Citation Nr: 21070938 Decision Date: 11/27/21 Archive Date: 11/27/21 DOCKET NO. 16-44 942 DATE: November 27, 2021 ORDER An initial compensable disability rating since August 18, 2014, for left cervical adenopathy is denied. Service connection for a right knee disorder is denied. FINDINGS OF FACT 1. Since August 18, 2014, the Veteran's cervical adenopathy disability manifested as cervical adenopathy in remission, mild lymph node swelling and tenderness, and no cervical limitation of motion. 2. There is no probative medical evidence that indicates the Veteran's current right knee disorder was incurred in service or diagnosed within the presumptive period after discharge. CONCLUSIONS OF LAW 1. Since August 18, 2014, the criteria for an initial compensable disability rating for cervical adenopathy have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.10, 4.31, 4.117, Diagnostic Code (DC) 7705-7709. 2. The criteria to establish service connection for a right knee disorder have not been satisfied. 38 U.S.C. §§ 1131, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1979 to August 1982. The case was remanded in November 2018 for evidentiary development and for new medical examinations and opinions. All actions ordered by the remand have been accomplished. In November 2021 the Veteran filed a supplemental claim in the modernized appeal system for an increased rating for his service-connected tinnitus and bilateral hearing loss disabilities, to include consideration for a total disability rating based on individual unemployability (TDIU). Since dockets in the legacy and modernized appeal systems cannot be merged, the Veteran's supplemental claims will be addressed in a separate decision. Increased Ratings Disability ratings are determined by applying criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In disability rating cases, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims). Additionally, the evaluation of the same disability under several 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 condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In assigning a higher disability rating, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to an initial compensable disability rating since August 18, 2014, for left cervical adenopathy The Veteran's service-connected left cervical adenopathy has been evaluated as noncompensable since August 18, 2014, under the schedule of ratings for the hemic and lymphatic systems. See 38 C.F.R. § 4.117, DC 7705-7709. Under DC 7705 for immune thrombocytopenia, a noncompensable rating is warranted for a platelet count above 50,000 and asymptomatic; or for immune thrombocytopenia in remission. A 10 percent rating is warranted for a platelet count higher than 30,000 but not higher than 50,000, not requiring treatment. A 30 percent rating is warranted for a platelet count higher than 30,000 but not higher than 50,000, with either immune thrombocytopenia or mild mucous membrane bleeding which requires oral corticosteroid therapy or intravenous immune globulin. A 70 percent rating is warranted for immune thrombocytopenia that requires immunosuppressive therapy; or for a platelet count higher than 30,000 but not higher than 50,000, with a history of hospitalization because of severe bleeding requiring intravenous immune globulin, high-dose parenteral corticosteroids, and platelet transfusions. A 100 percent rating is warranted for immune thrombo-cytopenia requiring chemotherapy for chronic refractory thrombocytopenia; or a platelet count of 30,000 or below despite treatment. The VA is to separately evaluate splenectomy under diagnostic code 7706 and combine with an evaluation under this diagnostic code. Also, a 100 percent evaluation shall continue beyond the cessation of chemotherapy. Six months after discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination. Any reduction in evaluation based upon that or any subsequent examination shall be subject to the provisions of § 3.105(e) of this chapter. See 38 C.F.R. § 4.117, DC 7705, Notes (1) and (2). Under DC 7709 for Hodgkin's lymphoma, a 100 percent rating is warranted for an active disease or during a treatment phase. A 100 percent evaluation shall continue beyond the cessation of any surgical therapy, radiation therapy, antineoplastic chemotherapy, or other therapeutic procedures. Six months after discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination. Any reduction in evaluation based upon that or any subsequent examination shall be subject to the provisions of § 3.105(e) of this chapter. If there has been no local recurrence or metastasis, rate on residuals under the appropriate diagnostic code(s). See 38 C.F.R. § 4.117, DC 7709, Note. In every instance where the schedule does not provide a 0 percent rating for a diagnostic code, a 0 percent rating shall be assigned when the requirements for a compensable rating are not met. See 38 C.F.R. § 4.31. At a July 2015 VA medical examination for hematologic and lymphatic conditions, the examiner noted the Veteran's in-service diagnosis of left cervical adenopathy, and the Veteran reported continued tenderness in his lymph glands. The examiner noted the Veteran's condition was in remission; did not require continued medication; that the Veteran was not undergoing any current treatment; and that the Veteran did not have thrombocytopenia or anemia. The examiner further noted the Veteran did not demonstrate any findings, signs, or symptoms of a hematologic or lymphatic disorder. The examiner noted bilateral palpable tender cervical adenopathy. The examiner indicated the Veteran's condition did not impact his ability to work. VA treatment records do not indicate the Veteran complained of any symptomatology related to his cervical adenopathy disability. At a March 2020 VA medical examination for cervical conditions, the examiner noted a history of cervical adenopathy. The Veteran reported no current treatment for his adenopathy but endorsed discomfort when he pressed any mild swelling of his bilateral neck lymph nodes. The Veteran denied flareups, functional loss, or functional impairment of his cervical spine due to the condition. The examiner noted the Veteran's cervical spine range of motion (ROM) was normal, with no pain during ROM testing. The Veteran was able to perform repetitive use testing. The examiner noted that the examination was not conducted immediately after repetitive use over time, and that the examination was neither medical consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner noted that pain, weakness, fatigability, or incoordination did not significantly limit the Veteran's functional ability with repeated use over time. The Veteran did not demonstrate guarding or muscle spasms. Muscle strength testing indicated normal strength. Reflex testing indicated normal deep tendon reflexes. Sensory testing indicated normal sensation to light touch. The Veteran's cervical spine did not demonstrate radiculopathy, ankylosis, nor intervertebral disc syndrome (IVDS). The examiner noted no pertinent physical findings, complications, conditions, signs, or symptoms related to any diagnosed cervical condition. Imaging did not reveal arthritis but indicated cervical lymphadenopathy. The examiner noted the Veteran's cervical condition did not impact his ability to work. The examiner remarked that neither pain nor flareups of pain were associated with the Veteran's neck movement secondary to his cervical lymph adenopathy. The examiner concluded that the Veteran's cervical adenopathy did not result in painful limitation of motion. Since August 18, 2014, the Veteran's cervical adenopathy disability manifested as cervical adenopathy in remission, mild lymph node swelling and tenderness, and no cervical limitation of motion, and warrants a noncompensable rating. A higher rating is not warranted because the Veteran's disability did not demonstrate with symptoms indicative of immune thrombocytopenia or Hodgkin's lymphoma. Given these facts, the preponderance of the evidence is against the claim for an increased rating and the appeal will be denied. 38 C.F.R. § 4.7. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain disorders listed as "chronic" in 38 C.F.R. § 3.309 (a) and 38 C.F.R. § 3.303 (b) are capable of service connection based on a continuity of symptomatology without respect to an established causal nexus to service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is a "chronic disease" listed under 38 C.F.R. § 3.309 (a). Therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303 (b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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. 38 C.F.R. § 3.303 (b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in 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 (a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. The Board must analyze the competency and credibility of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept it means that the person who makes the statement is qualified by training, education, an occupation, personal experience, or other reason to make the statement. Credibility is a factual determination it involves deciding whether the testimony or other evidence is believable, and the determination is made after the evidence has been found competent. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for a right knee disorder The Veteran contends that the intense physical aspects of his service caused his current right knee disorder. Service treatment records do not indicate any complaints, diagnoses, or treatments for a right knee disorder in service. The Veteran's April 1979 report of medical history at enlistment indicates he denied having a "trick" or locked knee. His clinical lower extremities evaluation was normal. At enlistment the Veteran weighed 170 pounds. In July 1982 the Veteran declined to undergo a medical examination at separation. In August 1982 the Veteran weighed 190 pounds. The Veteran contends he was repeatedly placed on a limited physical profile during service due to chronic right knee complaints. Military personnel records do not substantiate the Veteran's recollections of being placed on multiple limited physical profile due to right knee complaints. STRs indicate the Veteran complained of a right foot condition during service but not for a right knee condition. The Veteran's April 1986 report of medical examination at enlistment for the Army National Guard indicates the Veteran demonstrated normal lower extremities other than asymptomatic pes planus. The Veteran was given a "1" rating for his lower extremities under the under the PULHES profile system, indicating that the Veteran's lower extremities was then in a high level of fitness. See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992); (observing that the "PULHES" profile reflects the overall physical and psychiatric condition of the veteran's capacity and stamina ("P"); upper extremities ("U"); lower extremities ("L"); hearing ("H "); eyes ("E") and psychiatric condition ("S") assessed on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service)). These medical records are highly probative both as to the Veteran's subjective reports and their resulting objective findings. They were generated with a view towards ascertaining the Veteran's then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803 (4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). October 2011 Social Security Administration (SSA) documents indicate the Veteran reported right joint effusion and one leg being shorter than the other as disabilities that were impacting his ability to work. The Veteran reported a work history of being a self-employed cable TV installer for approximately 20 years, as well as employment at retail establishments for approximately six years. The Veteran reported he weighed 270 pounds. At a February 2012 musculoskeletal assessment, the examiner noted the Veteran's bilateral knee flexion and extension were within normal limits. June 2016 VA treatment records indicate the Veteran reported chronic right knee pain for the past ten years and that he was recently told by the VA podiatry department that he had a leg length discrepancy. He indicated no history of a right knee injury and endorsed a positive history of overuse with sports and occupational duties. June 2016 imaging revealed no acute fracture or dislocation; no significant knee effusion; with mild degenerative changes as compared to 2012 imaging. The Veteran was fitted for a new right knee brace. At a March 2020 VA medical examination for knee and lower leg conditions, the Veteran alleged he had right knee pain since service due to his physical training (PT) requirements. He reported that he sought medical treatment during service from a medic and that he was treated with a limited profile that included rest and a temporary waiver of PT. However, he also reported post-service employment working as a cable installer that required physical activities like climbing ladders, digging into the ground, and laying cable on the ground. The Veteran reported he did not seek treatment for his right knee pain after separation until 2010. The Veteran reported his right leg is a quarter inch shorter than his left leg since birth. Imaging revealed mild medial and minimal patellofemoral osteoarthritis. The examiner diagnosed the Veteran with a right knee strain in 1982 and opined the Veteran's right knee disorder was less likely than not incurred in service because the Veteran's STRs did not reveal evidence that the Veteran was treated for a chronic knee condition during service; the Veteran did not seek medical attention until 2010, approximately 28 years after separation; and that the Veteran's post-service occupational activities suggest that his current right knee complaints were secondary to his post-service job activities and aging. The preponderance of the evidence is against finding service connection for a right knee disorder. There is no probative medical evidence that indicates the Veteran's current right knee disorder was incurred in service or diagnosed within the presumptive period after discharge. The Veteran has continuously asserted throughout the appeal that his current right knee disorder is a result of the physical demands of service. The Veteran is competent to report observable symptomatology of his condition and to relate a contemporaneous medical diagnosis. See Layno, 6 Vet. App. 465, 469; see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, while the Veteran has attempted to establish a nexus through his own lay assertions, the Veteran is not competent to offer opinions as to the etiology of his current right knee disorder. See Jandreau, 492 F.3d 1372, 1377 n.4; Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Osteoarthritis requires specialized training for determinations as to diagnosis and causation and is therefore not susceptible to lay opinions on etiology. Thus, the Veteran is not competent to render such a nexus opinion or attempt to present lay assertions to establish a nexus between his current diagnosis and its relationship to his service. In addition, the record contains inconsistent statements regarding the onset of symptoms and the diagnosis and treatment of the disease that minimize the probative weight of the Veteran's observations of symptoms. Caluza v. Brown, 7 Vet. App. 498 (1995) (holding the Board has a duty to ascertain the credibility of testimony put before it and may consider multiple factors, including self-interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of witness when weighing credibility.). The Veteran has stated that his right knee disorder was due to the physically grueling requirements of service combined with the fact that his right leg is shorter than his left. However, the Veteran's leg discrepancy was not reported nor noted at enlistment, and thus the Veteran did not enter service with a preexisting right knee or right leg disability. Furthermore, it is not clear from the record when the Veteran learned of his leg discrepancy. It appears however that the Veteran learned of his leg discrepancy when he began seeing a VA podiatrist many years after separation from service. Finally, in 2016 the Veteran reported right knee pain for the past 10 years and endorsed overuse due to sports or occupational duties. Finally, in considering the Veteran's lay statements that his current right knee pain has continued since service and is thus the cause of his current right knee disorder, probative medical evidence contradicts the Veteran's lay opinion as he did not demonstrate a knee disorder at enlistment with the Army National Guard two years after separation from active service. In addition, the Veteran's lay opinion does not reflect any consideration for the almost thirty years of physically challenging post-service occupations the Veteran engaged in prior to seeking treatment. The claim is denied. The preponderance of the evidence is against the claim, and the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Anwar, Attorney-Advisor The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.