Citation Nr: 1801657 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-14 530 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a right knee disorder, to include status-post right knee surgery with degenerative joint disease (DJD), scars due to a right knee surgery, and a broken right knee cap with torn ligaments and cartilage. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD A. Hodzic, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1983 to December 1983 and from December 1990 to August 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran and his wife testified before the undersigned Veterans Law Judge (VLJ) via videoconference during a July 2017 Board hearing. A transcript of the hearing is included in the claims file. The RO has adjudicated the present appeal as claims of entitlement to service connection for status-post right knee surgery, a broken knee cap with torn ligaments and cartilage, and scars due to the right knee. After reviewing the facts and procedural history of this case, the Board determines that these issues should be re-characterized and are more accurately stated as listed on the title page of this decision. FINDINGS OF FACT 1. In an August 2010 rating decision, the RO denied an application to reopen entitlement to service connection for status-post right knee surgery. Although notified of the RO's decision by an August 2010 letter, the Veteran did not appeal this decision and he did not submit new and material evidence within one year, and the decision became final. 2. Evidence associated with the claims file since the August 2010 rating decision, when considered by itself or in connection with evidence previously assembled, does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a right knee disorder, and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The August 2010 rating decision denying an application to reopen a claim of entitlement to service connection for status-post right knee surgery is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104(a), 20.302(a), 20.1103 (2017). 2. As evidence received since the August 2010 rating decision is not new and material, the criteria for reopening the claim of entitlement to service connection for a right knee disorder have not been met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has not raised any issues with the duty to notify or assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). In July 2012, the Veteran submitted an application to reopen a claim of entitlement to service connection for a right knee disorder. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Regarding petitions to reopen filed on or after August 29, 2001, 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as 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 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). 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 determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). The newly presented evidence need not be probative of all the elements required to award the claim, just probative of each element (or at least one element) that was a specified basis for the last disallowance of the claim. See Evans v. Brown, 9 Vet. App. 273, 283 (1996); see also Hodge, 155 F.3d at 1363 (noting 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 the claim). In an August 2010 rating decision, the RO denied an application to reopen a claim of entitlement to service connection for status-post right knee surgery because although the Veteran submitted new evidence since a February 1992 rating decision denying a claim of entitlement to service connection for a right knee disorder, the new evidence was not material. The February 1992 rating decision denied the service connection claim because the evidence showed that the Veteran's right knee disorder existed prior to his military service and this disorder was not aggravated beyond the normal progression of the disorder during service. The Veteran was notified of the August 2010 rating decision by an August 2010 letter. The Veteran did not file a notice of disagreement (NOD) and he did not submit new and material evidence within one year. Thus, the August 2010 rating decision is final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105(b); see also 38 C.F.R. §§ 3.104, 3.156(a), 20.302, 20.1103. Since the August 2010 rating decision, the Veteran has submitted additional lay evidence in the form of a July 2013 "buddy" statement and testimony from his wife during the July 2017 Board hearing discussing an in-service injury to his right knee and treatment for the right knee in the early 1990s. However, this information is not new and material to the Veteran's claim. Specifically, as shown by a September 1991 statement, the Veteran previously alleged that he re-injured his right knee while in service. Accordingly, lay evidence regarding a re-injury to the Veteran's right knee in the early 1990s was already of record at the time of the February 1992 and August 2010 denials by VA adjudicators. Additionally, the RO had the Veteran examined for an opinion regarding the current diagnosis and causal relationship between the Veteran's current right knee disorder and his military service in February 2013, with an addendum VA medical opinion in April 2014. This examination showed that the Veteran had DJD in his right knee, and the examiner provided a negative opinion regarding the causal connection between the Veteran's current right knee disorder and his active duty service. The Board notes that the presence of DJD in the right knee was known to VA adjudicators prior to the issuance of the August 2010 rating decision, as shown by multiple VA treatment records, including a March 2010 VA physical medicine rehabilitation consultation report. Furthermore, the examiner's medical opinion does not raise a reasonable possibility of substantiating the Veteran's claim, as it shows that his right knee disorder was not aggravated beyond the normal progression of the disorder during his service. 38 C.F.R. § 3.156(a). Overall, the new lay and medical evidence, in the form of "buddy" statements and the February 2013 VA examination and April 2014 VA addendum medical opinion, does not raise a reasonable possibility of substantiating the claim. Thus, the application to reopen a claim of entitlement to service connection for a right knee disorder, to include status-post right knee surgery with DJD, scars due to a right knee surgery, and a broken right knee cap with torn ligaments and cartilage, is denied. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. ORDER The application to reopen a claim of entitlement to service connection for a right knee disorder, to include status-post right knee surgery with DJD, scars due to a right knee surgery, and a broken right knee cap with torn ligaments and cartilage, is denied. ____________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs