Citation Nr: 21022117 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 14-24 792 DATE: April 14, 2021 ORDER The claim for entitlement to service connection for traumatic arthritis of the right knee is reopened; to this extent only, the claim is granted. Entitlement to service connection for traumatic arthritis of the right knee is denied. Entitlement to service connection for a back condition is denied. Entitlement to service connection for degenerative arthritis of the neck is denied. Entitlement to service connection for an unspecified head condition, to include bilateral hearing loss, is denied. FINDINGS OF FACT 1. A May 2010 rating decision denied the Veteran’s claim of entitlement to service connection for traumatic arthritis of the right knee. The Veteran failed to complete a substantive appeal; the decision is now final. 2. Some of the evidence received since the May 2010 rating decision was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim for service connection for traumatic arthritis of the right knee. 3. The Veteran’s right knee disability, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. 4. The preponderance of the evidence is against finding that a back condition began during active service, or is otherwise related to an in-service injury or disease. 5. The preponderance of the evidence is against finding that degenerative arthritis of the neck began during active service, or is otherwise related to an in-service injury or disease. 6. The preponderance of the evidence is against finding that bilateral hearing loss began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. A May 2010 rating decision that denied the claim of entitlement to service connection for traumatic arthritis of the right knee is final. 38 U.S.C. §§ 7105; 38 C.F.R. § 20.1103. 2. Evidence received since the May 2010 rating decision is new and material, and the Veteran’s claim for service connection for traumatic arthritis of the right knee is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for traumatic arthritis of the right knee have not been met. 38 U.S.C. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 3.306. 4. The criteria for entitlement to service connection for a back condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for entitlement to service connection for degenerative arthritis of the neck have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for entitlement to service connection for an unspecified head condition, to include bilateral hearing loss, have not been 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 served on active duty from November 1972 to October 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision. The Veteran was afforded a hearing before the undersigned Veterans Law Judge in August 2017. In April 2018 and October 2020, the Board remanded the issues for further development. That development was completed, and the case has since been returned to the Board for appellate review. 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for traumatic arthritis of the right knee A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The issue of entitlement to service connection for traumatic arthritis of the right knee was originally denied in a May 2010 rating decision because the evidence did not show the Veteran’s pre-existing traumatic arthritis of the right knee was permanently worsened as a result of service. The Veteran did not initiate an appeal of this denial, and it became final. Since the May 2010 rating decision, VA records from October 2008 to October 2019 have been associated with the file, the Veteran was afforded a Board hearing, and a VA knee examination was conducted in December 2020. This evidence is new in that they were not of record at the time of the May 2010 rating decision. The VA treatment records reflect the Veteran experiences pain in his right knee and has degenerative joint disease of the bilateral knees. See April 2018 and September 2019 VA treatment records. An April 2017 treatment note shows the Veteran has moderate tricompartmental degenerative changes superimposed upon the sequelae of a previous shotgun injury. At the August 2017 Board hearing, the Veteran stated that exposure to extreme cold weather during service caused his right knee issues. The Board finds the VA treatment records and hearing testimony are not material because the evidence is redundant of the evidence of record at the time of the May 2010 rating decision. The Veteran was afforded a VA knee examination in December 2020. The examination is material because it provides a nexus opinion regarding whether the Veteran’s pre-existing right knee issue was aggravated by active service. Therefore, the Board finds that the December 2020 VA knee examination is new and material and is sufficient to reopen the claim for entitlement to service connection. Service Connection Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). In determining whether service connection is warranted for a disability, 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Additionally, where a veteran served ninety days or more of active service, and certain 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. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). 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. Id. 2. Entitlement to service connection for traumatic arthritis of the right knee The Veteran contends that his traumatic arthritis of the right knee was aggravated by his active service, thus he should be service connected for the condition. The Board notes that a Veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). Accordingly, if no preexisting condition is noted upon entry into service, a Veteran is presumed to have been sound upon entry. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). For service connection claims involving a preexisting injury or disease, 38 U.S.C. § 1153 provides that a preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. If a preexisting disability is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disability, but the Veteran may bring a claim for aggravation of that disability. In that case, § 1153 applies and the burden falls on the Veteran to establish an increase in severity during service. Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306 (b). Evidence is needed to support a finding that the preexisting disorder increased in severity in service. Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994). The Veteran was afforded a VA examination in December 2020. The examination shows the Veteran has a diagnosis of traumatic arthritis to the right knee, status post gunshot wound. The Board notes that on a November 1972 Report of Medical History, the Veteran stated that he was shot in the right knee in 1967. In June 1973, the Veteran complained of pain in the right leg. See June 1973 Service Treatment Record (STR). The treatment note states the Veteran was shot in the leg with a “12 G shotgun in 1967.” Id. An August 1973 Physical Profile Record states the Veteran has numerous foreign bodies in the right knee secondary to gunshot wound with 12-gauge shotgun. A February 1974 STR states “old wound right knee with remaining metal fragments – hurt – cold. Please keep out of field, cold weather.” The Veteran complained of pain to his right knee due to a gunshot wound in 1967. See March 1975 STR. The Veteran’s separation examination notes the Veteran’s lower extremities were normal. See August 1975 STR. The December 2020 VA examiner opined that the Veteran’s right knee disability, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner stated that in 1967, five years prior to entering the Army, the Veteran had a gunshot wound to his right knee. The Veteran recovered well enough to join the Army in 1972 and passed his entrance physical. This notation was entered on his pre-service assessment. The examiner noted the Veteran related he got through basic training fine but when he was in Germany in 1973, he had recurrent knee problems. According to the Veteran’s records, the Veteran had right knee pain with increased activity and being in cold environments. The Veteran was sent to see an orthopedic surgeon who found bullet fragments in the right knee but no acute right knee problem. The Veteran was placed on a permanent profile due to his symptoms of knee pain. Because of ongoing right knee complaints in cold weather, he was further restricted from cold environments as best they could in Germany. On the separation exam there was no mention of ongoing right knee problems. Between 1976 through 2008 he worked off and on for a company that hired him to paint steel garbage cans. The Veteran related that he had no problems with his knee requiring medical care. Therefore, a medical record search revealed no records of doctors or ER visits during that time until 2010 where he complained about right knee pain. The right knee was examined and arthritis confirmed. In 2020 another x-ray revealed the numerous retained bullet fragments within the right knee as well as tri-compartment degenerative changes of the right knee similar to the 2010 x-ray. The examiner stated that he sees no medical evidence that the Veteran’s right knee was aggravated beyond the natural progression of the disease since his service. The Veteran did have multiple complaints of right knee pain that represented symptomatic flare-ups of his pre-military right knee condition due to the physical demands as well as cold environment. The fact that the Veteran had a permanent profile and other limitations during his three years of service decreased his symptoms. According to the medical literature, it is the inflammation occurring immediately after joint injury that plays a role in the onset of chronic posttraumatic arthritis. In some studies, 20% or more than 50% of patients who had joint trauma developed osteoarthritis. In addition, 14% of people with a history of joint injury during their adolescence or young adult developed knee osteoarthritis compared to just 6% of those without trauma. Therefore, it is not likely that the Veteran’s pre-existing right traumatic knee arthritis was aggravated or permanently worsened as a result of his active service. The examiner cited to Post–traumatic arthritis: Overview on pathogenic mechanisms and the role of inflammation September 6, 2016. While the Veteran contends that his right knee traumatic arthritis is due to his active service, there is no indication that the Veteran has specialized training in orthopedics. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). The Board finds the medical opinion of record and medical evidence to be more probative than the Veteran’s lay assertions as to the etiology and severity of the Veteran’s right knee traumatic arthritis. In this regard, the VA examiner reviewed the claims file and considered the Veteran’s service treatment records. Thereafter, the examiner provided adequate reasoning and bases for the opinion that the Veteran’s military service did not aggravate his right knee disability. For these reasons, the opinion by the VA examiner is of greater probative value than the Veteran’s contentions regarding his right knee traumatic arthritis. In sum, the Board finds that the most probative evidence establishes that the Veteran’s right knee disability existed prior to his entry into service, and was not aggravated during service. Accordingly, service connection for the Veteran’s right knee traumatic arthritis is not warranted. 3. Entitlement to service connection for a back condition The Veteran contends that his back condition is due to exposure to cold weather during service. Alternatively, he claims that he suffered a back strain during service. 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 Board concludes that, while the Veteran has a current diagnosis of degenerative arthritis of the spine (back condition), and evidence shows that the Veteran was exposed to cold weather during service and he injured his back, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of degenerative arthritis of the spine began during service or is otherwise related to an in-service injury, event, or disease. VA treatment records show the Veteran was not diagnosed with degenerative arthritis of the spine until November 2010, approximately 35 years after his separation from service. While the Veteran is competent to report having experienced symptoms of back pain over the years, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of degenerative arthritis of the spine. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, the December 2020 VA examiner opined that the Veteran’s back condition is not at least as likely as not related to an in-service injury, event, or disease, including cold weather exposure or injuring his back. The rationale was that the Veteran had no back problems prior to service and no diagnosis of back problems in the service medical record. There are no back problems listed on the Veteran’s separation examination, and not any complaints of back problems a year post discharge. The Veteran claims that cold weather during his service in Germany caused a back problem but there is no record of back problems during the Veteran’s service in Germany. The examiner stated that cold weather and cold climates do not cause arthritis according to the medical literature. The examiner relates that there is a common misconception about arthritis which is that arthritis is caused by cold or exposure to cold weather. There is no medical proof of this. Arthritis is the breakdown of cartilage to the point where bone rubs against bone. This type of arthritis is osteoarthritis in which wear and tear damage of the joint cartilage and causing enough damage to cause arthritis. This occurs over many years and sometimes is accelerated by injury or infection. The examiner stated he saw no evidence to believe this occurred during active service. The VA examiner reviewed the claims file and considered the Veteran’s service treatment records as well as lay statements. Thereafter, the examiner provided adequate reasoning and bases for the opinion that the Veteran’s military service did not cause the Veteran’s back condition. The Veteran believes his back condition is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of pathology. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the December 2020 VA examiner’s opinion. Therefore, entitlement to service connection for a back condition is not warranted. There is also no persuasive medical evidence or persuasive credible lay evidence that the Veteran's claimed disorder manifested to a compensable degree within a year of his separation from service or had its onset in service and continued ever since service. Therefore, service connection based on presumptive service connection for a chronic disease or based on a theory of continuity of symptomatology is not warranted. 4. Entitlement to service connection for degenerative arthritis of the neck The Veteran contends that his degenerative arthritis of the neck is due to exposure to cold weather during active service. 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 Board concludes that, while the Veteran has a current diagnosis of degenerative arthritis of the spine (neck condition), and evidence shows that he was exposed to cold weather during active service, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of degenerative arthritis of the spine began during service or is otherwise related to an in-service injury, event, or disease. VA treatment records show the Veteran was not diagnosed with degenerative arthritis of the spine until November 2010, approximately 35 years after his separation from service. While the Veteran is competent to report having experienced symptoms of neck pain over the years, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of degenerative arthritis of the spine. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, the December 2020 VA examiner opined that the Veteran’s neck condition is not at least as likely as not related to an in-service injury, event, or disease, including exposure to cold weather. The rationale was that there are many common misconceptions about arthritis and one of those is that arthritis is caused by a cold climate. There is no medical proof that a cold climate deteriorates cartilage, bringing together bone rubbing on bone which is arthritis. The Veteran has osteoarthritis of the spine which involves a wear-and-tear damage to the joint cartilage and causing enough damage can result in bone grinding against bone which causes the pain. This is a wear and tear injury over many years accelerated by joint injury or infection. The examiner stated he sees no evidence that the Veteran’s neck was injured to hasten the osteoarthritis. Therefore, the Veteran’s statement that cold weather caused his neck arthritis and pain is inconsistent with medical knowledge. Once arthritis occurs many people feel more arthritic pain secondary to cold environments and changes in barometric pressure and humidity of the weather. Therefore, it is not uncommon for people like this Veteran to have increasing symptoms which improves by keeping the joint warm. The VA examiner reviewed the claims file and considered the Veteran’s service treatment records as well as lay statements. Thereafter, the examiner provided adequate reasoning and bases for the opinion that the Veteran’s military service did not cause the Veteran’s back condition. The Veteran believes his neck condition is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of pathology and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the December 2020 VA examiner’s opinion. Therefore, entitlement to service connection for degenerative arthritis of the neck is not warranted. There is also no persuasive medical evidence or persuasive credible lay evidence that the Veteran's claimed disorder manifested to a compensable degree within a year of his separation from service or had its onset in service and continued ever since service. Therefore, service connection based on presumptive service connection for a chronic disease or based on a theory of continuity of symptomatology is not warranted. 5. Entitlement to service connection for an unspecified head condition, to include bilateral hearing loss The Veteran contends that his unspecified head condition, manifested as hearing loss, first manifested during active service. See Transcript of August 2017 Board Hearing at 14. Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified puretone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). Hensley v. Brown, 5 Vet. App. 155, 158 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. 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. On the VA audiological evaluation in December 2020, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 55 55 55 50 LEFT 50 55 60 65 60 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 percent in the left ear. The Veteran has auditory thresholds greater than 40 decibels in both the right and left ears. The Veteran has a hearing disability for VA purposes. 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 Board notes that the Veteran’s VA treatment records do not show a current diagnosis for any head or brain condition. The Board concludes that, while the Veteran has a current diagnosis of bilateral sensorineural hearing loss (hearing loss), and evidence shows that his military occupational specialty (MOS) was infantryman, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of hearing loss began during service or is otherwise related to an in-service injury, event, or disease. VA treatment records show the Veteran was not diagnosed with hearing loss until many years after his separation from service. While the Veteran is competent to report having experienced symptoms of difficulty hearing over the years, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of hearing loss for VA purposes. The issue is medically complex, as it requires knowledge of the interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, the December 2020 VA examiner opined that the Veteran’s hearing loss is not at least as likely as not related to an in-service injury, event, or disease, including hazardous noise exposure as an infantryman. The rationale was that although the Veteran’s MOS was infantryman, which has a high probability for hazardous noise exposure, both his entry and exit audiograms revealed hearing within normal limits. The examiner noted that no thresholds were obtained at 3000 and 6000 Hz, which could have revealed possible damage and hearing loss due to noise exposure. Overall, the Veteran reportedly did not start perceiving hearing difficulty until the 1980s. He has a long history of noise exposure post service at his civilian job working in a steel shop, as well as recreational hunting without hearing protection. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. The examiner reviewed the Veteran’s file and considered the Veteran’s lay statements. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes his hearing loss is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of pathology and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the December 2020 VA examiner’s opinion. Therefore, entitlement to an unspecified head condition, to include hearing loss, is not warranted. There is also no persuasive medical evidence or persuasive credible lay evidence that the Veteran's claimed disorder manifested to a compensable degree within a year of his separation from service or had its onset in service and continued ever since service. Therefore, service connection based on presumptive service connection for a chronic disease or based on a theory of continuity of symptomatology is not warranted. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alexia E. Palacios-Peters, 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.