Citation Nr: 18143902 Decision Date: 10/23/18 Archive Date: 10/22/18 DOCKET NO. 17-63 185 DATE: October 23, 2018 ORDER Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a right knee strain is denied. Whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for a left knee strain, bilateral is denied. FINDINGS OF FACT 1. New and material evidence has not been received that relates to unestablished facts that are necessary to substantiate the claim for entitlement to service connection for a right knee disability. 2. New and material evidence has not been received that relates to unestablished facts that are necessary to substantiate the claim for entitlement to service connection for a left knee disability. CONCLUSIONS OF LAW 1. The criteria for whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a right knee strain have not been met. 38 U.S.C. §§ 1110, 5107(b), 5108 (2012); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2017). 2. The criteria for whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for a left knee strain have not been met. 38 U.S.C. §§ 1110, 5107(b), 5108 (2012); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Marine Corps from July 1998 to July 2002. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2017 rating decision of the Department of Veterans Affairs (VA). New and Material Evidence 1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a right knee strain. 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 claimant. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). “New” evidence is defined as evidence not previously submitted to agency decision makers. “Material” evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156. 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 claims sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. The evidence received subsequent to the last final decision is presumed credible for the purposes of reopening a claim unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Warren v. Brown, 6 Vet. App. 4 (1993); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Furthermore, when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decision makers and is material if, when considered with the evidence of record, it would at least trigger VA’s duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. In this case, the February 2009 rating decision denied service connection for the Veteran’s right knee condition on a direct basis. The Board acknowledges that the Veteran contends that he suffered a right knee injury in service and has had problems with his knee since his military service. See August 2017 Notice of Disagreement and December 2017 VA-Form 9. Turning to the evidence at hand, the only new evidence received since the February 2009 rating decision relevant to the Veteran’s claim for a right knee disability are copies of the Veteran’s current treatment records. These medical records demonstrated that the Veteran underwent a partial meniscectomy. The medical records are new; however, the content is not because it has already been established that the Veteran has a right knee condition. Consequently, the Board finds that this evidence is cumulative and redundant of evidence already of record. Furthermore, this evidence merely goes to a current disability when the missing element is a nexus to service. The Veteran has failed to submit any new and material evidence to establish that any current right knee disability is related to a disease or injury that occurred during active duty. Thus, the Board finds that new and material evidence has not been received to reopen the claim for service connection for a right knee disability. As such, the Veteran’s appeal is denied. 2. Whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for a left knee strain. In this case, the February 2009 rating decision denied service connection for the Veteran’s left knee condition on a direct basis. The Board acknowledges that the Veteran contends that he suffered a left knee injury in service and has had problems with his knee since his military service. See August 2017 Notice of Disagreement and December 2017 VA-Form 9. Turning to the evidence at hand, the only new evidence received since the February 2009 rating decision relevant to the Veteran’s claim for a left knee disability are a copies of the Veteran’s current treatment records. The medical records are new; however, the content is not because it has already been established that the Veteran has a left knee condition. Consequently, the Board finds that this evidence is cumulative and redundant of evidence already of record. Furthermore, this evidence merely goes to a current disability when the missing element is a nexus to service. The Veteran has failed to submit any new and material evidence to establish that any current left knee disability is related to a disease or injury that occurred during active duty. Thus, the Board finds that new and material evidence has not been received to reopen the claim for service connection for a left knee disability. As such, the Veteran’s appeal is denied. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Rescan, Associate Cousel