Citation Nr: 21068319 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 17-19 341 DATE: November 10, 2021 ORDER As new and material evidence has not been received, the claim of service connection for a congenital bilateral knee disability is not reopened. FINDING OF FACT 1. In a rating decision issued to the Veteran on December 6, 1967, the Agency of Original Jurisdiction (AOJ) denied a claim of service connection for a congenital bilateral knee disability (which was characterized as genu recurvatum (knee disability); this decision was not appealed and became final. 2. The evidence received since December 1967 is either cumulative or redundant of evidence previously submitted in support of the claim of service connection for a congenital bilateral knee disability. CONCLUSIONS OF LAW 1. The December 1967 rating decision, which denied a claim of service connection for a congenital bilateral knee disability, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.302 (2020). 2. Evidence received since the December 1967 rating decision in support of the claim of service connection for a congenital bilateral knee disability is not new and material; thus, this claim is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 10, 1967, to July 7, 1967. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision in which the AOJ essentially reopened the Veteran's previously denied claim of service connection for a congenital bilateral knee disability (which was characterized as bilateral knee condition (previously evaluated under genu recurvatum DC 5257)) and denied this claim on the merits. The Veteran submitted additional relevant evidence in July 2015 and the AOJ readjudicated this claim later that same month, essentially reopening and denying it on the merits again. This appeal followed. A virtual Board hearing was held in August 2021 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. The Board observes that, in a December 1967 rating decision, the AOJ denied the Veteran's claim of service connection for a congenital bilateral knee disability (which was characterized as genu recurvatum (knee disability)). The Veteran did not appeal this decision and it became final. See 38 U.S.C. § 7104 (2012). He also did not submit any relevant evidence or argument within 1 year of the December 1967 rating decision which would render it non-final for VA adjudication purposes. See Buie v Shinseki, 24 Vet. App. 242, 251-52 (2011). The Board does not have jurisdiction to consider a claim that has been adjudicated previously unless new and material evidence is presented. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Regardless of the AOJ's actions, the Board must make its own determination as to whether new and material evidence has been received to reopen this claim. That is, the Board has a jurisdictional responsibility to consider whether a claim should be reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Therefore, the issue of whether new and material evidence has been received to reopen a claim of service connection for a congenital bilateral knee disability is as stated above. The Board finds that the preponderance of the evidence is against granting the Veteran's request to reopen his previously denied claim of service connection for a congenital bilateral knee disability. The Board notes initially that claims of service connection may be reopened if new and material evidence is received. Manio v. Derwinski, 1 Vet. App. 140 (1991). The Veteran requested that this claim be reopened in statements on a VA Form 21-526EZ date-stamped as received electronically by VA on July 30, 2014. New and material evidence is defined by regulation. See 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). With respect to the Veteran's application to reopen the previously denied service connection claim for a congenital bilateral knee disability, the evidence before VA at the time of the prior final AOJ decision in December 1967 consisted of his service treatment records and lay statements. The RO found that the Veteran's induction (or enlistment) physical examination showed a bilateral genu recurvatum deformity of each knee the pre-service medical evidence showed that he had been treated for this same disability prior to service. He was separated from service for this disability because it existed prior to active service and was not aggravated by service. The RO concluded that the bilateral knee disability was congenital and was not aggravated during service. Thus, the claim was denied. The newly received evidence still does not show that the Veteran experiences a bilateral knee disability other than his congenital bilateral knee disability (genu recurvatum) which could be related to active service. The Board notes that service connection is prohibited for congenital or developmental defects. See 38 C.F.R. § 4.9. The Board also notes that there are several medical opinions in the newly received evidence which purport to relate the congenital bilateral knee disability to active service. None of these opinions address the fact that service connection is prohibited for congenital defects such as the Veteran's genu recurvatum of the bilateral knees. Id. Thus, the Board finds that the newly received evidence is cumulative or redundant of evidence previously considered by VA because it shows that the Veteran has a congenital bilateral knee disability for which service connection is prohibited. The Court held in Shade v. Shinseki, 24 Vet. App. 110 (2010), that the phrase "raises a reasonable possibility of substantiating the claim" found in 38 C.F.R. § 3.156(a) must be viewed as "enabling" reopening of a previously denied claim rather than "precluding" it. The new evidence is presumed credible for the limited purpose of reopening the previously denied claim. See Justus, 3 Vet. App. at 513. With respect to the Veteran's request to reopen, the Board finds that there is no reasonable possibility that the newly received evidence would enable rather than preclude reopening any of these claims. Unlike in Shade, there is no new evidence in this case either previously considered in the December 1967 rating decision or received since that decision became final which demonstrates that the Veteran experiences a bilateral knee disability other than his congenital bilateral knee disability (genu recurvatum) which could be attributed to active service. Thus, the analysis of new and material evidence claims that the Court discussed in Shade is not applicable to the Veteran's request to reopen the previously denied service connection claim for a congenital bilateral knee disability. In summary, as new and material evidence has not been received, the previously denied claim of service connection for a congenital bilateral knee disability is not reopened. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael T. Osborne, 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.