Citation Nr: 21071024 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 17-62 867 DATE: November 29, 2021 ORDER Service connection for right lower extremity radiculopathy is denied. Service connection for a left knee disorder is denied. REMANDED A higher initial (compensable) disability rating for chronic laryngitis is remanded. FINDINGS OF FACT 1. Shortly prior to and during the relevant period on appeal, the Veteran did not and has not had a current disability of right lower extremity radiculopathy. 2. The Veteran's left knee symptoms are symptoms of the already service connected left lower extremity radiculopathy. CONCLUSIONS OF LAW 1. The criteria for service connection for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 1133, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a). 2. The criteria for service connection for a left knee disorder not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310, 3.326. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from November 1982 to September 1989, and had various periods of ACDUTRA and INACDUTRA service with the U.S. Navy Reserves until December 1, 2006. This matter came before the Board of Veterans' Appeals (Board) on appeal from multiple Department of Veterans Affairs (VA) Regional Office (RO) rating decisions. The instant matter was previously before the Board in June 2021, where, in pertinent part, the remaining issues on appeal were remanded for additional development. As the laryngitis rating issue is being remanded for an addendum opinion, no further discussion of remand compliance is necessary as to that issue. Concerning the service connection issues, review of the record reflects that the requested development was adequately completed on remand, and the issues are ripe for adjudication. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran testified at a February 2021 virtual Board hearing before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). As the instant decision remands the laryngitis rating issue, no further discussion of VA's duties to notify and assist is necessary as to that issue. As to the service connection issues on appeal, concerning the duty to notify, the record reflects that the Veteran received adequate VCAA notice during the course of this appeal. Regarding the duty to assist, the record reflects that VA obtained all relevant documentation and provided the Veteran with adequate VA examinations. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). For these reasons, the Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. 1. Service Connection for Right Lower Extremity Radiculopathy is Denied 2. Service Connection for a Left Knee Disorder is Denied Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. With any claim for service connection (under any theory of entitlement), it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (when the record contains a recent diagnosis of disability immediately prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a) (2012); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When all the evidence is assembled, 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 a claim, in which case, the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has thoroughly reviewed all the evidence in the Veteran's claims file and adequately addresses the relevant evidence in the instant decision. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Having reviewed all the evidence of record, lay and medical, the Board finds that, shortly prior to and during the relevant period on appeal, the evidence does not show a current diagnosis of right lower extremity radiculopathy and/or a left knee disability. Further, the Board finds that the reported left knee symptoms are, in fact, symptoms of the already service-connected left lower extremity radiculopathy; therefore, service connection may not again be granted for the same impairment as doing so would result in double compensation for the same symptoms or impairment. See 38 C.F.R. § 4.14. As to the right lower extremity radiculopathy, at the time of an October 2013 VA back examination, the Veteran conveyed having back pain that radiated into the left toes. The Veteran did not report having such pain in the right lower extremity. Subsequently, at a new VA back examination in September 2021, the Veteran reported symptoms of pain, numbness, and tingling in the left leg, but did not convey having such symptoms in the right leg. Upon examination the diagnosis was left lower extremity sciatic radiculopathy; however, the right lower extremity was found to be normal. The Veteran testified at a February 2021 virtual Board hearing. At that time, the Veteran testified to having left lower extremity radiculopathy symptoms, but did not testify to having radiculopathy symptoms in the right lower extremity. At a third VA back examination in September 2021, the Veteran again reported having symptoms of pain, numbness, and tingling in the left leg, but did not convey having such symptoms in the right leg. Examination again found left lower extremity sciatic radiculopathy, without evidence of right lower extremity sciatic radiculopathy. At the conclusion of the examination, the VA examiner reviewed the evidence of record and found no objective evidence of right lower extremity radiculopathy. The VA examiner reviewed the report from a 2010 magnetic resonance imaging (MRI) and found that, while the MRI did support the diagnosis of left lower extremity radiculopathy, it did not support the diagnosis of right lower extremity radiculopathy. Turning to the question of whether the Veteran has a current left knee disability, per the report from an October 2013 VA knee examination, there was no diagnosis of left knee disorder. At the February 2021 virtual Board hearing, when asked about knee disability symptoms, the Veteran testified that the left knee "just stops working sometimes." The Veteran did not testify to having been diagnosed with a specific left knee disability. A new VA knee examination was performed in September 2021. Upon examination, the Veteran was once again found not to have a diagnosable left knee disability. Per the examination report, the Veteran conveyed having left knee symptoms of intermittent numbness and a tendency for the left knee to give way. The giving way incidents would occur approximately twice per month. Range of motion testing showed full range of motion on examination. At the conclusion of the examination in September 2021, the VA examiner opined that there was no objective evidence of a left knee disorder. Rather, the VA examiner found that the reported left knee symptoms were actually symptoms of the already service connected left lower extremity radiculopathy. In rendering this opinion, the VA examiner explained that, because the Veteran cannot always feel the left foot hitting the floor due to numbness caused by the service connected left lower extremity radiculopathy, the left knee feels unstable to the Veteran "because his foot is not giving him the proper neurological 'feedback' for him to know how to adjust his weight as he walks." In other words, the symptoms of the service connected left lower extremity radiculopathy mimic the symptoms of a left knee disorder. A complete review of the available VA and private treatment records do not reflect that the Veteran has ever been diagnosed with either right lower extremity radiculopathy or a separately compensable left knee disability. Further, the Board finds that under the facts of this case the Veteran is not competent to diagnose right lower extremity radiculopathy and/or a left knee disorder, although he is competent to report any symptoms and knee impairments that he has experienced. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011) (lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent); see also Clyburn v. West, 12 Vet. App. 296, 301 (1999) (holding that a veteran is not competent to relate currently diagnosed chondromalacia patellae or degenerative joint disease to the continuous post-service knee symptoms). Disabilities such as radiculopathy and knee disorders are diagnosed primarily on clinical findings and physiological testing, which requires specific medical knowledge and training that the Veteran has not been shown to possess. In sum, the weight of the evidence of record, to include the Veteran's own lay statements, is against finding a disability of, or treatment for, or even symptoms of, right lower extremity radiculopathy. The weight of the evidence shows that, not only has the Veteran not been diagnosed with a separately compensable left knee disability, but the symptoms asserted by the Veteran to be from a left knee disability are, in fact, symptoms of the already service-connected left lower extremity radiculopathy, for which the Veteran is being compensated. As such, separately granting service connection for a left knee disorder would result in improper pyramiding, that is, double compensation for the same symptom or same functional impairment of the left knee. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). As the preponderance of the evidence is against a grant of service connection for either right lower extremity radiculopathy and/or a left knee disorder, due to lack of a current disability, service connection for right lower extremity radiculopathy and a claimed left knee disorder must be denied. The Board has considered Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), but finds it inapplicable to the instant decision because 1) there is no evidence showing current functional impairment of the right lower extremity that equates to a disability; and 2) any purported functional impairment of the left knee is already compensated by the grant of service connection for left lower extremity radiculopathy. REASONS FOR REMAND 3. Higher Initial Chronic Laryngitis Disability Rating is Remanded VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. Floyd v. Brown, 9 Vet. App. 88, 93 (1996). VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Chronic laryngitis is rated under Diagnostic Code 6516. Diagnostic Code 6516 provides a 10 percent rating for hoarseness, with inflammation of cords or mucous membrane, and a 30 percent rating for hoarseness, with thickening or nodules of cords, polyps, submucous infiltration, or pre-malignant changes on biopsy. 38 C.F.R. § 4.97. During the course of this appeal the Veteran received VA laryngitis examinations in November 2013, August 2016, and September 2021. Per the examination reports, the VA examiners found either no symptoms on examination or only hoarseness on examination; however, the Board notes that a November 2017 private treatment record diagnosed laryngopharyngeal reflux with "significant interarytenoid edema on exam." Interarytenoid edema manifests as a thickening of the interarytenoid mucosa beyond the normal level of interarytenoid mucosa. At the February 2021 virtual Board hearing, the Veteran testified to having a feeling of inflammation and "a clog of mucus stuck in my throat that I can't get out." As the VA examiner in September 2021 did not specifically address suggestions of higher levels of interarytenoid mucosa (for example, as found in the November 2017 private treatment record and the Veteran's February 2021 hearing testimony), it is unclear to the Board whether the diagnosed interarytenoid edema constitutes (or is functionally equivalent to) either inflation of the mucous membrane (warranting a 10 percent disability rating) and/or submucous infiltration (warranting a 30 percent disability rating); therefore, the Board finds remand for an addendum opinion would be helpful on these rating questions. The issue of rating chronic laryngitis is REMANDED for the following action: 1. Contact the Veteran and request information as to any outstanding private treatment (medical) records concerning chronic laryngitis. Upon receipt of the requested information and the appropriate releases, the Agency of Original Jurisdiction (AOJ) should contact all identified health care providers and request that they forward copies of all available treatment records and clinical documentation for the relevant time period on appeal pertaining to the treatment of the chronic laryngitis, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e). 2. Associate with the record all VA treatment records pertaining to the treatment of the Veteran's chronic laryngitis, not already of record, for the period from May 2021. 3. Return the September 2021 VA laryngitis examination report to the VA examiner who conducted the examination for an addendum opinion. If the original VA examiner is unavailable, a new examiner may be assigned to address the requested opinion. The relevant documents in the record should be made available to the examiner, who should indicate on the examination report that he/she has reviewed the documents. Examination of the Veteran is not required unless the examiner determines that an examination is necessary to provide a reliable opinion. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The VA examiner should provide the following opinion: Is it as likely as not that the diagnosed interarytenoid edema constitutes (or is functionally equivalent to) either inflation of the mucous membrane and/or submucous infiltration of the larynx? Please note any significance of the November 2017 private treatment record diagnosing significant interarytenoid edema of the larynx, and the Veteran's February 2021 testimony of feeling of a clog of mucus being caught in the throat. 4. Then, readjudicate the issue of a higher initial disability rating for chronic laryngitis. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Blowers, 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.