Citation Nr: 18148883 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 15-09 383 DATE: November 8, 2018 ORDER New and material evidence has not been received; the claim of entitlement to service connection for osteoarthritis left knee (claimed as bilateral knee condition) is not reopened. FINDING OF FACT 1. In an unappealed January 2009 rating decision, the RO denied the Veteran's claim of entitlement to service connection for osteoarthritis left knee. 2. Presuming its credibility, the evidence received since the January 2009 Rating decision, by itself or in conjunction with previously considered evidence, although new, does not relate to an unestablished fact necessary to substantiate the claim for osteoarthritis left knee. CONCLUSION OF LAW 1. The January 2009 Rating decision denying service connection for osteoarthritis left knee is final. 38 U.S.C. § 4005 (c) (West 1991); 38 C.F.R. §§ 3.104, 19.118, 19.153(1994). 2. Since the January 2009 Rating decision, new and material evidence has not been received with respect to the Veteran's claim of entitlement to service connection for osteoarthritis left knee; therefore, the claim is not reopened. 38 U.S.C. § 5108 (West 2014); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1974 to August 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 Rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Veteran had video conference hearings scheduled for May 2018 and September 2018. The Veteran did not show for these hearings and did not reschedule. In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen the claim before addressing the merits of the claim, regardless of whether or not the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995). The question of whether new and material evidence has been received to reopen such a claim must be addressed in the first instance by the Board, because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson, 265 F.3d 1366; see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995). If the Board finds that new and material evidence has not been received, that is where the analysis must end; hence, what the RO may have determined in this regard is irrelevant. Jackson, 265 F.3d at 1369; Barnett, 83 F.3d at 1383. The Board has characterized the claims accordingly. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for osteoarthritis left knee (claimed as bilateral knee condition). Applicable law provides that a claim which is the subject of a prior final decision may be reopened upon presentation of new and material evidence. See 38 C.F.R. § 3.156 (2017). The Board is required to address new and material claims in the first instance. The Board has the jurisdiction to address a new and material issue and to reach the underlying de novo claims. If the Board determines that new and material evidence has not been received, the adjudication of the particular claim ends, and further analysis is neither required nor permitted. Any decision that the AOJ may have made with regard to a new and material claim is irrelevant. Barnett, 83 F.3d at 1383. Thus, the Board will proceed in the following decision to adjudicate new and material issues in the first instance. New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as existing 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 prior 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) (2017). 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). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Additionally, the United States Court of Appeals for the Federal Circuit has noted 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 a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273, 284 (1996). For the purpose 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). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). The Veteran’s original claim for service connection for osteoarthritis left knee was denied on January 2009 based on the findings of a VA examiner who opined that Veterans left knee injury resulted from a motor vehicle accident in 1979, after leaving active military duty. The Veteran did not file an appeal of the decision and he did not assert that there was clear and unmistakable error. Therefore, that decision became final. 38 U.S.C. § 4005 (c) (West 1991); 38 C.F.R. §§ 3.104, 19.118, 19.153(1994). In June 2014, the Veteran filed a petition to reopen his claim for entitlement for service connection, left knee osteoarthritis. In a September 2014 rating decision, the AOJ considered the Veteran’s petition and denied the Veteran’s petition to reopen this claim. The AOJ denied the Veteran's petition on the basis that the evidence submitted is not new and material in that it does not relate to an unestablished fact necessary to substantiate the claim and/or does not raise a reasonable possibility of substantiating the claim. Since the January 2009 Rating decision, the record contains VA medical treatment records from LA VAMC and Martinsburg VAMC from December 2005 to February 2008, and August 2011 to July 2014, including VA examinations in January 2009 and August 2014. Since the September 3, 2014 Rating decision, the record also contains an October 2018 Appellant’s brief from the Veterans accredited representative. Furthermore, The Veteran's VA Form 9 was received in March of 2015. The Veteran indicates in his Form 9 that “his injuries to his left leg resulting from the incapacitation in my right knee be considered.” While the Board acknowledges that this evidence is new, as it was received by VA after the issuance of the January 2009 rating decision and could not have been considered by prior decision makers, the evidence is not material. The Board finds that since the January 2009 decision, the record does not include material evidence that warrants the reopening of the claim. Primarily, the Board notes evidence of service connection for osteoarthritis left knee, to be absent from the record. While the record includes additional VA treatment records from Martinsburg VAMC and West LA VAMC, such medical records do not indicate a nexus for direct service connection. Specifically, none of the additional evidence includes a positive nexus opinion for direct service connection regarding the Veteran's osteoarthritis left knee. Instead, these treatment records simply restate what was already considered by the AOJ in the previous decision—that the Veteran is receiving treatment for his left knee condition resulting from a MVA in 1979, and that the Veteran asserts service connection left knee osteoarthritis. The Board acknowledges that the Veteran has asserted that the left knee disability is secondary to his service connected right knee disability. The Court has held that a new etiological theory does not constitute a new claim. Velez v. Shinseki, 23 Vet. App. 199 (2009); Ashford v. Brown, 10 Vet. App. 120, 123 (1997); Roebuck v. Nicholson, 20 Vet. App. 307 (2006). However, while a new theory of entitlement cannot be the basis to reopen a claim under 38 U.S.C.A 7104 (b), if the evidence supporting a new theory of entitlement constitutes new and material evidence, then VA must reopen the claim under section 5108. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). In this case, the Veteran and his representative have not put forth any additional evidence beyond the general conclusory statements that the Veteran's left knee disability is service connected, to include as secondary to service connected right knee. In addition, the Board acknowledges that the Veterans representative has asserted that the VA examinations in January 2009 and August 20014 were not adequate. The Board notes that the duty to assist by arranging for a VA examination or obtaining a medical opinion does not attach in a claim to reopen until/unless the previously denied claim is reopened. 38 C.F.R. § 3.159 (c)(4)(iii). See Paralyzed Veterans of America, et. al., v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003). As the Board has determined that the claim may not be reopened, a discussion of the adequacy of the examination report is not necessary. In conclusion, the Veteran has not submitted any new and material evidence to reopen his claim. The Veteran has not submitted any additional lay or medical evidence to substantiate his claim for entitlement to service connection osteoarthritis left knee, for the Board to consider. Although the Board recognizes that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low," new and material evidence must be presented in order for a previously denied claim to reopened. 38 U.S.C. § 5108, 7104, 7105; see 38 C.F.R. § 3.156 (2017); see Shade, 24 Vet. App. at 117. Therefore, the Board denies the Veteran's claim to reopen his previously denied claim for entitlement to service connection for osteoarthritis left knee, now claimed as bilateral condition. Thus, even under the "low" standard promulgated in Shade, new and material evidence has not been submitted sufficient to reopen the Veteran's claim. (Continued on the next page)   As new and material evidence has not been received, reopening of the previously denied claim of entitlement to service connection for osteoarthritis left knee is not warranted. 38 U.S.C. §5108 (West 2014); 38 C.F.R. § 3.156 (2017). Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD CLittle, Associate Counsel