Citation Nr: 1415166 Decision Date: 04/07/14 Archive Date: 04/15/14 DOCKET NO. 07-01 949 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a rating in excess of 10 percent for right knee limitation of motion. 2. Entitlement to a rating in excess of 10 percent for right knee instability. 3. Entitlement to a rating in excess of 10 percent for left knee disability. 4. Entitlement to service connection for a bilateral shoulder disorder. 5. Entitlement to service connection for a left hip disorder. 6. Entitlement to service connection for a lumbar spine disorder. REPRESENTATION Appellant represented by: Robert W. Legg, Attorney ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran served on active duty from January 1951 to August 1952. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In June 2010, these claims were remanded by the Board for additional development. Thereafter, in July 2011, the Board denied the Veteran's claims for service connection. The Veteran appealed to the Court of Appeals for Veterans Claims (Court). In a May 2013 Memorandum Decision, the Court vacated the July 2011 Board denial and remanded these issues to the Board. Following the May 2013 Court decision, the appeal was processed using the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. In a February 2013 document, the issue of whether there was clear and unmistakable error (CUE) in a prior December 1952 rating decision was raised. It has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. In a statement received on February 20, 2014, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal as to the issue of entitlement to service connection for a bilateral shoulder disorder, and the increased rating claims regarding the knees. 2. Resolving all reasonable doubt in the Veteran's favor, a left hip disorder (osteoarthritis) had its onset in service. 3. Resolving all reasonable doubt in the Veteran's favor, a lumbar spine disorder (osteoarthritis) had its onset in service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the issue of entitlement to service connection for a bilateral shoulder disorder are met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2013). 2. The criteria for withdrawal of the appeal of the issue of entitlement to an increased rating for right knee limitation of motion are met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2013). 3. The criteria for withdrawal of the appeal of the issue of entitlement to an increased rating for right knee instability are met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2013). 4. The criteria for withdrawal of the appeal of the issue of entitlement to an increased rating for left knee disability are met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2013). 5. The criteria for service connection for a left hip disorder (osteoarthritis) have been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303, 3.309 (2013). 6. The criteria for service connection for a lumbar spine disorder (osteoarthritis) have been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal of Appeal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In a statement received by the Board on February 20, 2014, the Veteran indicating that he wished to withdraw from appellate consideration his claim of entitlement to service connection for a bilateral shoulder disorder, and the claims for increased ratings for his left and right knee disabilities. The Board finds that the written statement submitted on behalf of the Veteran by his attorney indicating his intention to withdraw these claims on appeal satisfies the requirements for the withdrawal of a substantive appeal. See, e.g., Tomlin v. Brown, 5 Vet. App. 355 (1993). As the Veteran has withdrawn his appeal concerning entitlement to service connection for a bilateral shoulder disorder, and the increased rating claims for his right and left knee disabilities, there remains no allegation of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review these claims on appeal and they are dismissed. Service Connection The Veteran seeks service connection for left hip and lumbar spine disorders. The Veteran argues that his currently diagnosed osteoarthritis of the left hip and osteoarthritis of the lumbar spine are due to his military service. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an 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. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). As the Veteran has currently the claimed disabilities, the focus of the analysis to follow is whether there is sufficient evidence of a relationship between these disabilities and his military service. The Veteran's service treatment records note diagnoses of generalized osteochondritis dissecans based on the Veteran's reports of knee, ankle, finger, and elbow pain and x-ray evidence of osteochondritis dissecans of the Veteran's knees. Furthermore, a May 1952 service treatment record reflects that an x-ray of the Veteran's spine was interpreted to reveal juvenile epiphysitis. June 1952 hospital admission records reflect that the Veteran's admitting diagnosis was osteochondritis dissecans of the bilateral knees, left elbow, and spine. A June 1952 service treatment record specifically notes that the Veteran was not experiencing any back pain, and the July 1952 hospital discharge summary notes the Veteran's report of experiencing knee and elbow pain, with no mention of back, shoulder, or hip pain. The sole diagnosis noted at discharge was osteochondritis dissecans of the right knee. The Board notes that there is medical evidence both for and against the Veteran's claims. The first medical evidence of record reflecting the Veteran's report of experiencing back pain is reflected in a November 1975 private treatment record, at which time the Veteran was treated for a lumbosacral sprain. The first hip complaint of record is reflected in a September 2004 VA examination report When examined for VA purposes in October 2010, after examining the Veteran and reviewing x-rays of his spine and left hip, the examiner diagnosed the Veteran with osteoarthritis of the spine and left hip, as well as avascular necrosis of the left hip. The examiner then failed to relate these conditions to service or the Veteran's service-connected knee disabilities. To the extent that the Veteran was noted to have generalized osteochondritis dissecans of the upper and lower extremities and spine on separation from service, the examiner noted that the osteochondritis dissecans is not a diffuse disease, one that spreads from joint to joint, or one that is a known cause of osteoarthritis. Moreover, the examiner stated that the Veteran's service-connected knee disabilities did not sufficiently change the Veteran's stance or gait so as to create mechanical strain on his left hip or spine. Furthermore, the examiner opined that the Veteran's left hip avascular necrosis occurred after service and stated that the Veteran's avascular necrosis was not caused by or related to the Veteran's service-connected knee disabilities. Most recently, a February 2014 opinion from a private physician, Dr. Kane, specifically attributed the Veteran's currently diagnosed osteoarthritis of the left hip and spine to his in-service osteochondritis dissecans. Dr. Kane noted that osteochondritis dissecans most commonly affects single joints, but it is well described as occurring in multiple joints. Further, osteochondritis dissecans was often missed by the plain radiographs available in the 1950s. Dr. Kane stated it is beyond question that in 1952 the Veteran's osteochondritis dissecans was of the multi-joint variety. Therefore, it is more likely than not that the condition affecting each of the Veteran's joints developed during his military service and was osteochondritis dissecans. Dr. Kane further stated that osteochondritis dissecans can often lead directly to the later development of osteoarthritis. Thus, it is more likely than not that the osteoarthritis in the Veteran's hip and spine was caused by the osteochondritis dissecans in service. In light of the conflicting opinions concerning the etiology of the Veteran's left hip and lumbar spine disorders, the Board finds that the evidence is in relative equipoise in terms of whether his currently diagnosed osteoarthritis is related to his military service. The Board resolves reasonable doubt in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. At 49. Therefore, the Board concludes that service connection for left hip osteoarthritis and lumbar spine osteoarthritis is warranted. ORDER The appeal as to the claim of entitlement to service connection for a bilateral shoulder disorder is dismissed. The appeal as to the claim of entitlement to an increased rating for right knee limitation of motion is dismissed. The appeal as to the claim of entitlement to an increased rating for right knee instability is dismissed. The appeal as to the claim of entitlement to an increased rating for left knee disability is dismissed. Service connection for a left hip osteoarthritis is granted. Service connection for a lumbar spine osteoarthritis is granted. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs