Citation Nr: 21010230 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 20-12 596 DATE: February 24, 2021 ORDER The application to reopen a claim of entitlement to service connection for osteoarthritis of cervical neck is denied. REMANDED Service connection for left knee pain with arthritis is remanded. Service connection for right knee pain with arthritis is remanded. FINDINGS OF FACT 1. In a December 1999 rating decision, the Veteran was denied entitlement to service connection for osteoarthritis of cervical neck based on a lack of a current diagnosis and a lack of nexus with service. The Veteran was informed of the decision and did not appeal nor was new and material evidence received within a year of the decision. As such, the decision became final. 2. Evidence received since the December 1999 rating decision is cumulative as to the issue of service connection for osteoarthritis of cervical neck. CONCLUSIONS OF LAW 1. The December 1999 rating decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2019). 2. The evidence received since the December 1999 rating decision, which denied service connection for osteoarthritis of cervical neck, is not new and material, and the claim is not reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1962 to August 1964. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2018 rating decision by the Department of Veterans Affairs (VA). In January 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. The 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, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to 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). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but also whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.10(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a Notice of Disagreement with the decision. The decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(c). However, if new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Thus, finality will not attach to a rating decision where new and material evidence is received within the one-year appeal period. The application to reopen a claim of entitlement to service connection for osteoarthritis of cervical neck is denied. The Veteran contends that his application for service connection for osteoarthritis of the cervical neck should be reopened. He stated that his osteoarthritis was diagnosed in 1970 by his family doctor and that he had been dropping things from numbness in his fingers for a long time. At his Board hearing, the Veteran testified that he has osteoarthritis of the neck. In 1970, the Veteran was diagnosed with osteoarthritis of C5 and C6. He believes that he had this condition prior to 1970 but that it takes some time to develop. The Veteran did not provide specific contentions regarding how this condition is related to his service; the Veteran simply contends that since osteoarthritis takes time to develop, he believes he must have had it in service. Review of the file shows that entitlement to service connection for osteoarthritis of cervical neck was denied in a December 1999 rating decision based on a determination that the evidence reviewed did not show a current diagnosis or a nexus with service. The Veteran did not appeal the decision, nor was new and material evidence submitted within one year of the decision. As such, the decision became final. The Veteran filed a request to reopen this claim in March 2018. The Board has reviewed evidence submitted since the prior final denial. VA treatment records show a diagnosis of mild degenerative changes of the cervical spine. However, none of these records contain evidence that is new and material to the Veteran’s claim; that is, none of the records address the reason why the claim was denied – a lack of a nexus to service - nor do they reasonably substantiate the claim were it to be reopened. The record does not show, nor has the Veteran alleged, any specific in-service event or a nexus related to the Veteran’s cervical spine disability, or any evidence that the Veteran’s disability manifested to a compensable degree within one year of discharge from active duty. As his testimony makes clear, the Veteran simply believes his osteoarthritis is related service. There is no evidence to establish such a link. The evidence submitted since the prior final denial does not contain any additional evidence that is not duplicative or cumulative, regarding a nexus to service, of the medical treatment records, service treatment records, and Veteran’s lay statements already considered in the December 1999 rating decision. In sum, because the evidence presented since the prior final denial is not new and material, the claim for entitlement to service connection for osteoarthritis of cervical neck is not reopened. REASONS FOR REMAND Service connection for left knee pain with arthritis is remanded. Service connection for right knee pain with arthritis is remanded. The Veteran testified that he injured his bilateral knees while in service aboard the U.S.S. Dupont. The Veteran was sitting in scaffolding while painting and banged both of his knees against the ship. The corpsman looked at them and saw they were bruised. The Veteran’s knees were black and blue after. The Veteran went to medical but testified that he just “walked it off and left it alone.” Since the Veteran’s separation from service, the Veteran has undergone bilateral knee replacements. He has worked as a mechanic and has experienced knee pain, but thought this was just normal for his age. The Veteran testified that he has experienced pain since then but ignored it. The Veteran’s service treatment records show a normal separation physical and verify the Veteran’s duty on the U.S.S. Dupont. The Board finds that the Veteran is competent to report what he experienced in service. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). VA’s duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). In this particular case, the Veteran has asserted that his bilateral knee disability may be associated with an in-service knee injury. The Board, therefore, finds that a remand is warranted to obtain a VA examination and medical opinion. The matters are REMANDED for the following action: 1. The AOJ should obtain VA and non-VA treatment records. 2. After the development above is completed, the AOJ should obtain a VA examination and opinion regarding the Veteran’s bilateral knee disability. The examiner must review the entire record (including this remand) in conjunction with the examination and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a) Please identify all bilateral knee disabilities by either (i) diagnosis or (ii) functional impairment. (b) As to each disability identified, the examiner must opine as to whether it is at least as likely as not (50 percent or greater probability) that disability is related to his military service. The examiner must also opine whether any such disability at least as likely as not (1) began during active service, (2) manifested within 1 year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. In responding to the above, the examiner must consider and discuss the Veteran’s in-service knee injury. In addition, the examiner is requested to address the following: (1) What types of symptoms would have been caused by the in-service knee injury, during which the Veteran banged his knees against the side of the ship, resulting in bruising? (2) Is there any medical reason to accept or reject the proposition that the in-service knee injury could have led to the current knee disability? Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. Kerner, 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.