Citation Nr: 1627396 Decision Date: 07/11/16 Archive Date: 07/22/16 DOCKET NO. 13-09 229A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for arthritis of the right knee. 2. Entitlement to service connection for prostate cancer. 3. Entitlement to service connection for bilateral ankle strain. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jeremy J. Olsen, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from September 1974 to June 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In May 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A copy of the transcript is of record. FINDINGS OF FACT 1. At the May 2016 Board hearing, before a Board decision was issued, the Veteran expressed the desire to withdraw his appeal concerning an increased disability rating for right knee arthritis and entitlement to service connection for prostate cancer. 2. Resolving all doubt in favor of the Veteran, his bilateral ankle strain is due to his military service. CONCLUSIONS OF LAW 1. The criteria for the withdrawal of the substantive appeal as to the issue of an increased disability rating in excess of 10 percent for arthritis of the right knee are met. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.204 (2015). 2. The criteria for the withdrawal of the substantive appeal as to the issue of entitlement to service connection for prostate cancer are met. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.204 (2015). 3. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral ankle strain are met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal of Appeal Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing or on record at a hearing at any time before the Board promulgates a decision. Withdrawal may be made by the veteran or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, on the record at the May 2016 Board hearing, the Veteran withdrew the appeal for a higher disability rating for arthritis of the right knee and for service connection for prostate cancer; therefore, there remain no allegations of errors of fact or law for appellate consideration with respect to these issues. Accordingly, the Board does not have jurisdiction to review the appeal further with respect to these issues, and they will be dismissed without prejudice to refiling. Service Connection Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303(a) (2015). Generally, in order to prove 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). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran asserts that his current bilateral ankle strain (hereinafter "ankle disorder") is due to his military service. The Veteran testified that he injured his ankles during service, as a result of repeated parachute jumps. The Veteran has submitted a private medical opinion concerning his ankle disorder, undergone a VA examination, and submitted statements from his fellow service members concerning his ankles. After a careful review of the Veteran's claims file the Board finds that in this case, the benefit of the doubt allows for a grant of service connection for an ankle disorder. The Veteran served in the U.S. Army from September 1974 to June 2004. According to the Veteran's service treatment records, he was treated in June 1975 for an ankle injury; at that time, a diagnosis of "possible arthritis" was given. In June 1976, the Veteran was again seen for complaints of pain in both of his ankles, which was aggravated by walking. At that time, the diagnosis rendered was "possible traumatic arthritis." The next month, the Veteran was seen again for ankle pain. At that time, he was diagnosed with arthritis. In September 1976 the Veteran was treated for a sprained left ankle. Subsequent reports of medical examination show the Veteran's lower extremities were normal. In March 1990, the Veteran was again treated for a sprained right ankle. His April 2004 discharge physical listed multiple diagnoses concerning various parts of the Veteran's body, including his feet and legs, but was silent as to any ankle problems. Multiple lay statements were submitted in support of the Veteran's claim. A December 2009 statement from Colonel U.B. indicated that he had known the Veteran for 30 years and knew him to have chronic problems with his ankles. A statement from the Veteran's friend, J.J.C., received by VA in December 2009, described serving with the Veteran and performing frequent airborne operations from 1979 to 1983. J.J.C. described the heavy rucksacks that he and the Veteran were required to carry while marching long distances when serving together in Honduras from 1985 to 1987. He also indicated that it was during this period that he noticed the Veteran started to describe ankle pain. J.J.C. further described serving with the Veteran from 1999 to 2002, and observing the Veteran have difficulty walking due to the pain in his knees and his ankles. Turning to the question of whether there is an etiological relationship between the Veteran's current ankle disorder and service, the Board notes that the record contains two etiological opinions which must be considered and weighed. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)); see also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (stating that the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). When faced with conflicting medical opinions, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). In December 2009, the Veteran submitted a medical opinion from Dr. M.E.E. The doctor indicated that he had reviewed the Veteran's file and noted the in-service treatment for bilateral ankle pain, diagnosed as possible traumatic arthritis, as well as the July 1976 diagnosis of arthritis. He referenced additional treatment for an ankle condition. The doctor concluded that the Veteran's ankle condition was directly related to his active duty service. As rationale, he indicated that the condition existed when the Veteran was in service and that he was still being treated for it. Although Dr. M.E.E. seems to characterize the Veteran's ankle disorder as degenerative joint disease, for which there is no x-ray proof or diagnosis in the file, the Board nonetheless finds that overall this opinion has a clear conclusion and supporting data, as well as a reasoned opinion connecting the two, as it relates to the Veteran's ankle disorder. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Thus, it is afforded great probative value. In June 2010, the Veteran underwent a VA examination. At that time, the VA examiner noted that the Veteran experienced pain and stiffness and treated his ankle condition with over-the-counter medication. On examination, the Veteran was found to have abnormal motion of the left and right ankle. Range of motion testing showed no objective evidence of pain with active motion on either side. Bilateral dorsiflexion was measured at 15 degrees, and bilateral plantar flexion was 35 degrees. There was an absence of ankylosis and no objective evidence of pain following repetitive motion. X-ray testing showed no significant arthritic changes of the ankles. A soft tissue calcification in the medial aspect of the right ankle was noted to be possibly related to old trauma. The examiner diagnosed the Veteran with recurrent bilateral ankle strain. On the question of nexus to military service, the examiner found that it was less likely than not that the Veteran's ankle disorder was caused by his military service. As rationale, the examiner noted that the Veteran had a left ankle sprain in 1976 and a right ankle sprain in 1990, both of which healed. The examiner noted no other specific ankle injuries and no chronic ankle problems while in service. The Board notes that the VA examiner's opinion appears to be based on an inaccurate factual premise, as the Veteran's service treatment records, detailed above, show multiple incidents of treatment for ankle problems not noted in the examiner's opinion. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based upon an inaccurate factual premise has no probative value). Therefore, the opinion of the VA examiner is afforded little probative value. After considering the totality of the evidence, to include the medical and lay evidence, and resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for recurrent bilateral ankle strain. The most probative opinion of record indicates that the Veteran's condition was incurred in, and has existed since, service; the whole of the competent, credible lay evidence supports such a finding. In reaching this conclusion, the Board finds that the evidence is, at least, in a state of equipoise. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER The appeal for a rating in excess of 10 percent for a right knee disability, having been withdrawn, is dismissed. The appeal for service connection for prostate cancer, having been withdrawn, is dismissed. Service connection for bilateral ankle strain is granted. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs