Citation Nr: 21069440 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 14-07 400 DATE: November 18, 2021 ORDER Entitlement to service connection for a neck disability is denied. Entitlement to service connection for a psychiatric disability is denied. Entitlement to service connection for a low back disability is denied. Entitlement to a service connection for a bilateral knee disability is denied. Entitlement to a rating in excess of 0 percent for allergic rhinitis is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a neck disability began during active service or is otherwise related to service or any event, injury, or disease during service. 2. The Veteran's psychiatric disability is not shown to be due to or aggravated by a service-connected traumatic brain injury (TBI) and is not otherwise related to service or any event, injury, or disease during service. 3. The preponderance of the evidence is against finding that a low back disability began during active service or is otherwise related to service or any event, injury, or disease during service. 4. The preponderance of the evidence is against finding that a bilateral knee disability began during active service or is otherwise related to service or any event, injury, or disease during service. 5. Throughout the appeal period, the Veteran's allergic rhinitis is not shown to have been productive of greater than 50 percent obstruction of the nasal passages on both sides or complete obstruction on one side. CONCLUSIONS OF LAW 1. The criteria for service connection for a neck disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a psychiatric disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a low back disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a bilateral knee disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for a compensable rating for allergic rhinitis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.97, Diagnostic Code 6522. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 2000 to June 2003. The claims on appeal come before the Board of Veterans' Appeals (Board) on appeal from November 2010 and August 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2015, the Veteran and a sister testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Service Connection Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. To establish service connection for a disability requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to any event, injury, or disease during service. 1. Entitlement to service connection for a neck disability The Veteran contends that he is entitled to service connection for a neck disability because the claimed disability is the result of active service. More specifically, the Veteran asserts that while in-service, he had to participate in rigorous training and began experiencing pain in the cervical spine. The Veteran also cited carrying equipment and having to practice landing with this equipment as the cause of the claimed disability. The Veteran has testified to experiencing ongoing pain and receiving treatment since his separation from service. The Board concludes that, while the Veteran has a diagnosis of cervical spine degenerative disc disease and cervical myositis, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to any event, injury, or disease during service. VA medical treatment records show that the Veteran first complained of cervical pain in March 2010. At a December 2020 VA examination, the examiner noted the 2010 diagnosis of cervical spine degenerative disc disease and cervical myositis. On examination, the Veteran describe cervical pain after multiple airborne missions as a parachuter and carrying heavy equipment. The Veteran stated that the pain grew increasingly worse over time. The examiner opined that the claimed disability was less likely than not incurred in or caused by the claimed injury, event, or illness in service. The rationale provided was that the service medical records did not indicate treatment or complaints in service. The examiner noted the Veteran's reports of a jump that went wrong that resulted in him falling on his head and losing consciousness. However, it was concluded that those findings were already compatible with the service-connected traumatic brain injury (TBI). The examiner noted that "Veterans x rays done on Feb 12, 2010 showed mild degenerative disc disease C4-C5 level but 4 years after active duty. Veteran's actual cervical myositis is not related to his active-duty years." While the Veteran has stated that current neck problems are related to active service, the Veteran is not shown to have the medical training to provide a competent medical opinion as to etiology. The Veteran has not submitted any competent medical opinion relating any current neck disability to service or any event, injury, or disease during service. While the Veteran believes a cervical spine disability is related to a fall and training during, the Board finds that the preponderance of the evidence weighs against findings the in-service fall or training caused the cervical spine disability. The most persuasive evidence is the VA examination which found it less likely that any current cervical spine disability as related to service. Accordingly, as the preponderance of the evidence is against the claim, service connection for a neck or cervical spine disability must be denied. 2. Entitlement to service connection for a psychiatric disability The Veteran asserts that he is entitled to service connection for a psychiatric disability because the claimed disability is the result of service. In a February 2020 statement, the Veteran indicated that he is not seeking service connection for post-traumatic stress disorder (PTSD). An April 2002 service medical record indicates that the Veteran was involved in a fight that resulted in contusions, bruising, and swelling of the head, chest, and arms. An August 2002 service medical note indicates that the Veteran was seen at community mental health service in conjunction with the commander's request for a mental status examination. VA treatment records show that the Veteran had a psychiatry admission in November 2003 in which he reported cocaine use the previous day and alcohol abuse. The diagnosis impression was alcohol dependence; cocaine abuse; adjustment disorder with mixed feature; and residuals of depression not otherwise specified. In a February 2015 mental disorders disability benefits questionnaire, the Veteran was noted as having diagnoses of major depressive disorder, nicotine dependence, and personality, not otherwise specified, traits. At a November 2015 Board hearing, the Veteran testified that his sinusitis, rhinitis, headaches, and TBI contributed to a psychiatric disability. It was stated that the TBI in service, being attacked by individuals, and service in Afghanistan contributed to psychiatric problems including "adjustment disorders, anxiety, depression, irritability, mood changes and anger issues that he has been suffering under all those conditions." The Veteran's sister testified to observing changes in the Veteran upon his return from service, to include being more reserved and that he was not the same person. In a March 2020 VA examination, the examiner noted a diagnosis of cannabis use disorder and mood disorder. The examiner noted a history of psychiatric complaints, findings, and treatment at VA since November 2003. There was no history of hospitalization or emotional crisis since 2016. The examiner noted a diagnosis form a different physician that included major depressive disorder, moderate, with psychotic features and nicotine dependence. There was no diagnosis of PTSD on examination. The March 2020 VA examiner opined that the claimed disability was less likely than not related to active service. The rationale provided was that cannabis use disorder was not associated with service in anyway and was a product of the Veteran's own and willful misconduct. The Board notes that opinion does not address all diagnoses and etiology. In addition, the opinion did not take into account the Veteran statements regarding onset of the psychiatric disabilities. In an April 2021 VA examination, the examiner noted a diagnosis of unspecified anxiety disorder. The examiner opined that the claimed disability was less likely than not related to active service. The rationale provided was that "it is not likely symptoms related to the present diagnosis manifested during a time in service or due to fear of terrorist activity/hostile military." The examiner stated that there was no evidence to suggest a link between the current unspecified anxiety disorder and the reported stressor of a personal assault during service. The examiner found that the fight appeared to be characterological in nature. The examiner indicated that the Veteran did not meet the criteria for PTSD or a depressive disorder. Regarding secondary service connection, the examiner opined that the current anxiety disorder was not caused or aggravated by a service-connected TBI because there was no evidence to support a relationship or aggravation between the two diagnoses. The Veteran believes a psychiatric disability is proximately due to or the result of/aggravated beyond the natural progression by a service-connected disability or caused by an altercation in service and exposure to the certain events while in Afghanistan. The Veteran in this case is not competent to provide an opinion regarding the etiology of mental disorders as the evidence does not show that the Veteran has the requisite training. The issue is medically complex, as it requires knowledge of the interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the medical evidence of record, and particularly to the VA examinations which found it less likely that any current mental disorder was related to service or any event during service, or caused or aggravated by a service-connected disability. Those examiners have the requisite training to provide opinions on these issues and that evidence is the most persuasive. The Veteran has not been diagnosed with PTSD, therefore service connection for PTSD is not warranted. 38 C.F.R. § 3.304(f). Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for a psychiatric disability and the claim must be denied. 3. Entitlement to service connection for a low back disability 4. Entitlement to a service connection for a bilateral knee disability The Veteran contends that he is entitled to service connection for a low back disability because the claimed disability is the result of active service. More specifically, the Veteran asserts that while in service, he had to participate in rigorous training and began experiencing pain in the low back and knees. The Veteran also cited carrying equipment and having to practice landing with that equipment as the cause of the claimed disabilities. The Veteran has testified to experiencing ongoing pain and receiving treatment since separation from service. The Board concludes that, while the Veteran has current diagnoses of degenerative arthritis of the spine, lumbar myositis, bulging disc at L4-L5, and bilateral knee tendonitis, and evidence shows that the Veteran was involved in a fight during service and underwent appropriate training, the preponderance of the evidence weighs against finding that degenerative arthritis of the spine, lumbar myositis, bulging disc at L4-L5, and bilateral knee tendonitis began during service or are otherwise related to any event, injury, or disease during service. An April and August 2002 service medical record notes back and knee pain following an altercation in service. At a December 2020 VA examination, the examiner noted a 2019 diagnosis of degenerative arthritis of the spine, a 2014 diagnosis of a bulging disc at L4-L5, and a 2010 diagnosis of lumbar myositis. The examiner opined that the claimed disability was less likely than not a result of active service, to include the reported altercation, parachute jump training, and head injury during service. In support of that opinion, the examiner noted that after reviewing the service medical records, VA examination reports, and the 2015 hearing testimony, following the April 2002 altercation, there were no more complaints of back pain, nor medical evaluation of imaging studies until 2010. The examiner noted the Veteran's reports of continuity of symptomatology, in addition to reports of rigorous training in-service. The examiner also noted that a March 2019 lumbar spine MRI showed multilevel facet joint arthropathy and bulging disc. However, in support of the negative opinion the examiner also provided a study that did not identify any significant differences in the development of lumbar degenerative changes between the parachutists and non-parachutists over a 30-year follow-up, suggesting that military parachuting itself did not accelerate the development of intervertebral disc degeneration. At a December 2020 VA knee examination, the examiner noted a 2020 diagnosis of bilateral knee tendonitis. The reported date of onset was between 2000 and 2003. The examiner opined that the claimed disability was less likely than not related to service, to include the report of an altercation and the service training requirements. The examiner concluded that after a review of the service medical records, hearing testimony, and VA treatment records from 2003 to 2010, there were complaints of knee pain on April 4, 2008, almost four years after the Veteran's service release date. The Veteran believes back and knee disabilities are related to an event, injury, or disease during service. The Veteran has not been shown to have the requisite training to provide competent etiology opinions for back and knee disabilities. The issue is medically complex, as it requires knowledge of anatomical relationships and the interpretation of complicated diagnostic medical testing. 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 (Fed. Cir. 2007); Kahana v. Shinseki, 24. Vet. App. 428 (2011). The Board gives more probative weight to the December 2020 VA examiner's medical opinions because of the training of the examiner, the research reviewed, and the examination conducted. The Veteran has not submitted any competent medical evidence that supports a finding that any back or knee disabilities began during service or are related to service, any service-connected disability, or any event, injury, or disease during service. Accordingly, the Board finds that the preponderance of the evidence is against the claims for service connection for low back and bilateral knee disabilities and the claims must be denied. 5. Entitlement to a rating in excess of 0 percent for allergic rhinitis The Veteran asserts that he is entitled to a rating in excess of 0 percent because the rhinitis symptoms are worse than contemplated by the currently assigned rating. Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Whether lay evidence is competent and sufficient in a particular case is an issue of fact and that lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (noting that 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). The Board has authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). VA may favor one medical opinion over another provided that VA offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429 (1995). Rating the same disability under different diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one disability is not duplicative of or overlapping with the symptomatology of the other disability. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1994). Allergic rhinitis is rated under 38 C.F.R. § 4.97, Diagnostic Code 6522. A 10 percent rating is assigned where there are no polyps, but there is greater than 50 percent obstruction of the nasal passages on both sides or complete obstruction on one side. A 30 percent rating is warranted with polyps. At a June 2014 VA examination, the Veteran was diagnosed with chronic allergic rhinitis. The medical history included reports of congestion, frequent sneezing, and excessive clear nasal secretions. There was no obstruction greater than 50 percent of the nasal passage on both sides. There were no nasal polyps on examination. The examiner did note permanent hypertrophy of the nasal turbinates. At a May 2015 VA examination, the examiner noted that there was no obstruction greater than 50 percent of the nasal passage on both sides. There were no nasal polyps on examination. The examiner noted permanent hypertrophy of the nasal turbinates. There were no incapacitating episodes or rhinoscleroma. At a March 2020 VA examination, the examiner noted that there was no obstruction greater than 50 percent of the nasal passage on both sides. There were no nasal polyps on examination. The examiner noted permanent hypertrophy of the nasal turbinates. There were no incapacitating episodes or rhinoscleroma. The June 2014, May 2015, and March 2020 VA examination findings do not support a compensable rating for the Veteran's allergic rhinitis due the fact that he was not shown to have greater than 50 percent obstruction of the nasal passages on both sides, or complete obstruction on one side. Those examinations found less than 50 percent obstruction of the nasal passage on both sides. Moreover, medical treatment records that pertain to the appeal period do not support the criteria for a compensable rating. The Veteran's opinion that he is entitled to a compensable rating for allergic rhinitis has been considered. However, that opinion is outweighed by the objective medical findings and the criteria for rating allergic rhinitis, which require findings of obstruction or polyps that are not shown on examination. Accordingly, the Board finds that the preponderance of the evidence does not support the assignment of any higher rating for allergic rhinitis at any point during the appeal period. As the preponderance of the evidence is against this claim, the claim is denied. 38 U.S.C. § 5107(b). Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Cross, 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.