Citation Nr: 1301512 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 08-12 963A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a hernia. 2. Entitlement to service connection for obstructive sleep apnea. 3. Entitlement to service connection for weight control. 4. Entitlement to service connection for skin infection. 5. Entitlement to service connection for right knee status post anterior cruciate ligament reconstruction and tibial osteotomy as secondary to service-connected left knee disability. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran served on active duty from May 1987 to June 1991. This matter comes before the Board of Veterans' Appeals (Board) from November 2006 and August 2008 decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. All documents in the Veteran's Virtual VA electronic folder were considered by the RO prior to certification of the Veteran's claim to the Board. At a March 2012 Travel Board hearing the Veteran submitted additional evidence along with a waiver of RO review of the newly submitted evidence. FINDINGS OF FACT 1. At the March 2012 hearing, the Veteran stated that he wished to withdraw his appeal for service connection for obstructive sleep apnea. 2. At the March 2012 hearing, the Veteran stated that he wished to withdraw his appeal for service connection for weight control. 3. At the March 2012 hearing, the Veteran stated that he wished to withdraw his appeal for service connection for skin infection. 4. The Veteran's right knee disability is aggravated by his service-connected left knee disability. 5. The Veteran has a hernia that was caused by an operation to repair the Veteran's service-connected right knee disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal by the Veteran have been met with respect to the appeal for service connection for obstructive sleep apnea. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 2. The criteria for withdrawal of a substantive appeal by the Veteran have been met with respect to the appeal for service connection for weight control. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 3. The criteria for withdrawal of a substantive appeal by the Veteran have been met with respect to the appeal for service connection for skin infection. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 4. The criteria for service connection for right knee status post anterior cruciate ligament reconstruction and tibial osteotomy with degenerative changes as secondary to service-connected disability are met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.310 (2012). 5. The criteria for service connection for hernia secondary to service-connected right knee disability are met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawn Issues Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing 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. Appeals must be withdrawn in writing except for appeals withdrawn on the record at a hearing. Id. In March 2012 the Veteran appeared at a Travel Board hearing and requested withdrawal of his appeals for service connection for obstructive sleep apnea, weight control, and skin infection. Accordingly, the Board does not have jurisdiction to review the appeal for these issues, and the appeals for service connection for obstructive sleep apnea, weight control, and skin infection are dismissed. II. VCAA In light of the full grant of benefits with regard to the Veteran's claim for service connection for a right knee disability and claim for service connection for a hernia, further development with regard to VA's duties to notify and assist would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540 (1991). III. Right Knee Disability The Veteran seeks service connection for his right knee disability as secondary to service-connected left knee disability. He maintains that he overused his right knee due to his service-connected left knee disability and that the overuse resulted in his current right knee disability. As explained below the Board finds that service connection for a right knee disability as secondary to his service-connected left knee disability is warranted. The Veteran has had service connection in effect for synovitis and chondromalacia of the left knee since discharge from service in June 1991. On VA examination in August 1991 the Veteran had a limp favoring the left knee. He has had a 20 percent rating in effect for his service-connected left knee disability since August 1996, and a 30 percent rating since May 2006. The Veteran has had right knee disability since twisting his right knee in 1996. The Veteran's right knee is status post anterior cruciate ligament reconstruction and tibial osteotomy, with chronic pain due to degenerative changes. In August 2009, a private physician examined the Veteran and diagnosed severe degenerative joint disease of the right knee. The physician noted that he had reviewed the Veteran's complete medical records, including the service records. The physician was of the opinion that the Veteran's right knee disability is related to the Veteran's chronic service-connected left knee injury. He stated that the (left knee) antalgic gait and slipping caused him to get to the point where he is having unremitting discomfort in his (right) knee. The Veteran was examined by another private physician in November 2009. This physician reviewed records provided by the Veteran and reported the history of the Veteran's left and right knee disabilities. The examiner opined that the Veteran's right knee condition is the result of the left knee trauma which occurred during his time in the service. Also supporting the Veteran's claim is a May 2001 VA examination report that states that the Veteran has two bad knees, and with the transferring of weight favoring one knee versus the other, his flare-ups will likely continue to increase. Service connection may be granted, on a secondary basis, for a disability which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. The Board finds that this medical evidence supportive of the Veteran's claim outweighs the evidence that is against his claim. Although VA examiners in October 1996 and January 2010 were of the opinion that the Veteran's right knee disability was not caused by the Veteran's service-connected left knee disability, neither opinion discusses aggravation. Consequently, the October 1996 and January 2010 medical opinions are of limited probative value. Although there is a September 2006 opinion by a VA physician's assistant that the Veteran's right knee disability is not aggravated by the service-connected left knee disability, the Board finds that the greater weight of the most probative medical evidence indicates that the Veteran's current right knee disability is caused, or aggravated, by the Veteran's service-connected left knee disability. The VA treatment records show that the Veteran has had a limp due to his service-connected left knee disability since soon after discharge from service, and a VA examiner in May 2001 indicated that the Veteran's left and right knees would each cause flare-up in the other knee. Additionally the two private physicians examined the Veteran and the medical history of both knees and opined that the Veteran's right knee disability is related to his service-connected left knee disability. Accordingly, service connection for right knee status post anterior cruciate ligament reconstruction and tibial osteotomy with degenerative changes as secondary to service-connected left knee disability is warranted. See 38 C.F.R. § 3.310. IV. Hernia The Veteran underwent right knee surgery in May 2006. This surgery included an iliac crest harvest for the right knee repair. Subsequently the Veteran developed a hernia at the location of the incision made for obtaining the iliac crest graft. An August 2007 VA outpatient note states that the Veteran had a hernia secondary to the right knee surgery. Private physicians opined in June and November 2009 that the Veteran has a hernia resulting from the bone graft incision due to the right knee surgery. On VA examination in June 2011 the examiner opined that it is at least as likely as not that the incisional hernia on the Veteran's right flank area is a complication of the bone graft harvest in conjunction with the right knee surgery of May 2006. As noted above in this decision, service connection for right knee status post anterior cruciate ligament reconstruction and tibial osteotomy has been granted. Given that the Veteran's hernia disability was caused by surgery for a service-connected condition, service connection for the hernia as secondary to a service-connected disability is warranted. See 38 C.F.R. § 3.310. ORDER The appeal of entitlement to service connection for obstructive sleep apnea is dismissed. The appeal of entitlement to service connection for weight control is dismissed. The appeal of entitlement to service connection for skin infection is dismissed. Service connection for right knee status post anterior cruciate ligament reconstruction and tibial osteotomy with degenerative changes is granted. Service connection for hernia is granted. ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs