Citation Nr: 18160972 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 15-13 855 DATE: December 28, 2018 ORDER In the absence of new and material evidence, the claim to reopen service connection for a right knee condition is denied. In the absence of new and material evidence, the claim to reopen service connection for an ankle condition is denied. REMANDED Entitlement to service connection for a left knee condition is remanded. Entitlement to service connection for hepatitis C is remanded. FINDINGS OF FACT 1. The July 1993 rating decision denying service connection for a right knee condition was not appealed and became final. 2. Evidence submitted since the July 1993 rating decision is not new and material and does not raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for a right knee condition. 3. The July 1993 rating decision denying service connection for an ankle condition was not appealed and became final. 4. Evidence submitted since the July 1993 rating decision is not new and material and does not raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for an ankle condition. CONCLUSIONS OF LAW 1. The July 1993 rating decision declining to reopen a claim of service connection for a right knee condition is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.201, 20.302, 20.1103. 2. New and material evidence has not been received to reopen the claim for service connection for a right knee condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The July 1993 rating decision declining to reopen a claim of service connection for an ankle condition is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.201, 20.302, 20.1103. 4. New and material evidence has not been received to reopen the claim for service connection for an ankle condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S Air Force from January 1971 to June 1975. 1. Whether new and material has been received to reopen a claim of entitlement to service connection for a right knee condition 2. Whether new and material has been received to reopen a claim of entitlement to service connection for an ankle condition New and Material Evidence Legal Authority A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. §§ 5108, 7103, 7104, 7105; 38 C.F.R. §§ 3.156, 20.1100. New evidence means existing evidence not previously submitted to agency decision makers. 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 sought to be reopened, and must raise a reasonable possibility of sustaining the claim. 38 C.F.R. § 3.156(a). New and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof. See Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. The only exception would be where evidence presented is inherently incredible. Justus v. Principi, 3 Vet. App. 510 (1992). Analysis The Veteran’s claims for service connection for right knee and ankle conditions were previously denied by an April 1993 rating decision. The Veteran submitted new evidence within one year, but a July 1993 rating decision declined to reopen the claims. The Veteran was notified of his appellate rights. He did not appeal the determination or submit new and material evidence within one year of the decision, and the July 1993 rating decision became final. At the time of the July 1993 rating decision, the evidence of record consisted of the Veteran’s service medical records, VA examination reports, and VA medical records. The evidence also included the Veteran’s lay statements that his right knee and ankle conditions were related to service. The prior rating decision found no competent evidence of treatment for right knee or ankle condition during service, or competent evidence that these conditions began in or were caused by military service. Since 1993, the Board has received newly submitted evidence, including VA medical records which show on-going treatment for right knee and ankle conditions, including right knee physical therapy in November 2012. However, this evidence is redundant because the medical evidence available in July 1993 also showed treatment for these conditions. The Board has also received service treatment records, which do not show treatment for a knee or ankle condition. The new evidence includes a January 1995 VA general medical examination of the right knee and ankles. The examiner diagnosed the Veteran with degenerative joint disease of the right knee and possible early degenerative joint disease of the bilateral ankles. The examiner did not provide any opinion regarding the etiology of these conditions. This evidence is also redundant because the medical evidence available in July 1993 also showed treatment for these conditions. The evidence is not new because it does not show any connection between the Veteran’s current conditions and any in-service event or injury. The July 1993 rating decision acknowledged that the Veteran had current right knee and ankle conditions, but found no treatment for right knee and ankle conditions in service. The rating decision was based on the lack of evidence that the Veteran’s current right knee and ankle disabilities were related to service. The Veteran has not submitted any competent evidence to support to a nexus between any in-service event or injury and his current right knee and ankle conditions. The lack of such a nexus is the basis for the prior final rating decision. As such, the evidence submitted after July 1993 does not relate to an unestablished fact necessary to substantiate the claims. As none of the additional evidence is new and material, the service connection claims for right knee and ankle conditions are not reopened. REASONS FOR REMAND 1. Entitlement to service connection for a left knee condition is remanded. 2. Entitlement to service connection for hepatitis C is remanded. The Veteran contends that his left knee condition and hepatitis C are related to service. VA medical records show treatment for hepatitis C and left knee osteoarthritis during the appeal period. In a January 2012 statement, the Veteran indicated that he was exposed to hepatitis C in Thailand while receiving in-service treatment for a sexually transmitted disease. In an undated letter received by VA in October 2018, the Veteran’s former girlfriend reported that she was in a relationship with the Veteran in 1971, and that the Veteran came home on leave with a cast on his left leg. She reported that he was unable to dance due to this condition. The Board cannot make a fully-informed decision on the issue of service connection for a left knee condition and hepatitis C because no VA examiner has opined whether these condtions are related to service. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any left knee condition. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. The examiner must address the lay statement indicating that the Veteran suffered a left leg injury in service. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any liver condition, to include hepatitis C. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. The examiner must address the Veteran’s statement indicating that he incurred hepatitis C while receiving in-service treatment in Thailand. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Casey, Associate Counsel