Citation Nr: 21013358 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 19-08 252 DATE: March 9, 2021 ORDER New and material evidence having not been received, the previously denied claim of entitlement to service connection for a left knee disorder is not reopened, and the claim is denied. FINDINGS OF FACT 1. A January 2004 rating decision denied the Veteran’s claim of entitlement to service connection for residuals of a left knee injury. The Veteran did not appeal this decision and it became final. 2. A September 2018 rating decision determined that new and material evidence had not been presented with respect to a claim of entitlement to service connection for residuals of a left knee injury. The Veteran timely appealed that decision in February 2019. 3. Evidence received after the September 2018 rating decision is either redundant or cumulative of previously submitted evidence, does not relate to an established factor, or does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for residuals of a left knee injury. CONCLUSIONS OF LAW 1. A January 2004 rating decision denying service connection for residuals of a left knee injury is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103. 2. New and material evidence has not been received to reopen the previously denied claim of entitlement to service connection for a left knee disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Marine Corps from March 1966 to February 1969, to include service in the Republic of Vietnam. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which, in part, found that the Veteran had failed to submit new and material evidence to reopen a previously denied claim of entitlement to service connection for a left knee disorder. In October 2019, VA mailed correspondence to the Veteran’s representative and requested they submit a VA Form 646, Statement of Accredited Representative in Appealed Case, for the current claim, without any response. In October 2020, the Board mailed correspondence to the Veteran’s representative, stating that the Board had previously provided the representative an opportunity to file an informal hearing presentation (IHP), but received no response. The Board notes that while the Veteran’s representative was afforded the opportunity to submit an IHP as to the claim addressed herein, an IHP was not submitted. However, because the Veteran was afforded this opportunity to submit an IHP and, through his representative, effectively declined to submit one, the Board will proceed with this appeal. New and material evidence having not been received, the previously denied claim of entitlement to service connection for a left knee disorder is not reopened, and the claim is denied. In general, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual premise may not be considered. 38 U.S.C. § 7105. A claim in which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. “New” evidence means existing evidence not previously submitted to agency decisionmakers, while “material” evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 U.S.C. § 3.156(a). New and material evidence cannot be cumulative or redundant of evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id. When determining whether a claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). Regardless of any previous determination by the RO, the Board must consider whether new and material evidence has been received to reopen a previously denied claim. Barnett v. Brown, 83 F.3d 1380, 1383 (1996). The Veteran’s claim for service connection for residuals of a left knee injury was originally denied in a January 2004 rating decision. The RO notified the Veteran of its decision and of his appellate rights. The Veteran did not appeal the decision, nor was any new and material evidence actually or constructively received within a year following the decision. Thus, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 19.20, 19.52, 20.1103. The January 2004 rating decision denied the claim based on the finding that the medical evidence of record showed the Veteran had a left knee injury and surgery prior to joining the service, and that there was no record of a left knee injury during service or at separation. The relevant evidence of record at the time of the January 2004 rating decision included the Veteran’s entrance examination, showing a left knee surgery in 1964, prior to his entry in 1966; service treatment records, which showed no treatment or left knee issues during service; a separation examination showing no complaints of left knee issues; a May 2003 written statement by the Veteran wherein the Veteran described strenuous in-service activities which put stress on his knees; and VA treatment records showing a current left knee disability. Evidence added to the record since the January 2004 rating decision includes VA treatment records and July 2018 and September 2018 written statements from the Veteran. (Continued on the next page)   After reviewing the evidence of record, the Board finds the Veteran has not submitted new and material evidence to reopen his previously denied claim of entitlement to service connection for residuals of a left knee injury. The VA treatment records, while new, are not material because they do not relate to an unestablished fact necessary to substantiate the claim, such as evidence of an in-service injury or event, or a nexus between the Veteran’s current left knee disability and his service. Additionally, the Veteran’s July 2018 and September 2018 written statements are not new evidence because he merely repeats the information provided in his May 2003 written statement, specifically, that the Veteran participated in strenuous in-service activities which put stress on his knees, and therefore the statements are redundant of evidence of record at the time of the January 2004 denial and do not raise a reasonable possibility of substantiating the claim. 38 U.S.C. § 3.156(a). Accordingly, the Veteran’s petition to reopen his claim for service connection for residuals of a left knee injury is denied. As new and material evidence to reopen his finally disallowed claim has not been submitted, the benefit of the doubt doctrine is not applicable. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). APRIL MADDOX Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Gabrielle Ongies, 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.