Citation Nr: 1623432 Decision Date: 06/13/16 Archive Date: 06/29/16 DOCKET NO. 13-05 072 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for osteoarthritis of the right knee. 2. Entitlement to service connection for osteoarthritis of the left knee. 3. Entitlement to an initial compensable disability rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from May 1983 to January 1995 in the United States Army. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In April 2016, the Veteran testified before the undersigned during a hearing at the RO. A transcript of the hearing is included in the electronic claims file. The electronic filing system contains additional documents that were associated with the record since the RO's last readjudication of the claims without a waiver of RO jurisdiction. However, as the claims for service connection are being granted, and claim for a higher rating bilateral hearing loss is being dismissed at the Veteran's request, there is no risk of prejudice to him from proceeding without the waiver. FINDINGS OF FACT 1. A bilateral chronic knee disability manifested during service, and symptoms have been continuous since that time. 2. At the April 2016 Board hearing, after certification of the case to the Board and prior to the promulgation of a decision in the appeal, the Veteran and his authorized representative requested that the claim for entitlement to an initial compensable rating for bilateral hearing loss be withdrawn from appeal. CONCLUSIONS OF LAW 1. The criteria for service connection for osteoarthritis of the right and left knees have been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2015). 2. The criteria for withdrawal of the claim for entitlement to an initial compensable disability rating for bilateral hearing loss by the Veteran and his authorized representative 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 Knees 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, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to show a service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Furthermore, service connection can be established through application of statutory presumptions, including for chronic diseases such as arthritis, when manifested to a compensable degree within a year of separation from service. 38 U.S.C.A. §§ 1101, 1137; 38 C.F.R. § 3.307, 3.309. Under 38 C.F.R. § 3.303(b) , if a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. When the fact of chronicity in service (or during the presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative route to service connection only for the specific chronic diseases listed in of 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth at 38 U.S.C.A. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran has current osteoarthritis of the bilateral knees. See November 2010 VA treatment record, Virtual VA Entry 11/15/12, p. 4/25. As for the in-service incurrence of the disorder, at the outset, the Board notes that the RO determined the Veteran had a pre-existing bilateral knee disability at the time of his entry into service. The Board has reviewed the April 1983 entrance examination report, and while a notation was made involving the Veteran's lower extremities, the remark is illegible and it is unknown what condition was identified. The only legible portion of the notation is that the condition was "NCD," or not considered disabling. Moreover, the Veteran provided competent and credible testimony at the April 2016 hearing that while he experienced sports-related injuries and treatment to his knees prior to service, he was symptom-free on entry into service. The Board thus finds there is no clear and umistakable evidence that a bilateral knee disorder existed prior to the Veteran's period of active duty beginning in 1983. As such, the Veteran is presumed to have been sound on entry into service. Legal analysis of the claims as preexisting conditions is not applicable, and the Board will turn to a discussion of direct service connection. The record indicates that some service treatment records (STRs) are missing. In the absence of all of the records concerning his service, the Board has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). In spite of the incomplete service records, personnel documents received in April 2014 do show that during service, the Veteran was issued a "continuous string of renewed temporary profiles" due to chondromalacia of the knees. The records include one such profile issued in January 1992. A VA examination was not conducted. Nevertheless, the record contains the Veteran's consistent contentions of bilateral knee symptoms, including pain, continuing since service. At the April 2016 hearing, he testified to knee pain during physical training while running in combat boots. Knee pain continued during his duties as a tank mechanic, when he had to stand up and kneel down constantly, and then during training in flight school. He testified that immediately following discharge, he worked as a truck driver and his knees caused him difficulty due to pain and instability. He was issued a knee brace in 1997 by VA. Consistent with this account, an October 2008 VA treating provider noted his use of a knee brace since 1997. VA treatment records from 1995-1997 were requested, but only four pages were individually uploaded to VBMS; it is unclear whether this represents the totality of his medical treatment records from this time. Regardless however, the Veteran is permitted to report a continuity of symptomatology. Charles v. Principi, 16 Vet. App. 370 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). Further, his reports are credible. The totality of the record shows an onset of chronic knee symptomatology during service, continuity of symptoms since service, and a current bilateral knee disability; thus the presumption of service connection attaches. 38 C.F.R. § 3.303(b). In the absence of clear attribution to intercurrent causes, the Board finds that the Veteran's bilateral knee disability is related to service. Accordingly, resolving doubt in the Veteran's favor, service connection is established. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. Given the favorable disposition of the claim for service connection for osteoarthritis of the bilateral knees, all notification and development actions needed to fairly adjudicate the claim have been accomplished. Bilateral Hearing Loss 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 2014). 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 (2015). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. At the April 2016 hearing, the Veteran and his authorized representative withdrew the claim for entitlement to an initial compensable disability rating for bilateral hearing loss from appeal and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the claim and it is dismissed. ORDER Service connection for osteoarthritis of the right knee is granted. Service connection for osteoarthritis of the left knee is granted. The appeal as to the claim of entitlement to an initial compensable disability rating for bilateral hearing loss is dismissed. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs