Citation Nr: 18145512 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 16-24 352 DATE: October 29, 2018 ORDER Entitlement to service connection for arthritis, to include bilateral hip degenerative joint disease, is denied. Entitlement to service connection for a low back condition is denied. Entitlement to service connection for a left knee condition is denied. Entitlement to service connection for a right knee condition is denied. Entitlement to service connection for a right foot condition is denied. Entitlement to service connection for erectile dysfunction is denied is denied. Entitlement to service connection for prostate disorder is denied. Entitlement to a compensable disability rating for allergic rhinitis is denied. REMANDED Entitlement to service connection for a left foot condition is remanded. FINDINGS OF FACT 1. The evidence of record demonstrates that the Veteran’s arthritis to include hip arthritis, did not manifested in-service or for many years thereafter, and such disability is not shown to be related to the Veteran’s service. 2. The evidence of record demonstrates that a low back disability was not manifested in-service or for many years thereafter, and such disability is not shown to be related to the Veteran’s service. 3. The evidence of record demonstrates that a bilateral knee disability was not manifested in-service or for many years thereafter, and such disability is not shown to be related to the Veteran’s service. 4. The evidence of record demonstrates that a right foot disability was not manifested in-service or for many years thereafter, and such disability is not shown to be related to the Veteran’s service. 5. The evidence of record does not show that the Veteran’s erectile dysfunction is related to his active service. 6. The evidence of record does not show that the Veteran’s prostate condition is related to his active service. 7. The Veteran’s rhinitis is not productive of polyps, 50 percent obstruction of the nasal passage on both sides, or complete obstruction of a nasal passage on one side. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for arthritis, to include bilateral hip arthritis, have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 3. The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 4. The criteria for entitlement to service connection for right knee disability have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 5. The criteria for entitlement to service connection for a right foot disability a have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 6. The criteria for entitlement to service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 7. The criteria for entitlement to service connection for a prostate condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 8. The criteria for entitlement to an initial compensable rating for rhinitis have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.21, 4.31, 4.97, Code 6522. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1964 to October 1968. This matter comes before the Board of Veterans’ Appeals (Board) from a February 2015 rating decision. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). The second and third elements may be established by showing continuity of symptomatology for certain specified diseases. Continuity of symptomatology may be shown by demonstrating “(1) that a condition was ‘noted’ during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.” Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303 (b). Where a veteran served continuously for ninety days or more during a period of war or during peacetime service after December 31, 1946, and arthritis become manifest to a degree of ten percent within one year of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The disease need not be diagnosed within a presumptive period, it must be shown by acceptable medical or lay evidence, that there were characteristics manifestations of the disease to the required degree during that time. Id. 1. Entitlement to service connection for arthritis, to include arthritis of the hips The Veteran contends that his arthritis should be service-connected. The Veteran’s service treatment records do not indicate any complaint, treatment, or diagnosis of any joint disability to include the Veteran’s hips. The Veteran’s VA treatment records indicate that the Veteran was diagnosed with bilateral hip degenerative joint disease in September 2010. In November 2011 the Veteran was diagnosed with arthritis, however it is unclear which joints were affected. In November 2014, VA treatment records note that the Veteran had decreased range of motion in the musculoskeletal system due to arthritis. The Board finds that the Veteran has a diagnosis of arthritis. However, the Board finds that there was no in-service event or injury that caused the Veteran’s arthritis. As the evidence demonstrates that the Veteran did not have an event, injury, or diagnosis in service that would cause arthritis or arthritis of the hips, and his joint and hip pain is shown to have began over 30 years after leaving service, the Board finds service connection is not warranted. Therefore, because there is no evidence of an in-service event or injury, the Veteran does not meet the second prong of service connection. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Further, there is no evidence that the Veteran’s arthritis began within one year of separating from service; therefore, service connection for arthritis may not be presumed. 38 C.F.R. §§ 3.307, 3.309. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran’s claim for service connection for arthritis, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 The Board notes that the Veteran was not provided a VA examination for his claimed arthritis or hip condition. VA must provide a VA medical examination when there is: (1) competent evidence of a current disorder or persistent or recurrent symptoms of a disorder; and, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and, (3) an indication that the disorder, or persistent or recurrent symptoms of a disorder, may be associated with the Veteran’s active military service or with another service-connected disability; but, (4) insufficient competent medical evidence on file for the VA Secretary to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case there is no competent and credible evidence of an in-service injury or event that would cause arthritis or hip degenerative joint disease. Therefore, despite the low bar set by McLendon, a VA examination is not warranted. 2. Entitlement to service connection for a low back condition The Veteran contends that his low back pain should be service-connected. The Veteran’s service treatment records do not indicate any complaint, treatment, or diagnosis of a low back disability. The Veteran’s VA treatment records indicated that the Veteran first complained of sharp pain in his low back in September 2009. Since September 2009, VA treatment records indicate that the Veteran frequently complained of low back pain. The Veteran described his pain as either sharp or throbbing. Treatment providers classify the low back pain as chronic. In February 2012, the Veteran was diagnosed with degenerative changes to the spine. In January 2016, VA treatment records note that the Veteran attributed his back pain to arthritis. The Board finds that the Veteran has a current diagnosis of degenerative changes to the spine. However, the Board finds that there was no in-service event, disease, or injury to the Veteran’s back. The Veteran’s service treatment records do not indicate any injury, complaint, or diagnosis for any low back pain or disorder. Given that the Veteran had a diagnosis of degenerative joint disease and arthritis and providing the Veteran the benefit of the doubt the Board finds that the Veteran had arthritis in the low back. However, the Board finds that there is no evidence that manifested within one year of leaving service or continuity of symptomatology. The Veteran’s post-service treatment records demonstrate his back pain began in 2009. Therefore, service connection for arthritis may not be presumed. 38 C.F.R. §§ 3.307, 3.309. As the evidence demonstrates that the Veteran did not have a low back complaint, injury, or diagnosis in service and his chronic back pain began 30 years after leaving service the Board finds service connection is not warranted. Therefore, because there is no evidence of an in-service event or injury, the Veteran does not meet the second prong of service connection. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). The Board notes that the Veteran was not provided a VA examination for his claimed low back disability. In this case there is no competent and credible evidence of an in-service injury or event that would cause any low back condition. Therefore, despite the low bar set by McLendon, a VA examination is not warranted. 3. Entitlement to service connection for a left knee and right knee condition The Veteran contends that he has a left and right knee condition that should be service connected. The Veteran’s service treatment records do not indicate any complaint, treatment, or diagnosis of any knee disability. The Veteran’s VA treatment records indicate that in April 2015 to October 2015 the Veteran complained of pain in his knee. The Veteran stated that the onset of his pain had been greater than a year. VA treatment records also indicate that the Veteran had “joint pain” but do not specify the location of the pain. As noted above the Veteran has a diagnosis of degenerative joint disease. However, records do not indicate the Veteran had arthritis in his knees. Initially, the Board finds that the Veteran has a current disability. A recent decision by the United States Court of Appeals for the Federal Circuit (Federal Circuit) determined that the term disability “refers to the functional impairment of earning capacity, not the underlying cause of said disability” and that “pain alone can serve as a functional impairment and therefore qualify as a disability.” Saunders v. Wilkie, No. 2017-1466, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018). The Veteran’s treatment records established that Veteran had knee pain since October 2012. The Board finds that there was no in-service event, disease, or injury to the Veteran’s back. The Veteran’s service treatment records do not indicate any injury, complaint, or diagnosis for any knee pain or disorder. The Board notes that it is unclear as to whether the Veteran has knee arthritis. However, given that the Veteran had diagnoses of degenerative joint disease and arthritis and providing the Veteran the benefit of the doubt the Board finds that the Veteran had arthritis in his knees. However, the Board finds that there is also no competent and credible evidence that the knee disability manifested within one year of leaving service. The Veteran’s post-service treatment records demonstrate his knee pain began in 2015. Therefore, service connection for arthritis of the knees may not be presumed. 38 C.F.R. §§ 3.307, 3.309. As the evidence demonstrates that the Veteran did not have any knee complaint, injury, or diagnosis in service and his bilateral knee pain began over 30 years after leaving service, the Board finds service connection is not warranted. Therefore, because there is no competent and credible evidence of an in-service event or injury, the Veteran does not meet the second prong of service connection. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). The Board notes that the Veteran was not provided a VA examination for his claimed knee disability. In this case there is no evidence of an in-service injury or event that would cause any bilateral knee condition. Therefore, despite the low bar set by McLendon, a VA examination is not warranted. 4. Entitlement to service connection for a right foot condition The Veteran contends that his right food condition should be service-connected. The Veteran’s service treatment records do not indicate any complaint, treatment, or diagnosis of any right foot condition. The Veteran’s VA treatment records indicate that in April 2015 the Veteran complained of foot pain. The Veteran was diagnosed with plantar fascitis in July 2015. The July 2015 VA treatment note state that the Veteran broke his right ankle several years ago. The Veteran’s VA treatment records indicate that the Veteran was treated for diabetic foot conditions to include tinea pedis. Finally, the Board notes that the Veteran had a diagnosis of arthritis in November 2014. It is unclear whether the Veteran’s diagnosis was related to the Veteran’s right foot. The Board finds that the Veteran has a current right foot disability of plantar fascitis, diabetic foot complications, foot pain, tinea pedis, and arthritis. However, there is no competent and credible evidence of an in-service event, injury, or diseases related to the Veteran’s right foot. Further, there is no evidence that the Veteran’s right foot arthritis began within one year of separation of service. Therefore, service connection for arthritis of the right foot may not be presumed. 38 C.F.R. §§ 3.307, 3.309. As the evidence demonstrates that the Veteran did not have any right foot complaint, injury, or diagnosis in service and his foot pain began over 30 years after leaving service, the Board finds service connection is not warranted. Therefore, because there is no evidence of an in-service event or injury, the Veteran does not meet the second prong of service connection. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). The Board notes that the Veteran was not provided a VA examination for his claimed right foot disability. In this case there is no evidence of an in-service injury or event that would cause any right foot disability condition. Therefore, despite the low bar set by McLendon, a VA examination is not warranted. 5. Entitlement to service connection for erectile dysfunction is denied The Veteran contends that his erectile dysfunction should be service-connected. The Veteran’s service treatment records do not indicate any complaint, treatment, or diagnosis relating to erectile dysfunction. The Veteran’s post-service treatment records are silent for any diagnosis for erectile dysfunction. The Board notes that the Veteran is competent to determine whether he has erectile dysfunction and thus, the Veteran will resolve doubt in the Veteran’s favor regarding the presence of a current disability. The Veteran has not explained why or how he relates his erectile dysfunction to service or his service-connected rhinitis. Further, the claims folder does not contain evidence of persistent or recurrent symptoms of erectile dysfunction that may be associated with an event, injury, or disease in service. In sum, there is no indication that the Veteran’s current erectile dysfunction is related to his service. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran’s claim for service connection for erectile dysfunction, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 The Board notes that the Veteran was not provided a VA examination for his claimed erectile dysfunction. In this case there is no competent and credible evidence of an in-service injury, event, or disease that would cause any erectile dysfunction. Therefore, despite the low bar set by McLendon, a VA examination is not warranted. 6. Entitlement to service connection for prostate disorder The Veteran contends that he has a prostate condition that should be service-connected. The Veteran’s service treatment records do not indicate any complaint, treatment, or diagnosis of a prostate condition. Specifically, the Veteran’s service treatment records note there was no blood in his urine when tested. The Veteran’s VA treatment records indicates that the Veteran was diagnosed prostatic calcification in January 2011. In February 2012, the Veteran was diagnosed with hypertrophy of the prostate without urinary obstruction (BPH). The Board finds that the Veteran has a current prostate condition of BPH. However, the Board finds that there was no in-service event, disease or injury giving rise to such disability. The Board notes that the record does not include any evidence suggesting that the Veteran’s prostate condition is related to service. Because there is no evidence of an in-service event or injury, the Veteran does not meet the second prong of service connection. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). The Board notes that the Veteran was not provided a VA examination for his claimed prostate condition. In this case there is no evidence of an in-service injury, event, or disease that would cause any prostate condition. Therefore, despite the low bar set by McLendon, a VA examination is not warranted. 7. Entitlement to a compensable disability rating for allergic rhinitis The Veteran argues that his rhinitis symptoms are severe enough to warrant a compensable rating. The evaluation of service-connected disabilities is based on the average impairment of earning capacity they produce, as determined by considering current symptomatology in the light of appropriate rating criteria. 38 U.S.C. § 1155. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In addition, the entire history of the veteran’s disability is also considered. Consideration must be given to the ability of the veteran to function under the ordinary conditions of daily life. 38 C.F.R. § 4.10. If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. The Veteran’s rhinitis is evaluated under the rating code for allergic rhinitis. Allergic or vasomotor rhinitis with polyps is evaluated as 30 percent disabling. When there are no polyps, but there is greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side, a 10 percent evaluation is merited. 38 C.F.R. § 4.97, Code 6522. Ratings under diagnostic codes 6600 through 6817 and 6822 through 6847 will not be combined with each other. 38 C.F.R. § 4.96 (a). This rating code does not contain provisions for a zero percent evaluation. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The Veteran is service-connected for allergic rhinitis with a noncompensable disability rating, effective April 2004. The Veteran claimed an increase rating on March 5, 2014. Thus, the appellate period for the Veteran’s claim began on March 5, 2013. A review of VA treatment records dating from March 2013 to the present note that the Veteran’s rhinitis had been stable. The Veteran underwent a sinusitis, rhinitis, and other conditions of the nose, throat, larynx, and pharynx VA examination in January 2015. The examiner diagnosed the Veteran with allergic rhinitis. The Veteran reported that his symptoms of allergic rhinitis significantly worsened over the years, with increased frequency and severity of symptoms. The Veteran reported persistent daily runny nose, sneezing, and eye irritation. The Veteran reported compliance with his treatment regimen of oral antihistamine and nasal spray. The Veteran reported no significant improvement or control of his symptoms. Upon examination the Veteran did not have greater than 50 percent obstruction of the nasal passage on both sides, complete obstruction of either the left or right side, or nasal polyps. The examiner found the Veteran had permanent hypertrophy of the nasal turbinates. The examiner found the Veteran did not have any granulomatous conditions. The examiner noted that during the examination the Veteran had persistent rhinorrhea. The Board finds that the Veteran does not meet the criteria for a compensable rating for rhinitis. His symptoms include daily runny nose, sneezing, and eye irritation. However, the January 2015 examination was negative for polyps. The examiner did not find obstruction of the Veteran’s nasal passages greater than 50 or complete obstruction of either nasal passage. With the absence of polyps and the necessary degree of obstruction, the criteria for a compensable rating have not been met, and the current zero percent rating is appropriate. 38 C.F.R. §§ 4.31, 4.97, Code 6522. In considering the appropriate disability rating, the Board has considered other applicable diagnostic codes, including DCs 6516-6521 (addressing larynx and pharynx disorders) and DCs 6523 and 6524 (addressing bacterial and granulomatous rhinitis). However, the Board finds that the Veteran is not service-connected for any of these disorders given that they are all separate and distinct disorders from allergic rhinitis. As such, the Veteran is not able to receive a compensable rating under any other potentially relevant and applicable diagnostic code. The Board also notes that when a condition is specifically listed in the Rating Schedule, as is allergic rhinitis, it may not be rated by analogy. Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). As such, the Board finds that the Veteran is not entitled to a higher rating under Code 6522. The Board notes that in April 2015, the Veteran stated he wished for his rhinitis to be reevaluated and was seeking a higher evaluation due to the longevity of the disability. However, the Veteran provided no indication that his service-connected disability had increased in severity since his January 2015 examination. VA’s duty to assist does not require reexamination simply because of the passage of time, and the evidence does not indicate the level of disability may have changed. Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007); see 38 C.F.R. § 3.327. REASONS FOR REMAND Entitlement to service connection for a left foot condition is remanded. The Veteran contends that he has a left foot condition and that it should be service-connected. The United States Court of Appeals for Veterans Claims (Court) has held that, a claimant may satisfy the requirement of filing a claim for a particular disability by referring to a body part or system that is disabled or by describing symptoms of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). This finding enables lay persons, who are hampered by a lack of clinical knowledge, to assert a claim without the need for explicit knowledge of their underlying disability. In this regard, when determining the scope of a claim, the Board must consider the claimant’s description of the claim, the symptoms the claimant describes, and the information the claimant submits or that the Secretary obtains in support of the claim. See also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Read together Brokowski and Clemons, mandate that the Board consider a veteran’s claim in the context of his reported symptoms, not just on the basis of specific diagnoses. Therefore, the Board finds that although the Veteran’s claim was for a left foot disability, such a disability can reasonably encompass an ankle disability. The Veteran’s service treatment records note that in January 1967 the Veteran was diagnosed with a sprained left ankle. The Veteran’s post-service treatment records indicates that the Veteran had medical history of planter fasciitis, tinea pedis, and joint pain. Specifically, a May 2015 VA treatment note indicates that the Veteran had joint pain of the left foot, which had been worse in the past 6 to 7 years. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The requirement that the evidence “indicates” that the veteran’s disability “may” be associated with his service is a low threshold. Id. Therefore, a VA examination is required to determine the etiology of the Veteran’s left foot/ankle disability. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any left foot and/or ankle disability. The examiner must opine the following: (a.) Whether any left foot or ankle disability is at least as likely as not related to an in-service injury, event, or disease, including the Veteran’s left ankle sprain. (b.) If the Veteran is diagnosed with arthritis in his left foot and/or left ankle, then the examiner must opine whether the disability manifested within one year of discharge from service. A compete rationale for any expressed opinion should be provided by the examiner. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Robert Batten, Associate Counsel