Citation Nr: 18143739 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 16-25 162 DATE: October 22, 2018 ORDER New and material evidence has not been received to reopen the previously denied claim for service connection for a left hip disability; therefore, the appeal is denied. New and material evidence has not been received to reopen the previously denied claim for service connection for a left knee disability; therefore, the appeal is denied. Service connection for a lumbar spine disability is denied. Service connection for a right hip disability is denied. Service connection for a right knee disability is denied. FINDINGS OF FACT 1. In a final October 1974 decision, the Board denied he Veteran’s claim for service connection for a left leg/knee disability and a left hip disability (residuals of old fracture). 2. Evidence received since the October 1974 final denial is not new or material, and does not relate to an unestablished fact necessary to substantiate the claim for service connection for a left knee disability or left hip disability. 3. The preponderance of the evidence is against finding that the Veteran has a right hip disability, right knee disability, or lumbar spine disability that began during active service. CONCLUSIONS OF LAW 1. The October 1974 Board decision that denied service connection for a left hip disability and left knee disability are final. 38 U.S.C. § 7104 (b); 38. C.F.R. § 20.1104. 2. New and material evidence has not been received to reopen the claim for service connection for a left hip disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. New and material evidence has not been received to reopen the claim for service connection for a left knee disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C. § 1110, 111, 1131; 38 C.F.R. §§ 3.102, 3.303(a). 5. The criteria for service connection for a right knee disability are not met. 38 U.S.C. § 1110, 111, 1131; 38 C.F.R. §§ 3.102, 3.303(a). 6. The criteria for service connection for a right hip disability are not met. 38 U.S.C. § 1110, 111, 1131; 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1973 to August 1973. New & Material Evidence The Veteran’s claim for service connection for a left knee disability and left hip disability was originally denied in an April 1974 rating decision and, after that decision was appealed, by an October 1974 Board decision. The 1974 Board decision is final. The Veteran filed a claim to reopen his claims for service connection for a left knee disability and a left hip disability in April 2015. In the August 2015 rating decision that is the subject of this appeal, the RO declined to reopen the claims. Generally, if a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decision makers. 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 threshold to reopen a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). New and material evidence can be construed as that which would contribute to a more complete picture of the circumstances surrounding the origin of a Veteran’s disability or injury, even when it would not be enough to convince the Board to grant the claim. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). For the purposes of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In this instance, the Board finds that new and material evidence has not been received to reopen the previously denied claims. At the time of the previous final denial, the Board considered the Veteran’s service treatment records demonstrating an injury to the left femur prior to entry into service, as well as the remainder of the service treatment records, but determined that there was no evidence that the pre-existing condition was aggravated by service. Since the last final denial, the Veteran has continued to assert that his pre-existing left leg injury was aggravated by his service. The record also now includes the Veteran’s Social Security Administration file as well as private treatment records. These records do not suggest or otherwise demonstrate that the Veteran’s pre-existing left leg disability was aggravated by service or that his left knee and left hip disability were caused by his service. Also of record is an April 2017 VA opinion, at which time the examiner concluded that the pre-existing left femur disability was not aggravated by service. The above evidence is new, but is not material in that it does not relate to an unestablished fact necessary to substantiate the claim. Rather, the evidence added to the record since the previous final denial is either cumulative of the previously considered evidence, or does not otherwise provide a more complete picture of the Veteran’s claim that would at least invoke the duty to assist. Accordingly, the Board finds that the new and material evidentiary standard has not been met, and the claims to reopen the previously denied claims for service connection for a left knee disability and left hip disability are denied. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for a right knee disability, a right hip disability, and a lumbar spine disability. With regard to the Veteran’s lumbar spine disability, the service treatment records reflect that in August 1973, the Veteran reported low back pain secondary to his fractured left femur. A low back diagnosis was not established at that time. The Veteran contends that while in service, he completed three weeks of rigorous basic training that resulted in an injury to the L4-L5 region of his lumbar spine. However, the Board finds that the Veteran report of service events lacks credibility. For one, the Veteran’s service personnel records reflect that he began basic training on August 6, 1973, and that on August 9, 1973, three days later, he was referred for pain in his left leg stemming from a pre-service injury. Beginning on August 10th, he was evaluated for a medical release from service. Thus, the evidence does not support the Veteran’s contentions. Moreover, the post-service evidence demonstrates that the Veteran injured his L4-L5 portion of his lumbar spine in an accident that occurred in 1992, two decades following service separation, necessitating surgery. These records do not support a finding that he suffered from a lumbar spine disability prior to that time, or as the Veteran has described. Given the lack of an indication of an injury to the lumbar spine in service, and when considering the inconsistency of the Veteran’s statements when reviewing the record, the Board finds that the evidence weighs against the Veteran’s claim for service connection for a lumbar spine disability. With regard to the Veteran’s claimed right hip and right knee disabilities, the record is lacking a current diagnosis of these disabilities. However, despite whether the Veteran suffers from a functional impairment to the right knee and right hip, the Board finds that service connection for these disabilities must be denied. For one, the service treatment records do not reflect an injury or diagnosis related to the right hip or right knee. The Veteran has not provided specific contentions as to how he injured the right hip or right knee in service other than that such occurred during three weeks of basic training. As analyzed above, the record is not consistent with these contentions. Additionally, there is no indication of a continuity of symptoms related to the right knee or hip since service. Finally, there is no medical link between a current right hip or right knee disability and service. The Board has taken into consideration the Veteran’s report of in-service injury to the low back, right hip, and right knee. However, the remainder of the record weighs against the Veteran’s assertions of service incurrence or continuity since service. Accordingly, when taking into consideration the above, the Board finds that the elements of service connection have not been met, and the claims must be denied. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Erdheim, Counsel