Citation Nr: 1336225 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 10-22 955 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a right knee disability, diagnosed as a round metallic foreign body and degenerative arthritis. 2. Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Emily L. Tamlyn, Counsel INTRODUCTION The Veteran served on active duty from September 1972 to August 1976. These matters come before the Board of Veterans' Appeals (Board) from an October 2008 RO rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran testified before the undersigned at a May 2013 videoconference hearing. A transcript of the hearing is associated with his claims folder. FINDINGS OF FACT 1. The Veteran has a round metallic foreign body and degenerative arthritis that occurred as a result of service. 2. At the May 2013 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew his claim for service connection for a left knee disability. CONCLUSIONS OF LAW 1. The criteria for the establishment of service connection for a right knee disability diagnosed as a round metallic foreign body and degenerative arthritis are met. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). 2. The criteria for withdrawal of a claim of service connection for a left knee disability by the Veteran have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA In this decision, the Board grants entitlement to service connection for a right knee disability diagnosed as a round metallic foreign body and degenerative arthritis. The Board also dismisses the claim of service connection for a left knee disability because the Veteran withdrew this claim. As this represents a complete grant of the benefits sought on appeal at this time, no further notice or assistance is required under the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013), is necessary. Service Connection Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). Establishing service connection generally requires evidence of (1) a current disability; (2) lay evidence of 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); degenerative joint disease/arthritis is a qualifying chronic disease. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As a result, service connection via the demonstration of continuity of symptomatology applies. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. See, 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013). In adjudicating this claim, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). In Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), the Federal Circuit reiterated that under 38 U.S.C.A. § 1154(a) VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for benefits. Citing Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit stated that under § 1154(a) lay evidence can be competent and sufficient to establish a diagnosis of a condition when: "(1) a layperson is competent to identify the medical condition, (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, 492 F.3d at 1377; see also 38 C.F.R. § 3.159(a)(2) (2013). The Board must also assess the credibility, and probative value of the evidence of record in its whole. In determining whether documents submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza, 7 Vet. App. 498. A current disability diagnosed as degenerative joint disease and a retained metallic foreign body, has been established based on the Veteran's statements and the VA treatment and examination records (See March 2008 X-ray and August 2008 VA physician's note). There is evidence of in-service knee symptomatology as shown by the Veteran's statements and a service treatment record showing complaints of right knee pain and findings of ligament strain. (May 2013 Board Transcript, pp 3, 7; June 1973 and December 1975 service treatment records). 38 U.S.C.A. § 1154(a); Shedden, 381 F.3d at 1167. The Board finds the Veteran competent to state that his right knee has been continuously symptomatic since service. See Jandreau, 492 F.3d at 1377. His credible testimony is bolstered by the service treatment records and is consistent with the circumstances of his service. 38 U.S.C.A. § 1154(a). As a result, the Veteran's assertions are assigned high probative value. The February 2010 VA examiner did not note the Veteran's assertion of continuous symptoms and stated that his degenerative arthritis was not caused by or a result of a lateral collateral ligament strain in service. While the March 2008 X-ray report was noted, the foreign body's presence was not explained or acknowledged by the examiner. The Board considers the rationale to be inadequate and consequently finds the opinion is not probative. There is no other probative medical evidence that conflicts with the Veteran's reports of continuous symptoms since service. The Board considers the Veteran's reports of symptoms, which he is competent to report, to be probative evidence of a nexus. See Walker, 708 F.3d 1331; Jandreau, 492 F.3d at 1377. Resolving reasonable doubt in the Veteran's favor, the current right knee disability, diagnosed as a round metallic foreign body and degenerative arthritis had its onset in service and service connection is warranted. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Withdrawn Claim 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 (2013). Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, at the May 2013 Videoconference Board hearing, the Veteran and his representative withdrew the claim of service connection for a left knee disability. There remain no allegations of errors of fact or law for appellate consideration. The Board does not have jurisdiction to review the claim of service connection for a left knee disability, and it is dismissed. ORDER Service connection for a right knee disability, diagnosed as a round metallic foreign body and degenerative arthritis, is granted. Service connection for a left knee disability is dismissed. ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs