Citation Nr: 1328823 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 09-36 678 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for low back pain. 2. Entitlement to service connection for bone spurs, right foot. 3. Entitlement to service connection for right ankle arthritis. 4. Entitlement to service connection for right hip pain. 5. Entitlement to service connection for left hip pain. 6. Entitlement to service connection for hypertension. 7. Entitlement to service connection for degenerative arthrosis, left great toe. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1997 to September 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA). In June 2013, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The issue remaining on appeal was adequately explained to him and the submission of evidence which he may have overlooked and which would be advantageous to his position was suggested. See 38 C.F.R. § 3.103(c) (2012). FINDINGS OF FACT 1. In June 2013, the appellant requested a withdrawal of his appeal for entitlement to service connection for low back pain. 2. In June 2013, the appellant requested a withdrawal of his appeal for entitlement to service connection for bone spurs, right foot. 3. In June 2013, the appellant requested a withdrawal of his appeal for entitlement to service connection for right ankle arthritis. 4. In June 2013, the appellant requested a withdrawal of his appeal for entitlement to service connection for right hip pain. 5. In June 2013, the appellant requested a withdrawal of his appeal for entitlement to service connection for left hip pain. 6. In June 2013, the appellant requested a withdrawal of his appeal for entitlement to service connection for hypertension. 7. The Veteran's degenerative arthrosis of the left great toe is shown to have developed as a result of his service-connected gout disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the appellant as to the issue of entitlement to service connection for low back pain have been met. 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 an appeal by the appellant as to the issue of entitlement to service connection for bone spurs, right foot, have been met. 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 an appeal by the appellant as to the issue of entitlement to service connection for right ankle arthritis have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 4. The criteria for withdrawal of an appeal by the appellant as to the issue of entitlement to service connection for right hip pain have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 5. The criteria for withdrawal of an appeal by the appellant as to the issue of entitlement to service connection for left hip pain have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 6. The criteria for withdrawal of an appeal by the appellant as to the issue of entitlement to service connection for hypertension have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 7. Degenerative arthrosis, left great toe, was incurred during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA law provides that 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 (West 2002). 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 (2012). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the appellant by testimony and correspondence provided in June 2013 has withdrawn his appeal as to the issues of service connection for low back pain, right foot bone spurs, right ankle arthritis, right hip pain, left hip pain, and hypertension. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review these matters on appeal and the appeals are dismissed. Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Veteran was notified of the duty to assist and of the information and evidence necessary to substantiate his remaining claim by correspondence dated in April 2007 and December 2007. The notice requirements pertinent to the issue on appeal have been met and all identified and authorized records relevant to the matter have been requested or obtained. VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2012). The available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to adjudicate the claim would not cause any prejudice to the appellant. Service Connection Claim Service connection may be granted for a disability resulting from injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). In order to prevail on the issue of service connection on the merits, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). A veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). Whether lay evidence is competent and sufficient in a particular case is an issue of fact and lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (sometimes the layperson will be competent to identify the condition where the condition is simple, for example, a broken leg, and sometimes not, for example, a form of cancer), (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 1372 (Fed. Cir. 2007). Lay evidence presented by a veteran concerning his continuity of symptoms after service may generally be considered credible and ultimately competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102 (2012). Based upon the evidence of record, the Board finds that the Veteran's degenerative arthrosis of the left great toe developed as a result of his service-connected gout disability. Service treatment records show that a report of medical history associated with the Veteran's June 2002 separation examination noted he had been provided a diagnosis of gout. In statements and testimony in support of his claim the Veteran reported that he had experienced swelling of his left great toe during service to a lesser degree than his right great toe. In a June 2008 statement he clarified that his claim for left and right foot problems should be classified as gout. A June 2008 VA examination report included a diagnosis of mild degenerative arthrosis of both great toes. An associated X-ray examination report noted a history of bilateral great toe gout and findings of tiny osteophytes at the first metatarsophalangeal joints. An October 2012 VA examination found the Veteran's gout, manifest as right great toe swelling and pain, was as likely as not incurred in service. VA records show service connection was established for right great toe degenerative arthrosis in a July 2008 rating decision and that a noncompensable rating is assigned. Service connection was also established for gout in a February 2013 rating decision and a 20 percent rating was assigned for gout as an active process. The Board notes that VA regulations provide ratings for gout under the criteria for rheumatoid arthritis (atrophic) as an active process and that ratings for the active process will not be combined with the residual ratings for limitation of motion or ankylosis, but that chronic residuals such as limitation of motion or ankylosis are to be rated under the appropriate diagnostic codes for the specific joints involved. 38 C.F.R. § 4.71a, Diagnostic Codes 5002, 5017 (2012). The Board finds the Veteran's report of left toe swelling to a lesser extent than the right is credible and consistent with the evidence of record. The June 2008 VA X-ray examination report noted a history of bilateral great toe gout and the findings to the first metatarsophalangeal joints to each foot were consistent with that medical history and with the final diagnosis provided. Therefore, the claim is granted. (CONTINUED ON NEXT PAGE) ORDER The appeal for entitlement to service connection for low back pain is dismissed. The appeal for entitlement to service connection for bone spurs, right foot, is dismissed. The appeal for entitlement to service connection for right ankle arthritis is dismissed. The appeal for entitlement to service connection for right hip pain is dismissed. The appeal for entitlement to service connection for left hip pain is dismissed. The appeal for entitlement to service connection for hypertension is dismissed. Entitlement to service connection for degenerative arthrosis, left great toe, is granted. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs