Citation Nr: 1751245 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 13-12 800 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for a left knee disability. 2. Entitlement to service connection for a right knee disability, to include as secondary the Veteran's left knee disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Parsons, Associate Counsel FINDINGS OF FACT 1. In an August 2010 rating decision, service connection for a left knee disability was denied. The Veteran did not perfect an appeal from this denial, nor was new and material evidence received within one year. 2. Evidence received since the August 2010 rating decision is cumulative of evidence previously considered and fails to raise a reasonable possibility of substantiating the claim of entitlement to service connection for a left knee disability. 3. The Veteran's right knee disability is not etiologically related to his active duty service, or to a service-connected condition. CONCLUSIONS OF LAW 1. The August 2010 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 3.156, 20.302 (2016). 2. Evidence received since the August 2010 rating decision is not new and material to the issue of entitlement to service connection for a left knee disability, and the claim is not reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2016). 3. The criteria for entitlement to service connection for a right knee disability, to include as secondary to the Veteran's left knee disability, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 1154, 5107, (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(3), 3.309(a), 3.310 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from December 1967 to May 1968. This appeal comes to the Board of Veterans' Appeals (Board) from a June 2012 rating decision. Of note, the right knee condition had been previously denied in an August 2010 rating decision, but the Veteran submitted new evidence within a year of that decision. In the 2012 decision on appeal, the RO did not consider the prior adjudication of the right knee final, such that new and material evidence was needed, but rather confirmed the prior denial on the merits. For this reason, the Board will do so as well. In May 2014, the Veteran testified at a videoconference hearing held before the undersigned Veterans Law Judge. A copy of the transcript is of record. The Board remanded the above-listed issues in November 2015 for further evidentiary development. That development having been completed to the extent possible, the matter is again before the Board for appellate review. Pursuant to the remand instructions, the RO attempted to acquire the Veteran's medical records from the Social Security Administration (SSA). An April 2016 response from SSA reported no medical records for the Veteran existed. As such, the RO has substantially complied with the November 2015 remand directives. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stegall, 11 Vet. App. at 271. Issue 1: Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a left knee disability In order to establish jurisdiction over the issues of entitlement to service connection for a left knee disability, the Board must first consider whether new and material evidence has been received to reopen the claims. 38 U.S.C.A. § 5108 (West 2014). The Board must proceed in this fashion regardless of the RO's actions. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92. The Veteran seeks to reopen his claim for service connection for a left knee disability. Several rating decisions have denied this claim, beginning in 1975. The last final decision by the RO was a rating decision in August 2010 denying reopening of this claim. The Veteran did not initiate an appeal as to the rating decision, nor did he submit new and material evidence within one year. Therefore, the rating became final. The Veteran had submitted statements claiming he was tripped while on a morning run and he fell, injuring his left knee. He also reported being treated for his left knee injury while in service and that he was discharged due to the injury [his service records actually show he was found unfit for military duty due to a personality disorder and astigmatism]. These statements are not new, as the same contentions were considered by the RO in August 2010 (and previously). Additionally, the RO had previously reviewed the Veteran's service treatment records, which contained no evidence of treatment for a left knee injury. None of the Veteran's medical records attempt to link his currently diagnosed knee disability to an in-service disease or injury. Further, the Veteran has submitted no lay statements linking his left knee disability to his active military service. Thus, the claim cannot be reopened because there is no evidence connecting his left knee disability to his active military service. Issue 2: Entitlement to service connection for a right knee disability The Veteran initially claimed his right knee disability was directly related to service. Service treatment records contain no complaints of, or treatment for, any knee condition while in service. Further, the Veteran's claim for disability in December 1974 reported only experiencing an injury to his left knee while in service. In July 2012, the Veteran claimed his right knee disability is secondary to his left knee disability. Specifically, he reported that he favored his left knee, causing his right knee disability to develop. Private treatment records from January 1995 show the Veteran was diagnosed with bilateral osteoarthritis of the knees after experiencing progressive knee pain for approximately two months. The physician noted he had no history of trauma to his knees, other than knocks and bruises, and that no specific event appeared to have caused the osteoarthritis. None of the Veteran's physicians have opined that the Veteran's right knee disability is either directly related to his active military service or secondary to his left knee disability. However, even if the Veteran's right knee disability did develop as secondary to his left knee disability, he is not service-connected for his left knee disability. The Veteran's lay statements and testimony have been considered in this decision. However, as a layperson, the Veteran is without the appropriate medical training and expertise to offer an opinion on a medical matter, including the diagnosis or etiology of a specific disability. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As the preponderance of the evidence weighs against the Veteran's claim for entitlement to service connection for a right knee disability, the claim must be denied. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, since the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). [Continued on Next Page] ORDER New and material evidence has not been received to reopen a claim of entitlement to service connection for a left knee disability. The appeal is denied. Entitlement to service connection for a right knee disability is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs