Citation Nr: 1602839 Decision Date: 01/29/16 Archive Date: 02/05/16 DOCKET NO. 13-05 777 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a right knee disability, diagnosed as patellofemoral pain syndrome. 2. Entitlement to service connection for a chest disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Tracie N. Wesner, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1999 to May 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2004 and January 2011 rating decisions from a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned in October 2015. A transcript of that hearing is of record. The Veteran's claim of service connection for a right knee disorder was initially denied in an August 2004 rating decision. A Notice of Disagreement (NOD) was received by VA on November 1, 2004. No Statement of the Case (SOC) was issued in response to the NOD; instead, the RO issued another rating decision in August 2005 confirming the denial of the Veteran's claim. Because no SOC was issued in response to the Veteran's November 2004 NOD, the case has remained in appellate status despite the RO's later issuance of several rating decisions confirming and continuing the denial of service connection for a right knee disorder. Myers v. Principi, 16 Vet.App. 228, 235-36 (2002). "[O]nce an NOD has been filed, further RO decisions, which do not grant the benefit sought, cannot resolve the appeal that remains pending before the Board." Juarez v. Peake, 21 Vet. App. 537, 543 (2008); see also Tablazon v. Brown, 8 Vet.App. 359, 361 (1995) (holding that because the RO did not furnish the claimant with a SOC in response to a timely filed NOD, the claimant was unable to file a timely appeal to the Board, and therefore, the RO decision never became final). In this case, like in Myers, the August 2004 rating decision did not become final because the RO did not issue an SOC. Thus, the August 2004 rating decision is the proper rating decision on appeal. FINDINGS OF FACT 1. The Veteran's right knee patellofemoral pain syndrome had its onset in service. 2. Prior to the issuance of a decision in the appeal, the Veteran withdrew his claim for entitlement to service connection for a chest disorder. CONCLUSIONS OF LAW 1. The criteria to establish service connection for right knee patellofemoral pain syndrome have been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). 2. The criteria for withdrawal of a claim for entitlement to service connection for a chest disorder have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Right Knee Patellofemoral Pain Syndrome The Board finds that service connection for right knee patellofemoral pain syndrome is warranted. Service connection may be granted for a disability or injury incurred in active military service, meaning that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a) (2015). Here, the Veteran has been diagnosed with bilateral patellofemoral pain syndrome. See February 2011 VA Medical Opinion. His service treatment records (STRs) show that he reported multiple instances of right knee pain during his active duty service, beginning in October 1999 when he reported gradual onset right knee pain while running. See October 1999 STR. He was noted to have bilateral knee pain during basic training with a positive history of swelling and giving way in the right knee. See October 1999 and November 1999 STRs. He was diagnosed with bilateral retropatellar pain syndrome and patellar femoral syndrome. See November 1999, January 2001 and May 2001 STRs. He continued to complain of right knee pain during service, and was placed on physical profile due to his bilateral knee pain. See January 2001, April 2001 and May 2001 STRs; July 2001 Physical Profile. In April 2001, he reported feeling a popping behind his right knee, causing him to fall to his knee. See April 2001 STR. He was found to have swelling with pain to the back of the knee. See id. At his hearing before the Board, the Veteran testified that the right knee symptoms he experienced during service have been ongoing and recurrent since that time. See Hearing Tr. at 8. The VA examinations and medical records also show ongoing complaints of right knee symptoms since his separation from service. See August 2005 and October 2010 VA Examination Reports; see also July 2006, August 2006 and November 2008 VA Medical Records. Although the only medical nexus opinion of record is negative, one is not necessary in light of the lay evidence of record concerning the onset and recurrence of the Veteran's symptoms. King v. Shinseki, 700 F.3d 1339, 1344-45 (Fed. Cir. 2012); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Additionally, the Board affords the May 2011 VA examiner's negative nexus opinion little probative value because it was based on an inaccurate history, i.e., that the Veteran's STRs only showed one instance of right knee symptoms in service with no post-service complaints shown. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); see also Reonal v. Brown, 5 Vet. App. 458 (1993). Thus, resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for right knee patellofemoral pain syndrome is warranted. II. Withdrawn Claim An appeal may be withdrawn by an appellant or his or her authorized representative 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. At the October 2015 hearing before the Board, the Veteran withdrew his appeal in connection with a claim for entitlement to service connection for a chest disorder. See October 2015 Hearing Tr. at 2. Accordingly, the Board does not have jurisdiction to review this claim, and it is dismissed. ORDER Service connection for right knee patellofemoral pain syndrome is granted. The appeal regarding the claim for entitlement to service connection for a chest disorder is dismissed. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs