Citation Nr: 1539389 Decision Date: 09/15/15 Archive Date: 09/24/15 DOCKET NO. 13-25 615 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right knee disability. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left knee disability. REPRESENTATION Veteran represented by: Washington Department of Veterans Affairs ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran had active service from October 1974 to October 1977. This appeal comes before the Board of Veterans' Appeals (Board) from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The record before the Board consists of electronic records within Virtual VA and the Veterans Benefits Management System (VBMS). FINDINGS OF FACT 1. In an unappealed December 1994 rating decision, the RO denied the Veteran's claim of entitlement to service connection for a bilateral knee disability. 2. The evidence added to the record subsequent to the December 1994 rating decision is cumulative of the evidence previously of record or does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a right knee disability and does not raise a reasonable possibility of substantiating the claim. 3. The evidence added to the record subsequent to the December 1994 rating decision is cumulative of the evidence previously of record or does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a left knee disability and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. New and material evidence has not been received to reopen the claim of entitlement to service connection for a right knee disability. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for a left knee disability. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2015), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2014) requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the originating agency provided the Veteran with all required notice by correspondence sent in August 2010, prior to the initial adjudication of the claims to reopen. Regarding VA's duty to assist, the Veteran's service treatment records, VA outpatient treatment records, and private treatment records are of record. In the August 2010 letter referenced above, the Veteran was requested to submit or to provide the identifying information and any necessary authorization to enable VA to obtain on his behalf all available post-service treatment records pertaining to the disabilities at issue. The Veteran submitted duplicative records, to include an August 1986 private treatment record, as well as VA records dated in September 1992 and August 1993. He has not identified any outstanding, existing evidence that could be obtained to substantiate his claims to reopen. The Board is also unaware of any such evidence. Although the Veteran was not provided a VA examination and no medical opinion was obtained in response to his claims to reopen, VA is not required to provide a VA examination or obtain a medical opinion in response to a claim to reopen if new and material evidence has not been presented. See 38 C.F.R. § 3.159(c)(4). In sum, the Board also is satisfied that VA has complied with its duty to assist the Veteran in the development of the facts pertinent to his claims to reopen. Accordingly, the Board will address the merits of the claims to reopen. II. Legal Criteria 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) (West 2014). 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 that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Moreover, 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, 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). 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). 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). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). III. Factual Background and Analysis The RO denied service connection for chondromalacia of the knees in a December 1994 rating decision. The Veteran was notified of the denial and of his right to appeal the decision by a letter dated in January 1995. He did not appeal the denial or submit any additional pertinent evidence within the appeal period. In January 2010, the Veteran submitted a statement requesting that the claims of entitlement to service connection for right and left knee disabilities be reopened. The pertinent evidence of record in December 1994 consisted of the Veteran's statement, service treatment records, VA outpatient treatment records dated in September 1992 and March 1993 through November 1993, and private treatment records dated in June 1986 and August 1986. The Veteran's statement indicates that he experienced bilateral knee pain during active service as a result of his position as a boiler man. The service treatment records do not show any diagnosis, complaint or abnormal finding pertaining to either knee. VA outpatient treatment records note complaints of bilateral knee pain; bilateral chondromalacia patella was diagnosed. Private treatment records note a history of knee pain since 1984, as the Veteran reported that climbing and kneeling associated with his post-service work as a pipefitter at Tacoma Boat contributed to his symptoms. A June 1986 record notes the Veteran was evaluated; the physician indicated that the Veteran's bilateral knee problems were related to his employment. A subsequent private record shows the Veteran underwent right knee arthroscopy with patellar shaving and lateral retinacular release. The pertinent evidence received after the prior denial consists of statements from the Veteran indicating that the current bilateral knee disability is a result of service, a VA X-ray study dated in June 1996, VA outpatient treatment records dated from March 1999 through September 2014, Social Security Administration (SSA) records, and private treatment records dated in August 1986. The statements from the Veteran are similar to statements of the Veteran recorded in the evidence of record at the time of the prior denial. His statements are essentially cumulative in nature. Therefore, the Veteran's statements are not new. Likewise, the VA X-ray study and outpatient treatment records demonstrate diagnoses of chondromalacia of the patellae. The SSA records also note diagnoses of chondromalacia of the patellae and indicate that the Veteran reported a history of knee pain since 1984; the Administrative Law Judge determined that the Veteran was not entitled to disability benefits. The evidence continuing to show the post-service presence of bilateral chondromalacia is cumulative. It is not material since it does not include any evidence of a nexus between the Veteran's post-service bilateral knee disability and his active service. Finally, the private treatment records dated in August 1986 are duplicative, as they were of record and considered at the time of the prior denial. The Board acknowledges that the threshold for reopening a claim is low, but it is a threshold nonetheless. See, Shade, supra. Thus, the Board finds that new and material evidence has not been submitted, and reopening of the claims is not in order. ORDER New and material evidence having not been received, reopening of the claim of entitlement to service connection for right knee disability is denied. New and material evidence having not been received, reopening of the claim of entitlement to service connection for left knee disability is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs