Citation Nr: 18153676 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 18-40 495 DATE: November 28, 2018 ORDER New and material evidence to reopen the claim for entitlement to service connection for fractured nose has not been received; the application to reopen is denied. Entitlement to service connection for right knee strain is denied. FINDINGS OF FACT 1. An October 1971 rating decision denied entitlement to service connection for fractured nose. The Veteran was notified of that decision. He appealed the decision and a Statement of the Case (SOC) was issued. However, the Veteran did not file a Substantive Appeal (VA Form 9). He did not submit new and material evidence within one year of the notice of that rating decision. 2. The evidence received since October 1971, when considered by itself or in connection with evidence previously assembled, does not relate to unestablished facts necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for fractured nose. 3. A right knee disorder was noted on entry and was not aggravated during active duty service. CONCLUSIONS OF LAW 1. The October 1971 rating decision, which denied the Veteran’s claim of entitlement to service connection for fractured nose, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103 (2017). 2. Evidence received since the October 1971 rating decision in relation to the Veteran’s claim for entitlement to service connection fractured nose is not new and material, and, therefore, the claim is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for entitlement to service connection for right knee strain based on aggravation, have not been met. 38 U.S.C. §§ 1110, 1131, 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.306 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1969 to February 1971. In a July 2018 rating decision, the Agency of Original Jurisdiction (AOJ) granted entitlement to service connection for posttraumatic stress disorder, bilateral hearing loss, and tinnitus. Therefore, as the issues have been granted in full, they are not before the Board. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). New and Material evidence To reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to VA. Material evidence means 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, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the “credibility” of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). Analysis Entitlement to service connection for fractured nose was denied in October 1971. Evidence at the time of the decision included the Veteran’s service treatment records (STRs). The AOJ denied the claim because the Veteran did not have a diagnosis for a fractured nose. The Veteran filed a Notice of Disagreement (NOD), and in December 1971, the AOJ issued a Statement of the Case (SOC). However, the Veteran did not file a Form 9. No new and material evidence was received within one year of the issuance of the October 1971 rating decision. As such, the October 1971 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362, 1367–68 (Fed. Cir. 2011). In April 2013, the Veteran filed a claim for entitlement to service connection for nose condition. New evidence included VA treatment records and lay statements. Despite the evidence added to the claims file, nothing therein shows or implies that the Veteran has being diagnosed with a fractured nose. In August 2017, the Veteran submitted a statement and indicated that after reviewing his medical records, it was evident that he did not have a fracture. The Veteran further stated that he made a mistake presuming his nose was fractured. Additionally, the Board finds that new evidence does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for fractured nose or nose injury and does not related to an unestablished fact necessary to substantiate the claim. Rather, it is cumulative and redundant of the evidence previously of record. There is no other evidence upon which to reopen the Veteran’s claim. As the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen the finally disallowed claim, the benefit of the doubt doctrine is not applicable. See Annono v. Brown, 5 Vet. App. 463, 467 (1993). In sum, absent any new and material evidence showing a fractured nose diagnosis, the claim of service connection for fractured nose cannot be reopened. See 38 C.F.R. § 3.156(a). Entitlement to service connection for right knee strain Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. §§ 1110, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). A Veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). A pre-existing disorder will be considered to have been aggravated by active military service when there is an increase in disability during service, unless there is clear and unmistakable evidence (obvious and manifest) that the increase in disability is due to the natural progress of the disorder. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a), (b). Aggravation of a pre-existing condition may not be conceded where the disability underwent no increase in severity during service based on all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b). Analysis The Veteran contends that his right knee disorder was aggravated by his military service. On his May 1969 Report of Medical Examination, the Veteran noted that prior to service, he had a lateral meniscus tear in his right knee which caused pain and locking of the right knee. The Veteran submitted a doctor’s statement corroborating his statement. The Veteran’s STRs are negative for complaints and/or treatments related to his right knee condition. On his January 1971 Report of Medical Examination: Separation examination, the Veteran noted that he had a trick or locked knee. However, with an explicit finding of right knee meniscus tear on enlistment, the presumption of soundness does not attach with respect to right knee meniscus tear which caused locking knee and pain, and the only benefit that can be awarded for the right knee disability is service connection based on aggravation of the pre-existing right knee disability. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b). Independent medical evidence is needed to support a finding that the preexisting disorder increased in severity in service. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994). The question of whether there has been an increase in disability during service must be answered in the affirmative before presumption of aggravation attaches, so that presumption is unaffected by the rule on service connection for increase in disability during service. Verdon v. Brown, 8 Vet. App. 529 (1996); see also Falzone v. Brown, 8 Vet. App. 398, 402 (1995) (holding that the presumption of aggravation created by section 3.306 applies only if there is an increase in severity during service). From 2013, the Veteran’s post-service treatment records note complains of right knee pain. In June 2014, the Veteran was afforded a VA examination to determine the nature and etiology of his right knee disorder. The Veteran stated that his symptoms began in childhood. He stated that his knee would lock up and this included during basic training. He further stated that he was sent to sick call, and he was placed in a full cast from his ankle to his thigh. He stated that training, marching, and carrying heavy ruck sacks made the condition worse. The examiner diagnosed the Veteran with right knee strain. The examiner was asked if the right knee disorder was at least as likely as not (50 percent or greater probability) a progression of an in-service event, injury, or disease during military service. The examiner opined that the Veteran’s right knee strain was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The Veteran stated that he had problems with his right knee prior to service, but it has gotten progressively worse. The examiner stated that the Veteran’s medical records were very minimal. There was only one entry about the Veteran having a right knee enlargement with lateral meniscal injury prior to service. There were no medical records during service where the Veteran had problems or was treated for a right knee disorder. The examiner concluded that based on the lack of information, progression cannot be determined. Based on the evidence of record, the Board finds that service connection for the Veteran’s right knee strain based on aggravation is not warranted. The Veteran’s STRs are silent for any complaints or treatments for a right knee disorder. The first medical evidence of complaints or treatments for a right knee disorder was in 2013. Additionally, the June 2014 VA examiner opined that the Veteran’s right knee strain was less likely than not a progression of an in-service event, injury, or disease during military service. The examiner stated that the Veteran’s in-service medical records do not show a problem or treatment for the Veteran’s right knee. The examiner concluded that based on the lack of information, progression cannot be determined. The Board has considered the Veteran and his representative’s statements regarding the aggravation of the Veteran’s right knee. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether the Veteran’s pre-existing right knee condition was aggravated during service, is outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer. Accordingly, the Board finds that service connection for right knee condition based on aggravation is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt standard of proof does not permit a grant of this appeal. 38 U.S.C. § 5107(b). KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Henry, Associate Counsel