Citation Nr: 18154139
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 10-32 556
DATE:	November 29, 2018
ORDER
Service connection for a right knee condition is denied. 
An initial compensable rating for rhinitis is denied.
FINDINGS OF FACT
1. The Veteran’s service treatment records do not document complaints of or treatment for right knee problems.
2. The Veteran’s right knee pain is not due to a disease or injury in service, to include a specific in-service event, injury, or disease.
3. The Veteran neither raised a secondary theory of entitlement to service connection for a right knee disability, nor does the evidence of record raise such a theory of entitlement. 
4. Throughout the claim period, the Veteran’s rhinitis has not manifested in polyps or greater than 50 percent nasal obstruction in either nasal passage. 
CONCLUSIONS OF LAW
1. The criteria for service connection for a right knee condition are not met.  38 U.S.C. §§ 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a).
2. The criteria for an initial compensable rating for allergic rhinitis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6522.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from October 2005 to November 2008.
This matter comes before the Board of Veterans’ Appeals Board on appeal from a May 2009 rating decision in which the RO denied service connection for a right knee condition. This matter further comes before the Board from a June 2009 rating decision in which the RO granted service connection for allergic rhinitis and assigned a compensable rating, effective from November 19, 2008. 
In November 2013 and December 2014, the Board remanded the current issues for further evidentiary development.  The Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary.  See D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)).
On June 9, 2016, the RO granted service connection for compression neuropathy of the left leg, left hip condition, and right hip condition.  The Veteran has not disagreed with either the effective date of service connection or the initially assigned disability ratings.  Therefore, the Board views the claims as satisfied in full, and will not further address this matter.  Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning “downstream” issues, such as the compensation level assigned for the disability and the effective date); see also 38 C.F.R. § 20.200.
Service Connection for Right Knee Condition 
The Veteran contends that he has a right knee disability related to an injury, event, or disease that resulted from his military service.  For this reason, the Veteran asserts that service connection is warranted. 
Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R.  § 3.303.  Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b).  Establishing service connection generally requires competent evidence of: (1) a current disability; (2) an in-service precipitating disease, injury, or event; and (3) a causal relationship, i.e., a nexus, between the current disability and the in-service event.  Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R.  § 3.303(a).  Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R.  § 3.303(d). 
The Board finds that a right knee disability was not noted upon entry into service. The entrance examination did not reveal any underlying knee disability, and the Veteran did report any treatment for right knee condition.  Further, the May 2015 VA examiner reached the same conclusion. Accordingly, presumption of soundness applies as to the Veteran’s claim for service connection for a right knee condition.
The record reveals that the Veteran has a current disability, variously diagnosed as right knee pain, osteochondroma, and enchondroma.  In regards to the right knee pain, an April 2009 VA examination report documented the Veteran’s report of his knees “clicking.”  Additionally, a July 2011 VA treatment record documented the Veteran’s complaints of right knee pain.  A disability for purposes of establishing service connection is an injury or disease that results in functional impairment, and “the disability itself need not be diagnosed.” See Saunders v. Wilkie, No. 2017-1466, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018) (finding that the term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability.”). The Veteran is competent to state that he has right knee pain, as a lay person. 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).  Here, the Veteran’s right knee pain falls within the definition of a “disability” for purposes of 38 U.S.C. § 1110, as it results in functional impairment.  In regard to osteochondroma or enchondroma, the April 2009 VA examination report documented a diagnosis of enchondroma and osteochondroma.   
The Veteran’s service treatment records treatment records do not reflect complaints, treatment, or diagnoses referable to a right knee injury or disease.  An April 2008 post-deployment health assessment, a June 2008 case management physical, and a September 2008 separation examination did not document complaints or treatment of a right knee condition. 
Within a year of separation, the Veteran reported to a general medical examination.  The April 2009 Joint Examination report documented the Veteran’s complaints of “generalized achy joints.” 
The competent medical evidence of record does not support a finding that the right knee condition, as variously diagnosed as knee pain, osteochondroma or enchondroma, is related to his military service.  Specifically, a May 2015 VA examiner did not observe any complaints of knee pain upon examination.  The examiner acknowledged an April 2013 x-ray finding of possible fibro-osseous tumor.  However, the examiner opined that “the osteochondroma, tumor of the knee that was found incidentally, was not incurred nor aggravated during military service . . . the Veteran himself prior to separation did not report knee pain or so called ‘aggravation’ of his ‘osteochondroma.’”  The examiner concluded that the Veteran’s right knee pain and tumor was not incurred, caused or aggravated by military service.   
Service connection is also not warranted because the record lacks any competent medical evidence indicating a relationship the between right knee condition, as variously diagnosed, and an injury or event in service. While the Veteran may be competent to report the manifestation of symptoms of right knee pain, he is not competent to provide medical opinions regarding the causes, or aggravating factors.  As the Veteran has not been shown to have appropriate medical training and expertise, he is not competent to render probative (i.e., persuasive) opinion on medical matters. See Jandreau, 492 F.3d at 1376-77; Bostain v. West, 11 Vet. App. 124, 127 (1998); Routen v. Brown, 10 Vet. App. 183, 186 (1997) (“a layperson is generally not capable of opining on matters requiring medical knowledge”).  In short, the preponderance of the probative evidence does not support a finding that the Veteran’s right knee condition, as variously diagnosed, is related to service.
Upon consideration of all of the evidence of record, the Board finds, for the reasons explained above, that the opinion of May 2015 examiner is the most probative evidence of record and carries the most probative weight on the question of whether the Veteran’s right knee condition is related to his service. As the preponderance of the evidence weighs against the claim, service connection for a disability of a right knee condition, as variously diagnosed is denied. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990).
Entitlement to a Compensable Rating for Rhinitis
The Veteran seeks a compensable rating for his rhinitis disability. 
Preliminarily, the Board acknowledges that November 2010 is the most recent VA examination of record, and the Board has remanded the claim twice to schedule the Veteran for a more recent examination. A veteran has the responsibility to keep VA advised of his whereabouts in order to facilitate development of a claim. If he does not do so, “there is no burden on the part of the VA to turn up heaven and earth to find him.” Hyson v. Brown, 5 Vet. App. 262, 265 (1993).  In November 2013, the Board remanded the claim in order for Agency of Original Jurisdiction (AOJ) to schedule new VA examination and assess the current severity of the rhinitis condition.  The record reveals that the Veteran did not report to the examination.  In December 2014, the Board remanded the claim again to reschedule the Veteran’s examination, finding that there was sufficient evidence in the record to suggest that the Veteran did not receive proper notice of the examination.  On September 21, 2015, the AOJ sent a letter notifying the Veterans of a scheduled October 2015 VA examination, but the letter was returned undeliverable to the Veteran.  The Veteran did not report to the October 2015 VA examination.  Nearly three years after the scheduled examination, the Veteran submitted July 2018 correspondence updating his address.  Since the November 2013 VA examination, the Veteran has not requested to schedule a new VA examination. In affording the Veteran the opportunity to attend two VA examinations and absent the Veteran’s request for a new VA examination, the Board finds that it has met its duty to assist, and the Board proceeds to rate the rhinitis disability based on the evidence of record.  See Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996) (explaining that “[t]he duty to assist in the development and adjudication of a claim is not a one-way street.”).    
Turning to the relevant legal standard, disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  
Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Rating Schedule.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned.  38 C.F.R. § 4.7.
A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as “staged” ratings.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).
The Veteran’s rhinitis is currently rated under Diagnostic Code 6522. Under that code, a 10 percent rating requires allergic or vasomotor rhinitis with more than fifty percent obstruction of both nasal passages, or complete obstruction of one side.  
Throughout the claim period, medical evidence did not verify polyps or obstruction of the nasal passages greater than 50 percent.  An April 2009 VA examiner documented “small airway obstruction,” but did not verify the presence of polyps. Similarly, a November 2010 VA examiner did not verify the presence of polyps or obstruction of the nasal passages.  While a July 2011 VA treatment record noted the possibility of a nasal polyp, a progress note dated two days later recorded an impression of “chronic rhinitis without evidence of Sinonasal polyposis.” 
Although a November 2010 VA treatment record noted a medical history of “multiple polyps,” the treatment record did not clarify when polyps had been observed.  Also, the treatment records dated since November 2010 did not confirm the presence of polyps.  As such, the November 2010 medical record is not relevant evidence because it did not speak to severity of the disability within the claim period. The Board assigns limited probative value to the November 2010 medical record.   
 
As there is no evidence within the claim period that the Veteran’s chronic rhinitis produced nasal polyps or produced (1) a 50-percent obstruction of the nasal passage on both sides, or (2) complete obstruction on one side, the Board cannot assign a compensable rating for this disability.  See 38 C.F.R. § 4.31.  As such, the claim is denied.

 
S. C. KREMBS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	I. Altendorfer, Associate Counsel 

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