Citation Nr: 18153757 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-11 696 DATE: November 28, 2018 ORDER The application to reopen the previously denied claim of service connection for a right knee condition (now claimed as bilateral knee condition) is denied. Service connection for Reiter’s syndrome is denied. Service connection for left rotator cuff condition is denied. Service connection for a back condition is denied. Service connection for foot swelling is denied. FINDINGS OF FACT 1. In an October 1971 rating decision, the RO denied service connection for a right knee condition; the Veteran did not initiate an appeal of that decision within one year of notification. 2. Evidence received since the October 1971 denial is cumulative or redundant of evidence previously of record, and does not related to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a right knee condition (now claimed as bilateral knee condition). 3. The Veteran’s Reiter’s syndrome is not related to his active service. 4. The Veteran’s left rotator cuff condition is not related to his active service or to a service-connected disability. 5. The Veteran’s back condition is not related to his active service or to a service-connected disability. 6. The Veteran’s foot swelling is not related to his active service or to a service-connected disability. CONCLUSIONS OF LAW 1. The October 1971 rating decision that denied entitlement to service connection for a right knee condition is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 20.1103 (2017). 2. The criteria for reopening a claim of entitlement to service connection for a right knee condition (now claimed as bilateral knee condition) have not been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. The criteria for Reiter’s syndrome have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 4. The criteria for service connection for a left rotator cuff condition have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). 5. The criteria for service connection for a back condition have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). 6. The criteria for service connection for foot swelling, have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1969 to July 1971. Of note, there was a question in this case as to whether the Veteran had a representative with regard to the issues on appeal. The Board sent a letter to the Veteran in September 2018 for clarification. That clarification was provided in a letter received October 29,2018. The Veteran is unrepresented as to the claims decided in this document. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Additionally, service connection may be established on a secondary basis for a disability which is proximately due to, or aggravated by, service-connected disease or injury. Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 1. Whether new and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for a right knee condition (now claimed as bilateral knee condition). Generally, a claim which has been denied in an unappealed AOJ decision is final and may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §20.1100 (2017). Once the AOJ makes a determination as to a claim, it must mail to the claimant, and his or her representative if there is one, proper notice of the decision, including notice of the claimant’s procedural due process and appellate rights. 38 U.S.C. § 7105 (b)(1) (2012); 38 C.F.R. §§ 3.103 (b)(1), 19.25, 20.1103 (2017). An appeal of an AOJ decision to the Board is initiated by the filing of a notice of disagreement (NOD) with the decision. 38 U.S.C. § 7105(a) (2012); 38 C.F.R. § 20.200 (2017). Except in the case of simultaneously contested claims (which this is not) the NOD must be filed within one year from the date of mailing of result of the initial determination. See 38 U.S.C. § 7105 (b)(1); see also 38 C.F.R. §§ 20.200, 20.201, 20.302 (2017). If a timely NOD is not filed, the determination becomes final and the claim will not thereafter be reopened or allowed, except as may otherwise be provided by regulations not inconsistent with Title 38 of the U.S. Code. 38 U.S.C. § 7105(c) (2012). The exception to this rule of not reviewing the merits of a finally denied claim is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The regulation that implements 38 U.S.C. § 5108 defines “new and material evidence” as evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of evidence previously of record, and which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2017). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). 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. Id. New and material evidence can be neither cumulative nor redundant of the evidence already of record and must raise a reasonable possibility of substantiating the claim. Id. Of note, under 38 C.F.R. § 3.156(b), “new and material” evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. If VA receives new evidence within the appeal period of an AOJ decision, it must make a determination as to whether the evidence is new and material and if it does not do so then the claim does not become final but rather it remains pending. See Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014). In determining whether evidence is “new and material,” the credibility of the evidence in question must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran was notified of the denial. Prior to filing the current claim, the AOJ denied service connection for a right knee condition in an August 1971 rating decision on the basis of no nexus to service. The AOJ referenced negative enlistment and separation examinations and found that there was no evidence of the disability during service. The Veteran was notified of the denial, as well as his procedural and appellate rights in a letter that same month, but he did not appeal nor was new and material evidence received during the applicable time period. Thus, this rating decision became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.1103 (2017). New and material evidence is therefore required to reopen the claim. See 38 U.S.C. § 5108 (2012); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); 38 C.F.R. § 3.156. An informal claim to reopen service connection for a right knee condition, now claimed as bilateral knee condition, was received in July 2012. The Veteran submitted correspondence alleging that both of his knees were replaced due to Reiter’s syndrome. In a January 2013 rating decision the RO denied the claim. Evidence received since the August 1971 rating decision denial consists of private medical treatment records, Social Security Administration (SSA) records, and the Veteran’s statements. Notably, medical records document bilateral knee replacement and severe bilateral knee osteoarthritis. As indicated, the Veteran claims that his bilateral knee conditions are secondary to Reiter’s syndrome. The Board finds that all of this evidence is “new” as it has not been previously considered. However, after review, the Board determines that none of it is “material” to an unestablished fact necessary to support the Veteran’s claims – a nexus to service or aggravation. That is, the evidence received since the August 1971 determination does not provide competent and probative evidence to support the Veteran’s contentions that his bilateral knee conditions were caused by service. Although the Veteran has raised a new theory of entitlement to service connection, that he has a bilateral knee condition secondary to Reiter’s syndrome, pursuant to this decision he has not been granted service connection for Reiter’s syndrome, as such, it cannot serve as a basis for a secondary service connection claim. Thus, the additional evidence does not raise a reasonable possibility that the Veteran’s bilateral knee conditions are caused or aggravated by his service, when considered in conjunction with the record as a whole. The Board concludes, therefore, that new and material evidence to reopen the claim for service connection for a right knee condition (now claimed as bilateral knee condition) has not been received. As such, the requirements for reopening the claim are not met. 2. Entitlement to service connection for Reiter’s syndrome. The Veteran claims to have Reiter’s syndrome due to contaminated water exposure during service at Camp Lejeune. Service connection may be presumed for certain diseases for Veterans exposed to contaminated water at Camp Lejeune between August 1, 1953, and December 31, 1987. See 38 C.F.R. § 3.307(a)(7). Specifically, Veterans, former reservists, and former National Guard members who served at Camp Lejeune for no less than 30 days (either consecutive or nonconsecutive) during this period and have been diagnosed with adult leukemia, aplastic anemia and other myelodysplastic syndromes, bladder cancer, kidney cancer, liver cancer multiple myeloma, Non-Hodgkin’s lymphoma, and/or Parkinson’s disease. 38 C.F.R. §§ 3.307(a)(7), 3.309(f). Military personnel records indicate that the Veteran was stationed at Camp Lejeune for the requisite time period. However, the Veteran has not been diagnosed with any of the eight named conditions. Therefore, presumptive service connection based on exposure to contaminated water at Camp Lejeune is not warranted. Service connection for Reiter’s syndrome may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s Reiter’s syndrome and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). In a June 2012 dated letter, a private physician explained that Reiter’s syndrome is an autoimmune disease with an etiology related to an exaggerated immune response to “prior enteric (GI) or GU infection that is amplified by the underlying HLA B27 gene.” The physician recounted the Veteran’s assertion that his Reiter’s syndrome is due to water contamination at Camp Lejeune during service. As such, the physician reviewed documentation of contamination at Camp Lejeune, provided by the Veteran, and stated that “the reprint do not specify infectious agents (Salmonella, Shigella, Yersinia, Giardia, Campylobacter, etc.) but if this were the case, it is highly probable that [the Veteran’s] syndrome would be related to his water contamination.” In summary, the June 2012 private physician opined that the Veteran’s Reiter’s syndrome is related to contaminated water at Camp Lejeune, if there is evidence of an infectious agent. On December 2012 examination, a diagnosis of Reiter’s syndrome was verified. Based on medical literature, the VA examiner opined that the Veteran’s Reiter’s syndrome is not due to or aggravated by water solvent contamination at Camp Lejeune during service. The examiner acknowledged the June 2012 letter stating that this disease may have been caused by an infectious agent in service, however, there is no indication that a known infectious agent, such as salmonella, contaminated Camp Lejeune water or any other contaminants. The examiner explained that Reiter’s syndrome is an autoimmune disease of unknown etiology strongly associated with certain genetics and exposure to certain bacteria, such as salmonella, but not solvent exposure. Based on the above, the preponderance of the evidence as to whether the Veteran’s Reiter’s syndrome is directly related to service, weighs against the claim. Notably, the June 2012 private physician opinion is speculative, based on an absent finding of an infectious agent. The private physician himself acknowledged that there was no evidence of an infectious agent at Camp Lejeune, which is consistent with the December 2012 VA examiner’s findings and opinion. There are no other medical opinions of record. Relevant law and regulations do not provide for the grant of service connection in the absence of competent evidence linking a current disability to service. The Board is satisfied that the December 2012 VA examiner’s opinion is adequate for a decision on this appeal. While the Veteran believes his Reiter’s syndrome is related to an in-service injury, event, or disease, including exposure to contaminated water at Camp Lejeune, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires knowledge of the interaction between exposure and an autoimmune disease manifested many years after service. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Notably, Reiter’s syndrome was initially diagnosed in 1999, approximately 28 years after service. Consequently, the Board gives more probative weight to the competent medical evidence. 3. Entitlement to service connection for left rotator cuff, back, and foot swelling conditions. As for the remaining claims, the Veteran asserts to have left rotator cuff, back, and foot swelling conditions secondary to his Reiter’s syndrome. He does not allege and the claims file does not suggest that any of these conditions are directly related to service. On June 1971 separation, clinical evaluations were normal. Post-service the first mention of back pain is contained in August 1990 private medical records, during which time magnetic resonance imaging (MRI) tests showed moderate central disc herniation. In 2006 and 2008, the Veteran was treated for left rotator cuff tendinitis and impingement. He underwent a left rotator cuff repair procedure in 2011. The first mention of foot swelling is contained in December 1999 private records, approximately 12 years after service. The Board notes that a normal medical finding at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (a prolonged period without medical complaint can be considered, along with other factors concerning a claimant’s health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). Thus, the lack of any evidence of rotator cuff, back, or foot symptoms until 1999 is itself evidence which tends to show that the claimed conditions did not have onset in service or for years thereafter. Pursuant to this decision, he has not been granted service connection for Reiter’s syndrome. As Reiter’s syndrome is not service-connected, it cannot serve as the basis for a secondary service connection claim. (Continued on the next page)   For the reasons stated above, the Board finds that the preponderance of evidence is against the Veteran’s claims for service connection for left rotator cuff, back, and foot swelling conditions. Therefore, his appeal for these conditions must be denied. There is no reasonable doubt to be resolved. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Amanda Baker, Associate Counsel