Citation Nr: 1802624 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 10-47 354 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a deviated septum. 2. Entitlement to an initial disability rating in excess of 10 percent from December 1, 2008, and in excess of 40 percent from June 26, 2017, for limitation of extension of the left knee, previously rated as left knee patella spurring with degenerative arthritis, also claimed as patellofemoral syndrome of the left knee. 3. Entitlement to an initial disability rating in excess of 10 percent from December 1, 2008, and in excess of 30 percent from June 26, 2017, for limitation of extension of the right knee, previously rated as right knee patella spurring with degenerative arthritis, also claimed as patellofemoral syndrome of the right knee. REPRESENTATION Veteran represented by: Disabled American Veteran ATTORNEY FOR THE BOARD H. Yoo. Counsel INTRODUCTION The Veteran served on active duty from November 1988 to November 2008. These matters come before the Board of Veterans' Appeals (Board) from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina. The Veteran and his spouse testified before a Veterans Law Judge (VLJ) at a June 2011 videoconference hearing and a transcript of the hearing has been associated with the claims file. In December 2016, the Veteran and his representative were advised that the VLJ who conducted the June 2011 hearing is unavailable to participate in a decision in the Veteran's appeal and that although the Board was able to make a decision on the record, the Veteran could request another Board hearing if desired; however, neither the Veteran nor his representative has responded to the December 2016 notice or requested an additional Board hearing. As such, a new hearing is not required and the Board will proceed with adjudication of the Veteran's appeal. In March 2014, the Board, inter alia, denied initial compensable disability ratings for the Veteran's bilateral knee disability, after which the Veteran appealed the matters to the United States Court of Appeals for Veterans Claims (Court). In February 2015, the Court issued its Order remanding the Veteran's claims consistent with the parties' Joint Motion for Partial Remand (JMPR) of that same month. The matters are now properly returned to the Board for further adjudication. Additionally, in March 2014 and June 2017 the Board remanded the Veteran's claim of entitlement to service connection for a deviated septum. As the requested development regarding the Veteran's claim has been completed, this matter is now properly returned to the Board for adjudication. See Stegall v. West, 11 Vet. App. 268 (1998). However, as discussed below, there has not been substantial compliance with prior remand directives regarding the issues of entitlement to an increased disability rating of the bilateral knees disabilities; therefore, these issues are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The most probative evidence of record demonstrates that there has been no current disability of a deviated septum during the appeal period. CONCLUSION OF LAW The criteria for service connection for a deviated septum are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5103, 5103A (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Here, the Board finds that all notification and development action needed to arrive at a decision on the claims decided herein has been accomplished. In this respect, the Board notes that the Veteran participated in VA's Benefits Delivery at Discharge (BDD) Program that assists service members at participating military bases with development of VA disability compensation claims prior to their discharge from active military service. Of record is an acknowledgement, signed by the Veteran in October 2008 that he had been notified of the evidence or information that VA needed to substantiate his claims, what evidence VA was responsible for getting, and what information and evidence the Veteran was responsible for providing to VA. He also acknowledged that he had the opportunity to identify any information or evidence that VA should use to decide his claims, and that he would be given a medical examination for the purpose of substantiating his claims. Hence, the Board finds that the Veteran has received notice of the information and evidence needed to substantiate his claims, and has been afforded ample opportunity to submit such information and evidence. The Board thus finds that "the appellant [was] provided the content-complying notice to which he [was] entitled." Pelegrini, 18 Vet. App. at 122. In this regard, the more detailed notice requirements set forth in 38 U.S.C. §§ 7105 (d) and 5103A have been met. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). In addition, the Veteran was given the opportunity to respond following the BDD notice. With regard to the duty to assist, the Veteran's service treatment records (STRs) are associated with the claims file, as are VA and private medical records. The Board finds that the VA opinions, examinations, and addendum reports obtained in this case are adequate, as they provided opinions, considered the pertinent evidence of record, included an examination of the Veteran, elicited subjective complaints from the Veteran, and contained support explanations where appropriate. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. In addition, he and his wife testified before a VLJ at a hearing in June 2011. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103 (c)(2) requires that the hearing officer who chairs a hearing fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, the VLJ identified the issues on appeal and solicited the Veteran to identify evidence relevant to the claims, and asked questions that ensured no evidence was overlooked. The Veteran was offered an opportunity to ask the undersigned questions regarding his claims. The Veteran has not identified, and the record does not indicate, existing records pertinent to these claims that need to be obtained. The Board, therefore, concludes that it has fulfilled its duty under Bryant. The Board finds that there has been substantial compliance with its June 2017 remand instructions. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). An addendum opinion was obtained in July 2017. These directives have thus been met. Given the foregoing, the Board finds that VA has substantially complied with the duty to obtain the requisite information necessary to make a decision on the Veteran's claim decided herein. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). The Veteran has submitted arguments and evidence in support of the appeal. Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claims such that the essential fairness of the adjudication is not affected. II. The Merits of the Claim Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2017). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d) (2017). In addition, service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303 (b), 3.309 (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154 (a). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not always accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that he has a deviated septum which stemmed from his military service. According to service treatment records from December 2007, there was a diagnosis of acquired deviated septum, although no indication was given at the time of how the deviated septum was acquired. In addition, at his June 2011 hearing, the Veteran reported frequent nosebleeds that he contends are related to the deviated septum. A November 2008 VA respiratory examination was conducted. The Veteran reported that he had undergone surgery in service to correct a deviated septum. The examiner noted that the Veteran's septum displayed irregularity even post-surgery, noting that it was probably a pretty severely deviated septum prior to the surgery. The examiner diagnosed status post septoplasty and turbinoplasty with good results and no complications. A January 2016 VA medical opinion was obtained. The VA examiner concluded that the Veteran's claimed deviated septum was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, as the Veteran did not have an active diagnosis of deviated septum based upon the evidence of record. A July 2017 VA addendum opinion was obtained upon a thorough review of the evidence of record. Here, the VA examiner determined that upon review of the service treatment record the Veteran did not have a deviated septum on entrance into military service and was first found to have a deviated septum in July 2004. The examiner noted that there was no history of a traumatic event, such is not necessary to cause an acquired deviated nasal septum, although it was not known what caused the deviated septum, as none of the usual causes (traumatic, congenital, infectious, cocaine abuse, foreign body, etc.) were found. The VA examiner noted that in October 2005 the Veteran had surgical repair and that when the January 2016 VA examiner obtained x-rays, the October 2005 repair was part of the evidence and the Veteran's nasal septum was clearly no longer deviated and therefore, the January 2016 VA examiner was correct in determining the deviated nasal septum was classified as resolved. The VA examiner also determined that the Veteran's abnormal ENT finding on examination was correctly attributed to his service-connected allergic rhinitis. The VA examiner finally opined that there was no residual of the deviated septum resulting in disability during the pendency of this claim, since the septum has not been deviated during the pendency of the claim. After consideration of the entire record and the relevant law, the Board finds that the Veteran's claim for entitlement to service connection for a deviated nasal septum must be denied. The threshold requirement for service connection is evidence of the existence of the claimed disability at some point during a veteran's appeal. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim...even though the disability resolves prior to the Secretary's adjudication of the claim"); Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Board has reviewed all of the evidence of record, to include in-service and post-service treatment records, which does not support a finding of a current disability. The Board accords significant probative value to the July 2017 VA examiner's opinion that there is no current deviated septum or other residual of the in-service deviated septum surgery as it was based upon a review of the relevant evidence of record and the examiner provided a thorough supporting explanation. The Board acknowledges the Veteran's contentions that he believes he has a deviated septum related to his military service. The Veteran is considered competent to report the observable manifestations of his claimed disability. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (lay testimony iterating knowledge and personal observations of witness are competent to prove that claimant exhibited certain symptoms at particular time following service). His assertions that he experiences symptoms are also credible. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2013), as to the specific issue in this case, given the complexity of the particular question of the existence of an internal nasal structural condition, the Board finds that the Veteran is not competent to opine on the presence of this disability or that certain symptoms prove that he does have such a disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (providing that lay persons not competent to diagnose cancer). Therefore, for the reasons and bases set forth above, the Board concludes that the most credible and probative evidence weighs strongly against finding that the Veteran currently has a disability of a deviated septum. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. See 38 U.S.C. § 5107 (b). However, the doctrine of reasonable doubt is not for application here, as the weight of the evidence is against the claim. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Accordingly, the appeal of this claimed disability is denied. ORDER Entitlement to service connection for a deviated septum is denied. REMAND The Veteran contends that his right and left knee disabilities are manifested by symptoms and impairment that warrant ratings higher than the current ratings. When evaluating joints that have painful motion, testing of the range of motion of the joints should include both active and passive motion, motion in weight-bearing and non-weight-bearing, and, if possible, the range of motion of the opposite undamaged joint. 38 C.F.R. § 4.59 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016). In the June 2017 remand, the Board instructed the RO to provide the Veteran a new VA medical examination of his knees. The instructions for the examination included testing in each knee the range of motion on both active and passive motion, and in weight-bearing and non-weight-bearing. The Veteran had an examination of her knees in June 2017. The examiner reported the range of motion of each knee, but did not specifically report the range in active motion and the range in passive motion. For each knee the examiner answered a question as to whether there was evidence of pain with weight-bearing, but the examiner did not report the range of motion with weight-bearing and the range of motion with non-weight-bearing. The Board has a duty under law to ensure that the RO complies with remand orders of the Board or the Court. See Stegall v. West, 11 Vet. App. 268 (1998). In light of the Court's decisions in Stegall and Correia, the Board is remanding the case for a new examination of the Veteran's knees with detailed findings to specifically include the ranges of each knee in active motion, passive motion, weight-bearing, and non-weight-bearing. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, schedule the Veteran for a current VA examination regarding his service-connected bilateral knee disabilities. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must utilize the current Disability Benefits Questionnaire. In addition, the examiner must specifically test the Veteran's range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for both right and left knees. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. Additionally, the examiner should clearly document any functional impairment as a result of the Veteran's service-connected bilateral knee disability. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. Ensure compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs