Citation Nr: 18140103
Decision Date: 10/02/18	Archive Date: 10/02/18

DOCKET NO. 15-00 030A
DATE:	October 2, 2018
ORDER
Whether new and material evidence has been received to reopen a claim of service connection for urinary incontinence is denied.
Whether new and material evidence has been received to reopen a claim of service connection for a left thumb disability is denied.
Whether new and material evidence has been received to reopen a claim of service connection for a right thumb disability is denied.
Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left knee disability is denied.
Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right knee disability is denied.
Whether new and material evidence has been received to reopen a claim of service connection for a rectal, bowel or colon disability is denied.
Whether new and material evidence has been received to reopen a claim of service connection for a bilateral foot disability is denied.
Service connection for rheumatoid arthritis is denied.
Whether there was clear and unmistakable error (CUE) in a VA rating decision dated on June 28, 1971, that granted service connection for chronic anxiety reaction, assigning a 10 percent rating, effective March 1, 1971, is denied.
REMANDED
Entitlement to special monthly compensation (SMC) based on the need for aid and attendance (A&A) or being housebound for the Veteran’s spouse is remanded.
FINDINGS OF FACT
1.  Additional evidence received since the Board’s August 19, 2011, decision, which denied entitlement to service connection for urinary incontinence does not relate to an unestablished fact necessary to substantiate the claim of service connection and is cumulative or redundant of the evidence previously of record and is not sufficient to raise a reasonable possibility of substantiating the claim of service connection. 
2.  Additional evidence received since the Board’s September 4, 2009, decision, which determined that new and material evidence had not been received to reopen the claims of entitlement to service connection for right and left thumb disabilities, does not relate to an unestablished fact necessary to substantiate the claims of service connection and is cumulative or redundant of the evidence previously of record and is not sufficient to raise a reasonable possibility of substantiating the claims of service connection. 
3.  Additional evidence received since the RO’s February 2004 decision, which denied entitlement to service connection for a left knee disability does not relate to an unestablished fact necessary to substantiate the claim of service connection and is cumulative or redundant of the evidence previously of record and is not sufficient to raise a reasonable possibility of substantiating the claim of service connection. 
4.  Additional evidence received since the Board’s September 4, 2009, decision, which determined that new and material evidence had not been received to reopen the claim of entitlement to service connection for a right knee disability does not relate to an unestablished fact necessary to substantiate the claim of service connection and is cumulative or redundant of the evidence previously of record and is not sufficient to raise a reasonable possibility of substantiating the claim of service connection.
5.  Additional evidence received since the Board’s September 4, 2009, decision, which denied entitlement to service connection for rectal, bowel or colon disability does not relate to an unestablished fact necessary to substantiate the claim of service connection and is cumulative or redundant of the evidence previously of record and is not sufficient to raise a reasonable possibility of substantiating the claim of service connection. 
6.  Additional evidence received since the RO’s April 2009, decision, which denied entitlement to service connection for a bilateral foot disability does not relate to an unestablished fact necessary to substantiate the claim of service connection and is cumulative or redundant of the evidence previously of record and is not sufficient to raise a reasonable possibility of substantiating the claim of service connection.
7.  The weight of the evidence is against a finding that rheumatoid arthritis manifested during service or is otherwise related to the Veteran’s active service.
8.  The June 28, 1971 rating decision granting service connection for chronic anxiety reaction and assigning a 10 percent rating was consistent with the law and supported by evidence then of record; therefore, the RO’s failure to assign a higher rating does not constitute clear and unmistakable error.
CONCLUSIONS OF LAW
1.  New and material evidence has not been received since the Board’s August 2011 decision which denied service connection for urinary incontinence, and the claim of service connection for urinary incontinence is not reopened.  38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.156.
2.  New and material evidence has not been received since the Board’s September 4, 2009 decision which determined that new and material evidence had not been received to reopen the claim of service connection for right and left thumb disabilities, and the claims of service connection for right and left thumb disabilities is not reopened.  38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.156.
3.  New and material evidence has not been received since the RO’s February 2004 decision which denied service connection for a left knee disability, and the claim of service connection for a left knee disability is not reopened.  38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156.
4.  New and material evidence has not been received since the Board’s September 4, 2009 decision which determined that new and material evidence had not been received to reopen the claim of service connection for a right knee disability, and the claim of service connection for a right knee disability is not reopened.  38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.156.
5.  New and material evidence has not been received since the Board’s September 4, 2009 decision which denied service connection for rectal, bowel, or colon disability, and the claim of service connection for rectal, bowel or colon disability is not reopened.  38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.156.
6.  New and material evidence has not been received since the RO’s April 2009 decision which denied service connection for a bilateral foot disability, and the claim of service connection for a bilateral foot disability is not reopened.  38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156.
7.  The criteria for service connection for rheumatoid arthritis have not been met.  38 U.S.C. § 1110, 5107; 38 C.F.R. § 3.303.  
8.  The RO’s June 28, 1971 decision which granted service connection for chronic anxiety reaction and assigned a 10 percent rating was not clearly and unmistakably erroneous.  38 U.S.C. §§ 5109A, 7105; 38 C.F.R. § 3.105(a).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
New and Material Evidence
If new and material evidence is presented or secured with respect to a claim that has been finally disallowed, VA must reopen the claim and review its former disposition.  38 U.S.C. § 5108; see Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998).
New and material evidence is existing evidence that by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  38 C.F.R. § 3.156(a).  New and material evidence can be neither cumulative nor 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.  Id. 
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).
In determining whether the submitted evidence is new and material, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim.  Shade v. Shinseki, 24 Vet. App. 110, 118 (2010).  Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decision makers and is material if, when considered with the evidence of record, it would at least trigger VA’s duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim.  Id. 
In order for the additional evidence to be considered new and material, the evidence must relate to a basis for the prior denial of that claim.  
Urinary incontinence
In a November 2007 rating decision, the RO denied service connection for urinary incontinence; the Veteran perfected an appeal.  On August 19, 2011, the Board denied entitlement to service connection for urinary incontinence.  The Veteran did not file an appeal and therefore the Board decision is final.  38 U.S.C. § 7104; 38 C.F.R. § 3.156(b).  
On August 23, 2011, the Appeals Management Center (AMC) sent a letter to the Veteran in which it was indicated that VA was working on his appeal with regard to a skin disability and urinary incontinence; this despite the fact that the urinary incontinence appeal had been denied by the Board.  (The skin disability issue remained in appellate status and was later denied.)  On July 12, 2012, the Veteran submitted a document indicating that he desired to withdraw his appeal.  On July 12, 2012, the AMC sent another letter to the Veteran in which the urinary incontinence and skin issues were referenced.  In July 2012, the Veteran asserted that he did not want to withdraw his appeal with regard to urinary incontinence; this, despite the fact that such issue was not in appellate status.  The RO construed this submission from the Veteran as a claim of service connection for urinary incontinence.  07/25/2012 Correspondence.  The claim was denied in a June 2013 rating decision, and this appeal followed.  
In support of his claim to reopen, the Veteran has not submitted any new medical evidence.  Rather, he has continued to assert that his disability is due to an alleged incident of physical/sexual assault while in service.  The August 2011 Board decision the medical evidence of record at that time and the lay assertions of the Veteran and others.  
Specifically, the August 2011 Board decision referenced service treatment records which are silent with respect to any injury to or disability of the urinary tract, including incontinence.  Significantly, service treatment and personnel records do not reflect that an incident of physical/sexual assault occurred.  The Board observed that service treatment records do show clinical visits for a number of unrelated disorders.  Significantly, the February 1971 service examination prior to discharge was silent with respect to any findings of urinary incontinence and the genito-urinary system was clinically evaluated as normal. 
The Veteran claimed that after the assault, he received treatment at Fort Polk emergency room where he was taken by fellow service member, C.Y.  However, again, there are no treatment records from Fort Polk documenting this incident.  Importantly, a July 2005 response from the National Personnel Records Center (NPRC) indicated a search was conducted for Fort Polk emergency room records and none were located.  The Veteran also claimed treatment at Barksdale Air Force Base after the incident.  Again, a May 2006 response from the NPRC indicated that no records were found.  Moreover, further attempts were made in April 2013 to obtain these records and none were located.  04/09/2013 VA Memo.  
Shortly after service, a May 1971 VA examination was also silent with respect to any complaints of urinary incontinence and, again, the genito-urinary system was clinically evaluated as normal.  Significantly, a hospital summary indicated that the Veteran was admitted from October 1972 to December 1972 for anxiety neurosis.  The record mentioned that the Veteran reported an emotional traumatizing experience during training, but noted he was able to subsequently complete a combat tour in Vietnam.  The record does not elaborate as to the experience being referred to by the Veteran, but he had been asserting at that time that he had been hung from his thumbs during basic training.  The August 2011 Board noted that this report is silent with respect to any finding of a physical/sexual assault occurring in service.  Further, the April 1975 to June 1975 psychiatric hospital summary is also silent with respect to any assertions of physical/sexual assault occurring in service. 
The August 2011 Board decision notes that the first post service evidence regarding urinary incontinence was in September 1998 private treatment records from Dr. Steward, which showed that the Veteran complained of dribbling after urination.  However, no etiological opinion was given and the Veteran was referred to a urologist. 
Importantly, a February 1997 private CT scan of the abdomen showed that the urinary bladder was unremarkable and the prostate was not enlarged.  Another February 2000 CT scan of the pelvis and abdomen again showed that the bladder and rectum appeared normal.  The Veteran was afforded VA psychiatric examinations in October 1997, November 1997, December 1999 and July 2000, and he did not report any incident of assault while in service at any of these examinations.  Significantly, a March 2001 private psychiatric evaluation for SSA purposes showed that the Veteran reported that he was unsure whether he was raped in service.  He did not remember being raped, but apparently, after an incident, he had to go to the hospital and get x-rays of his intestine, which showed damage that was thought to be secondary to some sexual abuse. 
Importantly, December 2004 to January 2005 private treatment records from Dr. Newman showed the Veteran’s reported history of sexual assault, as well as physical assault.  He indicated treatment at the emergency department after the assault, but did not let them take his name.  These records showed objective findings of chronic urinary hesitancy and incontinence.  While the doctor noted a history of sexual/physical trauma based on the Veteran's report, he does not provide any further etiological opinion. 
The August 2011 Board decision observed that in psychiatric treatment records approximately beginning in 2004, the Veteran began asserting that he was sexually/physically assaulted while in service.  However, these records do not provide any evidence that a physical/sexual assault actually occurred in service or link the Veteran’s urinary incontinence to service.  Importantly, a June 2007 private treatment record from Northwest Primary Care showed that the Veteran again reported a history of sexual assault.  However, the doctor noted that a 2006 examination did not find any evidence of such incident or repair evident.  The doctor concluded that given the lengthy review of the Veteran’s charge and another physician’s notes about what appeared to be a normal anal/rectal exam, the doctor had some doubt about the truthfulness of the Veteran’s history.  Further, a December 2008 VA psychiatric examination where the Veteran reported the alleged incident of physical/sexual assault observed that the Veteran was delusional to the point that events he believed occurred may in fact not have occurred. 
Moreover, the RO contacted two service members, J.G. and W.D. who were in the VA system, and had been identified in the Veteran’s statements as witnesses to the assault.  However, in May 2005 statements, both individuals stated that they did not recall any such incident occurring.  The Veteran had consistently requested that the RO contact C.Y. as well as R.D.  However, the Veteran never provided any contact information for these persons except to say that they might be in the VA system.  However, as the RO did in fact contact two service members in the VA system, it would follow that if these persons could be identified in the VA system, the RO would have contacted them as well. 
Importantly, an August 2009 redacted memorandum from the Department of Army Criminal Investigation Command showed that it had determined that allegations of sexual assault were unfounded.  The memorandum noted that physical and testimonial evidence refuted the Veteran’s assertions of assault and forced sodomy.  Further, the investigation determined that there was not an additional victim of forced sodomy as originally alleged by the Veteran.  The other alleged victim was interviewed and stated that he was not sexually assaulted by anyone while in the military.  Investigative notes showed that other persons were interviewed, including the Veteran’s mother and fellow service members, who could not confirm the Veteran’s allegations. 
The August 2011 Board decision found that the preponderance of the evidence is against entitlement to service connection for urinary incontinence.  The Board found no evidence documenting any problems with respect to this disability in service or that an alleged assault actually occurred.  Further, significantly, the Board found no competent medical evidence linking urinary incontinence to service.  Moreover, the Board noted that as it was approximately 27 years after service before the first post service medical evidence of this disability, and there was no supporting medical evidence of a continuity of pertinent symptomatology.  A lengthy period without evidence of treatment may also be viewed as evidence weighing against the Veteran's claim.  See generally Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). 
The August 2011 Board decision acknowledged the Veteran’s assertions that his urinary incontinence is due to being physically/sexually assaulted in service.  However, it was found that lay assertions of medical status did not constitute competent medical evidence for these purposes.  The Board noted that while the Veteran is competent to state that he experienced symptoms in service and to report an assault incident while in service, and while he is also competent to report a continuity of symptoms since service, the Veteran’s contentions that these disabilities are due to a sexual/physical assault that occurred in service are inconsistent with the overall evidence of record.  The Board pointed to the service discharge examination which found that his genito-urinary system was clinically evaluated as normal.  The Board noted that if the Veteran had suffered an injury due to an assault, it would be reasonable to assume that it would have been documented on the discharge examination.  
Moreover, post service treatment records do not show any evidence of sexual trauma.  Further, numerous psychiatric examinations and treatment records beginning in 1971 showed that the Veteran was silent with respect to any instances of sexual assault until the March 2001 private evaluation.  It would be reasonable to assume that if the alleged assault had occurred, the Veteran would have reported it at these examinations or during the course of seeking treatment after service.  Moreover, at the March 2001 examination, the Veteran unequivocally stated that he could not remember being raped in service.  Significantly, a 2006 private examination did not find any evidence of such incident or repair evident.  Further, two fellow service members identified by the Veteran did not recall any such incident.  Moreover, the June 2007 private medical doctor and December 2008 VA doctor of psychology both doubted the truthfulness of the Veteran’s history.  Importantly, a criminal investigation done by the Department of Army determined that the Veteran’s allegations were unfounded. 
The August 2011 Board decision notes that it was also significant that there was no evidence of pertinent complaints of sexual assault or urinary symptoms over many years.  The Board believed it reasonable to expect that the Veteran would have reported the sexual assault as well as the urinary symptoms if he was in fact experiencing them.  Again, the first mention of any alleged sexual assault was at the March 2001 private psychiatric evaluation where the Veteran could not actually recall the incident taking place, and the first evidence of any urinary symptoms was in September 1998.  Given these inconsistencies, the Veteran's assertions could not be deemed credible and, in turn, were determined to have no probative value. 
The August 2011 Board decision also considered the lay statements from the Veteran’s wife and mother indicating that he was assaulted while in service.  However, the Board noted that as they were not present at the time of the alleged assault, neither of these persons was competent to report the actual occurrence of the alleged sexual assault as they do not have firsthand knowledge.  It was also noted that during the Department of the Army’s criminal investigation, the Veteran’s mother stated that she had no knowledge of the alleged sexual assault.  Moreover, given that the statements were based on the Veteran’s own history, which had been deemed not credible, these statements, likewise, were also determined to not be credible.
Since the last final August 2011 Board decision, the Veteran continues to assert in lay statements and testimony that he has urinary incontinence due to an in-service assault.  Such statements, however, are cumulative of the lay assertions previously considered and do not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim.  Such assertions do not contradict or undermine the evidence that was before the Board in the prior decision.  The “new” statements and testimony continue to reiterate his assertions that he has urinary incontinence due to an in-service sexual assault.  The Board notes that lay assertions regarding medical diagnoses and medical causation cannot suffice to reopen a claim under 38 U.S.C. § 5108.  See generally Routen v. Brown, 10 Vet. App. 183, 186 (1997) (citing Wilkinson v. Brown, 8 Vet. App. 263, 268 (1995)); see also Moray v. Brown, 5 Vet. App. 211, 214 (1993) (lay assertions of medical causation cannot serve as a predicate to reopen a veteran’s claim).  The Veteran’s statements pertaining to his urinary incontinence are cumulative and redundant of the contentions already of record.  The new evidence does not raise any reasonable possibility that the Veteran’s claim could be substantiated nor does it pertain to the basis for the previous denial.  Cf. Shade.  The Veteran has not submitted any “new” or “material” evidence in support of an in-service sexual assault, nor that he has urinary incontinence due to service.  There is no “new” evidence that raises a reasonable possibility that the Veteran’s claim could be substantiated.  
Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); 38 C.F.R. § 3.303.  
The Board notes that the Veteran is not competent as a lay person to provide evidence on questions of etiology with regard to his claimed urinary incontinence; however, the Veteran has not submitted any ‘new’ or ‘material’ evidence that supports an etiological relationship.  
In summary, for the reasons and bases set forth above, the Board finds that the evidence received in conjunction with the claim to reopen entitlement to service connection for urinary incontinence is not new and material, and does not serve to reopen the claim of service connection.  38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a).  Having found that the evidence is not new and material, no further adjudication of the claim is warranted.  Because the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen his finally disallowed claim, the benefit-of-the-doubt doctrine is inapplicable.  Annoni v. Brown, 5 Vet. App. 463, 467 (1993).
Bilateral thumbs
The present appeal involves the issue of whether new and material evidence has been received to reopen a claim for entitlement to service connection for residuals of stretching with strain, metacarpophalangeal joint, right and left thumbs.  Most recently, in a September 4, 2009 decision the Board determined that new and material evidence had not been received to reopen the claims of entitlement to service connection for right and left thumb disabilities.  The Veteran did not file an appeal and the Board decision is final.  38 U.S.C. § 7104; 38 C.F.R. § 3.156(b).  
Specifically, the September 2009 Board found that the June 1971 rating decision denying service connection for residuals of stretching with strain, metacarpophalangeal joint, right and left thumbs was final.  38 U.S.C. § 7105 (c).  The pertinent evidence of record at that time consisted of service treatment records and a May 1971 VA examination.  Service treatment records were silent with respect to any injury to or disability of the thumbs.  The May 1971 VA examination showed that the Veteran reported that he was “strung up” by his thumbs by his training sergeant at basic training.  On examination, while each thumb showed hypermobility, the range of bending was full.  The diagnosis was residuals of acute stretching and strain of metacarpal phalangeal joints each thumb; manifested by laxity of these joints and by pain and stiffness intermittent.  Nevertheless, the June 1971 rating decision denied service connection for residuals of stretching with strain, metacarpophalangeal joint, right and left thumbs, as there was no evidence of treatment in service and range of bending was full. 
In support of his 2007 claim to reopen, additional evidence became part of the record, including, in pertinent part:  private treatment records from 1996 to 2000 from Robert Steward, M.D.; private treatment records from 1995 to 2007 from Keith Johns, D.C.; an April 2001 private physical evaluation by Kim Webster, M.D.; private treatment records from 2004 to 2005 from Daniel Newman, M.D.; private treatment records from 1990 to 2008 from Northwest Primary Care; private treatment records from 2004 to 2005 from Robert Ratzow, D.C.; VA treatment records from 2004 to 2005; private treatment records from 1995 from Robert Berecz, M.D.; SSA records; numerous statements from the Veteran; and service personnel records.  The evidence of record also included numerous psychological treatment records, as well as lay statements primarily pertaining to the Veteran’s psychiatric disability. 
In his statements, the Veteran reiterated that he was hung by his thumbs by a drill sergeant while in service.  The September 2009 Board decision determined that these statements could not be considered new and material because they were redundant of statements already of record at the time of the June 1971 rating decision. 
Further, the September 2009 Board found that numerous additional treatment records were primarily silent with respect to any problems with the Veteran’s thumbs, with the exception of a January 2000 record from Northwest Primary Care and a February 2000 record from Dr. Johns, which both indicated that the Veteran had pain radiating to thumbs associated with extending his arm, as well as back pain.  The Board found, however, that these additional records did not show that the Veteran has a bilateral thumb disability that manifested in service.  
In support of his claim to reopen, the Veteran has not submitted any medical evidence, but rather has submitted statements and testimony pertaining to his assertions of being hung by his thumbs during service.  Such statements, however, are, at best, cumulative of the lay assertions previously considered and do not relate to an unestablished fact necessary to substantiate the claims or raise a reasonable possibility of substantiating the claims.  Such assertions do not contradict nor undermine the evidence that was before the Board in the prior decision.  The “new” statements and testimony continue to reiterate his assertions that he has bilateral thumb disabilities due to an in-service incident.  The Board notes that lay assertions regarding medical diagnoses and medical causation cannot suffice to reopen a claim under 38 U.S.C. § 5108.  See generally Routen v. Brown, 10 Vet. App. 183, 186 (1997) (citing Wilkinson v. Brown, 8 Vet. App. 263, 268 (1995)); see also Moray v. Brown, 5 Vet. App. 211, 214 (1993) (lay assertions of medical causation cannot serve as a predicate to reopen a veteran’s claim).  The Veteran’s statements pertaining to his thumbs are cumulative and redundant of the contentions already of record.  The new evidence does not raise any reasonable possibility that the Veteran’s claims could be substantiated nor does it pertain to the basis for the previous denial.  Cf. Shade.  The Veteran has not submitted any “new” or “material” evidence in support of his claims pertaining to the thumbs.  There is no “new” evidence that raises a reasonable possibility that the Veteran’s claims could be substantiated.  
Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); 38 C.F.R. § 3.303.  
The Board notes that the Veteran is not competent as a lay person to provide evidence on questions of etiology with regard to his claimed bilateral thumb disability; however, the Veteran has not submitted any ‘new’ or ‘material’ evidence that supports an etiological relationship.  
In summary, for the reasons and bases set forth above, the Board finds that the evidence received in conjunction with the claims to reopen entitlement to service connection for bilateral thumb disabilities is not new and material, and does not serve to reopen the claim of service connection.  38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a).  Having found that the evidence is not new and material, no further adjudication of the claim is warranted.  Because the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen his finally disallowed claim, the benefit-of-the-doubt doctrine is inapplicable.  Annoni v. Brown, 5 Vet. App. 463, 467 (1993).
Bilateral knees
In June 1989, the Veteran claimed entitlement to service connection for a right knee disability.  In a July 1989 rating decision, service connection was denied for a right knee disability on the basis that service treatment records were negative for complaint of or treatment for a right knee condition.  Notice was issued to the Veteran in August 1989.  The Veteran did not file a notice of disagreement and no new evidence was received within one year of the determination.  Thus, the July 1989 rating decision is final.  38 U.S.C. 7105 (c); 38 C.F.R. 3.156 (b), 20.302, 20.1103; Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011).
In November 1990, the Veteran claimed entitlement to service connection for disabilities of the knees.  Specifically, he asserted that his knees were injured in August 1970 while he was on guard duty stationed in Vietnam.  In a July 1991 rating decision, service connection was denied for a left knee disability on the basis that service treatment records showed no evidence of complaint of or treatment of the left knee; and, it was determined that new and material evidence had not been received to reopen the claim of service connection for a right knee disability as no new and material evidence had been received.  Notice was issued to the Veteran in August 1991.  The Veteran did not file a notice of disagreement, and no new and material evidence was received within one year of the determination.  Thus, the July 1991 rating decision is final. 38 U.S.C. 7105 (c); 38 C.F.R. 3.156 (b), 20.302, 20.1103; Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011).
In January 1998, the Veteran claimed entitlement to service connection for disabilities of the knees.  He asserted that a doctor repaired his knee in 1984.  He asserted that he injured his knee in Vietnam.  Medical records associated with the claims folder note that the Veteran underwent right knee arthroscopy in 1984, he sustained a right knee tear in 1988, and he underwent right knee surgery in April 1988 and February 1990.  01/20/1998 Medical Treatment Record-Government Facility at 4.  In a March 1998 rating decision, the RO determined that new and material evidence had not been received to reopen the claims.  The Veteran did not file a notice of disagreement, but in April 1998 he filed a lay statement in support of his claim.  In an April 2000 rating decision, it was determined that new and material evidence had not been received to reopen the claims; however, in an October 2000 rating decision the issue of whether new and material evidence was deferred.  In an April 2001 rating decision, it was determined that new and material evidence had not been received to reopen the claims.  It was noted that medical evidence had been requested from the Veteran but none was submitted.  The Veteran did not file a notice of disagreement but he filed a claim to reopen in June 2001 and submitted an April 2001 medical record in support of his claim which reflects a complaint of right knee pain and arthritis of all of the joints.  The Veteran told the examiner that in 1970 he fell and injured multiple joints including his right knee.  He got better and had occasional swelling.  He reported three surgeries.  He reported decreased range of motion and constant pain.  The examiner diagnosed right knee pain with decreased range of motion secondary to trauma and multiple surgeries.  Also, records from the Social Security Administration (SSA) reflect the Veteran’s report that he injured his right knee in a December 1987 accident while on the job.  11/25/2002 Medical Treatment Records – Furnished by SSA at 13.  Reference was made to an abnormal right knee x-ray in 1999 but the left knee was within normal limits.  Id. at 23.  
In a November 2003 rating decision, the RO reopened the claims of service connection for right and left knee disabilities but found that the evidence did not support a relationship to service.  Notice was issued to the Veteran in December 2003.  In January 2004, March 1998 and April 2000 x-rays of the knees were associated with the claims folder.  01/16/2004 Medical Treatment Record-Non-Government Facility at 11, 14.  In a February 2004 rating decision, the RO reopened the claims of service connection for right and left knee disabilities but found that the evidence did not support a relationship to service.  The Veteran did not file a notice of disagreement and no new and material evidence was received within one year of the determination.  Thus, the February 2004 rating decision is final.  38 U.S.C. 7105 (c); 38 C.F.R. 3.156 (b), 20.302, 20.1103; Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011).
In July 2007, the Veteran submitted a lay statement from his spouse indicating that the Veteran has knee problems and he told her about his in-service injury.  07/02/2007 Buddy/Lay Statement.  In a November 2007 rating decision, it was determined that new and material evidence had not been received to reopen his claim of service connection for a right knee disability.  The Veteran perfected an appeal with regard to this issue.  
In a September 2009 decision, the Board determined that new and material evidence had not been received to reopen the claim of service connection for a right knee disability.  The Veteran did not file an appeal; the Board decision is final.  38 U.S.C. § 7104; 38 C.F.R. § 3.156(b).  
The September 2009 Board decision acknowledged the medical evidence of record, and noted that service treatment records were silent with respect to any injury or disability of the right knee.  A May 1971 VA examination was silent with regard to the right knee.  The Board noted the Veteran’s report of falling and injuring his right knee in 1970, as stated in December 1990 and April 2001 private evaluations.  An October 1997 psychiatric examination showed complaints of knee pain but did not show that the disability was due to service.  It was indicated that the March 2001 evaluation documented that he had right knee difficulties and multiple surgeries secondary to an accident in 1987.  SSA records showed that the Veteran was considered disabled since June 2000 due to post traumatic degenerative changes of the right knee with contractures, but do not relate this disability to service.  
It was indicated that since the February 2004 rating decision, additional evidence became part of the record, to include medical records, VA treatment records, additional statements from the Veteran, service personnel records, and a June 2007 lay statement from the Veteran’s wife.  The September 2009 Board noted that while such records showing continuing treatment for right knee pain, such do not show that the Veteran’s right knee disability was incurred in or aggravated in service.  Treatment records from 1990 from Northwest Primary Care showed that he injured his right knee in a December 1987 accident.  Further, the service personnel records are silent with respect to any injury to the right knee in service.  The Board determined that while this evidence is new, it cannot be considered material because it does not relate to these unestablished facts which are necessary to substantiate the Veteran’s claim.  
The September 2009 Board also determined that the Veteran’s statements which simply reiterated how he injured his knee in service could not be considered new and material because they are redundant of statements already of record.  With regard to the statement from his spouse that the Veteran told her he injured his knee going down a guard tower one night, this lay statement could not be considered new and material because it is simply repeating the Veteran’s statements of record without having any firsthand knowledge of the alleged incident.  It was indicated that the Veteran’s wife did not know the Veteran when he was in service and she was determined to not be competent to attest to any injuries the Veteran incurred during service.  
In support of his petition to reopen a claim of service connection for disabilities of the right and left knee before this Board, the Veteran has not submitted any medical evidence, but rather has submitted statements and testimony pertaining to his assertions of sustaining knee injuries during service.  02/06/2018 Hearing Transcript at 20.  Such statements, however, are, at best, cumulative of the lay assertions previously considered and do not relate to an unestablished fact necessary to substantiate the claims or raise a reasonable possibility of substantiating the claims.  Such assertions do not contradict or undermine the evidence that was before the Board in the prior decision.  The “new” statements and testimony continue to reiterate his assertions that he has knee disabilities due to an in-service injury.  The Board notes that lay assertions regarding medical diagnoses and medical causation cannot suffice to reopen a claim under 38 U.S.C. § 5108.  See generally Routen v. Brown, 10 Vet. App. 183, 186 (1997) (citing Wilkinson v. Brown, 8 Vet. App. 263, 268 (1995)); see also Moray v. Brown, 5 Vet. App. 211, 214 (1993) (lay assertions of medical causation cannot serve as a predicate to reopen a veteran’s claim).  The Veteran’s statements pertaining to his knees are cumulative and redundant of the contentions already of record.  The new evidence does not raise any reasonable possibility that the Veteran’s claims could be substantiated nor does it pertain to the basis for the previous denial.  Cf. Shade.  The Veteran has not submitted any “new” or “material” evidence in support of his claims pertaining to the knees.  There is no “new” evidence that raises a reasonable possibility that the Veteran’s claims could be substantiated.  
Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); 38 C.F.R. § 3.303.  
The Board notes that the Veteran is not competent as a lay person to provide evidence on questions of etiology with regard to his claimed bilateral knee disability; however, the Veteran has not submitted any ‘new’ or ‘material’ evidence that supports an etiological relationship.  
In summary, for the reasons and bases set forth above, the Board finds that the evidence received in conjunction with the claims to reopen entitlement to service connection for bilateral knee disabilities is not new and material, and does not serve to reopen the claim of service connection.  38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a).  Having found that the evidence is not new and material, no further adjudication of the claim is warranted.  Because the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen his finally disallowed claim, the benefit-of-the-doubt doctrine is inapplicable.  Annoni v. Brown, 5 Vet. App. 463, 467 (1993).
Rectal, bowel, or colon disability
The Veteran is claiming service connection for rectal, bowel and colon disability.  He has asserted that this disability stems from the same alleged incident of physical/sexual assault while in service which was discussed above.  
In a September 4, 2009 decision, the Board denied entitlement to service connection for rectal, bowel and colon disability.  The Veteran did not file an appeal; the Board decision is final.  38 U.S.C. § 7104; 38 C.F.R. § 3.156(b).  
At the time of the September 2009 Board decision, the Veteran was making the same assertions as to a relationship to service.  The September 2009 Board decision noted that service treatment records are silent with respect to any injury to or disability of the rectal, bowel or colon.  Significantly, service treatment and personnel records do not reflect that an incident of physical/sexual assault occurred.  Service treatment records do show clinical visits for a number of unrelated disorders.  While the Veteran claimed that after the assault, he received treatment at Fort Polk emergency room where he was taken by a fellow service member, C.Y., there are no treatment records from Fort Polk documenting this incident.  Importantly, a July 2005 response from the National Personnel Records Center (NPRC) indicated a search was conducted for Fort Polk emergency room records and none were located.  The Veteran also claimed treatment at Barksdale Air Force Base after the incident.  Again, a May 2006 response from the NPRC indicated that no records were found.  Significantly, the February 1971 examination prior to discharge showed that the Veteran’s anus and rectum, as well as the spine, were evaluated as clinically normal.  In sum, the examination was silent with respect to any findings of rectal, bowel, or colon disability. 
The September 2009 Board decision noted that a May 1971 VA examination was silent with respect to any findings of a rectal, bowel, or colon disability.  Significantly, a hospital summary indicated that the Veteran was admitted from October 1972 to December 1972 for anxiety neurosis.  The report mentioned the Veteran’s report of an emotional traumatizing experience during training, but noted that he was able to subsequently complete a combat tour in Vietnam.  Significantly, the record does not elaborate as to the experience being referred to by the Veteran and he had been asserting at that time that he had been hung from his thumbs during basic training.  Simply stated, this report is silent with respect to any finding of a physical/sexual assault occurring in service. 
The September 2009 Board decision acknowledged that in 1995, private treatment records showed that the Veteran had a barium enema that showed diverticulitis.  A December 2002 private treatment record stated that approximately in 1999, the Veteran reported that he had an appendectomy for an appendiceal rupture and as part of the surgery, he had a partial bowel resection.  Since the surgery, the Veteran had trouble with diarrhea/constipation and abdominal pain.  A follow up February 2003 colonoscopy showed a normal appearing surgical anastomosis at 90 cm with normal appearing small bowel.  There was no evidence of surgical anastomotic structuring or compromise of the mucosa.  The colonoscopy also showed evidence of sigmoid diverticulosis and small internal hemorrhoids.  The examiner suspected that the Veteran’s symptoms were probably functional in etiology given the essentially negative examination.  Significantly, there was no notation of any sort of sexual trauma.  Follow up treatment records continued to show treatment for irritable bowel syndrome and diverticulitis.  Nevertheless, the Board in September 2009 found that these records were silent with respect to any finding of an occurrence of sexual assault in service, or that a rectal, bowel and colon disability manifested in service. 
December 2004 to January 2005 private treatment records from Dr. Newman showed that the Veteran reported a history of sexual assault as well as physical assault resulting in neck pain.  He indicated treatment at the emergency department after the assault, but did not let them take his name.  The records also showed an assessment of irritable bowel syndrome and diverticulosis as well as scarring of the sphincter evident at 8’clock position.  However, the rectal had normal external appearance and tone.  While the doctor noted a history of sexual/physical trauma based on the Veteran’s report, he did not link any current disabilities to this trauma. 
The Board in September 2009 observed that in psychiatric treatment records approximately beginning in 2004, the Veteran began asserting that he was sexually/physically assaulted while in service.  However, these records did not provide any evidence that a physical/sexual assault actually occurred in service nor did the records link the Veteran’s colon, bowel and rectal disability to service.  A June 2007 private treatment record from Northwest Primary Care showed that the Veteran again reported a history of sexual assault.  However, the doctor noted that a 2006 examination did not find any evidence of such incident or repair evident.  The doctor concluded that given the lengthy review of the Veteran’s charge and another physician’s notes about what appeared to be a normal anal/rectal exam, the doctor had some doubt about the truthfulness of the Veteran’s history.  Further, a December 2008 VA psychiatric examination where the Veteran reported the alleged incident of physical/sexual assault observed that the Veteran was delusional to the point that events he believed occurred may in fact not have occurred. 
Moreover, the RO contacted two service members, J.G. and W.D. who were in the VA system, and had been identified in the Veteran’s statements as witnesses to the assault.  However, in May 2005 statements, both individuals stated that they did not recall any such incident occurring.  The Veteran had consistently requested that the RO contact C.Y.  However, the Veteran did not provide any contact information for this person except to say that he might be in the VA system.  However, as the RO did in fact contact two service members in the VA system, it would follow that if this person could be identified in the VA system, the RO would have contacted him as well. 
After reviewing the record, the September 2009 Board decision found that the evidence weighed against entitlement to service connection for rectal, bowel and colon disability.  The Board found that there was no evidence documenting any problems with respect to these disabilities in service or an alleged assault.  Further, the September 2009 Board found that the Veteran’s contentions that these disabilities are due to a sexual/physical assault that occurred in service were inconsistent with the overall evidence of record.  For example, post service treatment records did not show any evidence of sexual trauma.  Significantly, a 2006 examination did not find any evidence of such incident or repair evident.  Further, two fellow service members identified by the Veteran did not recall any such incident.  Moreover, the June 2007 private medical doctor and December 2008 VA doctor of psychology both doubted the truthfulness of the Veteran’s history.  Importantly, the service discharge examination found that Veteran’s anus and rectum were clinically normal. 
Further, the September 2009 Board decision found that there was no competent medical evidence linking a current rectal, bowel and colon disability to service.  Moreover, as it was approximately 24 years before the first post service medical evidence of these disabilities, the Board found no supporting evidence of a continuity of pertinent symptomatology.  
The September 2009 Board decision assigned little probative weight to the Veteran’s assertions that the claimed disabilities were related to service, as his contentions were inconsistent with the other evidence of record.  Thus, while the Veteran’s contentions were carefully considered by the September 2009 Board, it was determined that these contentions were outweighed by the remaining evidence of record.  
In support of his claim to reopen service connection for rectal, bowel and colon disabilities before this Board, while the Veteran has submitted new medical evidence in support of his claim, such evidence is essentially cumulative of other medical evidence of record and does not support an etiological relationship to service.  Likewise, the Veteran has submitted statements and testimony asserting that he has rectal, bowel and colon disabilities due to an in-service assault, but such statements are, at best, cumulative of the lay assertions previously considered and does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim.  Such assertions do not contradict or undermine the evidence that was before the Board in the prior decision.  The “new” statements and testimony continue to reiterate his assertions that he has rectal, bowel, or colon disabilities due to an in-service sexual assault.  The Board notes that lay assertions regarding medical diagnoses and medical causation cannot suffice to reopen a claim under 38 U.S.C. § 5108.  See generally Routen v. Brown, 10 Vet. App. 183, 186 (1997) (citing Wilkinson v. Brown, 8 Vet. App. 263, 268 (1995)); see also Moray v. Brown, 5 Vet. App. 211, 214 (1993) (lay assertions of medical causation cannot serve as a predicate to reopen a veteran’s claim).  The Veteran’s statements pertaining to his claimed rectal, bowel, or colon disabilities are cumulative and redundant of the contentions already of record.  The new evidence does not raise any reasonable possibility that the Veteran’s claims could be substantiated nor does it pertain to the basis for the previous denial.  Cf. Shade.  The Veteran has not submitted any “new” or “material” evidence in support of an in-service sexual assault, nor that he has a rectal, bowel or colon disability due to service.  There is no “new” evidence that raises a reasonable possibility that the Veteran’s claims could be substantiated.  
Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); 38 C.F.R. § 3.303.  
The Board notes that the Veteran is not competent as a lay person to provide evidence on questions of etiology with regard to his claimed rectal, bowel, and colon disabilities; however, the Veteran has not submitted any ‘new’ or ‘material’ evidence that supports an etiological relationship.  
In summary, for the reasons and bases set forth above, the Board finds that the evidence received in conjunction with the claims to reopen entitlement to service connection for rectal, bowel, or colon disabilities is not new and material, and does not serve to reopen the claim of service connection.  38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a).  Having found that the evidence is not new and material, no further adjudication of the claim is warranted.  Because the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen his finally disallowed claim, the benefit-of-the-doubt doctrine is inapplicable.  Annoni v. Brown, 5 Vet. App. 463, 467 (1993).
Bilateral foot disability
In October 2008, the Veteran filed a claim of service connection for bilateral ankle and bilateral foot disabilities.  In January 2009, he submitted a statement recounting the claimed knee injury during guard duty, discussed above, and asserted that he was knocked down by a truck and injured his right ankle.  01/28/2009 Correspondence.  
In an April 2009 rating decision, service connection for bilateral ankle and bilateral foot disabilities.  With regard to the claimed bilateral foot disability, the RO noted that service treatment records were negative for a foot condition, and the Veteran had not submitted current medical evidence of a foot condition.  The Veteran did not file a notice of disagreement and no new and material evidence was received within one year of the determination.  Thus, the April 2009 rating decision is final. 38 U.S.C. 7105 (c); 38 C.F.R. 3.156 (b), 20.302, 20.1103; Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011).
In October 2012, the Veteran submitted a statement that when he was hit by the truck he injured his foot.  10/18/2012 Correspondence.  In the June 2013 rating decision, the RO determined that new and material evidence had not been received to reopen the claim.  This appeal ensued.  
At the Board hearing, the Veteran testified that his feet and ankles were injured when he was hit by a truck – a “deuce-and-a-half.”  02/06/2018 Hearing Transcript at 21.  
In support of his claim to reopen service connection for a bilateral foot disability, the Veteran has not submitted any medical evidence of a current bilateral foot disability, nor has he submitted any supportive evidence that he has a disability that is due to service.  Moreover, the Veteran’s statements and testimony asserting that he injured his feet/ankles due to being hit by a truck, are essentially cumulative of the lay assertions previously considered and do not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim.  Such assertions do not contradict nor undermine the evidence that was before the Board in the prior decision.  The “new” statements and testimony continue to reiterate his assertions that he has a bilateral foot disability due to an in-service incident that is not supported by the record.  The Board notes that lay assertions regarding medical diagnoses and medical causation cannot suffice to reopen a claim under 38 U.S.C. § 5108.  See generally Routen v. Brown, 10 Vet. App. 183, 186 (1997) (citing Wilkinson v. Brown, 8 Vet. App. 263, 268 (1995)); see also Moray v. Brown, 5 Vet. App. 211, 214 (1993) (lay assertions of medical causation cannot serve as a predicate to reopen a veteran’s claim).  The Veteran’s statements pertaining to his claimed bilateral foot disability are cumulative and redundant of the contentions already of record.  The new evidence does not raise any reasonable possibility that the Veteran’s claims could be substantiated nor does it pertain to the basis for the previous denial.  Cf. Shade.  The Veteran has not submitted any “new” or “material” evidence in support of his bilateral foot disability.  There is no “new” evidence that raises a reasonable possibility that the Veteran’s claims could be substantiated.  
Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); 38 C.F.R. § 3.303.  
The Board notes that the Veteran is not competent as a lay person to provide evidence on questions of diagnosis or etiology with regard to his claimed bilateral foot disability; however, the Veteran has not submitted any ‘new’ or ‘material’ evidence that supports an etiological relationship.  
In summary, for the reasons and bases set forth above, the Board finds that the evidence received in conjunction with the claim to reopen entitlement to service connection for a bilateral foot disability is not new and material, and does not serve to reopen the claim of service connection.  38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a).  Having found that the evidence is not new and material, no further adjudication of the claim is warranted.  Because the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen his finally disallowed claim, the benefit-of-the-doubt doctrine is inapplicable.  Annoni v. Brown, 5 Vet. App. 463, 467 (1993).
Service connection
The Veteran asserts that service connection is warranted for rheumatoid arthritis.
The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease.
The Board concludes that, while the Veteran has a diagnosis of arthralgias, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease.  38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d).  Specifically, an April 2001 private treatment record reflects complaints of arthritis of basically all joints.  The Veteran reported that as a child all of his joints hurt to include his neck, back, hands, elbows, and shoulders.  The examiner diagnosed arthralgias, etiology unknown, but highly suspect a pathogen in his gastrointestinal tract.  03/11/2002 Medical Treatment Record-Government Facility.  
While a diagnosis is of record, the evidence of record does not support that such diagnosis is due to active service.  A February 1971 Report of Medical Examination performed for separation purposes reflects that his ‘lower extremities,’ ‘upper extremities,’ and ‘spine, other musculoskeletal’ were clinically evaluated as normal.  The Veteran also asserted that since his last physical his condition had not changed and his condition was “fair.”  04/29/2008 STR-Medical at 10-11.  
The evidence of record does not support a relationship to service.  The condition was diagnosed approximately 30 years after separation from service.  With respect to negative evidence, the Court has held that the fact that there was no record of any complaint, let alone treatment, involving the Veteran’s condition for many years is a factor for consideration. See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom.  Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting that it was proper to consider the veteran’s entire medical history, including a lengthy period of absence of complaints).  
The Veteran has suggested that his rheumatoid arthritis may be due to exposure to herbicides in the Republic of Vietnam.  In this regard, he had active service in the Republic of Vietnam and it was presumed that he was exposed to Agent Orange.  38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii).  
It is provided that the diseases listed at 38 C.F.R. § 3.309 (e) shall have become manifest to a degree of 10 percent or more at any time after service, with an exception not applicable to this case.  38 U.S.C. § 1116 ; 38 C.F.R. § 3.307 (a)(6)(ii).  Rheumatoid arthritis is not a presumptive condition per the applicable regulations.
Notwithstanding the foregoing, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has determined that the Veteran’s Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation.  Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  The rationale employed in Combee also applies to claims based on exposure to Agent Orange.  Brock v. Brown, 10 Vet. App. 155, 160 (1997).  While the Veteran was exposed to Agent Orange during service, there is no evidence to support a finding that rheumatoid arthritis is due to such exposure.
The Board declines to obtain a medical nexus opinion with respect to the issue of entitlement to service connection, because there is no evidence of pertinent disability in service, and no evidence indicating a relationship between his service and rheumatoid arthritis. 
While arthritis manifested 30 years after separation from service, there is no indication that this disability is associated with service, to include exposure to herbicides.  McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006); see also Charles v. Principi, 16 Vet. App. 370 (2002).  Indeed, in view of negative service treatment records, and the lack of diagnosis of this disability or any manifestations for many years post-service, any opinions relating this disability to service would certainly be speculative. 
Moreover, the evidence of record does not suggest that his rheumatoid arthritis is due to service.  Service connection may not be based on a resort to pure speculation or even remote possibility.  See 38 C.F.R. § 3.102.  The duty to assist is not invoked, even under McLendon, where “no reasonable possibility exists that such assistance would aid in substantiating the claim.”  38 U.S.C. § 5103A (a)(2).  The act of filing a claim and simply stating the condition is related to service is not enough to trigger the duty to provide an examination.  Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). 
Courts have held that while there must be “medically competent” evidence of a current disability, “medically competent” evidence is not required to indicate that the current disability may be associated with service.  Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010); Waters, 601 F.3d at 1277.  On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet this standard as this would, contrary to the intent of Congress, result in medical examinations being “routinely and virtually automatically” provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279.  Consequently, a VA examination is not warranted for service connection for rheumatoid arthritis.  McLendon, 20 Vet. App. at 83.
The Board has given consideration to the Veteran’s lay assertions regarding his rheumatoid arthritis; however, as detailed above, the Veteran’s assertions of an assault and injuries sustained during service are not supported by the record.  Likewise, the Veteran is not competent to find that his rheumatoid arthritis is due to exposure to herbicides.  The Veteran does not otherwise have the requisite medical expertise to find that any current rheumatoid arthritis is due to service.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (stating that lay persons not competent to diagnose cancer); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (holding that rheumatic fever is not a condition capable of lay diagnosis).
While the Veteran believes he has rheumatoid arthritis due to service, the Board reiterates that the preponderance of the evidence weighs against a finding of a relationship to service.  
CUE
In order for a claim of CUE to be valid, there must have been an error in the prior adjudication of the claim; either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied.  Phillips v. Brown, 10 Vet. App. 25, 31 (1997); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc).  Further, the error must be “undebatable” and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made, and a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question.  Id.  Simply to claim CUE on the basis that the previous adjudication improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE, nor can broad-brush allegations of “failure to follow the regulations” or “failure to give due process,” or any other general, non-specific claim of “error” meet the restrictive definition of CUE.  Fugo v. Brown, 6 Vet. App. 40, 44 (1993). 
Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts.  It is not mere misinterpretation of facts.  Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991).  It is a very specific and rare kind of error of fact or law that compels the conclusion, as to which reasonable minds could not differ, that the result would have been manifestly different but for the error.  Fugo v. Brown, 6 Vet. App. 40, 43 (1993). 
Where evidence establishes CUE, the prior decision will be reversed or amended.  For the purpose of authorizing benefits, the rating decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision.  38 C.F.R. §§ 3.104 (a), 3.400(k). 
The Court has propounded a three-pronged test to determine whether clear and unmistakable error is present in a prior determination.  First, either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied.  Second, the error must be “undebatable” and of the sort “which, had it not been made, would have manifestly changed the outcome at the time it was made.”  Third, a determination that there was clear and unmistakable error must be based on the record and the law that existed at the time of the prior adjudication in question.  Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)).
Specifically, the Veteran has alleged that clear and unmistakable error was made in the June 1971 rating decision, as a higher rating should have been assigned to chronic anxiety reaction.  He asserts that a higher rating should have been assigned to his anxiety based on the symptoms shown at that time.  02/06/2018 Hearing Transcript at 3-4.  
In June 1971, the relevant laws and regulations in effect for rating mental disabilities differed from those currently in effect.  Mental disorders were rated pursuant to 38 C.F.R. § 4.132, Schedule of ratings – mental disorders.  Prior to November 7, 1996, VA’s Schedule for Rating Disabilities provided a general rating formula for psychoneurotic disorders, anxiety, based on the degree of incapacity or impairment.  38 C.F.R. § 4.132, Diagnostic Code 9400. 
The Schedule for Rating Disabilities provided that the severity of a mental disorder was based on actual symptomatology as it affected social and industrial adaptability.  Two of the most important determinants of disability were time lost from gainful work and decrease in work efficiency.  38 C.F.R. § 4.130.
VA must not under-evaluate the emotionally sick Veteran with a good work record, nor must it over-evaluate his or her condition on the basis of a poor work record not supported by the psychiatric disability picture.  It is for this reason that great emphasis is placed upon the full report of the examiner, descriptive of actual symptomatology.  The record of the history and complaints is only preliminary to the examination.  The objective findings and the examiner’s analysis of the symptomatology are the essentials.  The examiner’s classification of the disease as “mild,” “moderate,” or “severe” is not determinative of the degree of disability, but the report and the analysis of the symptomatology and the full consideration of the whole history by the rating agency will be.  Id. 
A 10 percent rating was assigned where the symptoms were less than the criteria for the 30 percent rating, with emotional tension or other evidence of anxiety productive of mild social and industrial impairment.  38 C.F.R. § 4.132, Code 9411. 
A 30 percent rating was assigned where there was definite impairment in the ability to establish or maintain effective and wholesome relationships with people, and the psychoneurotic symptoms resulted in such reduction in initiative, flexibility, efficiency and reliability levels as to produce definite industrial impairment. 
A 50 percent rating required considerable impairment in the ability to establish or maintain effective or favorable relationships with people and psychoneurotic symptoms that caused a reduction in the reliability, flexibility and efficiency levels resulting in considerable industrial impairment. 
A 70 percent rating was warranted when the ability to establish and maintain effective or favorable relationships with people is severely impaired, and the psychoneurotic symptoms are of such severity and persistence that there is severe impairment in the ability to obtain or retain employment. 
A 100 percent rating was warranted when the attitudes of all contacts, except the most intimate, are so adversely affected as to result in virtual isolation in the community; or when there are totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality and disturbed thought or behavioral process associated with almost daily activities such a fantasy, confusion, panic, and explosions of aggressive energy result in a profound retreat from mature behavior; or the veteran is demonstrably unable to obtain or retain employment.
Social impairment would not be used as the sole basis for any specific percentage evaluation, but was of value in substantiating the degree of disability based on all of the findings.  38 C.F.R. § 4.132, Note (1). 
The Veteran had active service from March 1969 to February 1971.  
A December 1970 service treatment record reflects complaints of extreme nervousness.  06/28/2013 STR-Medical at 13.  A February 1971 Report of Medical Examination reflects that his ‘psychiatric state’ was clinically evaluated as normal.  The Veteran stated that since his last physical, his “condition had not changed” and his condition was “fine.”  Id. at 7-8.  
In March 1971, the Veteran filed a claim of service connection for a nervous condition.  
In May 1971, the Veteran underwent a VA examination.  He reported that prior to going to Vietnam he was quite nervous and tense, was given tranquilizers and worked in the administrative part of personnel.  He reported developing headaches both in the frontal and occipital region and was under considerable tension.  On psychiatric evaluation, he was shown to be a rather immature young man who was in good contact, well oriented for time, place and person.  He was mildly tense during the examination with a mild tremor of the extended hands and fingers but apparently at the time was eating and sleeping well.  There was no evidence of inappropriate or bizarre behavior, and no delusions or hallucinations.  His memory was adequate for both recent and remote events.  The examiner diagnosed anxiety reaction, chronic, history of, manifested by tension and with tension type headaches, mild degree at the present time.  
In the June 1971 rating decision, the RO granted service connection for chronic anxiety reaction, assigning a 10 percent rating, effective March 1, 1971.  The RO cited to the service records and VA examination in the rating decision.  The rating decision was issued to the Veteran in July 1971.  The Veteran did not file a notice of disagreement with the disability rating assigned to chronic anxiety reaction.  
The Veteran alleges that the June 1971 RO failed to correctly apply 38 C.F.R. §§ 4.2, 4.130, 4.132, Diagnostic Code 9400.  He asserts that a higher rating should have been assigned and that no person could look at the symptoms described and find that only a 10 percent rating was warranted.  02/06/2018 Hearing Transcript at 6.
Initially, the Board notes that in February 1990, 38 U.S.C. § 5104 (b) was enacted, which requires that RO decisions specify evidence considered and reasons for disposition.  See also Crippen v. Brown, 9 Vet. App. 412 (1996).  Prior to enactment of such regulation, the Court required that it be clear from the face of the RO decision that a particular piece of highly probative evidence had not been considered in the RO’s adjudication of the case.  See id, citing Eddy v. Brown, 9 Vet. App. 52, 58 (1996).  In the case at hand, the requirement for a detailed statement of reasons and bases was not applicable at the time of the challenged rating decisions.  See, e.g., Natali v. Principi, 375 F.3d 1375 (Fed. Cir. 2004); Pierce v. Principi, 240 F.3d 1348 (Fed. Cir. 2001); Joyce v. Nicholson, 19 Vet. App. 36 (2005) (In general for the proposition that because the law prior to the enactment of the Veterans’ Benefits Amendments of 1989 did not require the RO to set forth in detail the factual bases for its decisions; nor provide in depth discussion of applicable law, the failure to do so was not clear and unmistakable legal error at the time of such decisions, and the rating board was presumed to have made the requisite findings under a presumption of validity).  Because the RO had no obligation at the time of issuance of the June 1971 decision to recite the evidence considered or discuss applicable law, “[s]ilence in a final RO decision made before February 1990 cannot be taken as showing a failure to consider evidence of record.”  See id; see also Russell; and, Mason v. Brown, 8 Vet. App. 44 (1995).  Additionally, a current provision of law not applicable at the time of the challenged decision may not form the basis for a CUE allegation.  Id. 
The service treatment records and findings of the VA examiner were considered by the June 1971 RO in granting service connection and awarding a 10 percent rating.  To warrant a 30 percent rating, the objective and subjective evidence would have had to have shown definite impairment in the ability to establish and maintain effective wholesome relationships with people and his symptoms resulted in a reduction in initiative, flexibility, efficiency and reliability levels to produce definite industrial impairment.  As detailed, the VA examination showed that the Veteran was well oriented, though he was shown to be immature and mildly tense.  While the Veteran was not employed at the time of the examination, he had been employed as a mechanic and decided that he did not want to be a mechanic.  The examination did not show that the Veteran was unable to obtain or retain employment due to his anxiety.  
The Veteran’s current assertions in support of his CUE claim essentially amounts to a disagreement with the manner in which the June 1971 RO weighed and evaluated the evidence.  The current CUE claim would have this Board reweigh that evidence and arrive at a different conclusion, but a claim of CUE on the basis that the previous adjudication had improperly weighed and evaluated the evidence never rises to the stringent definition of CUE.  Fugo, 6 Vet. App. at 44.  The Veteran essentially disagrees with the objective findings of the 1971 RO, but there is no indication that the 1971 RO overlooked the evidence then of record.  A CUE claim cannot succeed unless the error compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error.  Id.  The Board finds that the present case, to include due consideration of the argument presented, does not compel that conclusion.  The Board finds that a “reasonable mind” could find that the June 1971 RO decision was factually supportable by the totality of the relevant evidence of record and proper application of applicable regulations.  
The Board stresses that the Veteran’s contentions essentially amount to an argument on how the June 1971 RO weighed the evidence, rather than clear evidence that the RO did not have the correct facts before it or properly consider the applicable regulations in adjudicating the claim.  The Court has held that “simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE.”  Fugo, 6 Vet. App. at 44; Luallen v. Brown, 8 Vet. App. 92, 96 (1995).
With regard to whether the June 1971 RO failed to apply the proper statutory law or regulation, or applied it incorrectly, such is not shown in this case.  The June 1971 RO applied Diagnostic Code 9400 in assigning the 10 percent rating.  
In light of the foregoing, the Board concludes that the correct facts, as known at the time, were before the RO at the time of the June 1971 decision and that the statutory and regulatory provisions extant at the time were correctly applied.  The Board finds that there was no error which was undebatable and of the sort which, had it not been made would have manifestly changed the outcome at the time it was made.  
Thus, based on the following, the evidence does not support a finding that the June 1971 RO determination was clearly and unmistakably erroneous in assigning a 10 percent disability rating to chronic anxiety reaction.  
REASONS FOR REMAND
Any veteran who is entitled to disability compensation at the rates provided in 38 U.S.C. § 1114, whose disability is rated not less than 30 percent disabling, and whose spouse is a patient in a nursing home, or helpless or blind, or so nearly helpless or blind as to need or require the regular aid and attendance of another person, is entitled to additional compensation.  38 U.S.C. § 1115.  Under 38 C.F.R. § 3.351(a)(2), this SMC is payable to a veteran by reason of the spouse’s need for aid and attendance.
The Veteran asserts that his spouse has dementia and drops things.  He does the cooking and someone comes over to help with housework and yardwork.  02/06/2018 Hearing Transcript at 28-29.  The Veteran’s spouse should be afforded a VA examination to assess her need for regular aid and attendance of another person.  
The matter is REMANDED for the following action:
1. The Veteran’s spouse should be scheduled for a VA examination with an appropriate specialist to assess her need for aid and attendance.  
The examiner is requested to provide an evaluation of the Veteran’s spouse’s disabilities on her capability for self-care in her home.  The examiner’s assessment must include, but not be limited to, evaluation of such conditions as:  inability to dress or undress herself or to keep herself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which, by reason of the particular disability, cannot be done without aid; inability of the claimant to feed herself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or, incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from the hazards or dangers inherent in her daily environment.  
The examiner should opine as to whether due to her disabilities the Veteran’s spouse is so helpless as to be in need of regular aid and attendance.
The examination findings, along with the complete rationale for all opinions expressed, should be clearly set forth in the examination report.

 
Eric S. Leboff
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M.W. Kreindler, Counsel