Citation Nr: 21031651 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-40 665 DATE: May 24, 2021 ORDER New and material evidence having not been received, the petition to reopen the claim of entitlement to service connection for a right knee condition is denied. New and material evidence having not been received, the petition to reopen the claim of entitlement to service connection for a left knee condition is denied. New and material evidence having not been received, the petition to reopen a claim of entitlement to service connection for asthma is denied. New and material evidence having not been received, the petition to reopen a claim of entitlement to service connection for sarcoidosis is denied. FINDINGS OF FACT 1. In an unappealed February 1979 rating decision, the Veteran was denied entitlement to service connections for a right and left knee condition. 2. The evidence associated with the record subsequent to the February 1979 decision is cumulative or redundant and does not raise a reasonable possibility of substantiating the claims of entitlement to service connection for a right and left knee condition. 3. In an unappealed August 1999 rating decision, the Veteran was denied entitlement to service connection for asthma and sarcoidosis. 4. The evidence associated with the record subsequent to the August 1999 decision is cumulative or redundant and does not raise a reasonable possibility of substantiating the claims of entitlement to service connection for asthma and sarcoidosis. CONCLUSIONS OF LAW 1. The February 1979 rating decision denying the Veteran's claims for service connection for a right and left knee condition is final. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has not been received sufficient to reopen claims of entitlement to service connection for right and left conditions. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. § 3.156. 3. The August 1999 rating decision denying the Veteran's claims for service connection for asthma and sarcoidosis is final. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 20.1103. 4. New and material evidence has not been received sufficient to reopen claims of entitlement to service connection for asthma and sarcoidosis. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from October 1975 to October 1978. This matter comes before the Board of Veterans' Appeals (Board) from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In her August 2016 substantive appeal, the Veteran requested a hearing before the Board at the RO. The Veteran withdrew her request for a hearing in a September 2020. Accordingly, the Veteran's hearing request has been withdrawn and the Board will proceed with adjudication. As a preliminary matter, the Board acknowledges that during the pendency of the appeal, in March 2021, the Veteran submitted a Decision Review Request: Supplemental Claim Application (VA Form 20-0995) on the issue of sarcoidosis. As a general matter, a rating decision that adjudicates service connection for a disability that is the subject of a pending appeal for service connection for that same disability is not appealable. See Hamilton v. Brown, 4 Vet. App. 528, 541 (1993) (holding that once a claim is in "appellate status" by virtue of a previously filed Notice of Disagreement or NOD, the claimant may not file an additional NOD which could confer jurisdiction on the United States Court of Appeals for Veterans Claims (Court) as to that claim). Once a claim for service connection is placed in appellate status, that issue remains part of the pending appeal and cannot be separately appealed by filing a new NOD. As the Court made clear in Hamilton, "there can be only one valid NOD as to a particular claim, extending to all subsequent [regional office] and [Board] adjudications on the same claim until a final [regional office] or [Board] decision has been rendered in that matter, or the appeal has been withdrawn by the claimant." Id. at 438. Additionally, a claimant may opt a legacy appeal into the AMA following issuance of an Statement of the case (SOC) by filing a review option set forth in 38 C.F.R. § 3.2500(a) (i.e., request for higher-level review, supplemental claim, or appeal to the Board) within the time allowed for filing a substantive appeal under 38 C.F.R. § 19.52(b), which is 60 days. 38 C.F.R. § 3.2400(c)(2); see also 38 C.F.R. § 19.52(b)(1). As the Veteran's claim was already in appellate status at the Board, the VA Form 20-0995 could not be used to separately appeal the issue in the October 2015 SOC. The Board also notes that the Veteran is only permitted to opt-in to AMA following the issuance of a SOC. Thus, the submission of the VA Form 20-0995 was improper, and the Board has proper jurisdiction to decide the petition to reopen the claim of service connection for sarcoidosis under the current legacy appeal stream. Petitions to Reopen As a threshold matter, the Board must determine whether new and material evidence has been submitted to reopen a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial). A rating decision becomes final when it has not been appealed within the prescribed time period and when no additional material evidence was received within a year of the decision; the decision is not subject to revision on the same factual basis. 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In order to reopen a claim, there must be added to the record "new and material evidence." 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decisionmakers. 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. New and material evidence can neither be cumulative or redundant of the 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. 38 C.F.R. § 3.156. The law provides that new and material evidence necessary to reopen previously and finally disallowed claims must be secured or presented since the time that the claims were finally disallowed on any basis, not only since the time the claims were last disallowed on the merits. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). 38 C.F.R. § 3.156(a), which defines new and material evidence, requires that evidence raise a reasonable possibility of substantiating the claim in order to be considered "new and material," and defines material evidence as evidence, that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). When all the evidence is assembled, the Secretary is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Right and Left knee Conditions The Veteran's claims for right and left knee conditions were originally denied in a rating decision decided in February 1979. Evidence considered in the February 1979 rating decision includes the Veteran's service treatment records, a January 1979 VA examination and X-ray. The rating decision referenced a September 1978 service treatment record in which the Veteran reported falling on her knees and that examination showed no abnormalities of the knees as well as an August 1978 separation examinations that was negative. A January 1979 VA examination reflects the Veteran's reports of intermittent knee pain and that an X-ray revealed no radiographic evidence of abnormality. The rating decision indicated the Veteran's right and left knee disabilities were not incurred in nor caused by her active service as the in-service conditions were acute and transitory and responded to treatment. As a result, her claims were denied. No further communication regarding her claims of entitlement to service connection was received until April 2013, when VA received a letter from the Veteran to reopen her claim for entitlement to service connection for her knees. Therefore, the February 1979 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when 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 which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no relevant evidence pertaining to the Veteran's claims for service connection was received prior to the expiration of the appeal period stemming from February 1979 rating decision. See also Long v. Wilkie, 33 Vet. App. 167 (2020; Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). The Board also notes that additional service treatment and personnel records were added to the record after the issuance of the February 1979 rating decision. At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). The regulation further identifies service records related to a claimed in-service event, injury, or disease as relevant service department records. 38 C.F.R. § 3.156(c)(1)(i). As such, new and material evidence is not needed to reopen a previously denied claim when relevant service treatment records and/or any other relevant service department records are received after a prior final denial. Rather, the claim is simply reviewed on a de novo basis. The Board notes that the Veteran's service personnel records and service entrance examination appear to have been received in March 2021. However, such records are not relevant to the Veteran's claims as the new service records do not address a factual issue that was dispositive against the veteran in the prior VA adjudication, i.e. lack of medical nexus. See Kisor v. McDonough, 2021 U.S.App. LEXIS 15066. As such, 38 C.F.R. § 3.156(c) is inapplicable in the instant case and the February 1979 rating decision need not be reconsidered. The pertinent evidence that has been received since the February 1979 rating decision includes continuing post-service treatment records and statements from the Veteran. The Board finds that while some of the evidence added to the record is new, as it was not previously considered by VA, it is duplicative and not material as it does not specifically address the reason the claim was previously denied. Specifically, the Veteran has not submitted any new evidence indicating that she has such disability was is etiologically related to her active service. To the extent that the Veteran submitted new statements relating her claimed right and knee conditions, such statements are duplicative or cumulative of statements that were previously submitted. Therefore, the Board finds that new and material evidence has not been presented sufficient to reopen the Veteran's claim of entitlement to service connection for right and left knee conditions. Accordingly, the petitions to reopen claims of entitlement to service connection for right and left knee disabilities are not denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. 2. Asthma and Sarcoidosis The AOJ denied the Veteran's claims of service connection for asthma and sarcoidosis in an August 1999 rating decision. Evidence considered in this rating decision included the Veteran's service treatment records, a January 1979 VA examination and post-service treatment records. The rating decision denied the Veterans claims and found that there was no record of treatment in service for sarcoidosis and asthma and that there was no evidence which demonstrates that the claimed condition was incurred in or aggravated by service. In August 1999, the Veteran was advised of the decision and her appellate rights. However, no further communication regarding her claim of entitlement to service connection was received until September 2011, when VA received a letter from the Veteran to reopen her claim for entitlement to service connection for her asthma and sarcoidosis. Therefore, the August 1999 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when 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 which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no relevant evidence pertaining to the Veteran's claims for service connection was received prior to the expiration of the appeal period stemming from August 1999 rating decision. See also Long v. Wilkie, supra; Bond v. Shinseki, supra; Roebuck v. Nicholson, supra; Muehl v. West, supra. The Board also notes that additional service treatment and personnel records were added to the record after the issuance of the August 1999 rating decision. At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). The regulation further identifies service records related to a claimed in-service event, injury, or disease as relevant service department records. 38 C.F.R. § 3.156(c)(1)(i). As such, new and material evidence is not needed to reopen a previously denied claim when relevant service treatment records and/or any other relevant service department records are received after a prior final denial. Rather, the claim is simply reviewed on a de novo basis. The Board notes that the Veteran's service personnel records and service entrance examination appear to have been received in March 2021. However, such records are not relevant to the Veteran's claims as the new service records do not address a factual issue that was dispositive against the veteran in the prior VA adjudication, i.e. lack of medical nexus. See Kisor v. McDonough, supra. As such, 38 C.F.R. § 3.156(c) is inapplicable in the instant case and the August 1999 rating decision need not be reconsidered. The pertinent evidence that has been received since the August 1999 rating decision includes continuing post-service treatment records, an internet article about sarcoidosis and statments from the Veteran. The Board finds that while some of the evidence added to the record is new, as it was not previously considered by VA, it is duplicative and not material as it does not specifically address the reason the claim was previously denied. Specifically, the Veteran has not submitted any new evidence indicating that she has such disability was is etiologically related to her active service. To the extent that the Veteran submitted new statements relating her claimed asthma and sarcoidosis, such statements are duplicative or cumulative of statements that were previously submitted. Therefore, the Board finds that new and material evidence has not been presented sufficient to reopen the Veteran's claim of entitlement to service connection for asthma and sarcoidosis. Accordingly, reopening of the claims of entitlement to service connection for asthma and sarcoidosis are not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. J. Kim, 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.