Citation Nr: A21019804 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 200416-154383 DATE: December 13, 2021 ORDER New and relevant evidence having not been received, the petition to readjudicate the claim of entitlement to service connection for a low back disability is denied. New and relevant evidence having not been received, the petition to readjudicate the claim of entitlement to service connection for radiculopathy of the right lower extremity is denied. New and relevant evidence having not been received, the petition to readjudicate the claim of entitlement to service connection for pes planus of the right foot is denied. New and relevant evidence having not been received, the petition to readjudicate the claim of entitlement to service connection for pes planus of the left foot is denied. New and relevant evidence having not been received, the petition to readjudicate the claim of entitlement to service connection for hallux valgus of the left foot is denied. New and relevant evidence having not been received, the petition to readjudicate the claim of entitlement to service connection for a left knee disability is denied. New and relevant evidence having not been received, the petition to readjudicate the claim of entitlement to service connection for a right knee disability is denied. New and relevant evidence having not been received, the petition to readjudicate the claim of entitlement to service connection for obstructive sleep apnea ("sleep apnea") is denied. FINDINGS OF FACT 1. A December 2020 rating decision denied the claim for entitlement to service connection for a low back disability, radiculopathy of the right lower extremity, pes planus of the bilateral foot, hallux valgus of the left foot, bilateral knee disability, and sleep apnea. 2. New and relevant evidence has not been received with respect to the claim for entitlement to service connection for a low back disability, radiculopathy of the right lower extremity, pes planus of the bilateral foot, hallux valgus of the left foot, bilateral knee disability, and sleep apnea that tends to prove or disprove a matter at issue. CONCLUSIONS OF LAW 1. The December 2020 rating decision, which denied the Veteran's claims of entitlement to service connection for a low back disability, radiculopathy of the right lower extremity, pes planus of the bilateral foot, hallux valgus of the left foot, bilateral knee disability, and sleep apnea, is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103. 2. The criteria for readjudication of the claim for service connection for a low back disability, radiculopathy of the right lower extremity, pes planus of the bilateral foot, hallux valgus of the left foot, bilateral knee disability, and sleep apnea have not been met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(d), 3.2501(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from September 1988 to June 1995. The rating decision on appeal was issued in February 2021 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. Previously, in December 2020, the Department of Veterans Affairs (VA) Regional Office (RO) denied the Veteran's claim for the issues on appeal. Thereafter, in February 2021, the Veteran submitted a supplemental claim under the AMA review system to reopen the issues on appeal. The RO processed the supplemental claim in a February 2021 rating decision, which denied readjudication of the issues for a lack of new and relevant evidence. In March 2021, the Veteran elected Direct Review by a Veterans Law Judge. Accordingly, the Board considers the matter per the Direct Review Docket, according to which the appellate review proceeds without additional time allocated for a Board hearing or forwarding further evidence. The Board notes that evidence was added to the claims file during a period of time when new evidence was not allowed. In March 2021, after the issuance of the rating decision on appeal, the Veteran statement from his wife in which she described symptomology she observed in the Veteran while he was in the Air Force. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. New and Relevant Evidence In order for VA to readjudicate a claim that has been previously denied, there must be "new and relevant" evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(d). In this regard, "new evidence" is defined as "evidence not previously part of the actual record before agency adjudicators." Additionally, "relevant evidence" is defined as "information that tends to prove or disprove a matter at issue in a claim." 38 C.F.R. § 3.2501(a)(1). The "relevant evidence" standard is a lower standard than the previously utilized "material evidence" standard because the statutory definition of "relevant" does not require that the new evidence relate to an unestablished fact or raise a reasonable possibility of substantiating the claim. In the December 2020 rating decision, the RO denied service connection for a low back disability, radiculopathy of the right lower extremity, pes planus of the bilateral foot, hallux valgus of the left foot, bilateral knee disability, and sleep apnea. The RO determined that although there was a current diagnosis of the conditions, there was no event, disease or injury in service or a link between his disabilities and his military service. The Veteran did not file a notice of disagreement. Then, in February 2021, he filed a supplemental claim and identified new missing records from the Ralph H. Johnson VA Medical Center in Charleston, South Carolina, dated April 24, 2020. However, in February 2021 an attempt to secure those records was made, and the VA Medical Center responded that a thorough search was conducted but that there are no records of the Veteran. See February 2021 Correspondence. Records from the VA Austell Community Based Outpatient Clinic dated September 17, 2020 to December 31, 2020 were also obtained. The records show the Veteran had a physical assessment on December 29, 2020 which the Board finds is new, but not relevant evidence as it does not prove or disprove a matter at issue in regard to the Veteran's claim on appeal. Even if the Veteran's submitted new evidence is presumed credible, it would not affect the outcome of the decision because the physical assessment did not provide an account of an in-service event or injury or a medical opinion linking his disability to service. Likewise, the Veteran's February 2021 statement that his claimed disabilities occurred in service is also not relevant evidence, as a generic statement without more detail provides no additional information and does not prove or disprove a matter at issue. See February 2021 VA Form 20-0995 Supplemental Claim Application. As such, the Board finds that the foregoing evidence was not previously part of the actual record before the RO at the time of the prior final denial but is not relevant to the issues on appeal. Based on the Veteran's lay statement and the medical evidence of record, there remains no evidence that qualifies as new and relevant, sufficient to reopen the previously denied claim. The additional evidence submitted since the December 2020 rating decision, when considered by itself and in conjunction with the evidence that was previously of record, is not new and relevant. Accordingly, the Board finds that new and relevant evidence has not been received and readjudication of the Veteran's claims for service connection for a low back disability, radiculopathy of the right lower extremity, pes planus of the bilateral foot, hallux valgus of the left foot, bilateral knee disability, and sleep apnea is not warranted. The claims are denied. JEREMY J. OLSEN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Noh, 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.