Citation Nr: 21005287 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 20-30 596 DATE: February 1, 2021 ORDER Service connection for left knee disability is denied. REMANDED Entitlement to a disability rating in excess of 10 percent for allergic rhinitis is remanded. FINDING OF FACT The most probative evidence does not demonstrate that the Veteran’s currently diagnosed left knee disability manifested during, or as a result of, active military service. CONCLUSION OF LAW The criteria for service connection for left knee disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from January 1964 to December 1965. The Board most recently remanded the matter in March 2020, asking the RO to issue a statement of the case (SOC). The Board finds that the remand directives have been substantially complied with and therefore will proceed with the appeal related to the service connection claim for left knee disability. Stegall v. West, 11 Vet. App. 268. For reasons that will be described below, the increased rating claim for rhinitis is being remanded. Procedural History In effort to provide clarity the Board will briefly outline the procedural history related to the claims on appeal. As stated in the March 2020 remand, the RO failed to issue a SOC after the timely filing of the Veteran’s October 2013 notice of disagreement (NOD) for the service connection claim for left knee disability. As such, the September 2013 rating decision is the decision that is on appeal for the left knee disability. The allergic rhinitis claim initially stems from an April 2008 rating decision. The Board remanded the matter in January 2011 for an examination and nexus opinion. Despite the issue being in the appeal status, the RO again denied the claim in a September 2013 rating decision. The Board again remanded the claim in October 2014, finding the opinion to be inadequate. The RO then granted service connection for chronic sinusitis with allergic rhinitis in a February 2015 rating decision. The Veteran did not appeal this decision and it became final. He filed an increased disability rating claim in September 2016. In a December 2016 RD, the RO denied increasing the 30 percent rating. The Veteran filed a timely NOD in January 2017. The RO decided to provide a separate compensable rating of 10 percent for allergic rhinitis in an October 2017 rating decision. An October 2018 SOC was issued for the increased rating claim for “chronic sinusitis with allergic rhinitis.” In March 2020 the Board remanded the increased rating claim for allergic rhinitis, finding that although the October 2018 SOC noted allergic rhinitis, they failed to perform a separate analysis for this disability and were required to issue a SOC. An October 2020 SOC was issued. The Veteran timely submitted a VA-Form 9 in December 2020. As such, this issue is properly before the Board and the appeal stems from the December 2016 rating decision, to include consideration of the October 2017 rating decision. Service Connection Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Arthritis is considered a chronic disease. See 38 C.F.R. § 3.309(a). Thus, service connection may be based on credible evidence of continuity of symptomatology alone under 38 C.F.R. § 3.303(b). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b). 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 an in-service injury, event, or disease. The Veteran contends that he has left knee disability as a result of his time in service. He contends that an incident in 1965 when he was in Germany caused his disability. A September 2013 VA Knee and Lower Leg Conditions Disability Benefits Questionnaire (DBQ) indicates a diagnosis of osteoarthritis of the left knee. The date of the diagnosis was listed as “unknown.” As such, there is a current left knee disability. A July 1962 pre-induction service treatment record shows the Veteran was healthy upon entrance. An April 7, 1965 service treatment record has a handwritten note that is not completely legible. It reads that the Veteran hurt his left knee after something fell on it the night prior. X-ray was negative for injury, but the examining doctor recommend follow-up. An April 8, 1965 service treatment record shows the interpretation of a radiologist of the testing performed on the left knee. There was no evidence of a fracture or dislocation. An April 14, 1965 service treatment records illustrates that the knee was much better. An April 15, 1965 service treatment record shows that the left knee was unchanged when compared to the earlier examination and that follow-up was recommended in six weeks. The Veteran underwent a VA examination in September 2013 for his left knee. The VA examiner provided opinions. He opined that the Veteran’s left knee disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner accounted for the April 1965 service treatment record that showed injury to the left knee. The rationale provided was that there was no evidence in the military medical records or private records that the Veteran continued with medical care for his left knee pain at least within five years after being released from service. This shows that the left knee pain reported in 1965 was acute and transitory which improved with proper treatment given. The left knee x-ray done in 1965 was reported without fracture or dislocation. Left knee osteoarthritis is considered part of the normal aging process and the Veteran at the time of the examination was 74 years old. VA treatment records dated between August 2015 to May 2020 show complaints of and treatment for knee pain, often reported as pain 7/10. A December 2018 VA bilateral knee radiograph note shows stable mild osteoarthritis with no evidence of acute fracture or dislocation. Upon review of the record, there is no probative evidence to indicate a correlation between the Veteran’s left knee disability and his military service. The Board acknowledges the Veteran’s contentions that he was treated in service for his left knee. The record shows treatment for the left knee after service. However, the earliest dated treatment record in evidence post-service to show any complaints of a disability related to the left knee, is dated June 2002—over 36 years after his December 1965 separation. In addition, there is no competent evidence of record to indicate a link between his current left knee disability and his military service. There is one medical opinion in evidence for the left knee and that examiner concluded that the Veteran’s left knee disability is not related to service. As such, a preponderance of the evidence is against his claim for service connection. The Board also acknowledges the argument made in the January 2021 Brief. The Veteran’s representative requested that the Board consider all theories of entitlement reasonably raised by the evidence of record and that consideration should be given to any and all possible causation as well as aggravation resulting from other service-connected disabilities. The Board finds that the direct theory of entitlement is the only theory raised by the record. The Veteran has consistently contended that his left knee disability was caused by an in-service injury. Additionally, when reviewing the September 2013 VA report, it is clear that any mention of a secondary theory of entitlement was in regard to the right knee, not the left knee. Also, of note, the Veteran’s service-connected disabilities consist of disabilities related to his right elbow, GERD, headaches, mental health and sinuses and allergies—none of which on its face would apparently impact the left knee. The Board notes that the record reflects a diagnosis of osteoarthritis of the left knee which is considered a chronic disease. However, the Veteran has not contended nor does the record support a continuity of symptomatology of arthritis symptoms. The earliest record in evidence to show a diagnosis of arthritis is dated December 2004 nearly four decades post his December 1965 separation. As such, service connection such for osteoarthritis of the left knee is not warranted on a presumptive basis. Service connection for the claim for left knee disability is denied. The preponderance of the evidence is against the Veteran’s claim and the doctrine of reasonable doubt is not applicable in the instant appeal. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990); 38 C.F.R. § 3.102. REASONS FOR REMAND The Veteran last underwent a VA examination for his allergic rhinitis in November 2016. In the January 2021 Brief, the Veteran’s representative argued that this claim is not ready for review as the Veteran’s rhinitis has become progressively worse. The representative cited case law to support the statement that an additional examination is appropriate to determine the current level of severity of the disability if the severity has increased since the most recent examination. As such, the Board interprets these statements to indicate that Veteran’s rhinitis has worsened since November 2016, and VA is required to afford him a contemporaneous VA examination to assess the current nature, extent, and severity of his allergic rhinitis. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The matter is REMANDED for the following action: 1. The AOJ should schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected allergic rhinitis. The examiner is requested to fully describe the functional effects caused by the Veteran’s allergic rhinitis. The examiner also should provide a full description of any effects the allergic rhinitis may have on occupational functioning and daily activities. 2. The AOJ should ensure that the examiner provides all information required for rating purposes. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Talamantes 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.