Citation Nr: 21012099 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 17-33 829 DATE: March 3, 2021 ORDER The claim of entitlement to service connection for a left knee condition, to include arthritis, is granted. The claim of entitlement to service connection for a right knee condition, to include arthritis, is granted. The claim of entitlement to service connection for sinusitis, to include aggravation of hay fever or rhinitis, is denied. REMANDED The claim of entitlement to a compensable evaluation for service-connected hemorrhoids from June 20, 2012; an evaluation in excess of 10 percent from December 10, 2015; in excess of 20 percent from April 22, 2016; and to a compensable evaluation from June 30, 2017, is remanded. FINDINGS OF FACT 1. The Veteran experienced symptoms of pain related to his left knee condition since his separation from service. 2. The Veteran experienced symptoms of pain related to his right knee condition since his separation from service. 3. The preponderance of the evidence is against a finding that the Veteran’s claimed sinusitis began during active service, or is otherwise related to an in-service injury or disease, and is against a finding that the Veteran’s hay fever or rhinitis was aggravated during active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left knee condition, to include arthritis, have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a right knee condition, to include arthritis, have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for a sinus condition, to include sinusitis, and hay fever or rhinitis, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service in the United States Marine Corps from April 1973 to April 1975. He had additional reserve service, including a period of active duty for training (ACDUTRA) from September 1972 to March 1973. These matters come before the Board of Veterans’ Appeals (Board) from multiple rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) dated October 2012, October 2015, June 2017, and August 2017. In January 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. In July 2019, the Board remanded these matters to the RO for additional development. The Board concludes that there has been substantial compliance with its prior remand directives as to the issues of service connection for bilateral knee and sinus-related conditions only. See Stegall v. West, 11 Vet. App. 268 (1998). The Board further notes that it has recharacterized the issue of service connection for sinusitis to include aggravation of hay fever or rhinitis to afford the Veteran a broader scope of review. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009); Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service Connection Legal Criteria Service connection may be granted 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. The three-element test for service connection 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 in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). In evaluating service connection claims, the Secretary shall consider all information and lay and medical evidence of record in a case and make appropriate determinations as to competence, credibility, and weight. 38 U.S.C. § 5107; Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); 38 C.F.R. § 3.303. 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. See Barr v. Nicholson, 21. Vet. App. 303 (2007). VA must consider all favorable lay evidence of record. 38 U.S.C. § 5107. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a 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(b); 38 C.F.R. § 3.102. 1. The claim of entitlement to service connection for a left knee condition, to include arthritis. See section two for discussion. 2. The claim of entitlement to service connection for a right knee condition, to include arthritis. The Veteran contends that his bilateral knee condition is causally related to active his service. As the evidence and analysis is largely similar concerning the Veteran’s right and left knee claims, the Board will address them together. In this case, the Veteran has a current diagnosis of osteoarthritis in both knees as confirmed by the November 2019 VA knee and lower leg disability benefits questionnaire (DBQ). Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. Next, the evidence of record supports a finding that the Veteran suffered in-service injury to both knees. The Veteran testified to the Board in January 2019, that he incurred two separate injuries to his knees during active service, the first in 1972 when he described slipping on debris while running an obstacle course. He testified that a year later, in 1973, he suffered an additional injury while working in the mess hall aboard a ship during rough seas. Specifically, the Veteran described an attempt to secure heavy pots and pans when he fell, and the equipment struck his knees. See also November 2011 Correspondence. The Veteran further testified that he continued to have knee pain during his active service but did not seek additional treatment as he felt discouraged from doing so. He did not report a knee condition or painful joints at his separation in March 1975. While no treatment records exist from the applicable presumptive period, the Board finds that the Veteran continued to experience similar symptoms throughout the years following his service until he was ultimately diagnosed with osteoarthritis. VA treatment records note that the Veteran was using heating pads and taking prescription medication to address the pain in his knees by April 2001 at the latest. The Veteran is competent to report that he experienced such symptoms prior to April 2001 but did not continuously seek medical treatment in the years following active duty or within his first year after service. He testified to his lack of understanding of the significance of developing medical evidence when he was a young man and that he did not think as much about his health when he was working fulltime to support his family for many years following his service. The Board finds his testimony on this issue credible and entitled to probative weight, as his testimony was internally consistent and consistent with other evidence of record. The Board also notes that in contrast to the Veteran’s military duties, which included the rigors of routine physical training and standing for many hours per day as a cook, the Veteran’s post-service work was less physically demanding, as he worked for 30 years as a computer operator supervisor. The Board recognizes that the Veteran was afforded a VA examination in April 2011, which noted mild degenerative changes in both knees, but that the examiner opined that it was “highly unlikely” than that the Veteran’s bilateral knee condition was causally related to active service given the lack of medical evidence of knee issues prior to his 2001 diagnosis and lack of clear knee abnormality during service. The Board also notes that on remand the Veteran received another VA examination in November 2019. This examiner opined that it was less likely than not that the Veteran’s arthritis was incurred in service based on there being only one medical record of injury during service and a lack of medical records following service. The examinations did not identify any post-service injury to the Veteran’s knees as an alternative cause of his bilateral knee condition. In considering this negative evidence of record, the Board notes that while the conclusions of a physician are medical conclusions that the Board cannot ignore or disregard, see Willis v. Derwinski, 1 Vet. App. 66 (1991), the Board is free to assess medical evidence and is not compelled to accept a physician’s opinion. See Wilson v. Derwinski, 2 Vet. App. 614 (1992). The Board concludes that the VA examination reports do not form a sufficient foundation upon which to base a denial of entitlement to service connection. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (indicating that “[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion.”). The examinations fail to fully address the lay evidence of continuing symptoms following service. The Board does not consider these opinions, which merely cite the lack of available medical evidence, as affirmative evidence that the Veteran’s symptoms did not continue following his service. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence); see also 38 C.F.R. § 3.307(d), 3.309(a). In sum, the Board finds that the credible and probative evidence of records shows that the Veteran has a currently diagnosed disability affecting his bilateral knees, specifically, osteoarthritis. Moreover, he has competently and credibly described experiencing in-service events that caused symptoms, such as knee pain and popping, which he complained of prior to his separation from service. Further, the Veteran has averred that he continued to experience these and other symptoms relating to his bilateral knee condition to the present. See Walker, 708 F.3d at 1338-39; see also Wilson, 2 Vet. App. at 19 (emphasizing that “symptoms, not treatment [for them], are the essence of any evidence of continuity of symptomatology”). His credible report of a continuity of symptomatology suggests a link between his current bilateral disability and service. See Duenas v. Principi, 18 Vet. App. 512 (2004). Resolving all reasonable doubt in his favor, the Board finds the Veteran had ongoing symptoms related to his active duty bilateral knee injuries since service, and that his claim meets the requirements of presumptive service connection under 38 C.F.R. § 3.303(b). Accordingly, the Board finds that service connection for right and left knee disabilities, to include arthritis, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As explained above, the Board has determined that the VA examination evidence of record is entitled to reduced probative value, however, the Board does not need to reach the ultimate weight assignable to the examiner opinions because service connection may be granted on a presumptive basis based on a finding of continuous symptoms since service rather than on direct service connection. Because the Board is granting service connection on a presumptive basis, all other service connection theories are rendered moot. 3. The claim of entitlement to service connection for sinusitis, to include aggravation of hay fever or rhinitis. The Veteran seeks entitlement to service connection for sinusitis. He contends his sinus condition began during active service. He further contends his sinus condition could have been caused by his exposure to the water supply at Camp Lejeune. He contends that he has had “constant issues with his sinus” since the military. See August 2018 Form 9. The Board notes at the outset that sinusitis, hay fever and/or rhinitis are not enumerated presumptive conditions under 38 C.F.R. § 3.309(a) or (f). In considering the Veteran’s claim of entitlement to service connection for a sinus-related condition, the Board notes that the presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff’d 749 F.3d 1370 (Fed. Cir. 2014). In this case, there is a question as to whether the Veteran’s claimed sinus condition, as expanded to include hay fever or rhinitis, preexisted his military service. The evidence of record in this case shows that at his enlistment into the Marine Corps Reserve in September 1972, the Veteran endorsed having hay fever “off and on,” but specifically denied having sinusitis. His entrance examiner did not note a nose or sinus problem during clinical examination. See Reports of Medical History and Examination. The Veteran has established “veteran” status based on his initial period of active duty for training (ACDUTRA), beginning in September 1972. See Hill v. McDonald, 28 Vet. App. 243 (2016). He had subsequent regular active duty service commencing in April 1973. In Wagner v. Principi, 370 F.3d 1089, 1096 (2004), the United States Court of Appeals for the Federal Circuit held if a preexisting disorder is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. In that case, 38 U.S.C. § 1153 applies and the burden falls on the Veteran to establish an increase in disability during service. If the presumption of aggravation attaches, the burden shifts to the government to show by clear and unmistakable evidence that there has been no increase in the severity of the preexisting condition or that any increase was the result of natural progression. Id; see also 38 C.F.R. § 3.306(b). Based on the above evidence, the Board finds that the Veteran’s hay fever clearly and unmistakably preexisted service as it was noted by a clinician on his enlistment records and disclosed by the Veteran. However, the condition of sinusitis, as it was not noted at enlistment into active service, did not clearly and unmistakably preexist active service. The Veteran’s service treatment records during his active service periods show only that he was treated for upper respiratory conditions and colds from time to time, but not for sinusitis, hay fever, or rhinitis. See e.g., December 1972 (complaints of sore throat, chest pain, cough, fever and chills); September 1973 (complaint of a cold); February 1974 (assessed with upper respiratory infection); January 1975 (treated for a head cold). At his release from active duty in March 1973, the Veteran’s nose and sinuses were noted to be normal by an examining clinician. See Report of Medical Examination. The Veteran’s final separation examination in March 1975 again reflects no sinus or nose condition. See Report of Medical Examination. On his Report of Medical History, the Veteran stated that he was in “good health” and was at that time taking a treatment “for a cold.” He again endorsed having had (or having ever had) hay fever, but specifically denied having sinusitis. In September 2012, the Veteran was provided a VA examination regarding his claimed sinus condition. The examining physician noted the Veteran’s own lay report that he had been diagnosed with sinusitis in 1975, but opined that there was “no clinical or radiologic evidence of acute or chronic sinusitis or chronic rhinitis” at the time of the 2012 VA examination. The examiner noted the Veteran’s lay report that he developed headaches during service that were “diagnosed as a ‘sinus problem,’” however the examiner’s review of service treatment records revealed no mention of treatment for sinusitis. This examiner did not address the question of preexistence or in-service aggravation of hay fever or rhinitis. Following the Board’s remand of this claim, the Veteran received another VA examination in November 2019, which addressed the question of aggravation. This examining physician noted the Veteran’s report of hay fever in 1972 and again at his separation. The examiner noted his consideration of the Veteran’s in-service treatment for colds and upper respiratory infection. The examiner concluded that there was no evidence that the Veteran had been treated for a chronic sinus condition during his active service. The examiner noted that at the time of the evaluation, the Veteran was not actively being treated for a sinus condition, but was noted to have had acute sinusitis in June 2010, and that his prescription records indicated he received oral antihistamines and topical nasal steroids as recently as 2015. The examiner noted the Veteran’s report that he received treatment for a sinus infection with antibiotics or a “steroid shot” from a private provider about a year prior to the VA examination. The Veteran reported that he had an occasional runny or stuffy nose, “often associated with post-nasal drip, or sneezing, which occurs more frequently in the Fall into Winter, or Winter into Spring months[,]” and that he would usually address those symptoms with over the counter decongestants such as Claritin-D or Robitussin-D. The examiner opined that the Veteran’s “allergic rhinosinusitis, hay fever” clearly and unmistakably existed prior to the Veteran’s military service, but concluded that the condition was less likely as not aggravated beyond its natural progression by the Veteran’s military service or potential active duty exposures. The examiner reasoned that the Veteran reported to military personnel that prior to service he experienced only seasonal hay fever symptoms, and that at the time of the 2019 VA examination the Veteran continued to experience the same seasonal aggravation. Further, the examiner noted that as the Veteran did not require intensified, daily drug therapy while on active duty, it was less likely as not aggravated beyond its natural progression, and specifically opined that “no pathophysiologic relationship” was apparent from the evidence or proposed by the Veteran between his condition and any possible exposure to contaminated drinking water at Camp Lejeune. See November 2019 VA examination report. The Board finds this examination to be credible and probative, as the examiner provided a reasoned explanation after considering the medical and lay evidence of record. Records received from a private provider, Quinn Healthcare, notes the Veteran was assessed with acute sinusitis in February 2020, but the same provider noted no sinus congestion or discharge in an April 2019 review of symptoms. The Veteran was prescribed Singulair for allergies, but no specific additional information related to the etiology of allergies was noted. Records received from another of the Veteran’s private providers, Premier Pain Care, noted no report of or treatment for sinus pain. The Board notes that in March 2020, VA received several pages of a disability benefits questionnaire (DBQ) regarding sinusitis, rhinitis and related conditions. This DBQ included a statement of the Veteran’s lay report that he “had sinusitis and rhinitis since his time served in Vietnam War dating back to 1972,” however, the questionnaire includes no information regarding the name of the completing examiner or date it was completed and, as such, the Board affords it no probative value. The November 2019 opinion, on the other hand, was provided by a VA medical professional who has the necessary education, training, and expertise to provide the requested opinions. Additionally, the opinion is also shown to have been based on a review of the Veteran’s record and is accompanied by a sufficient explanation as to why the Veteran’s theories of entitlement were not medically supported. Furthermore, there is no competing medical opinion of record. The Board thus finds the November 2019 opinion is dispositive of the question of aggravation on appeal. As the most competent and credible evidence of record does not show an increase in the severity of the Veteran’s hay fever during service, the presumption of aggravation does not attach. As such, a discussion of clear and unmistakable evidence to rebut the presumption of aggravation is not required. Wagner, 370 F.3d at 1096. Because the Veteran’s pre-existing hay fever was not aggravated by military service entitlement to service connection on that basis must be denied. Lastly, the Board finds that the preponderance of the competent, credible, and probative evidence of record is against a finding that the Veteran’s claimed sinusitis, is etiologically related to active service. The evidence shows no diagnosis or treatment for sinusitis during or within a year of discharge from active duty. The record contains no medical opinion supporting the Veteran’s contention that his exposure to Camp Lejeune water could have or did cause his claimed condition. See November 2019 VA examination. The Board finds the Veteran’s statements regarding his “constant sinus” trouble to lack credibility and probative value as these statements are contradicted by VA and private medical evidence of record. Based on consideration of the entire record, the Board finds that the preponderance of the evidence is against the claim of service connection for a sinus condition, to include sinusitis, rhinitis or hay fever, and to include as aggravated by service. As such, the benefit of the doubt rule does not apply, and the Veteran’s claim is denied. 38 C.F.R. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. The claim of entitlement to a compensable evaluation for service-connected hemorrhoids from June 20, 2012; an evaluation in excess of 10 percent disabling from December 10, 2015; in excess of 20 percent from April 22, 2016; and to a compensable evaluation from June 30, 2017, is remanded. The Veteran contends entitlement to increased evaluations for his service-connected hemorrhoids. Although regrettable, additional remand is required for full compliance with the Board’s previous remand instructions concerning the Veteran’s hemorrhoid condition. See Stegall, 11 Vet. App. at 270-71. Specifically, it appears that there are outstanding private treatment records concerning this condition that the November 2019 VA examiner did not have an opportunity to consider prior to providing his opinion regarding the severity of the Veteran’s hemorrhoids. The Veteran testified to the Board in January 2019 regarding his subjective description of symptoms associated with his hemorrhoids, and stated that he received treatment from his doctor, an individual with the initials J.R., who informed the Veteran that there was nothing else aside from medication available to address the Veteran’s hemorrhoid symptoms if the Veteran did not want another surgical procedure. See Board hearing transcript at 23. The Board notes that none of the Veteran’s VA providers matches the name provided by the Veteran during his testimony and that records from a private provider with the initials J.R. do not appear to have been requested or associated with the evidence of record. While the Board did not explicitly direct the RO to obtain these records on remand, the VA examination of November 2019 called into question the credibility and reliability of the Veteran’s testimony regarding the severity of his symptoms as well as the medication he was taking to address his hemorrhoid condition. Further, the VA examiner specifically quoted the Veteran’s testimony naming Dr. J.R., but it does not appear that the examiner considered any records directly from this provider when providing his examination opinion. Given the apparent existence of private treatment records relevant to the period on appeal, additional remand is warranted to obtain these records and to obtain an addendum VA opinion concerning the severity of the Veteran’s hemorrhoid condition. The matters are REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file, specifically including records from the Veteran’s private provider named during his January 2019 testimony before the Board. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. Once all relevant outstanding treatment records have been obtained and associated with the Veteran’s file, obtain an addendum VA opinion to address any additional medical and lay evidence included in the updated treatment records. The addendum opinion should address the current severity of the Veteran’s service-connected hemorrhoids and address any additional identifiable increase in severity of the condition throughout the rating periods on appeal. If possible, the addendum report should be provided by the same examiner who conducted the November 2019 examination. If a new in-person or telemedicine examination is deemed necessary, one should be provided. The Veteran’s claims file and a copy of this remand must be provided to the examiner for review in conjunction with the scheduled examination and the examination report must reflect that these items were reviewed. All indicated tests and studies are to be performed, and the examiner should fully describe all current symptomatology associated with the Veteran’s service-connected hemorrhoids, to include potential lay reports of worsening identified after the 2019 examination (for example, see December 2019 VA treatment record with Veteran’s report that he was still having problems with his hemorrhoids). (Continued on the following page.) 3. Following completion of the foregoing, the Agency of Original Jurisdiction (AOJ) should review the record, perform any necessary development, and readjudicate the claim on appeal. If the appeal is denied, the AOJ should issue an appropriate Supplemental Statement of the Case and afford the Appellant and her representative an opportunity to respond and return the case to the Board. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Hart, 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.