Citation Nr: 18153403 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 18-40 105 DATE: November 28, 2018 ORDER The application to reopen the claim for service connection for right leg tingling is denied. The application to reopen the claim for service connection for left leg tingling is denied. The application to reopen the claim for service connection for a right knee condition is denied. The application to reopen the claim for service connection for a left knee condition is denied. FINDINGS OF FACT 1. In an unappealed June 2011 rating decision, the RO denied service connection for right leg tingling, and in an unappealed December 2015 rating decision, the RO continued the previous denial of service connection for right leg tingling. 2. Evidence submitted since the December 2015 rating decision is cumulative or redundant of the evidence of record at the time of the prior final denial of the right leg tingling claim. 3. In an unappealed June 2011 rating decision, the RO denied service connection for left leg tingling, and in an unappealed December 2015 rating decision, the RO continued the previous denial of service connection for left leg tingling. 4. Evidence submitted since the December 2015 rating decision is cumulative or redundant of the evidence of record at the time of the prior final denial of the left leg tingling claim. 5. In an unappealed June 2011 rating decision, the RO denied service connection for a right knee condition, and in an unappealed December 2015 rating decision, the RO continued the previous denial of service connection for a right knee condition. 6. Evidence submitted since the December 2015 rating decision is cumulative or redundant of the evidence of record at the time of the prior final denial of the right knee condition claim. 7. In an unappealed June 2011 rating decision, the RO denied service connection for a left knee condition, and in an unappealed December 2015 rating decision, the RO continued the previous denial of service connection for a left knee condition. 8. Evidence submitted since the December 2015 rating decision is cumulative or redundant of the evidence of record at the time of the prior final denial of the left knee condition claim. CONCLUSIONS OF LAW 1. The December 2015 rating decision denying the reopening of the previously denied service connection for right leg tingling is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. Since the December 2015 rating decision, new and material evidence has not been received, and the claim of entitlement to service connection for right leg tingling is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The December 2015 rating decision denying the reopening of the previously denied service connection for left leg tingling is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 4. Since the December 2015 rating decision, new and material evidence has not been received, and the claim of entitlement to service connection for left leg tingling is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 5. The December 2015 rating decision denying the reopening of the previously denied service connection for a right knee condition is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 6. Since the December 2015 rating decision, new and material evidence has not been received, and the claim of entitlement to service connection for a right knee condition is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 7. The December 2015 rating decision denying the reopening of the previously denied service connection for a left knee condition is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 8. Since the December 2015 rating decision, new and material evidence has not been received, and the claim of entitlement to service connection for a left knee condition is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1987 to July 1991 and Reserve duty with the Army National Guard of Massachusetts from July 1991 to September 1994. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Veterans are entitled to compensation from VA if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service”-the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). The Board notes that the Veteran has not claimed that her disabilities on appeal are the result of combat with the enemy. Therefore, the combat provisions of 38 U.S.C. § 1154 (2012) are not for consideration. In general, rating decisions and Board decisions that are not timely appealed are final. See 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 20.1100, 20.1103 (2017). Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured to that claim. “New” evidence means evidence not previously submitted to the agency decision-maker. “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 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. See 38 C.F.R. § 3.156(a) (2017). The threshold for determining if there is new and material evidence is low. See Shade v. Shinseki, 24 Vet. App. 110 (2010). In the determination of whether new and material evidence has been received, the credibility of the evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The VA is not, however, bound to consider credible that which is the patently incredible. See Duran v. Brown, 7 Vet. App. 216 (1994). In a June 2011 rating decision, the RO denied service connection for right and left leg tingling as well as right and left knee conditions on the basis that these disabilities neither occurred in nor were caused by service, and the right and left leg tingling did not manifest to a compensable degree within one year of discharge from service. Although the Veteran filed a timely notice of disagreement to the rating decision, she did not complete his appeal with the filing of a timely substantive appeal following the issuance of a statement of the case (SOC) in March 2013. Also, in a December 2015 rating decision, the RO continued the previous denial of the claims on the basis that new and material evidence was not received to reopen the previously denied claims. The Veteran did not appeal the rating decision and new and material evidence was not associated within one year of the rating decision. The decision therefore became final. At the time of the prior final rating decision in December 2015, the record included the Veteran’s statements, service treatment records, postservice private treatment records, and a VA neurological examination dated February 2011. Service treatment records dated 1988 and 1990 document the Veteran’s report of lower extremity pain and numbness. The February 2011 VA examination report noted the examiner’s opinion that the Veteran had peripheral neuropathy of the right and left lower extremities and that these disabilities are less likely than not related to service as the symptoms that the Veteran was treated for in service were not neuropathic. Additionally, a private treatment record dated October 2009 from Advanced Physical Therapy Solutions documents an assessment of bilateral patellofemoral pain. In January 2016, the Veteran applied to reopen her claims of entitlement to service connection for right and left leg tingling as well as right and left knee conditions. In order to reopen the previously denied claims, the evidence submitted since the last final denial (December 2015) must be new and material. After a thorough review of the entire record the Board concludes that new and material evidence sufficient to reopen the claims of entitlement to service connection for right and left leg tingling as well as right and left knee conditions has not been submitted. The added evidence, in pertinent part, consists of private treatment records. The associated postservice medical evidence does not document a link between the Veteran’s right and/or left leg tingling or right and/or left knee conditions and service, or that right and/or left tingling manifested to a compensable degree within one year of service discharge. As such, the added postservice medical evidence does not establish or suggest that the Veteran has right and left leg tingling as well as right and left knee conditions related to service. Furthermore, to the extent that the Veteran contends that she has right and left leg tingling as well as right and left knee conditions that are related to service, such evidence is cumulative and redundant of similar statements made prior to the December 2015 rating decision. Accordingly, such statements are not new. See Reid v. Derwinski, 2 Vet. App. 312, 315 (1992). In short, there is no competent evidence that the Veteran has right and left leg tingling as well as right and left knee conditions that were manifested in service. Moreover, there is no competent evidence that right and left leg tingling manifested to a compensable degree within one year of service discharge.   In summary, the requirement which was missing at the time of the December 2015 denials of service connection remains lacking. New and material evidence has not been received, and the Veteran’s claims of entitlement to service connection for right and left leg tingling as well as right and left knee conditions may not be reopened. The benefits sought on appeal remain denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Arif Syed, Counsel