Citation Nr: 21005668 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 08-08 132 DATE: February 2, 2021 ORDER The appeal for service connection for allergic rhinitis (claimed as sinusitis and throat problems), having been rendered moot by the grant of service connection, is dismissed. Service connection for a left knee disorder (claimed as severe left leg arthritis), including as secondary to the service-connected right leg disability, is denied. Service connection for an acquired psychiatric disorder (to include depression and anxiety) is denied. REMAND A total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. On July 1, 2020, the Department of Veterans Affairs (VA) Regional Office (RO) issued a rating decision that granted service connection for allergic rhinitis (claimed as sinusitis and throat problems) with an initial rating of 0 (zero) percent effective June 30, 2006. 2. The Veteran has diagnoses of left knee meniscal tear and knee joint osteoarthritis (left knee disorder), which required arthroscopy and partial medial meniscectomy (left knee surgery) in 2006. 3. There is no in-service left knee injury, disease, or event. 4. Symptoms of left knee joint osteoarthritis were not chronic during service, were not continuous since service, and did not manifest to a compensable degree within one year of service. 5. The Veteran is service connected for contusion of right posterior tibial nerve with right lower extremity reflex sympathetic dystrophy (right leg disability). 6. The service-connected right leg disability did not cause or worsen in severity the left knee disorder. 7. The Veteran has diagnoses of depression, anxiety, and mood disorder not otherwise specified. 8. There is no in-service psychiatric injury, disease, or event. CONCLUSIONS OF LAW 1. The appeal for service connection for allergic rhinitis has been rendered legally moot by the full grant of service connection for allergic rhinitis by the July 1, 2020 rating decision; therefore, there is no longer an issue of fact or law to be determined by the Board. 38 U.S.C. §§ 7104, 7105. 2. The criteria for service connection for a left knee disorder, including as secondary to the service-connected right knee disability, are not met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria for service connection for an acquired psychiatric disorder, to include depression and anxiety, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active duty service from April 1974 to September 1980 and from October 1989 to October 1995. The Veteran reported an additional period of November 1983 to October 1989 and the Department of Defense Form 214 shows an additional six years and eight days of active service, which is consistent with the Veteran’s reporting of service. The instant case is on appeal from VA RO rating decisions that, in pertinent part, denied service connection for allergic rhinitis, a left knee disorder, and an acquired psychiatric disorder, and denied a TDIU. The allergic rhinitis, left knee disorder, and acquired psychiatric disorder are addressed in this decision. The claim for a TDIU is being remanded to the RO and, accordingly, is addressed in the REMAND portion below. The instant case has been before the Board of Veterans’ Appeals (Board) before. In September 2018, the Board remanded the issues of allergic rhinitis, a left knee disorder, an acquired psychiatric disorder, and a TDIU for further development. Upon review of the examination and record, the requested development was adequately completed on remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on the Department of Veterans Affairs (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). The Board finds that the duties to notify and to assist have been met. Service Connection Direct Service Connection Service connection may be granted for a disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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). Generally, service connection for a disability requires competent 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. Chronic Disease Presumptive Service Connection The Veteran was diagnosed with osteoarthritis, which is a “chronic disease” for purposes of presumptive service connection (38 C.F.R. § 3.309(a)); accordingly, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on “chronic” symptoms in service and “continuous” symptoms since service are applicable. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as chronic in 38 C.F.R. § 3.309(a); Walker, 703 F.3d at 1338-40 (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). With a chronic disease shown as such in-service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served 90 days or more of active service, and chronic diseases 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. While the disease need not be diagnosed within the presumption 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. 38 U.S.C. § §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Secondary Service Connection Service connection may be granted for a condition that is caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310. To prevail on the theory of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) nexus evidence establishing a connection between the current disability and the service-connected disability, which relates to either causation or aggravation. See id.; Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). 1. Service Connection for Allergic Rhinitis The September 2018 Board remand included the issue of service connection for allergic rhinitis. The file reflects that, since the September 2018 remand, a rating decision in July 2020 granted service connection for allergic rhinitis with an initial rating of 0 (zero) percent, effective June 30, 2006. As one issue before the Board on this appeal was service connection for allergic rhinitis, that issue has been rendered moot by the July 2020 rating decision grant of service connection for allergic rhinitis. 38 U.S.C. § 7104 (providing that the Board only decides actual questions of law or fact in an actual case); see also 38 U.S.C. § 7105 (providing that the Board may dismiss any appeal where no specific error of fact or law is alleged). Because the issue on appeal was service connection for allergic rhinitis, and because service connection for allergic rhinitis has been granted at the RO level, there is no remaining issue for the Board to decide as to allergic rhinitis; therefore, the purported appeal for service connection for allergic rhinitis must be dismissed. 2. Service Connection for a Left Knee Disorder The Veteran asserts generally that he is entitled to service connection for a left knee disorder (claimed as severe left leg arthritis) and asserts also that he is entitled on a secondary basis due to overcompensation of the left knee due to symptoms of the service-connected right leg disability. After a review of all the evidence, lay and medical, the Board finds that the weight of the evidence is against a finding of service connection on a direct, chronic disease presumptive, or secondary basis. Preliminarily, the Veteran has diagnoses of left knee meniscal tear and knee joint osteoarthritis (left knee disorder). The Veteran underwent knee surgery in 2006. Accordingly, the present disability requirement for service connection is met. See September 2019 VA examination. The weight of the evidence, lay and medical, is against a finding of an in-service left knee injury, disease, or event, or chronic knee symptoms during service. The Veteran has not previously reported an in-service injury, disease, or event related to the left knee. The complete service treatment records show that the Veteran was treated for a variety of injuries and diseases during service, to include eye problems, gastroenteritis, issues with the right thigh and right foot, headaches, sinusitis, nasal congestion, hemorrhoids, right ankle injury, upper respiratory infection, viral syndrome, hypertension, vertigo, tonsillitis, neck and back pain, chest pain, and shoulder strain. The service treatment records support a finding that the Veteran sought treatment when needed, to include for musculoskeletal injuries. In the August 1995 retirement Report of Medical History, the document contemporary to service where the Veteran self-reports whether he or she has or has had a particular injury or disease, the Veteran did mark affirmatively for swollen or painful joints and said in the narrative portion sometimes his legs and elbow. The Veteran did not report that there was a left leg or left knee injury or chronic symptoms—just pain that sometimes happened. In an appointment at the same time, the medical professional who completed the August 1995 Report of Medical Examination for retirement only marked identifying marks and scars—all other systems were marked normal, to include musculoskeletal. The Veteran also participated in medical board proceedings related to the now service-connected right leg disability and did not report any issues related to the left knee. Pain in the left knee is a symptom that would be included in the medical records had the symptom occurred, especially in the context where the Veteran sought treatment for other musculoskeletal injuries. The service treatment records are complete. Accordingly, the service treatment records that show no in-service left knee injury or disease are evidence that weigh against the occurrence of left knee injury or disease during service. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (stating that VA may use silence in the service treatment records as evidence contradictory to a veteran’s assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred) (Lance, J., concurring); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (citing Fed. R. Evid. 803(7) for the proposition that the absence of an entry in a record may be evidence against the existence of a fact that would ordinarily be recorded). The weight of the evidence shows no continuous left knee symptoms since service. There is a left knee complaint noted in a June 2000 private treatment record that is described as being possible peripheral neuritis that is probably related to overuse. This is approximately five years after service separation. There was another left knee complaint in May 2001 that was related to post-service work of laying floor tile, which yielded a diagnosis of patellofemoral syndrome. After that, the left knee complaints are in 2006 and further forward. As there were no left knee symptoms during the first year after service separation, the symptoms did not manifest to a compensable degree within one year of service separation. Given these conclusions, the Board finds that the weight of the evidence is against chronic disease presumptive service connection. The weight of the evidence, lay and medical, is also against service connection on a direct basis. As the evidence shows no in-service injury, disease, or event, there is nothing in service to which a medical nexus opinion could relate the current left knee disability. The September 2019 VA examiner noted the appointments described above. The September 2019 VA examiner noted that there were records within two years of service that documented that the Veteran was actively walking for exercise, would go ballroom dancing, was employed in security, and was laying tile in his home. The September 2019 VA examiner also noted that there is evidence (a January 2006 physical therapy note) documenting a post-service left knee twisting injury that stemmed from moving the lawnmower from the garage. The September 2019 VA examiner opined that the post-service left knee injury is the more likely inciting event of the left knee pain, rather than any in-service injury. The Board notes that a private treatment record from March 2006 states that the Veteran had no pain prior to the onset of a slight twisting maneuver in December. An April 2006 physical therapy note also reinforces that the mechanism of injury was moving a lawnmower out of the garage, which caused significant pain. Accordingly, the weight of the evidence is against service connection on a direct basis. The Veteran also contends that service connection is merited on the basis of a secondary theory of entitlement (38 C.F.R. § 3.310) due to overcompensation from the right leg disability. The Veteran did not describe the mechanics of the asserted overcompensation—he just suggested generally that his left leg had to do more work because of the right leg disability. The September 2019 VA examiner noted that private treatment records from 1997 to 2007 regarding the left knee are silent for any association with the right leg disability, while providing an opinion as to the etiology of the injury that is given above (twisting maneuver due to moving lawnmower out of the garage). The evidence of record also does not suggest aggravation of the left knee disorder by the service-connected right knee disability. The September 2019 VA examiner reviewed the record and concluded that there is no evidence to support an aggravation theory of entitlement. Rather, the September 2019 VA examiner noted the theory provided by the private treatment records and found them plausible. As secondary causation and aggravation are not supported by the evidence of record, service connection on a secondary basis (38 C.F.R. § 3.310) must also be denied. For these reasons, service connection for a left knee disorder under all theories must be denied. 3. Service Connection for an Acquired Psychiatric Disorder The Veteran contends generally that he suffers from a mental disorder for which service connection should be granted. The Veteran did not assert that there was a specific psychiatric in-service injury, disease, or event. The September 2018 Board remand requested the RO to provide an examination and opinion on the issue of service connection for an acquired psychiatric disorder. The Veteran began to participate in an examination in September 2019 but ended the examination early after sensitive information related to one of his children was discussed. The Veteran’s failure to fully comply with and participate in the examination is equivalent to not reporting for the examination. “When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record.” 38 C.F.R. § 3.655(b). Accordingly, the claim is being decided based on the evidence of record. The duty to assist has been discharged in attempting to provide the VA examination, in which the Veteran did not fully participate. The duty to assist does not require another examination in this circumstance where an examination was offered and attempted, but was unable to be completed due to the Veteran’s nonparticipation, rather than any action by VA. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (stating that once VA undertakes the effort to provide an examination when developing a service connection claim, VA must provide an adequate one or notify the claimant why one will not or cannot be provided). The Veteran’s situation is different from Barr because it is the Veteran who stopped the examination, leading to any insufficiency of the examination or evidence needed to potentially substantiate the claim for service connection for psychiatric disorder. The Board has carefully considered all evidence of record, including other evidence showing diagnosed disorders. The Veteran has received mental health diagnoses of mood disorder not otherwise specified, depression, and anxiety. See, e.g., October 2008 VA Psychiatry Note (diagnosing mood disorder not otherwise specified); April 2018 VA H&P Note (diagnosing depression with anxiety); April 2018 VA examination (diagnosing unspecified anxiety disorder). The Veteran has also received treatment for depression and anxiety, to include antidepressants and anti-anxiety medication. See, e.g., April 2018 VA H&P Note. The present mental disorder requirement has been met. After a review of all the evidence, lay and medical, the Board finds that the weight of the evidence is against a finding of an in-service injury, disease, or event to which any currently diagnosed disorder could be related. A September 2008 VA Psychiatry Consultation stated that the present mental health disorder existed since retirement in October 1995. This is notably not a history that the disorder was acquired during and/or because of service; rather, it relates the onset of the disorder to a time after service, and follows a post-service event of retirement, in the context of no history of in-service symptoms or event. Additionally, the February 2003 Private Treatment Record states that the Veteran was experiencing “some depression” and that it had been going on for at least the previous six months and seemed to be getting worse. This history of onset of symptoms in 2002, which is several years after service separation in 1995, is similarly evidence of post-service onset of psychiatric symptoms, so is a history presented by the Veteran for treatment purposes that weighs against a finding of in-service injury, disease, or event. The VA and private treatment records as a whole that are related to the diagnosis also do not allege or include a reference to an in-service incurrence, which is further evidence to support the conclusion that there was no in-service incurrence, as the Veteran would have reported an in-service a psychological injury, disease, or symptoms to treatment providers, had such in-service event or symptoms in fact happened. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (concluding that it is proper to assign more probative value to a private hospital record that included lay history made for treatment purposes than to subsequent statements made for compensation purposes). The review of the service treatment records above is applicable for the absence of psychiatric records also. Despite treatment for numerous injuries and diseases, as stated, there were no psychological symptoms noted in the service treatment records. In the August 1995 Report of Medical History at service separation, the Veteran marked “no” to past or then present frequent trouble sleeping, depression or excessive worry, and nervous trouble of any sort. In the August 1995 Report of Medical Examination for retirement, the psychiatric system was assessed by the service examiner to be normal. Psychiatric symptoms are such that they would be included in the medical records had the symptoms occurred. The service treatment records are complete. Accordingly, the service treatment records that show no in-service psychiatric injury or disease or even symptoms are additional evidence that weigh against the occurrence of a psychiatric injury or disease during service. See Kahana, 24 Vet. App. at 438; Buczynski, 24 Vet. App. at 224. The finding (by a preponderance of the evidence) that there was no in-service psychiatric injury, disease, or event mandates both that the claim must be denied on that basis, and that there is no further duty to assist, including by seeking a nexus opinion. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (holding that where VA finds no in-service injury or disease during service, the claim will be denied on the merits, and there is no further duty to assist with examination or medical opinion). In summary, the weight of the evidence demonstrates that, although there is a current psychiatric diagnosis, there is no relevant in-service injury, disease, or event that would support a grant of service connection. Accordingly, the claim for service connection for an acquired psychiatric disorder (to include depression and anxiety) must be denied. REASONS FOR REMAND 4. TDIU The Veteran has asserted entitlement to a TDIU. The Veteran has specifically stated that vertigo, high blood pressure, legs pain, arthritis, and respiratory conditions cause him to be unemployable. See VA Form 21-8940 (TDIU claim form). The Board notes that only the right leg disability is service connected, and that there is not a separate service-connected disability of arthritis. There is not a separate respiratory condition. Construed in the light most favorable to the Veteran, it appears that the Veteran is seeking a TDIU based on all service-connected disabilities. For the entire period on appeal, the Veteran has been service-connected for benign positional vertigo (30 percent disabling), tinnitus (10 percent disabling), hypertension (10 percent disabling), a right leg disability (10 percent disabling), allergic rhinitis (0 percent disabling), and hemorrhoids (0 percent disabling); the combined rating is 50 percent disabling. The Board finds that additional information may help fully ascertain whether a TDIU is warranted by addressing functional impact of the disabilities on employability. In order to determine whether the Veteran is unemployable due to the service-connected disabilities, the Board is remanding for an evaluation by a vocational or similar occupational specialist. The matter is REMANDED for the following actions: 1. Provide the claims file to a vocational or similar occupational specialist, who should review the file. After the specialist takes any additional necessary development to assess the occupational impact of the service-connected disabilities. 2. Readjudicate the claim for TDIU. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Smith, Associate 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.