Citation Nr: 20046044 Decision Date: 07/09/20 Archive Date: 07/09/20 DOCKET NO. 16-42 819 DATE: July 9, 2020 ORDER The application to reopen the claim of entitlement to service connection for degenerative joint disease, right knee is denied. The application to reopen the claim of entitlement to service connection for degenerative joint disease, left knee is denied. FINDINGS OF FACT 1. Specific to the application to reopen a compensation claim for degenerative joint disease, right knee, evidence received since the February 2013 rating decision is cumulative and redundant. 2. Specific to the application to reopen a compensation claim for degenerative joint disease, left knee, evidence received since the February 2013 rating decision is cumulative and redundant. CONCLUSIONS OF LAW 1. New and material evidence has not been received sufficient to reopen the Veteran’s claim for service connection for degenerative joint disease, right knee. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. New and material evidence has not been received sufficient to reopen the Veteran’s claim for service connection for degenerative joint disease, left knee. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS INTRODUCTION The Veteran, who served from June 1977 to June 1999, appeals a September 2013 rating decision via an October 2015 Notice of Disagreement. He testified before the undersigned Veterans Law Judge in March 2020. During the March 2020 Board hearing, the undersigned Veterans Law Judge clarified the issues on appeal, identified potential evidentiary defects, and clarified the type of evidence that would support the Veteran’s claim. The actions of the Veterans Law Judge supplement the Veterans Claims Assistance Act (VCAA) and comply with any related duties owed during a hearing. See 38 C.F.R. § 3.103. New and Material Evidence Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New and material evidence is defined as evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration; such 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). The Board will generally presume the credibility of the evidence in determining whether evidence is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Significantly, however, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held 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 to the Board. Anglin v. West, 203 F.3d 1343 (2000). In deciding whether new and material evidence has been submitted 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 United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” See id. As a preliminary matter, with respect to the Veteran’s new argument with respect to the adequacy of the January 2013 Compensation and Pension examination, as argued during the March 2020 hearing, does not amount to new and material evidence. 1. The application to reopen the claim of entitlement to service connection for degenerative joint disease, right knee The Veteran’s claim of entitlement to service connection for degenerative joint disease, right knee was denied in a February 2013 rating decision. The Veteran was notified of this denial but did not appeal nor submit evidence within the one year appeal period. The decision therefore is final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. At the time of the February 2013 rating decision, the RO considered the claim, service treatment records, and a January 2013 Compensation and Pension examination, among other evidence. The RO denied the claim on the basis that evidence did not show the presence of an in-service incurrence, or a nexus between the Veteran’s claimed degenerative joint disease, right knee and his active service. The AOJ noted an inservice complaint, a remote post-service diagnosis and an opinion that there was no nexus to service. Since the February 2013 rating decision, the Veteran testified before the undersigned Judge in March 2020. Notably, the Veteran argued at the hearing that the January 2013 VA examiner failed to properly consider certain service treatment records from May 1998, June 1998 and April 1999. The evidence submitted by the Veteran is not new and material. 38 C.F.R. § 3.156(a). The evidence does not cure a prior evidentiary defect. At the time of the prior denial, there was no competent evidence (characteristic manifestations sufficient to identify a disease entity) of arthritis during service or within one year of separation and there was no evidence of a nexus to service. Such facts have not changed. It is clear that the AOJ determined that there was no nexus to service, to include the writing of the term arthritis at separation. Rather, the Veteran has provided only a bare assertion that his degenerative joint disease, right knee is related to service and that the January 2013 Compensation and Pension Examination was inadequate. This argument does not constitute new and material evidence. As a result, the application to reopen the Veteran’s service connection claim for degenerative joint disease, right knee must be denied. 2. The application to reopen the claim of entitlement to service connection for degenerative joint disease, left knee The Veteran’s claim of entitlement to service connection for degenerative joint disease, left knee was denied in a February 2013 rating decision. The Veteran was notified of this denial but did not appeal nor submit evidence within the one year appeal period. The decision is therefore final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103.   At the time of the February 2013 rating decision, the RO considered the claim, service treatment records, and a January 2013 Compensation and Pension examination, among other evidence. The RO denied the claim on the basis that evidence did not a nexus between the remote degenerative joint disease, left knee and his active service. Since the February 2013 rating decision, the Veteran testified before the undersigned Judge in March 2020. Notably, the Veteran argued at the hearing that the January 2013 VA examiner failed to properly consider certain service treatment records from May 1998, June 1998 and April 1999. The referenced records hold no new evidence of an in-service incurrence or a nexus between degenerative joint disease, left knee and service. The evidence submitted by the Veteran is not new and material. 38 C.F.R. § 3.156(a). The evidence does not cure a prior evidentiary defect, e.g., evidence of current disability, an in-service incurrence, or a nexus between a current disability and active service, which was not previously substantiated in the February 2013 rating decision. Rather, the Veteran has provided only an assertion that his degenerative joint disease, left knee is related to service and that the January 2013 Compensation and Pension Examination was inadequate. Such arguments do not constitute new and material evidence. As a result, the application to reopen the Veteran’s service connection claim for degenerative joint disease, left knee must be denied. Representative statement The Board notes the statements on behalf of the Veteran at the hearing. In part, it is argued that arthritis of a knee was reported in a physician summary in conjunction with the separation examination. However, the issue before the Board is whether new and material evidence has been submitted. The evidence referenced by the representative was of record at the time of the prior decision. The argument is an attempt to readjudicate the prior claim without new and material evidence or following the established practice for an assertion of clear and unmistakable error. At this stage we make no comment as to whether the writing of the term arthritis established a valid diagnosis of arthritis consistent with section 3.303. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jonah Nelson, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.