Citation Nr: 18152083 Decision Date: 11/21/18 Archive Date: 11/20/18 DOCKET NO. 15-22 879A DATE: November 21, 2018 ORDER As new and material evidence has not been received, the claim to reopen entitlement to service connection for chronic obstructive pulmonary disease (COPD) is denied. As new and material evidence has been received, the claim for entitlement to service connection for a right knee disability is reopened. REMANDED Entitlement to service connection for a right knee disability is remanded. FINDINGS OF FACT 1. In an unappealed April 2003 rating decision, the RO denied service connection for COPD. 2. Evidence received since the final April 2003 rating decision does not relate to an unestablished fact necessary to substantiate the claim for service connection for COPD. 3. In an unappealed September 1983 rating decision, of which the Veteran was sent notice in October 1983, the RO denied service connection for a right knee disability. 4. Evidence received since the final September 1983 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for a right knee disability. CONCLUSIONS OF LAW 1. An unappealed April 2003 rating decision that denied the claim for service connection for COPD became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. New and material evidence has not been received to reopen a service connection claim for COPD. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. An unappealed September 1983 rating decision that denied the claim for service connection for a right knee disability, of which notice was sent to the Veteran in October 1983, became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 4. New and material evidence has been received since the last prior denial, and the service connection claim for a right knee disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1964 to April 1965. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from a March 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran waived a hearing before the Board in his January 2016 substantive appeal, via a VA Form 9. Preliminary Matters The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). New and Material Evidence Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a NOD with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.201, 20.302 (2017). An exception to the finality rule is found in 38 U.S.C. § 5108, which provides that, if new and material evidence is received with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 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). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). 1. COPD The RO denied the Veteran’s service connection claim for COPD in an April 2003 rating decision, finding that there were no symptoms, diagnoses, or treatment for chronic lung obstructions during service, and as such, the Veteran’s COPD was not related to service. Further, the April 2003 rating decision denied service connection for a disability related to tobacco use, specifically cigarettes, as a matter of law pursuant to 38 C.F.R. § 3.300 (2017). The evidence considered at the time included service treatment records, military personnel records, VA treatment records, a March 2003 VA examination, and the Veteran’s statements. The Veteran did not appeal the decision, and new and material evidence was not received within one year of the notice of the rating decision. Thus, the April 2003 rating decision became final. See 38 U.S.C. § 7105 (d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Evidence received since the April 2003 denial of the claim includes VA treatment records, statements from the Veteran, testimony in an October 2015 DRO hearing, and private treatment records. The Board considered all the evidence received after the April 2003 rating decision but finds that the evidence received is not both new and material. The evidence received, to include the VA treatment records, after the April 2003 rating decision continue to show diagnoses and treatment for COPD and that his COPD is related to his previous tobacco use; however, they do not provide any indication that his COPD was incurred in service or otherwise related to service or that service connection was not precluded by law under 38 C.F.R. § 3.300 for diseases related to the effects of tobacco products. The reason for the April 2003 denial was based on the finding that there was no evidence of an in-service chronic respiratory disease and there was no evidence that his COPD were related to service. Thus, the unestablished elements for service connection include evidence of an inservice incurrence and evidence of a nexus. As the Veteran has not fulfilled the threshold burden of submitting new and material evidence to reopen the final disallowed claims, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). For these reasons, the Board concludes that new and material evidence has not been received to reopen the claims for service connection for COPD. Finally, the Board notes that neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017). 2. Right knee disability Turning to the service connection claim for the right knee disability, the RO initially denied service connection in a September 1983 rating decision, of which notice was sent to the Veteran in October 1983, finding that the right knee disability was related to the shortening of the Veteran’s left leg, which pre-existed service and was not aggravated by service. The evidence considered at the time included service treatment records and military personnel records. The Veteran did not appeal the decision, and new and material evidence was not received within one year of notice of the rating decision. Thus, the September 1983 rating decision became final. See 38 U.S.C. § 7105 (d)(3); Bond, 659 F.3d at 1362; 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Relevant evidence received since the September 1983 denial of the claim includes statements from the Veteran, and October 2015 DRO hearing testimony. This evidence, specifically the October 2015 hearing testimony, relates to the unestablished element of an in-service trauma or injury that may account for the right knee disability that was not considered in the prior final denial. Therefore, the additional evidence received since the September 1983 final denial is new and material, and the criteria for reopening the claim for service connection for a right knee disability are met. REASONS FOR REMAND Entitlement to service connection for a right knee disability is remanded. The Veteran was afforded a VA examination in February 2013 to determine the nature and etiology of the right knee disability. The examiner, a Doctor of Nursing Practice and Nurse Practitioner, diagnosed the Veteran with right knee arthritis. After a physical examination, the examiner concluded that it was less likely than not that the Veteran’s right knee disability was incurred or had onset during service. To support this conclusion, the examiner reported that the Veteran complained of bilateral painful knees during service. The examiner noted that x-ray studies during service were negative, and the suspected cause of the Veteran’s knee pain was related to the shortening of his left leg. The examiner reported there were no other reports of symptoms, diagnoses, or treatment of knee pain during service, and no evidence of prior knee surgeries or private medical records associated with the claims file with regard to the right knee. The examiner also noted that the Veteran’s current x-ray studies indicated mild degenerative arthritis and a high patella on the right, which could be associated with trauma. The February 2013 examiner’s rationale is not adequate in its current form. The Veteran reported that while on a march during service, he fell, hitting his right knee cap on a rock. See October 2015 VA Form 9. The examiner failed to clearly explain why the Veteran’s reported trauma in service was not sufficient to cause the Veteran’s high patella or the mild degenerative arthritis in the right knee. See April 2012 VA treatment records and October 2015 hearing testimony. In addition, the examiner reports there was no medical evidence of past knee surgeries associated with the claims file. The Veteran reported, and his VA treatment records indicate, that he had a post-service right knee patellar amputation around 1990 after a fall at a gas station. The examiner failed to discuss this evidence or the Veteran’s contention that his fall in service resulted in a hair line fracture in his right knee cap, leading to the post-service fall that caused the right knee patellar amputation in 1990. See October 2015 VA Form 9. Further, the examiner seemed to adopt the conclusion and rationale found in the service treatment records, which attributed the right knee pain to the shortening of the Veteran’s left leg. However, neither the February 2013 VA examiner, nor the service treatment records, determined that the shortening of the left leg, which was not noted on the July 1964 service entrance examination, clearly and unmistakably pre-existed service and was clearly and unmistakably not aggravated by service. Thus, a remand is warranted to obtain a new addendum medical opinion to address these issues. In addition, the Veteran has reported that he has been in receipt of Social Security Administration (SSA) disability benefits during the claims period. On remand, the records from SSA should be requested, and if obtained, associated with the claims file. See June 2012 VA 21-527. The matter is REMANDED for the following action: 1. Obtain any outstanding pertinent VA treatment records and associate them with the claims file. 2. Contact SSA and obtain copies of records related to the Veteran’s SSA benefits, including any SSA administrative decisions (favorable or unfavorable) and the medical records upon which the decisions were based. Associate any records obtained with the claims file. 3. Obtain an addendum opinion from an appropriate clinician regarding the nature and etiology of the Veteran’s right knee disability. Whether a new physical examination is required is left to the examiner’s discretion. After a thorough review of the claims file, the examiner should address the following: (a) Identify all current disabilities of the right knee. (b) For each current disability of the right knee, provide an opinion as to whether it had onset or was otherwise related to service. *Discuss the Veteran’s contention that he fell during a march in service and his right knee landed on a rock, which he believes resulted in a hairline fracture of his knee cap and any relationship that incidence had with his 1990 fall that resulted in the right knee patellar amputation. See April 2012 VA treatment records, October 2012 letter, October 2015 VA Form 9, and October 2015 hearing testimony. (c) As to the etiology opinion that the right knee disability is related to the shortening of the Veteran’s left leg, provide an opinion as to whether the shortening of the left leg (1) clearly and unmistakably pre-existed service, and if so, (2) whether the Veteran’s shortening of the left leg clearly and unmistakably was not aggravated by service. 3. Readjudicate the claim on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Harper, Tristin