Citation Nr: 21001433 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 15-38 851A DATE: January 8, 2021 ORDER The petition to reopen the previously denied claim for entitlement to service connection for a left foot disability is granted. Entitlement to a compensable initial rating for allergic rhinitis is denied. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a left foot disability, to include as secondary to the service-connected left knee disability, is remanded. REFERRED The issue of entitlement to service connection for a respiratory disability, to include as due to in-service exposure to chemicals, was raised in a December 2020 statement and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDINGS OF FACT 1. An August 2006 rating decision denied the Veteran’s original claim for entitlement to service connection for a left foot disability; the Veteran did not timely appeal that denial; and new and material evidence was not received as to the issue within the one-year appeal period following issuance of the August 2006 rating decision. 2. Evidence received since the August 2006 rating decision is new and raises a reasonable possibility of substantiating the claim for entitlement to service connection for a left foot disability. 3. The Veteran’s allergic rhinitis has not manifested in polyps, by greater than 50-percent obstruction of the nasal passage on both sides, or by complete obstruction of the nasal passage on one side at any time during the relevant rating period. CONCLUSIONS OF LAW 1. The August 2006 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 3.104, 19.20, 19.21, 19.52, 20.1103. 2. The criteria for reopening the previously denied claim for entitlement to service connection for a left foot disability have been met. 38 U.S.C. §§ 1110, 5108; 38 C.F.R. § 3.303. 3. The criteria for entitlement to a compensable initial rating for allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.97, Diagnostic Code 6522.   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 2002 to April 2005. In February 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge via video conference. A transcript of the hearing is associated with the record. The Board remanded this appeal in July 2018. Relevant to the issue of entitlement to a compensable initial rating for allergic rhinitis, the remand directed the AOJ to afford the Veteran a VA examination to determine the current severity of his allergic rhinitis. Pursuant to the remand, the AOJ afforded the Veteran a VA examination as to his allergic rhinitis in October 2019. The examination is responsive to the Board’s remand directives and provides the information necessary to render a decision as to the issue. Accordingly, the Board finds that VA at least substantially complied with the July 2018 remand. See 38 U.S.C. § 5103A(b); Stegall v. West, 11 Vet. App. 268, 271 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). The July 2018 Board remand included the issues of entitlement to service connection for a left knee disability and entitlement to service connection for an acquired psychiatric disability. A December 2019 rating decision granted the Veteran entitlement to service connection for left knee status-post anterior cruciate ligament (ACL) reconstruction with degenerative arthritis and patellofemoral pain syndrome and for a left knee scar. In addition, a November 2020 rating decision granted the Veteran entitlement to service connection for posttraumatic stress disorder (PTSD) (claimed as PTSD/depression). Those decisions constitute full grants of the benefits sought on appeal with regard to those issues. Therefore, those issues are no longer on appeal. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). The Board is cognizant that a claim for a total rating based on individual unemployability due to a service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, is part of the claim for an increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the record contains several references to unemployability caused by the Veteran’s psychiatric disabilities and disabilities of the back and knees. However, the Veteran has not argued, and the record does not otherwise reflect, that his service-connected allergic rhinitis renders him unable to secure or follow a substantially gainful occupation. The Board therefore concludes that a claim for entitlement to a TDIU has not been raised as part of the increased rating issue on appeal. Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issue denied in this decision. 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 analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show. The Veteran should not assume that evidence that is not explicitly discussed in the decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). 1. The petition to reopen the previously denied claim for entitlement to service connection for a left foot disability The Veteran seeks to reopen his previously denied claim for entitlement to service connection for a left foot disability. In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. An exception to this rule is provided in 38 U.S.C. § 5108, which states that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is existing evidence not previously considered by VA. Material evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the United States Court of Appeals for Veterans Claims (Court) held that the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) to have a finally denied claim reopened under 38 U.S.C. § 5108. The Court has also held that the law should be interpreted as enabling reopening of a claim, rather than to precluding it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The focus is not exclusively on whether evidence remedies the principal reason for denial in the last prior final decision, but on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. Id. at 118. In general, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The Veteran submitted an original claim for entitlement to service connection for left foot pes planus in May 2006. The regional office (RO) denied the Veteran’s claim in the August 2006 rating decision. In so doing, the RO explained that the condition existed prior to the Veteran’s active service, as it was noted on a 2001 enlistment examination, and was not permanently aggravated by active service. The RO also acknowledged that the Veteran was seen in February 2005 for left knee pain that could possibly be associated with worsening pes planus. The Veteran did not submit a timely notice of disagreement as to the August 2006 rating decision’s denial of entitlement to service connection for left pes planus. In addition, the evidence received within the one-year period following issuance of the August 2006 rating decision was not material to the issue of entitlement to service connection for a left foot disability. As such, the Veteran did not timely appeal the August 2006 rating decision’s denial of entitlement to service connection for a left foot disability. See 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52. The August 2006 rating decision is therefore final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Evidence received since the final August 2006 rating decision includes the Veteran’s assertions, to include at the February 2018 Board hearing, that his current left foot pes planus was aggravated by a left knee disability. It also includes an October 2020 VA opinion that states, among other things, that “There is objective evidence in the Veteran’s service medical records or post medical records of left foot pes planus aggravation due to left knee s/p ACL reconstruction.” As noted in the introduction, the Veteran has since been service connected for his left knee status-post ACL reconstruction. The Board finds that the evidence is new because it was not previously considered by VA. It is also material because it puts forth a new theory of entitlement and triggers VA’s duty to assist in providing an examination. As such, the additional evidence raises a reasonable possibility of substantiating the claim for entitlement to service connection for a left foot disability. See Shade, 24 Vet. App. 110. Therefore, the Board concludes that new and material evidence has been received to reopen the Veteran’s claim for entitlement to service connection for a left foot disability, and the claim is reopened. 38 C.F.R. § 3.156(a). 2. Entitlement to a compensable initial rating for allergic rhinitis The Veteran seeks a compensable initial rating for allergic rhinitis. The applicable rating period is from July 7, 2015, the effective date for the award of service connection for that disability, through the present. See 38 C.F.R. § 3.400. The Veteran testified at the February 2018 Board hearing that he is entitled to a compensable initial rating because he has sinus polyps, requires the use of a CPAP machine to sleep, and uses nasal sprays. Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). The Veteran’s allergic rhinitis is rated under 38 C.F.R. § 4.97, Diagnostic Code 6522, which pertains to allergic or vasomotor rhinitis. Under Diagnostic Code 6522, a 10 percent rating is warranted for allergic 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 rating is warranted for allergic rhinitis with polyps. Turning to the relevant evidence of record, the Veteran’s medical treatment records show that he has a diagnosis of allergic rhinitis. However, they do not show that he has experienced obstruction of the nasal passage on one or both sides due to the condition or that he has had polyps due to the condition. The Veteran underwent a VA examination as to his allergic rhinitis in October 2015. At the examination, the Veteran was unable to provide any symptoms or complaints associated with the allergic rhinitis. On examination, he did not have polyps, complete obstruction of the nasal passage on the left or right side, greater than 50 percent obstruction of the nasal passage on both sides, or permanent hypertrophy of the nasal turbinates. The examiner indicated that the Veteran’s allergic rhinitis does not impact his ability to work. The Veteran underwent another VA examination as to his allergic rhinitis in October 2019. At the examination, the Veteran reported episodes of sneezing, nasal congestion, runny nose, and watery/irritated eyes about every other day and intermittently throughout the day when he has symptoms. He treats the symptoms using two nasal sprays, but could not remember the names of those sprays. On examination, he did not have polyps, complete obstruction of the nasal passage on the left or right side, greater than 50 percent obstruction of the nasal passage on both sides, or permanent hypertrophy of the nasal turbinates. The examiner indicated that the Veteran’s allergic rhinitis does not impact his ability to work. Accordingly, the relevant evidence of record does not show that the Veteran has experienced obstruction of the nasal passage on one or both sides due to his allergic rhinitis or that he has had had polyps due to that condition at any time during the relevant rating period. The Board has considered the Veteran’s assertions that, due to his allergic rhinitis, he has sinus polyps, requires the use of a CPAP machine to sleep, and uses nasal sprays. However, the Veteran in this case is not considered competent to associate his use of a CPAP machine to the service-connected allergic rhinitis. The issue is medically complex, as it requires knowledge of the pathology of various medical conditions. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Because his statements are not competent as to the matter, they are not entitled to probative value. Moreover, the medical treatment records clearly show that the Veteran’s use of a CPAP machine is related to his diagnosed obstructive sleep apnea and not to his service-connected allergic rhinitis. Regarding the Veteran’s assertion that he has nasal polyps, although he may be competent to observe such a symptom, see Layno v. Brown, 6 Vet. App. 465, 469 (1994), the Board does not find him credible in that regard because his assertions are controverted by the objective medical evidence of record. Specifically, the Veteran has never reported polyps to his medical care providers, nor have any of his medical care providers noted such findings on examination. In addition, the Veteran did not have polyps at the October 2015 and October 2019 VA examinations. See Caluza v. Brown, 7 Vet. App. 498 (1995) (in determining whether evidence submitted by a Veteran is credible, the Board may consider internal consistency, facial plausibility, and consistency with other information submitted on behalf of the claimant). As such, the Board finds that there is no credible evidence of record showing that the Veteran had polyps at any time during the relevant rating period. Regarding the Veteran’s assertions that his allergic rhinitis causes sneezing, nasal congestion, runny nose, watery eyes, and irritated eyes and requires the use of nasal sprays, such symptoms and effects are not unusual for allergic rhinitis. See https://medlineplus.gov/ency/article/000813.htm (last accessed January 4, 2021). They are therefore reasonably considered by the Veteran’s current noncompensable rating for allergic rhinitis. In addition, they are not sufficient to warrant a compensable rating under Diagnostic Code 6522, which requires nasal polyps or sufficient obstruction of the nasal passage for a compensable rating. Neither the Veteran nor his representative has raised any other issues with regard to the rating for the service-connected allergic rhinitis, nor have any other such issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017). The Board therefore finds that the criteria for entitlement to a compensable initial rating for the Veteran’s allergic rhinitis have not been met at any time during the relevant rating period. Accordingly, there is no basis for staged rating of the Veteran’s allergic rhinitis pursuant to Fenderson, 12 Vet. App. at 126-27. As the preponderance of the evidence is against the assignment of a compensable initial rating, the doctrine of reasonable doubt is not for application, and the appeal must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a right knee disability and entitlement to service connection for a back disability are remanded. The July 2018 Board remand direct the AOJ to obtain an opinion as to whether it is at least as likely as not that a current disability of the right knee and/or back is related to an in-service injury, event, or disease, including wearing heavy equipment and from lifting heaving objects such as generators. In July 2019, a VA examiner provided negative opinions. With regard to the right knee, the examiner explained, “I was unable to find the veteran had complaints of right knee injury nor was he treated for a right knee condition while he was serving.” With regard to the back, the examiner explained, “I was unable to find the veteran had complaints of a back condition nor was he treated for a back condition while he was serving. All documentation found regarding the veteran’s back complaints were made after his service time.” In October 2020, another VA examination provided further negative opinions. With regard to the right knee, that examiner explained, “There are no complains made by the Veteran during service of right knee injury or condition. Post service medical records show Veteran to have injured his right knee on several different occasions starting in 2009. The last re-injury of the right knee required surgical intervention.” With regard to the back, the examiner explained, “The Veteran’s service medical record is silent for lumbar spine condition. According the Veteran’s post service medical records lumbar spine condition did not begin until 2008, three years after discharge. Medical records have statement from Chiropractic show Veteran began treatment for chronic lower back pain in 2017. There is no objective evidence of lumbar spine condition beginning during service.” The Board finds that the VA opinions obtained in July 2019 and October 2020 do not substantially complete the July 2018 remand directives because they do not reflect consideration of the Veteran’s contentions that his current right knee and back disabilities are due to in-service wearing of heavy equipment and lifting of heavy objects, such as generators. The examiners instead based their negative nexus opinions on the absence of in-service treatment for right knee and back conditions. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible). The issues therefore must be remanded so that addendum opinions may be obtained. 2. Entitlement to service connection for a left foot disability, to include as secondary to the service-connected left knee disability, is remanded. The Veteran contends that his left foot pes planus is secondary to his service-connected left knee disability. In October 2020, a VA examiner opined that the Veteran’s left foot pes planus was less likely than not caused by his service-connected left knee disability. However, the examiner did not provide an opinion as to whether the Veteran’s left foot pes planus was aggravated by his service-connected left knee disability. The issue must be remanded so that such an opinion may be obtained. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s right knee and/or back disability is at least as likely as not (50 percent probability or greater) related to an in-service injury, event, or disease, including injuries sustained from wearing heavy equipment and from lifting heaving objects such as generators. The clinician must note that lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s left foot pes planus at least as likely as not (50 percent probability or greater) was aggravated beyond its natural progression by a service-connected disability, to include left knee status-post anterior cruciate ligament reconstruction with degenerative arthritis and patellofemoral pain syndrome. If the opinion is in the negative, the clinician should reconcile that opinion with the October 2020 VA examiner’s statement that “There is objective evidence in the Veteran’s service medical record or post medical records of left foot pes planus aggravation due to left knee s/p ACL reconstruction.” In that regard, the Board notes that a February 2005 service treatment note references the Veteran’s marked pes planus of the left foot and states that the Veteran’s left knee pain “may be associated with worsening pes planus as his ankle joint rotates medially with weight bearing.” Thus, the service treatment records indicate that the left knee symptoms may have been aggravated by his left foot pes planus rather than the left foot pes planus being aggravated by a left knee condition. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. J. Anthony, Counsel 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.