Citation Nr: 20046633 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 19-38 837 DATE: July 13, 2020 ORDER The appeal to reopen a claim of entitlement to service connection for a left knee disability is denied. FINDINGS OF FACT 1. An April 2015 Board decision denied the Veteran’s claim for entitlement to service connection for a left knee disability, and no appeal was taken from the determination. 2. A May 2015 Board letter determination denied a motion for reconsideration of the April 2015 Board decision. 3. Evidence received since the April Board decision does not relate to an unestablished fact necessary to substantiate the claim for service connection for a left knee disability. CONCLUSIONS OF LAW 1. The April 2015 Board decision which denied the Veteran’s claim for entitlement to service connection for a left knee disability is final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. 2. New and material evidence having not been received, the criteria to reopen the previously denied claim of entitlement to service connection for a left knee disability, have not been met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(a), 20.1105. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1958 to February 1961. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a left knee disability. In the absence of clear and unmistakable error, a Board decision is final on the date it is stamped unless the Chairman of the Board orders reconsideration. 38 U.S.C. §§ 7103(a), 7104; 38 C.F.R. § 20.1100(a). An exception to this rule is provided in 38 U.S.C. § 5108, which states that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Kightly v. Brown, 6 Vet. App. 200, 204 (1994). The Board is under a statutory obligation to conduct a de novo review of a new and material issue. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The requirement for the submission of new and material evidence is a jurisdictional prerequisite for a claimant to obtain review of a previously denied and final decision. 38 U.S.C. §§ 5108, 7404(b). New evidence is existing evidence not previously received by 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). Even where the RO determines that new and material evidence has not been received to reopen a claim, or that an entirely new claim has been received, the Board is not bound by that determination and must nevertheless consider whether new and material evidence has been received. See Jackson, 265 F.3d at 1370. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Additionally, the law should be interpreted to enable reopening of a claim, rather than to preclude it. Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). In this case, the Board denied service connection for a left knee disability in an April 2015 decision based on the finding that the Veteran’s left knee condition clearly and unmistakably pre-existed service, and clearly and unmistakably was not aggravated beyond natural progression by his active duty service. The Veteran subsequently requested reconsideration of the April 2015 decision. In a May 2015 letter determination, the Board denied the Veteran’s Motion for Reconsideration of the April 2015 Board decision. No appeal was taken from the April 2015 Board decision. As such, the decision is final. 38 U.S.C. § 7104. In May 2018, the Veteran petitioned to reopen the prior final April 2015 Board decision and characterized his left knee disability as arthritis. In a June 2018 rating decision, the RO declined to reopen the claim after finding that new and material evidence had not been submitted. The Veteran submitted a timely Notice of Disagreement and was issued a Statement of the Case in November 2019 which found that new and material evidence was not submitted to reopen the claim. A timely substantive appeal was received in December 2019. Evidence received since the final April 2015 Board decision that is relevant to the claim for entitlement to service connection for a left knee disability includes website information from an unknown source, additional lay statements, a February 2014 duplicate private examination, and updated VA treatment records. The additional VA treatment records associated with the claims file are new as they were not previously associated with the claims file; however, they are not material as they only continue to confirm the Veteran’s complaints for left knee pain. Additionally, the VA treatment records do not demonstrate that the Veteran’s left knee disability was aggravated beyond natural progression. In a May 2018 statement, the Veteran asserted that he injured his left knee in service on two separate occasions, was not treated for knee pain, and was reluctant to complain of knee pain while in service. The Veteran also contends that his left knee condition would only have manifest itself if there had been an injury to the patella, and that his left knee arthritis is the result of his two in-service injuries. See May 2018 Statement in Support of Claim. The Veteran’s lay statements are not material as they are cumulative and redundant and do not relate to an unestablished fact necessary to substantiate the claim for entitlement to service connection for a left knee disability. See 38 C.F.R. § 3.156(a). Specifically, the Board previously considered the Veteran’s left knee condition pre-existed his military service, and the record previously demonstrated the Veteran has a left knee disability, including arthritis. Additionally, a July 2014 VA examination considered the Veteran’s service treatment records and VA claims file, including prior lay statements. In support of the Veteran’s claim, he provided research information received by the RO in May 2018 and October 2018. However, the research information does not indicate the source, is generic in nature, and not specific to the Veteran’s case. See Wallin v. West, 11 Vet. App. 509, 514 (1998) (citing Sacks v. West, 11 Vet. App. 314, 317 (1998)); see also Libertine v. Brown, 9 Vet. App. 521, 523 (1996) (medical treatise evidence must demonstrate connection between service incurrence and present injury or condition); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996) (generic statement about the possibility of a link between chest trauma and restrictive lung disease is too general and inconclusive). As such, the research information provided does not demonstrate the Veteran’s left knee condition was clearly and unmistakably aggravated beyond natural progression by his active duty service, and therefore does not relate to an unestablished fact necessary to substantiate the claim for entitlement to service connection for a left knee disability. The Veteran also provided a February 2014 private examination relating to his left knee disability. However, the February 2014 private examination was of record at the time of the April 2015 Board decision as it was received by the VA in September 2014. Therefore, the February 2014 private examination is not new evidence. See 38 C.F.R. § 3.156(a). In sum, the evidence associated with the claims file following the April 2015 Board decision is cumulative and redundant of evidence already considered by VA, does not relate to an unestablished fact necessary to substantiate the previously denied claim, and does not raise a reasonable possibility of substantiating the claim for entitlement to service connection for a left knee disability. Based on a de novo review of the record, the Board finds that new and material evidence has not been received in order to reopen the claim for entitlement to service connection for a left knee disability. The prior denial is final, and the claim for service connection for a left knee disability is not reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. In the absence of new and material evidence, the benefit-of-the-doubt rule does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. P. Moore, 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.