Citation Nr: 1802696 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 10-00 341 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to service connection for eczema. 4. Entitlement to a disability rating in excess of 10 percent for hypertension. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Christopher M. Collins, Associate Counsel INTRODUCTION The Veteran had active service from November 1981 to May 1994. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions dated in September 2008 and in August 2012 and promulgated by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. This matter was last before the Board in June 2016 in order to afford the Veteran a videoconference hearing regarding the issues on appeal. In October 2017 the case was returned to the Board for its adjudication. In June 2017, the Veteran testified at a videoconference hearing at the RO before the undersigned Veterans Law Judge (VLJ) sitting in Washington, D.C. A transcript of the hearing is of record. Durign this hearing, the Veteran waived mandatory consideration by the agency of original jurisdiction (AOJ) of any new evidence received by VA. See Hearing Transcript, p. 16-17. Pursuant to 38 C.F.R. § 20.1304(c), the Board finds that this waiver obviates the need for the RO to issue a SSOC regarding all new evidence obtained by VA since the June 2016 Board remand, including and a July 2017 disability benefits questionnaire (DBQ) regarding the eczema claim. Therefore, the Board may properly proceed with its adjudication of the matter. FINDINGS OF FACT 1. The competent evidence does not demonstrate that the Veteran's currently diagnosed right knee condition is attributable to the Veteran's active service or to any incident of service. 2. The competent evidence does not demonstrate that the Veteran's currently diagnosed left knee condition is attributable to the Veteran's active service or to any incident of service. 3. The competent evidence does not demonstrate that the Veteran has eczema that is attributable to the Veteran's active service or to any incident of service. 4. Prior to the promulgation of a decision in the appeal, the Veteran testified during the June 2017 hearing that he requested a withdrawal of his appeal for the issue of entitlement to a disability rating in excess of 10 percent for hypertension. CONCLUSIONS OF LAW 1. Service connection for a right knee condition is not warranted. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017). 2. Service connection for a left knee condition is not warranted. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017). 3. Service connection for eczema is not warranted. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017). 4. The criteria for withdrawal of an appeal by the Veteran regarding the issue of entitlement to a disability rating in excess of 10 percent for hypertension have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). The Board also notes that, to the full extent possible, VA complied with all prior remand instruction requests, and there exist no deficiencies in VA's duties to notify and assist in that regard. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order); but see D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required). Legal Criteria Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing that a purported injury or disease is connected to service, such that a veteran is entitled to potential benefits, requires competent and credible evidence of the following three things: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship, i.e. a nexus, between the disease or injury in service and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed. Cir. 2000) ("Fact-finding in veterans cases is to be done by the Board")). VA must give due consideration to all pertinent medical and lay evidence in a case where a veteran is seeking service connection. 38 U.S.C. § 1154(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Right and Left Knee Conditions Although they are listed separately, the Board will consider both the right and left knee conditions together as there is the same evidence in support of both claims of service connection. The Veteran contends that he developed right and left knee conditions in service that have continued since his discharge and have worsened in severity. A review of the Veteran's service treatment records does not show that the Veteran ever complained of right or left knee pain or any other symptoms of a bilateral knee condition, nor was he ever diagnosed with or treated for the same. The claims file does not contain a discharge examination report. That being said, the Veteran was evaluated as having normal lower extremities on a May 1992 examination and no noted abnormalities other than hypertension and elevated cholesterol level. The Veteran's DD Form 214 lists his military occupational specialty (MOS) as a motor transport operator. Post-service VA medical records do show that the Veteran complained of bilateral knee pain and "tingling" during a September 2003 outpatient check-up; however, there are no subsequent records which detail the course of treatment for the knee pain symptoms, and no records list any diagnosis for a bilateral knee condition. Later records show that the Veteran was diagnosed with bilateral knee arthralgia in December 2010 and has been receiving treatment for the same ever since. Private records from St. David's Medical Center indicate that the Veteran was admitted to the emergency room in September 2010 for complications with his heart. While being evaluated during his hospital stay he reported experiencing knee pain that was characterized by his treating medical professionals as crepitus. There was no indication, however, that he was receiving any treatment for knee pain from VA at this time, and he also did not receive any treatment for knee pain during his hospital stay. A March 2011 radiological examination of the knees by Platinum Diagnostic Imaging was unremarkable. Corresponding records dated in March 2011 signed by a doctor with an unidentifiable signature shows that the Veteran was complaining of chronic bilateral knee pain at this point in time, which prompted the radiological examination. More contemporary records from Round Rock South Clinic dated from January 2014 to March 2015 show no diagnosis of or treatment for a bilateral knee condition. The Veteran recently submitted records from San Antonino Osteo Relief Center dated in July 2017 which document the knee surgery he underwent at that time. He reportedly had been complaining of aching pain in both knees with a gradual onset that began some two to three years prior. The pre-and post-procedure diagnosis was osteoarthritis of the knees. During the June 2017 hearing, the Veteran reported that as part of his duties as a motor transport operator he repeatedly disembarked from moving vehicles, which put significant strain on his knee joints. He endorsed carrying heavy loads on his back while in service that put additional strain on his knees. He also reported that he did around 10 airborne jumps during his time in service, and that he "jammed" his knees on his last jump in service. According to the Veteran, he sought treatment for knee pain at that time and was given a shot and prescribed pain medication. Thereafter, he stated that he was placed on a physical profile restricting his activities for three months, and was told to wear a brace during this time. The preponderance of the evidence is against a finding that the Veteran is entitled to service connection for a bilateral knee condition. Although the Veteran is competent to report on his symptoms of knee pain and when they began, the most recent private treatment records from the Veteran that are dated in July 2017 indicate that the Veteran's knee pain did not become chronic until about two to three years prior. Moreover, as detailed above, there is no objective medical evidence showing that the Veteran was ever diagnosed with or treated for a knee condition in service. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board can "weigh the absence of contemporaneous medical evidence against the lay evidence of record"). The available evidence shows that the Veteran first reported experiencing knee pain during a September 2003 outpatient treatment visit at a VA clinic, and was not formally diagnosed with a bilateral knee condition until December 2010, over 15 years after service. The Veteran has not submitted any objective medical evidence showing any connection whatsoever between his service and the development of a bilateral knee condition over 15 years after his discharge. The Board acknowledges that the Veteran has not been afforded a VA examination in support of this claim, but there is simply no evidence in the claims file to trigger VA's duty to do so. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (VA's duty to provide an examination only triggered if the evidence of record "indicates" that the claimed disability or symptoms "may be" associated with the established event). Again, while the Veteran is competent to report on his history of symptoms of knee pain, he does not have the training or credentials to ascertain that such symptoms constitute a clinical diagnosis at a partiticular point in time. Layno v. Brown, 6 Vet. App. 465 (1994); see also Jandreau v. Nicholson, 491 F.3d 1372 (Fed. Cir. 2007). In light of the utter lack of objective evidence documenting any treatment for and diagnosis of a bilateral knee condition in service, the Board finds that service connection on a direct basis for either a right or left knee condition under 38 C.F.R. § 3.303(a) is denied. The Veteran may still be entitled to service connection for a bilateral knee condition if all of the evidence establishes that either the right or left knee condition was incurred in service. 38 C.F.R. § 3.303(d). However, in recognition of the fact that the Veteran was not diagnosed with a bilateral knee condition until over 15 years after service, and his own statement that he did not experience chronic knee pain until two or three years prior to his July 2017 knee surgery, the Board finds that the preponderance of the evidence weighs against a finding that the Veteran's bilateral knee condition is otherwise attributable to service. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for right and left knee conditions under 38 C.F.R. § 3.303(d) is denied, and as such the Veteran's claim of entitlement to service connection for right and left knee conditions in total must be denied. As the preponderance of the evidence is against the Veteran's claim of service connection for either a right or a left knee condition, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b). Eczema The Veteran contends that he developed eczema in service and that the condition has persisted since his discharge from service. Upon consideration of the record, the Board finds that the preponderance of the evidence is against a grant of service connection for eczema. Service treatment records show that the Veteran was placed on a no-shaving profile in July 1983 due to his diagnosis with pseudofolliculitis barbae. Subsequent records show that the Veteran continued to have a no-shaving profile for much of his military career, at least until July 1990, which is the month of the last shaving profile available in the claims file. That being said, pseudofolliculitis barbae was not reported on any of the in-service examinations available in the record. Furthermore, no other skin conditions were ever diagnosed in service, to include eczema. The Veteran was afforded a VA examination regarding his eczema claim in April 2008. He reported that he developed eczema in service and that he had been experiencing symptoms of pruritus and a burning sensation ever since. According to the Veteran he treated the condition with corticosteroid topical cream as needed. A physical examination revealed that the exposed surfaces affected were less than one percent and the unexposed surface was between one and three percent. The examiner did not set forth an opinion regarding the etiology of the eczema. Private records from St. David's Medical Center dated in September 2010 indicate that when the Veteran was evaluated as part of his hospital admission and treatment course it was noted that he had "age-related lesions" on his skin; however, no diagnosis was made and the Veteran received no treatment for any skin condition. The Veteran was afforded a new VA examination in December 2012 to evaluate the nature and etiology of the eczema. The examiner listed 2008 as the date of diagnosis of the eczema, although they noted that a review of the claims file showed no evidence of any actual diagnosis or specific treatment for eczema in the available post-service treatment records. The Veteran reported experiencing symptoms of an intermittent itching rash on his upper back that had been there since service and recurred two or three times a month which he treated with a lotion. The physical examination did not reveal any evidence of the rash at the time of the examination. After concluding the examination and a review of the claims file, the examiner opined that it was less likely than not that the eczema was due to service, to include the documented treatment for pseudofolliculitis barbae. In support thereof, the examiner noted that the Veteran was never diagnosed with eczema in service and that the skin condition the Veteran was treated for in service was on his face and thus would have no connection to the eczema he developed on his back. During the June 2017 hearing, the Veteran asserted that he first experienced symptoms of eczema while in service in November of 1989. According to the Veteran, he sought treatment for the condition and was given topical cream to apply to the affected area every day. He reported that he ceased using the cream in service and did not receive any further treatment for eczema while in service. The claims file contains a disability benefits questionnaire (DBQ) for skin conditions that was prepared by a Dr. A.A. and dated in July 2017. Dr. A.A. listed the diagnosis as dermatitis, with a date of July 17, 2017, and noted that the total body area affected was less than five percent. Dr. A.A. did not opine as to the etiology of the dermatitis. After reviewing the claims file, the Board finds that the preponderance of the evidence is against a determination that service connection is warranted for eczema. To begin, the service treatment records do not document any complaints or treatment related to eczema as distinct from his diagnosed in-service pseudofolliculitis barbae. Buchanan, 451 F.3d at 1337. Although the Veteran has credibly asserted that he experienced symptoms of eczema in service, he has not demonstrated that he has the training or credentials necessary to ascertain that the symptoms he experienced were a manifestation of eczema that has continued to the present. Layno, 6 Vet. App. at 469; see also Jandreau, 491 F.3d at 1372. The Veteran's contentions must be considered in light of the December 2012 VA examiner's opinion that it was less likely than not that the Veteran's eczema was incurred in or was otherwise attributable to service. That opinion was supported by a thorough review of the record and consideration of the Veteran's medical history, and explicitly ruled out any connection between the in-service skin condition which affected the Veteran's face and the eczema on his back; therefore, the Board finds that the opinion is highly probative of the issue of whether the eczema was incurred in or is otherwise attributable to service. Sklar v. Brown, 5 Vet. App. 140 (1993) (The probative value of a medical opinion is based on the scope of the examination or review, as well as the relative merits of the analytical findings.) As the Veteran has not presented any objective medical evidence in support of his contention that his current eczema was incurred in service, the Board finds that the preponderance of the evidence is against a determination that service connection is warranted on a direct basis pursuant to 38 C.F.R. § 3.303(a). Again, the Veteran may still be entitled to service connection for eczema if all of the evidence establishes that the conditions were incurred in service. 38 C.F.R. § 3.303(d). Here, there is no objective medical evidence tending to show that the Veteran's eczema were incurred in service, and it is unclear from the record if the Veteran has ever actually been diagnosed with eczema, as there are no post-service medical records showing treatment for the condition. Therefore, in light of the highly probative VA examiner opinion, the Board finds that the preponderance of the evidence weighs against a finding that the Veteran's eczema is otherwise attributable to service. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for eczema under 38 C.F.R. § 3.303(d) is denied, and as such the Veteran's claim of entitlement to service connection for eczema in total must be denied. As the preponderance of the evidence is against the Veteran's claim of service connection for eczema, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b). Increased Rating of Hypertension The Board may dismiss any appeal which fails to assert specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204. During the June 2017 hearing, the Veteran informed the undersigned on the record that he wished to withdraw his appeal of the issue of entitlement to a rating in excess of 10 percent for hypertension. There remains no allegation of errors of fact or law for appellate consideration with regards to this issue. Accordingly, the Board does not have jurisdiction to review this issue, and it is dismissed. ORDER Service connection for a right knee disability is denied. Service connection for a left knee disability is denied. Service connection for eczema is denied. The appeal seeking entitlement to a rating in excess of 10 percent for hypertension is dismissed. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs