Citation Nr: 21001024 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 19-19 560 DATE: January 6, 2021 ORDER New and material evidence having not been received, the claim of service connection for a left knee condition is not reopened. New and material evidence having not been received, the claim of service connection claim for a right knee condition is not reopened. REMANDED Entitlement to service connection for Parkinson's disease is remanded. FINDINGS OF FACT 1. In a final August 2007 rating decision, the Regional Office (RO) denied service connection for a bilateral knee condition. 2. Evidence associated with the claims since the August 2007 rating decision is cumulative and redundant of the evidence of record at the time of the final decision. CONCLUSION OF LAW The criteria for reopening the service connection claim for a bilateral knee condition are not met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1966 to October 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of August 2018 and October 2018 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). Although the Veteran initially requested a hearing with a Veterans Law Judge, he withdrew his request in September 2020. His hearing request is, therefore, considered withdrawn. 38 C.F.R. § 20.704(e). This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). 1. Whether new and material evidence has been received to reopen the service connection claim for a left knee condition. 2. Whether new and material evidence has been received to reopen the service connection claim for a right knee condition. Before reaching the merits of the claim for service connection, it is the Board’s jurisdictional responsibility to consider whether a claim should be reopened, no matter what the RO has determined. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Generally, a denied claim in a final decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The exception to this rule is found in 38 U.S.C. § 5108, which provides that a claim may be reopened and reviewed if new and material evidence is submitted. Thus, the Board must decide whether the Veteran has submitted new and material evidence. By regulation, evidence is “new” if it has not been submitted to agency adjudicators and “material” if, by itself or when considered with previous evidence of record, it relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). The new-and-material-evidence standard for reopening a claim is “a low threshold.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In August 2007, the RO denied the Veteran’s service connection claim for a bilateral knee condition. In the decision, the RO acknowledged that the Veteran received treatment for his knees during service but found it unrelated to his current knee condition. At the time of the decision, the RO considered the following evidentiary records: the Veteran’s service treatment records, military personnel records, VA treatment records, private medical records, and the Veteran’s supporting statements. VA notified the Veteran of its decision, and he did not disagree with it. Although the Veteran did continue to receive VA treatment with the one-year appeal period, the RO considered this evidence and decided it was not new and material in the decision on appeal. Therefore, the August 2007 rating decision became final. See Lang v. Wilkie, 971 F.3d 1348, 1354-55 (Fed. Cir. 2020); Beraud v. McDonald, 766 F.3d 1402, 1407 (Fed. Cir. 2014). In June 2018, the Veteran filed a supplemental claim for a bilateral knee condition. In support of his claim, the Veteran submitted a statement in September 2020 contending his bilateral knee condition is related to his military service. He explained that he fell from a ladder injuring his knees shortly before he separated from service. While initially painful, his knee problems seemed to resolve after a few weeks. However, a few years later, his knee pain returned. Since then, he says, his knee pain has only gotten worse. He denied any pre-existing knee disability and any intervening cause between separation and when his knee pain returned. The Board finds the Veteran’s statement to be cumulative and redundant of the evidence of record at the time of the final decision. The Board takes no issue with the Veteran’s credibility, which is presumed at this stage of his claim, or his competency to report his experienced symptoms such as pain. Justus v. Principi, 3 Vet. App. 510, 513 (1992); 38 C.F.R. § 3.156(a). Rather, the problem is that the Veteran’s contention was already part of the record when the RO decided the Veteran’s initial claim. When listing the evidence of record in August 2007, the RO specifically noted a September 2006 and November 2006 statement submitted by the Veteran. Those statements recount the same events as his September 2020 statement. As such, the Board finds the Veteran’s September 2020 statement not new or material. See Reid v. Derwinski, 2 Vet. App. 312, 315 (1992). The Board has also reviewed the VA treatment records associated with the claims file since the RO’s August 2007 rating decision. They, too, are not new and material evidence because they do not address whether the Veteran’s current knee problems are related to his military service. Medical evidence that merely documents continued diagnosis and treatment of a condition does not constitute new and material evidence if it does not address nexus. See Cornele v. Brown, 6 Vet. App. 59, 62 (1993). The Veteran disagrees. He asks that the Board remand his claim to obtain an examination and his Memphis VA Medical Center treatment records from around 2010. By regulation, VA’s duty to assist claimants includes providing a medical examination in certain circumstances. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). But for requests to reopen a finally adjudicated claim, that duty applies only if new and material evidence is presented or secured. 38 C.F.R. § 3.159(c)(4)(iii). And while VA must obtain relevant VA treatment records even for a claim to reopen, those records have already been associated with the claims file. See 38 C.F.R. § 3.159(c)(2). Accordingly, the Board concludes that new and material evidence has not been received for the Veteran’s service connection claim for a bilateral knee condition, and thus, reopening his claim is not warranted. REASONS FOR REMAND Entitlement to service connection for Parkinson's disease is remanded. The Secretary has a duty to assist claimants and must “make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim for a benefit.” 38 U.S.C. § 5103A(a)(1). As part of this duty, the Secretary must, in appropriate cases, provide a claimant a medical examination when the record contains (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Here, the Veteran’s claims file does not contain a Parkinson’s disease diagnosis but his available medical records do show persistent or recurrent symptoms of Parkinson’s disease. In mid-2014, the Veteran noticed a tremor in his hand when he tried to write or hold a coffee mug. His VA healthcare provider referred him to neurology, who noted that he had what appeared to be an essential tremor. Since then, his healthcare providers have also noted a mild head tremor. The Veteran believes his tremors are related to his job as an aircraft machinist, which included exposure to chemicals and fumes without hand or breathing protection. Review of the Veteran’s military records confirms that he worked as a machinist during service. As there is insufficient competent medical evidence on file for VA to decide the claim, remand is required for VA to obtain an examination. Finally, as the case is being remanded for additional development, any outstanding VA treatment records should be associated with the claims file. See Bell v. Derwinski, 2 Vet. App. 611 (1992). The matter is REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with the claims file. 2. Thereafter, schedule the Veteran for a VA examination to determine the nature and likely etiology of the Veteran’s Parkinson’s disease. The Veteran’s claims file must be made available to the examiner. The examiner should indicate whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s Parkinson’s disease had its clinical onset or is due to an event or incident of the Veteran’s period of active service. If the examiner concludes that the Veteran does not have Parkinson’s disease (or some other identifiable disease), the examiner is asked to describe the Veteran’s symptoms and provide an opinion as to whether the Veteran’s symptoms cause functional impairment of his earning capacity. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Canedy, 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.