Citation Nr: 19186772 Decision Date: 11/18/19 Archive Date: 11/18/19 DOCKET NO. 16-10 520 DATE: November 18, 2019 ORDER Entitlement to service connection for left knee disability is denied. Entitlement to a compensable rating for allergic rhinitis is denied. Entitlement to a compensable rating for obstructive sleep apnea to include status post tonsillectomy and UPPP and history of external valve collapse prior to February 3, 2016, and in excess of 30 percent disabling from February 3, 2016 is denied. FINDINGS OF FACT 1. The Veteran does not have a left knee disability. 2. The evidence of record indicates that the Veteran has a diagnosis of allergic rhinitis without polyps but does not reveal that he has a greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. 3. For the period prior to February 3, 2016, the Veteran’s diagnosed obstructive sleep apnea to include s/p tonsillectomy and UPPP and history of external valve collapse did not result in compensable symptoms. 4. For the period from February 3, 2016, the Veteran’s diagnosed obstructive sleep apnea to include s/p tonsillectomy and UPPP and history of external valve collapse has been manifested by persistent daytime hypersomnolence and has not required the use of a breathing assistance device such as a CPAP machine. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for left knee disability have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 2. The criteria for entitlement to a compensable for allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5107, 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.97, Diagnostic Code 6522. 3. The criteria for entitlement to a compensable rating for obstructive sleep apnea to include status post tonsillectomy and UPPP and history of external valve collapse prior to February 3, 2016, and in excess of 30 percent disabling from February 3, 2016 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.10, 4.97, DC 6847. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1999 to July 2014. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § § 3.303(a). 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 1. Entitlement to service connection for left knee disability The Veteran contends that the has a current left knee disability that is related to his active duty military service. Service connection may only be granted for a current disability. When a claimed condition is not shown, there may be no grant of service connection. Congress specifically limited entitlement for service-connected disease or injury to cases where the incident resulted in a disability. In the absence of proof of a present disability there can be no valid claim. 38 U.S.C. § 1110 (2012); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Review of the Veteran’s service treatment records (STRs) reflects that on May 3, 2013, the Veteran tripped and fell in his garage landing on and injuring his left knee. The Veteran sought treatment at Southern Hills Hospital and Medical Center, a civilian medical facility where he complained of pain on weight bearing. The left knee had soft-tissue tenderness and single puncture wound located in the patella. There was limited range of motion secondary to pain as well as joint effusion. X-ray revealed soft tissue swelling and small joint effusion. There was no bony injury. The Veteran was fitted with a long leg Velcro knee immobilizer to the left knee as well as crutches and follow-up was recommended. The clinical impression was noted as left knee joint effusion due to a fall. A few days later the Veteran phoned his military doctor and described the incident. On May 14, 2013, the Veteran reported continued left knee pain that worsened when sitting on aircraft at altitude (the Veteran’s duties required frequent flying). The Veteran stated that he did not have that issue when sitting at a desk for work. On examination he had very mild edema and peripatellar puffiness with no bulging. Negative McMurray, Drawer, and lateral laxity were noted. The assessment was left patellofemoral syndrome s/p trauma. He was put on physical training restriction for 4-6 weeks, given a two week does of Naproxen, and told to follow-up with his physician. The physician noted if there was no improvement then he would consider two additional weeks of NSAIDs, formal physical therapy, and if that failed, then a referral to ortho would be considered. A June 2013 follow-up note reflects that the Veteran reported increased pain with increased activity and at night. He was still doing physical therapy at home and taking his prescribed Naproxen. On examination, McMurray and Drawer were negative and there was no edema. The assessment was left knee PFS likely. The Veteran was told to continue medication and home physical therapy and that formal physical therapy would be scheduled. He was instructed to follow-up in two weeks. There are no further treatment notes for the left knee in the STRs. There are no post-service VA or private treatment records that show treatment for a left knee condition. A December 2014 VA knee and lower examination reflects that there was no objective evidence of left knee patellofemoral pain syndrome on examination and therefore a clinical diagnosis of a left knee condition could not be rendered. While the evidence shows the Veteran had a left knee injury in service, there is no competent medical evidence that demonstrates chronic residuals of the in-service injury. Lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (sometimes the layperson will be competent to identify the condition where the condition is simple, for example, a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In the present case, while a lay person may be competent to report symptoms of left knee pain, they are not competent to diagnose a left knee disability. The diagnosis of a knee disability requires greater medical knowledge and testing to determine a diagnosis, which the Veteran has not shown he possesses. Accordingly, the Veteran is not competent to establish diagnosis for his claimed left knee disability. In the absence of proof of a current disability, there is no valid claim of service connection. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement that a current disability be present is satisfied when a claimant has a disability at any time during the pendency of a claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). The record does not demonstrate that the Veteran has a current left knee disability. The threshold element of a service connection claim (a current disability) has not been met; therefore, service connection for a left knee disability must be denied. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Accordingly, the preponderance of the evidence is against the claim for service connection for a left knee disability, the benefit of the doubt doctrine enunciated in 38 U.S.C. § 5107 (b) is not applicable, as there is no approximate balance of evidence. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Increased Rating 2. Entitlement to a compensable rating for allergic rhinitis The Veteran contends that a compensable rating is warranted for his allergic rhinitis, currently rated under Diagnostic Code 6522. Under Diagnostic Code 6522, a 10 percent rating is warranted for allergic or vasomotor rhinitis without polyps, but with greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side. A 30 percent evaluation is warranted for allergic or vasomotor rhinitis with polyps. A December 2014 VA examination confirmed a diagnosis of allergic rhinitis but noted there was no obstruction of the nasal passages greater than 50%, complete obstruction on one side, permanent hypertrophy of the nasal turbinates, nasal polyps, or any granulomatous conditions. The examiner stated the Veteran was able to perform all activities of daily living and instrumental activities of daily living. There was no objective evidence of an external valve collapse on examination. In response to the Veteran’s December 2015 notice of disagreement and January 2016 substantive appeal in which he stated he had obstruction of the nasal passage, the Veteran was scheduled for a VA examination to assess the severity of his service-connected disability. An April 6, 2018 Report of General Information reflects that the Veteran called to reschedule the VA rhinitis DBQ because he forgot the date of the examination but that he would make the rescheduled exam. An April 23, 2018 exam scheduling request shows the allergic rhinitis contention was cancelled because the Veteran was a no show for the VA examination. Based on the available medical evidence, the Board finds that the preponderance of the evidence weighs against a finding of a compensable evaluation for allergic rhinitis. As noted above, to receive a compensable evaluation for this disability under Diagnostic Code 6522, the record must reflect that the Veteran has allergic rhinitis without polyps with greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side. While the evidence supports a finding that the Veteran has had a diagnosis of allergic rhinitis without polyps since the initial grant of service connection, it does not reflect that he has had obstruction of the nasal passages at any time during this appellate period. The Board notes that the Veteran asserted obstruction of his nasal passages in January 2016 statement, unfortunately, the Veteran was a no show for his scheduled VA examinations to assess the severity of his allergic rhinitis disability. Therefore, the Veteran’s claim will be evaluated based on the current evidence of record. See 38 C.F.R. § 3.655 (b). The Board has also considered whether other Diagnostic Codes are applicable to this issue. Given the absence of findings regarding bacterial or granulomatous rhinitis, a rating under Code 6522 is most appropriate in this case. See 38 C.F.R. § 4.97, Diagnostic Code 6522. In sum, the evidence does not show that a disability rating in excess of 0 percent for allergic rhinitis is warranted. As the preponderance of the evidence is against the claim for a higher rating, the benefit of the doubt doctrine is not for application, and the Veteran's claim for an increased rating is denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. 3. Entitlement to a compensable rating for obstructive sleep apnea to include s/p tonsillectomy and UPPP and history of external valve collapse prior to February 3, 2016, and in excess of 30 percent disabling from February 3, 2016 Increased rating prior to February 3, 2016 The Veteran contends that a compensable rating is warranted for the period prior to February 3, 2016 for his service-connected mild obstructive sleep apnea disability. Specifically, in his January 2016 substantive appeal (received March 2016), the Veteran asserted that he was experiencing hypersomnolence. The Veteran’s sleep apnea is rated under DC 6847. 38 C.F.R. § 4.97, DC 6847. Under DC 6847, a noncompensable rating is warranted for sleep apnea that is asymptomatic but with documented sleep disorder breathing; a 30-percent rating is warranted for sleep apnea that is productive of persistent day-time hypersomnolence; a 50-percent rating is warranted for sleep apnea requiring use of breathing assistance device such as a CPAP machine; finally, a 100-percent rating is warranted for sleep apnea requiring chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy. Id. The Veteran was afforded a VA sleep apnea examination in December 2014 where the examiner noted the Veteran's June 2013 diagnosis of mild obstructive sleep apnea. The Veteran reported that he had snored for as long as he could remember. He stated that the UPPP surgery done in 2012 improved his ability to sleep. The examiner noted the Veteran did not have any current findings, signs or symptoms attributable to sleep apnea at the time of the VA examination and the Veteran did not report any other than snoring. The Veteran denied the use of any medications or the use of a CPAP machine to treat his mild obstructive sleep apnea. Based on the evidence above, the Board finds that a compensable rating is not warranted for mild obstructive sleep apnea prior to February 3, 2016. Rating in excess of 30 percent from February 3, 2016 At a February 2016 VA sleep apnea examination, the Veteran reported that his current symptoms were snoring, which was getting worse, and daytime tiredness. Additionally, he reported that his wife told him he is pausing when he breathes at night. The Veteran denied the use of continuous medication for control of a sleep disorder or the use of a breathing assistance device such as a CPAP machine. The examiner noted the Veteran’s symptom as persistent daytime hypersomnolence. Based on the February 2016 VA examiner’s findings, the Veteran’s disability rating was increased to 30 percent disabling for persistent daytime hypersomnolence. As there is no evidence the Veteran requires or uses a CPAP machine, has chronic respiratory failure with carbon dioxide retention or cor pulmonale, or requires tracheostomy, a rating in excess of 30 percent is not warranted for the Veteran’s mild obstructive sleep apnea disability. Accordingly, the Board finds that a 30 percent rating, but no higher, is warranted for sleep apnea from February 3, 2016. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Mitchell The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.