31/13 DOCKET NO. 11-31 874 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Whether new and material evidence has been received to reopen a claim of service connection for a bilateral knee disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The Veteran served on active duty from June 1974 to May 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was received in June 2010, a statement of the case was issued in October 2011, and a substantive appeal was received in December 2011. In July 2012, a Travel Board hearing was held before the undersigned Veterans Law Judge; a transcript of the hearing is included in the claims file. FINDINGS OF FACT 1. An unappealed December 2008 Board decision denied the Veteran's claims of service connection for right and left knee disabilities, based on findings that the evidence did not show such disabilities manifested in service or to a compensable degree in the first year following separation, and there was no competent evidence showing a causal link between his conditions and any remote incident of service. 2. Evidence received since the December 2008 Board decision does not tend to show that any bilateral knee disability is related to the Veteran's service; does not relate to an unestablished fact necessary to substantiate the claim of service connection for bilateral knee disability; and does not raise a reasonable possibility of substantiating such claim. CONCLUSION OF LAW New and material evidence has not been received, and the claim of service connection for a bilateral knee disability may not be reopened. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Duty to Notify In Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (Court) held that in a claim to reopen a previously finally denied claim, VCAA notice must notify the claimant of the meaning of new and material evidence and of what evidence and information (1) is necessary to reopen the claim; (2) is necessary to substantiate each element of the underlying service connection claim; and (3) is specifically required to substantiate the element or elements needed for service connection that were found insufficient in the prior final denial on the merits. The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). By March 2010 letter the Veteran was informed of the information and evidence necessary to warrant entitlement to the benefits sought on appeal and was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). This letter also informed the Veteran of disability rating and effective date criteria. In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist The VCAA also provides that VA 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(c). In this case, the Veteran's service treatment records (STRs) and pertinent post service treatment records are associated with the claims file, and the Veteran has not identified any pertinent evidence that remains outstanding. The duty to assist by arranging for a VA examination or obtaining a medical opinion does not attach until a previously denied claim is reopened. 38 C.F.R. § 3.159 (c)(4)(iii). The appellant has not identified any evidence that remains outstanding. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Legal Criteria, Factual Background and Analysis Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000)(VA must review the entire record, but does not have to discuss each piece of evidence.) Hence, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claim. Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; however, if the evidence is in support of the claim, or is in equal balance, the claim is allowed. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Generally, when the Board denies a claim, and the veteran does not appeal the denial, such determination is final, and the claim may not thereafter be reopened and allowed based on the same record. 38 U.S.C.A. § 7104. However, under 38 U.S.C.A. § 5108, 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 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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). The Board notes that pursuant to Robinson v. Nicholson, 21 Vet. App. 545 (2008), it is required to consider all issues raised either by the claimant or the evidence of record. However, under Velez v. Shinseki, 23 Vet. App. 199 (2009), in determining whether new and material evidence is required, the focus of the Board's analysis must be on whether the evidence presented truly amounts to a new claim based upon distinctly diagnosed diseases or injuries. Although the Veteran has put forth a new theory of entitlement for a left knee disability, on a secondary basis (addressed in the discussion below), there is no distinctly diagnosed disease or injury upon which the claim may be addressed as new. Therefore, it must be addressed as a previously denied service connection claim for which new and material evidence is required to reopen. Historically, an unappealed December 2008 Board decision denied the Veteran service connection for right and left knee disabilities, based essentially on findings that the evidence did not show such disabilities manifested in service or to a compensable degree within one year following separation from service, and that there was no competent evidence showing a causal link between the claimed disabilities and any remote incident of service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of incurrence or aggravation of a disease or injury in service; and (3) evidence of a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Disorders diagnosed after discharge may still be service connected if all the evidence establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). The evidence of record at the time of the December 2008 Board decision included the Veteran's STRs, postservice treatment records, and a July 2008 VA examination report. The Veteran's STRs show that he was treated for a right knee contusion in December 1975, which was treated with an ice wrap. Otherwise, the STRs are silent for any other complaints, findings, treatment, or diagnoses regarding either knee. The service separation examination is silent as to any knee abnormality. The Veteran alleged that he underwent right knee surgery in 1978 for a right lateral meniscal tear, two years after separation from service; however, any surgical records are not in the claims file despite the RO's efforts to obtain them. An October 2000 private treatment record referred to a past right knee arthroscopy in 1978 for partial lateral meniscectomy. Private treatment records from March 1998 include complaints of right knee pain for three months; the diagnosis was "probable tear lateral meniscus of the right knee". The Veteran underwent arthroscopy and partial lateral meniscectomy for his left knee in April 1998. VA treatment records from 1979 reflect that the Veteran was treated for a left lateral leg abrasion; X-rays at that time were negative. The Veteran was treated for left knee pain in February 1983 following an injury in which he twisted his knee on some stairs while moving furniture; X-rays at that time showed a normal medial meniscus and only abnormal findings consistent with Osgood Schlatter's disease (a congenital defect). October 2000 treatment records reflect that the Veteran again injured his left knee, slipping while getting out of a truck; he was also treated for right knee pain at that time. Private records from 2000 and 2001 indicated signs of early degenerative arthritis of the right knee and possible degenerative lateral meniscal tear of the left knee. Subsequent VA treatment records reflect ongoing treatment for bilateral knee pain. On July 2008 VA examination, the diagnosis was bilateral knee osteoarthritis. Regarding the Veteran's right knee, the examiner opined that the issue at hand was whether or not the Veteran had the meniscal tear in service and it was just not properly diagnosed and treated until 1978. The examiner stated that there was no way to objectively prove this theory, and he would have to resort to mere speculation to say whether or not this condition was related to service or not. The examiner noted that if the Veteran merely had a contusion in service, this would likely not be a source of any current right knee arthritis. Regarding the left knee, the examiner noted that the Veteran did not have surgery until 1998, at which time he had a partial lateral meniscectomy; the examiner opined that it is less likely than not that the Veteran's service was the cause of the 1998 meniscal tear or any current left knee arthritic condition. Evidence received since the December 2008 Board decision consists essentially of VA and private treatment records showing that the Veteran continues receiving treatment for bilateral knee complaints, and lay statements from the Veteran. VA treatment records through April 2010, and private treatment records from Dr. Gupta from April to June 2009, reflect that the Veteran receives ongoing treatment for bilateral knee osteoarthritis. These treatment records do not include any opinions regarding the etiology of the claimed disabilities. In a June 2010 statement, the Veteran contends that he went to sick call twice with knee complaints in December 1975. The Board notes that the STRs do reflect that the Veteran was treated once for a right knee contusion in December 1975; as noted above, the knee was treated with an ice wrap. The STRs are otherwise silent for any other complaints, treatment, findings, or diagnoses of any knee abnormality. The Board finds that this statement is not new and material as it is merely cumulative of the evidence already of record. At the July 2012 hearing, the Veteran testified that his duties in service consisted of climbing up and down different radar equipment. He testified that he injured his right knee while climbing when his foot slipped and he twisted the knee; he testified that he went to sick call at that time due to right knee pain. He testified that he sought VA treatment for the left knee shortly after service and that the knee pain had gradually worsened over the years since service. He testified that he developed left knee problems due to putting more weight on it to offset the right knee pain. Because service connection for right and left knee disabilities was denied in December 2008 based on findings that such disabilities were not demonstrated in service or within one year following service, and were unrelated to service, for evidence to be new and material in this matter, it would have to tend to show that the Veteran's bilateral knee disability is indeed related to service or (as alleged) was caused or aggravated by a service-connected disability. While the treatment records added to the record since the December 2008 Board decision are new evidence in the sense that they were not considered in that decision, they are not material evidence. They do not show or suggest that any current chronic bilateral knee disability was incurred in service or was caused or aggravated by a service-connected disability; records showing that the Veteran has diagnoses of, and receives treatment for, bilateral knee disabilities do not tend to show that any such disability may be related to service or to a service-connected disability. Therefore, they do not relate to the unestablished fact necessary to substantiate the claim; do not raise a reasonable possibility of substantiating the claim; and are not material. The Veteran's statements and testimony merely reiterate the same contentions he was advancing in connection with the prior claim. In this regard the prior Board decisions acknowledged his assertions regards the knee disorders being due to the wear and tear on his knees in connection with his duties. The Board also noted the Veteran's complaints of knee pain since service. His current assertions in this regard are therefore merely cumulative. The Board has considered the Veteran's statements and testimony, but is unable to conclude that the information offered meets the low threshold for new and material evidence discussed in Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Veteran's statements and testimony simply do not raise a reasonable possibility of substantiating the claim when viewed against his statements and testimony offered in the earlier Board appeal. In summary, no additional competent evidence received since the December 2008 Board decision is new evidence that tends to prove that a chronic bilateral knee disability is related to the Veteran's service (or to a service-connected disability). Therefore, the additional evidence received since December 2008 does not address the unestablished fact necessary to substantiate the claim of service connection for a bilateral knee disability; does not raise a reasonable possibility of substantiating such claim; and is not new and material. Accordingly, the claim may not be reopened. ORDER New and material evidence has not been received to reopen a claim of service connection for a bilateral knee disability. The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs