Citation Nr: 22012143 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 17-60 870 DATE: March 2, 2022 ORDER New and material evidence having been submitted, the claim of entitlement to service connection for a left knee condition is reopened. REMANDED Entitlement to service connection for a left knee condition is remanded. Entitlement to service connection for pseudofolliculitis barbae (PFB) is remanded. Entitlement to service connection for sinusitis/hay fever is remanded. FINDING OF FACT A March 2006 rating decision denied the Veteran's claim for service connection for a left knee condition. The Veteran did not appeal or submit new and material evidence within a year of the rating decision; thus, the March 2006 rating decision became final. At the time of the March 2006 rating decision, the Agency of Original Jurisdiction (AOJ) found the Veteran did not have a left knee condition. Since then, the Veteran has been diagnosed with chondromalacia patella. This evidence is new and material and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has been received to reopen the claim of entitlement to service connection for a left knee condition. 38 U.S.C. § 7105 (2019); 38 C.F.R. §§ 3.104, 3.156, 20.302 (2020). REASONS FOR REMAND The Veteran served on active duty from November 1974 to September 1981. He appeals an August 2016 rating decision by the Department of Veterans Affairs (VA) AOJ denying entitlement to reopen the claim for service connection for a left knee condition and denying entitlement to service connection for PFB and sinusitis. A Board of Veterans' Appeals (Board) hearing was held in October 2021. A transcript is of record. As a preliminary matter, the Veteran's service treatment records (STRs) are not on file. In June 2005, the AOJ requested the Veteran's STRs from the service department, but received only dental records. See February 2006 notification letter. As a result, the AOJ made a second request for the records in December 2005, but the service department replied it had no additional records. Id. Later, in December 2015, the AOJ requested the Veteran's complete personnel and medical records from the National Personnel Records Center (NPRC). See December 2015 VA Form 21-3101. From this search, multiple STR folders were obtained, but all were essentially empty. The record reflects the AOJ stopped attempting to locate the Veteran's STRs once these folders were obtained. To date, however, the only STRs on file are dental records and a November 1974 entrance examination. Thus, as the AOJ did not successfully obtain the Veteran's STRs, a remand is required to make further attempts. Left Knee Condition The Veteran consistently contends he injured his left knee during field training at Fort Hood, Texas and his chronic left knee pain has continued to the present. See, e.g., May 2005 VA Form 21-526; June 2015 VA treatment records ("left knee pain, hurt in service in Fort Hood"); February 2016 VA examination report. Specifically, the Veteran testified that during a firing mission within an M109 Howitzer, a fellow cannon crewman "bent down to get out of the gun...[and] bumped against the carrier" holding a heavy artillery round, which "fell out of the carrier" and hit the Veteran's left knee. See October 2021 Board Hr. Tr. at 15. Military personnel records reflect the Veteran served at Fort Hood, first as a gunner's assistant and then as a gunner for the 2nd Howitzer section. In February 2016, the Veteran was afforded a VA examination where he recounted the same in-service injury to the examiner and complained of continued chronic left knee pain. The VA examiner diagnosed the Veteran with chondromalacia patella, but did not provide a medical opinion regarding the etiology of this condition. See February 2016 VA examination report. As such, a remand is required. Additionally, the Veteran noted at the October 2021 Board hearing that he had a witness letter from his ex-wife, who was married to the Veteran during his service, that corroborated the Veteran's left knee injury. See October 2021 Board Hr. Tr. at 22. The Veteran stated he had submitted this letter in the past and would resubmit the evidence, but the letter is not in his record. On remand, the Veteran should provide this letter to the AOJ for his records. PFB In disability compensation claims, VA must provide a medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran contends his PFB began in service when he was first required to shave and noticed bumps. See October 2021 Board Hr. Tr. at 2-3. The Veteran stated he was diagnosed in service with PFB and was provided a shaving profile for around three years while serving at Fort Ord and Fort Hood. Id. at 3. When his military occupational specialty (MOS) changed to dental specialist during advanced individual training, the Veteran stated shaving requirements were more relaxed and his symptoms decreased to where he no longer required a shaving profile while serving as a dental specialist at Fort Leonard Wood. Id. The record corroborates the Veteran's service history and MOS change. Additionally, the Veteran had a beard at the October 2021 Board hearing, and he testified to currently suffering from the same symptoms when he shaves. See October 2021 Board Hr. Tr. at 5. As noted above, the Veteran's STRs are currently unavailable; however, the occurrence of a shaving rash or bumps is capable of lay observation and the Veteran is competent to testify to the history of his observed symptoms. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). As the Veteran has not yet received a VA examination, a remand is required to assess the etiology of the Veteran's claimed condition. See McLendon, 20 Vet. App. 79. Sinusitis/Hay Fever The Veteran testified to having sinus problems in basic training and being prescribed Vistaril in service. See October 2021 Board Hr. Tr. at 9. Specifically, the Veteran stated the main symptoms of his "hay fever" were sneezing, watery eyes, and itching. Id. at 10-11. The Veteran contends he has suffered from the same symptoms since active duty to the present and has continuously treated himself with over-the-counter medications. Id. R.G., a witness who has known the Veteran for over twenty years, testified that the Veteran has had the same symptoms since she has known him. Id. Although the bulk of the Veteran's STRs are currently unavailable, a December 1980 dental STR noted the Veteran had a "sinus condition." Additionally, June 2005 VA treatment records reflect the Veteran has hay fever. Based on the record, VA must provide a VA examination to properly assess the Veteran's claim. See McLendon, 20 Vet. App. 79. The matters are REMANDED for the following action: 1. Obtain any outstanding and updated relevant VA and/or private treatment records and associate the same with the claims file. 2. Request that the Veteran resubmit a copy of his former spouse's statement regarding his left knee injury, as discussed in the October 2021 Board hearing transcript on page 22. 3. Take appropriate steps to obtain the Veteran's service treatment records (STRs); all potential avenues to find the records should be explored. In doing so, document all avenues taken and the ultimate outcome of such attempts. If the attempts to obtain STRs are unsuccessful, notify the Veteran and his representative. 4. After the development of #1-3 above is complete, schedule the Veteran for an examination by an appropriately qualified clinician to determine the nature and etiology of any left knee condition, to include chronic pain and chondromalacia patella. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. A complete history should be elicited directly from the Veteran and the opinion should include a notation that this record review took place. After a thorough review of the record to include all in-service and post-service treatment records, the examiner should answer the following: Is it at least as likely as not the Veteran's current left knee condition was incurred in or is otherwise related to his time in service, to include his reported injury when a heavy artillery round fell off the carrier inside a Howitzer and hit his left knee? The examiner's attention is directed to the following: (a) May 2005 VA Form 21-526 claim for a left knee injury "in a 109A1 Howitzer when a round fell from the carrier onto my knee" while serving at Fort Hood; (b) June 2015 VA treatment records noting "left knee pain, hurt in service in Fort Hood;" (c) October 2021 Board Hearing testimony on page 15 describing that during a firing mission within an M109 Howitzer, a fellow cannon crewman "bent down to get out of the gun...[and] bumped against the carrier" holding a heavy artillery round, which "fell out of the carrier" and hit the Veteran's left knee; and (d) R.G.'s witness testimony on pages 17 and 20 of the Board Hearing Transcript noting she has known the Veteran for 20 years, she has been told about his in-service knee injury several times, and he has had left knee problems since she has known him. In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. 5. After the development of #1-3 above is complete, schedule the Veteran for an examination by an appropriately qualified clinician to determine the nature and etiology of any pseudofolliculitis barbae (PFB). The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. A complete history should be elicited directly from the Veteran and the opinion should include a notation that this record review took place. After a thorough review of the record to include all in-service and post-service treatment records, the examiner should answer the following: Is it at least as likely as not the Veteran's PFB was incurred in or is otherwise related to his time in service? The examiner's attention is directed to the Veteran's testimony in the October 2021 Board hearing transcript on pages 2-3 that he first noticed bumps when he was required to shave in service, and he received a shaving profile for over three years until his MOS changed to dental specialist where he was not required to shave daily; and, on page 5 where it was noted the Veteran had a beard and testified to currently suffer the same symptoms whenever he shaves. In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. 6. After the development of #1-3 above is complete, schedule the Veteran for an examination by an appropriately qualified clinician to determine the nature and etiology of the Veteran's sinusitis/hay fever. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. A complete history should be elicited directly from the Veteran and the opinion should include a notation that this record review took place. After a thorough review of the record to include all in-service and post-service treatment records, the examiner should answer the following: Is it at least as likely as not the Veteran's sinusitis/hay fever was incurred in or is otherwise related to his time in service? The examiner's attention is directed to the following: (a) December 1980 dental STR noting the Veteran has a sinus condition; (b) June 2005 VA treatment records noting hay fever; (c) the Veteran's testimony from the October 2021 Board Hearing transcript on pages 9-11 noting he was prescribed Vistaril in service for hay fever symptoms of sneezing, watery eyes, and itching and has continued to treat these symptoms with over-the-counter medication ever since; and (d) R.G.'s testimony in the October 2021 Board Hearing transcript on page 11 noting the Veteran's symptoms have existed for more than 20 years. In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. (Continued on the next page) 7. After the above has been completed to the extent possible, readjudicate the claim. If any benefit sought remains denied, provide the Veteran and his representative with an SSOC and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bona, 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.