Citation Nr: 1806697 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 14-15 234A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for allergies. 2. Entitlement to service connection for a left knee disability, including as secondary to service-connected disabilities. 3. Entitlement to service connection for a right knee disability, including as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: David Anaise, JD, MD WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Hubers, Counsel INTRODUCTION The Veteran served on active duty from August 2006 to August 2010. This case came before the Board of Veterans' Appeals (Board) on appeal from rating decisions rendered by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Phoenix, Arizona. In October 2015, a hearing was held via videoconference before the undersigned at the RO. Unfortunately, the audio recording was inaudible, so there is no transcript of the hearing. The Veteran declined to reschedule the hearing and expressed a desire for a decision on the merits without a rehearing. See December 2015 Appellate Brief. The Veteran filed a December 2016 Notice of Disagreement with the December 2016 Rating Decision that granted an increased rating for the Veteran's service-connected right ankle disability. That rating decision implemented the Board's September 2016 grant of an increased rating for the right ankle, but denied any higher rating. The Notice of Disagreement states: "[W]e wish to clarify that we continue to appeal the denial of service connection for claims of PTSD, right knee condition, tinnitus, and entitlement to Individual Unemployability." The claims with respect to PTSD, tinnitus, and entitlement to a total disability rating based on individual unemployability (TDIU) were denied by the Board in the September 2016 Board decision, so are no longer on appeal and there were no claims on those issues before the RO. The Veteran was provided with information as to how to appeal the Board's denial, and a Notice of Disagreement is not the proper way to do so. He is represented by a private attorney who is accredited with VA, who certainly should know the correct means for appealing a Board decision. The claim with respect to the right knee condition was remanded by the Board in September 2016, was readjudicated by the RO in accordance with the remand instructions, and is currently before the Board for final decision. In short, no further action is required by the RO or the Board with respect to the December 2016 Notice of Disagreement. The Veteran continues to discuss his PTSD and tinnitus, along with his back condition, in a recent November 2017 statement. If he wishes to file additional claims, he must do so using VA's standardized claims form. In September 2016, the Board remanded above-referenced claims for additional development and readjudication. (The Board also remanded a claim of entitlement to service connection for an acquired psychiatric condition which claim was granted by the RO upon remand so is no longer on appeal.) The requested development has been completed satisfactorily, so the Board may proceed to the merits. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). FINDINGS OF FACT 1. The Veteran's current allergic rhinitis did not begin during and is not etiologically related to his active military service. 2. The Veteran does not have a current left knee disability. 3. The Veteran's current right knee disability did not begin during and is not etiologically related to his active military service; his right knee disability was not caused by and has not been aggravated by his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for allergies, diagnosed as allergic rhinitis, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). 2. The criteria for service connection for a left knee disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 3. The criteria for service connection for a right knee disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The points below focus on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra. I. Entitlement to Service Connection: Generally Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Disabilities encompassed by the list of chronic diseases under 38 C.F.R. § 3.309(a) may be service-connected pursuant to the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology. Neither allergic rhinitis nor osteochondritis desiccans are encompassed by the list of chronic diseases in Section 3.309(a), so the regulatory provisions relating to continuity of symptomatology do not apply to the claims currently on appeal. (The Board notes that, although the Veteran's representative suggested in a December 2015 filing that the Veteran has arthritis (a condition included in the Section 3.309(a) list), the Veteran has not been diagnosed with arthritis but was instead diagnosed with osteochondritis desiccans of the right knee. The December 2016 VA examiner specifically found that the Veteran does not have degenerative or traumatic arthritis of the knees.) In the context of claims for secondary service connection under 38 C.F.R. § 3.310, the evidence must demonstrate an etiological relationship between the service-connected disability or disabilities on the one hand and the condition said to be proximately due to (caused by) the service-connected disability or disabilities on the other. Buckley v. West, 12 Vet. App. 76, 84 (1998); Wallin v. West, 11 Vet. App. 509 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Secondary service connection may also be warranted for a nonservice-connected disability when that disability is aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Veteran's own etiological opinions are not competent evidence in this case, where diagnosis of the conditions (allergic rhinitis and osteochondritis desiccans) require diagnostic imaging and/or specialized medical knowledge, training, and experience, and the determination of the cause of the conditions requires specialized knowledge, training, and experience. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); King v. Shinseki, 700 F.3d 1339, 1344-45 (Fed. Cir. 2012); Jandreau, 492 F.3d at 1377. His statements regarding the injury, observable symptoms, and reports of prior medical treatment have been considered in the context of the competent medical opinions. II. Service Connection: Allergic Rhinitis The Veteran claims entitlement to service connection for allergies. His service treatment records indicate that he had allergies or related nasal problems during service. See September 2016 Board Decision and Remand; December 2016 VA Examination (recounting history of nasal congestion and "intermittent nasal bleeding" during service). Pursuant to the Board's September 2016 Remand, he was provided a VA examination at which he was diagnosed with allergic rhinitis. Therefore, the first two elements (in-service event or injury and current disability) of his service connection claim have been established. The remaining element is whether there is a causal nexus between the in-service events and the current allergic rhinitis. The record contains a single, competent, medical opinion on the nexus issue. The December 2016 VA examiner opined that the Veteran's allergic rhinitis was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner explained that, during his active service, the Veteran had "several episodes of care for acute upper respiratory infections that are separate and independent problems caused by infectious etiology and are not allergic in nature." She went on to note that there is no clear evidence that he was evaluated or treated for recurrent allergic rhinitis or similar problems while in service. She, therefore, concluded that the Veteran's current condition is less likely than not related to his active service. The VA examiner's opinion is adequate and contains a sufficient rationale to be entitled to probative value. See Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008). There are no other competent etiological opinions of record. Therefore, a preponderance of the evidence is against finding that the Veteran's allergic rhinitis is related to his active service. A necessary element of his claim of entitlement to service connection for allergic rhinitis is missing. As a result, the Veteran's claim must be denied and the benefit-of-the-doubt is not for application. See Gilbert, 1 Vet.App. at 55. III. Service Connection: Left Knee The Veteran claims entitlement to service connection for a left knee disability. Pursuant to the Board's September 2016 Remand, he was provided a VA examination. The examiner discussed the Veteran's reports of symptoms but, after a physical examination and diagnostic imaging, the examiner concluded that the Veteran had "no pathologic diagnosis of his left knee." The examiner also noted that the medical records failed to document evidence of care of the left knee "while in service or subsequent to service." Importantly, the VA examiner explained that the documentation of in-service radiographic reports were "clearly erroneous and an error in charting." She noted that the Veteran "by his own reports states he never had xrays or MRI of his left knee done prior to this examination." She also explained that those 2009 imaging results were identical to the similarly reported right knee imaging results the same day. The in-service report to which she refers also includes notes that the Veteran was only complaining of right ankle and back pain and denied other pain (e.g. knee pain). Further, the sections referring to the left and right knees are titled "X-ray of the ankle" and "MRI Ankle", which, as the examiner notes, indicate results from another imaging report were cut and pasted into sections meant for x-ray results of the right ankle and MRI results of the right ankle. Finally, the examiner also based her conclusion on the fact that later diagnostic imaging did not show the same defects, though they should have if those in-service findings had been accurate and valid. The VA examiner's reasoning is thorough, has an accurate factual basis, and convincing. The Board gives it significant probative weight. See Nieves-Rodriguez, 22 Vet.App. at 304. There is no other competent medical evidence indicating that the Veteran does have a current disability. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. §§ 1110, 1131. Accordingly, because the evidence is against finding that the Veteran has a current left knee disability, the criteria for establishing service connection have not been met. 38 C.F.R. § 3.303; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("In the absence of proof of a present disability there can be no valid claim."); see also Gilpin v. West, 155 F.3d 1353, 1355 (Fed. Cir. 1998). The Veteran's claim of entitlement to service connection for a left knee disability is denied. IV. Service Connection: Right Knee The Veteran claims entitlement to service connection for a right knee disability. The record contains evidence of a right ankle injury and the Veteran is service-connected for a right ankle disability. The in-service element of a direct service connection claim has been met. However, as the December 2016 VA examiner notes, "there are multiple notations while in service on review of systems for other conditions that state: 'no right knee pain.'" As with the left knee, the in-service records of March 2009 diagnostic imaging that references the knees are a copy and paste error by the documenting clinician. The VA examiner provided a thorough explanation for this conclusion and the Board finds it is supported by the facts of record and the reasoning of the examiner. In short, there was no documented in-service knee injury or condition. The only pertinent in-service event is the injury to the right ankle. The Veteran has a current right knee disability consisting of osteochondritis dissecans of the right knee. See December 2015 Appellate Brief (attaching medical records containing the diagnosis); December 2016 VA Examination. With an in-service event and current disability established, the remaining element of the Veteran's direct service connection claim is a causal nexus between the in-service event and the current disability. Here, the only competent medical evidence of record consists of the December 2016 VA examiner's negative opinion. The examiner explained that there is no evidence of an in-service knee injury (including any knee injury occurring at the same time of the in-service right ankle injury), so the current condition is unlikely related to the only documented in-service injury or event (i.e., the March 2009 incident). The opinion contains adequate reasoning to warrant probative value. See Nieves-Rodriguez, 22 Vet.App. at 304. Because there is no competent medical evidence establishing a causal nexus between any in-service event or injury and the current disability, the Veteran's claim on a direct basis fails. The Veteran has also raised the issue of secondary service connection. He is service-connected for a right ankle disability and a back disability, so the pertinent questions are whether the right knee disability has been either caused by or aggravated by the right ankle and/or back disability. The only competent medical evidence of record is against any such finding. The December 2016 VA examiner specifically opined that the Veteran's osteochondritis desiccans (OCD) of the right knee is less likely than not proximately due to or the result of the Veteran's service-connected conditions. The examiner explained her reasoning which included a detailed discussion of what is known about the etiology of OCD. She explained that there was no evidence of an in-service injury to the right knee and no in-service reports of pain in the right knee. She went on to note that the service-connected conditions "would not create repetitive micro-trauma to his knee", so the conditions were unlikely related to his current right knee disability. She also opined that the Veteran's OCD was unlikely to have been aggravated by his service-connected disabilities. She noted an initial diagnosis in 2015 and no evidence of worsening of the condition since 2015. She further stated that "the cause and progression of symptoms due to osteochondritis desiccans would not be aggravated or caused by either an ankle or back condition." The Board notes that report contains a "Yes" answer to the following question: "Regardless of an established baseline, was the Veteran's (claimed condition/diagnosis) at least as likely as not aggravated beyond its natural progression by (insert 'service connected condition')?" The subsequent rationale (identical to that supporting the negative secondary causation opinion above) concludes: "Therefore, it is less likely than not (less than 50 percent probability) that the veteran's osteochondritis desiccans of the Right knee is secondary to his service-connected conditions of his back and right ankle." In context, the Board finds that the VA examiner sufficiently stated a negative opinion. The question after which the "Yes" answer appears is incomplete and could have been misread as "less likely than not" rather than "at least as likely as not". More importantly, the portion of the opinion prepared by the examiner contains reasoning supporting a negative opinion and, importantly, a definitive negative opinion. The Board finds that further clarification of the report is unnecessary because the opinion and reasoning of the examiner is sufficiently and clearly stated. In short, as the VA examiner stated: "the cause and progression of symptoms due to osteochondritis desiccans would not be aggravated or caused by either an ankle or back condition." The Board acknowledges the Veteran's theory of causation as set forth in his November 2017 statement. However, as already noted above, he does not have the medical training, knowledge, or experience to opine on the cause of his current right knee disability. See Davidson, 581 F.3d at 1316; King, 700 F.3d at 1344-45; Jandreau, 492 F.3d at 1377. The only competent evidence of record regarding the etiology of the Veteran's right knee disability is against finding that it has been either caused or aggravated by any of his service-connected conditions. Therefore, service connection for the right knee disability as secondary to a service-connected condition is not warranted. As a result, the Veteran's claim must be denied and the benefit-of-the-doubt is not for application. See Gilbert, 1 Vet.App. at 55. V. Duties to Notify and Assist The Veteran has not raised any specific issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran has not alleged any deficiencies in the VA examinations or opinions of record relating to the claims addressed above. Thus, the Board need not discuss any potential issues in regard to the duties to notify and assist. ORDER Entitlement to service connection for allergies is denied. Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a right knee disability is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs