Citation Nr: 1602767	
Decision Date: 01/29/16    Archive Date: 02/05/16

DOCKET NO.  11-16 856	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to service connection for systemic lupus erythematosus.

2.  Entitlement to a rating in excess of 10 percent for left knee chondromalacia patella.


REPRESENTATION

Appellant represented by:	Alabama Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

Mary E. Rude, Associate Counsel


INTRODUCTION

The Veteran served on active duty for training from January 1990 to June 1990 and on active duty from December 1990 to March 1996.

These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2005 and November 2008 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. 

The Veteran testified before the undersigned at a Board hearing in February 2015.  A transcript of this hearing has been associated with the claims file.

At the February 2015 hearing, the Veteran and her representative clarified that although the April 2011 statement of the case characterized the issues on appeal as separate claims for lupus to include arthralgias and connective tissue disease, a right knee disability, rheumatoid arthritis, and Raynaud's disease, they intended for the claim to be one of entitlement to service connection for lupus, and the other issues listed were a group of symptoms related to lupus.  The Board has therefore recharacterized the issue as reflected above.

The claims file is now entirely in VA's secure electronic processing systems, Virtual VA and Veterans Benefits Management System (VBMS).


FINDINGS OF FACT

1.  The Veteran currently has a diagnosis of lupus, and evidence indicates that it as likely as not had its onset during her active duty service.

2.  In a February 2010 correspondence, the Veteran withdrew her appeal concerning the issue of entitlement to a rating in excess of 10 percent for left knee chondromalacia patella.


CONCLUSIONS OF LAW

1.  The criteria for service connection for lupus have been met.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2015).

2.  The criteria for withdrawal of the substantive appeal on the issue of entitlement to a rating in excess of 10 percent for left knee chondromalacia patella have been met.  38 U.S.C.A. § 7105(b)(2) (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In light of the fully favorable determination in this case, no further discussion of compliance with VA's duty to notify and assist is necessary.

I. Lupus

The Veteran contends that she has lupus, which first began during her active duty service.  At the February 2015 Board hearing, she testified that while in service she experienced aching and swollen joints, frequent fevers, night sweats, skin rashes, anemia, muscle weakness, hair loss, tooth loss, and sores.  Board Hearing Transcript 4.  She stated that these symptoms worsened when she left service and that she was eventually diagnosed with lupus in 1999.  Id. at 9-12.

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 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 three things: (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).

After reviewing all of the evidence of record, the Board finds that the criteria for establishing entitlement to service connection for lupus have been met.

The Veteran clearly has a current disability, as she was diagnosed with subacute cutaneous lupus erythematosus by the December 2013 VA examiner.  Her private treatment records also show that she has been receiving treatment for diffuse arthralgias and joint stiffness which was diagnosed as Raynaud's syndrome and later as systemic lupus erythematosus.

The Veteran's service treatment records support her credible assertions that her symptoms first began in service.  They show that in August 1992 she complained of a rash on her face for the past week and reported having a history of similar rashes in the neck region.  In November 1992, the Veteran had a slightly elevated temperature, and in December 1992 she complained of dizziness and headache.  They also contain several records of treatment related to knee, thigh, and foot pain.  The November 1995 Report of Medical History notes knee and hip pain since 1994 with etiology unknown and leg cramps since 1991.

The Veteran's physician submitted a letter in March 2009 which states that review of her service treatment records showed that she had complained several times of multiple joins pains including hip, knee, and foot pain, as well as facial rash and night sweats, and that these symptoms were likely due to lupus, which unfortunately was not diagnosed until 1999.

The Board therefore finds that there is adequate evidence showing that the Veteran had disease symptoms that manifested in service and a competent and probative medical opinion found that those symptoms are related to her current diagnosis.  

The Board does acknowledge that the December 2013 VA examination opinion weighs against the claim.  However, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990).  

The Board therefore finds that the evidence is at least in equipoise regarding the relationship of the Veteran's lupus and her service.  Hence, affording the Veteran the benefit of the doubt, entitlement to service connection for systemic lupus erythematosus is warranted.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

II. Withdrawal

A substantive appeal may be withdrawn in writing, except for appeals withdrawn on the record at a hearing, at any time before the Board promulgates a decision.  38 C.F.R. §§ 20.202, 20.204(b).  Withdrawal may be made by the appellant or by an authorized representative.  38 C.F.R. § 20.204(c).

In a February 2010 correspondence, the Veteran stated that she wished to withdraw the claim of entitlement to a rating in excess of 10 percent for left knee chondromalacia patella.  Therefore, there remains no allegation of errors of fact or law for appellate consideration with regards to this matter.  Accordingly, the Board does not have jurisdiction to review the appeal of this issue, and the claim is dismissed.


ORDER

Entitlement to service connection for systemic lupus erythematosus is granted.

The appeal of the issue concerning entitlement to service connection for a rating in excess of 10 percent for left knee chondromalacia patella is dismissed.




____________________________________________
S. C. KREMBS
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs