Citation Nr: 1749589 Decision Date: 11/02/17 Archive Date: 11/13/17 DOCKET NO. 14-07 102 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right knee disorder, to include strain and residuals of medial meniscus tear, as secondary to the service connected disability of torn meniscus left knee condition. 2. Entitlement to service connection for right foot hallux valgus grade I-II foot condition (also claimed as a stubbed toe). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Cannon, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from October 1976 to December 1980 and from September 1990 to June 1991. He was honorably discharged. This matter comes before the Board of Veterans' Appeals (Board) from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Saint Petersburg, Florida. In May 2017, a video hearing was held before the undersigned. A transcript of that hearing is of record. In February 2009, The Veteran filed claims of entitlement to service connection for the following disorders: 1) right knee strain; 2) right foot hallux valgus; 3) low back disorder; 4) right elbow disorder; and 5) hypertension. In a July 2010, the RO denied service connection for all claims. In July 2011, the Veteran timely filed a notice of disagreement for all claims. A statement of the case was then issued in December 2013. In January 2014, the Veteran filed a VA Form 9, appealing only two claims-right knee strain and right foot hallux valgus. In May 2014, the two claims were certified to the Board, with a request for a hearing. During the hearing, the Veteran withdrew his claim for entitlement to service connection for right foot hallux valgus. Thus, the only issue remaining before the Board is entitlement to service connection for right knee strain as secondary to the service connected disability of torn meniscus left knee condition. The Board will also consider his claim for service connection for a right knee disorder as including currently diagnosed disorders of strain/sprain and residuals of medial meniscus tear. FINDINGS OF FACT 1. The evidence of record supports a nexus between the Veteran's right knee strain and residuals of meniscus tear and service. 2. On the record at the May 2017 personal hearing, prior to the promulgation of a decision in the appeal, the Veteran notified VA that he wanted to withdraw his appeal as to the denial of entitlement to service connection for right foot hallux valgus grade I-II foot condition (also claimed as a stubbed toe). CONCLUSIONS OF LAW 1. The criteria for service connection for right knee strain and residuals of medial meniscus tear have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2016). 2. The criteria for withdrawal of an appeal on the issue of entitlement to service connection for right foot hallux valgus grade I-II foot condition (also claimed as a stubbed toe). 38 U.S.C. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Entitlement to service connection for a right knee strain and residuals of medial meniscus tear Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service, even if the disability was initially diagnosed after service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of 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). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Service connection on a secondary basis may not be granted without medical evidence of a current disability and evidence of a nexus between the current disability and a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512-14 (1998). An increase in severity of a nonservice-connected disease or injury shall not be service-connected if it is due to the natural progression of the nonservice-connected condition. See Allen v. Brown, 7 Vet. App. 439 (1995). Regarding the first element, an August 2013 VA medical record indicates ligament sprain and "[n]ew posterior horn medial meniscal tear right knee, surgery scheduled . . . August 2013." This tear was repaired in September 2013. See August 2016 VA medical record. These diagnoses satisfy the first element of service connection. Regarding the second element, there is evidence of an in-service incident, for which the Veteran has separately been service-connected for status post right hamstring tendon avulsion and left fibula transverse nondisplaced fracture with degenerative joint disease, left knee (claimed as fibula fracture). During a June 2004 group training activity (called "litter bearing races" or "MASH BASH"), the Veteran fell, resulting in injuries to his knee and hamstring. See July 2004 Line of Duty Determination. Contemporaneous medical evidence describes the incident as "resulting in pain and bruising on the right posterior gluteal to medial knee region." See July 1, 2004 private medical record. The Veteran indicated knee pain in the month following the injury, which apparently resolved later that year. See July 9, 2004 private medical record; May 2005 private medical record; October 2004 private medical record. But knee pain returned in February 2007 after the Veteran twisted his knee on a ladder, and in March 2007 his private doctor indicated "right knee pain secondary to [degenerative joint disease] and also degenerative meniscal tears." The Veteran has regularly experienced knee pain since that time. This evidence of an in-service occurrence satisfies the second element of service connection. Regarding the third element, a June 2017 private medical doctor opines: "I think it is a very high likelihood, since he describes no other substantial right knee injury, that his right knee medial meniscal tear is more than likely associated with his injury to both legs on 6/25/2004." The Board notes that an August 2013 private medical record from the same medical clinic states: "Patient was doing fairly well until approximately 2 months ago when he was out of town and slipped and fell twisting his knee," which led to identification of "a grade 1 sprain of his medial collateral ligament as well as a complex radial tear of the posterior horn of his medial meniscus" and "a focal injury to his lateral femoral condyle." It is not clear why the private doctor did not specifically address this incident in rending the June 2017 opinion. A reasonable explanation is that the doctor felt that the 2013 post-service injury was minor compared to the June 2004 in-service injury. Comparison of the results of the two incidents supports this explanation. The June 2017 opinion is therefore probative because it is based on a review of the record and contains clear conclusions with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301-02 (2008). The weight of this evidence supports the third element of service connection. Having satisfied all three elements, the Veteran is entitled to prevail on his claim of entitlement to service connection for a right knee sprain and residuals of medial meniscus tear. The Board notes that an April 2010 VA examiner opined that he could not resolve the Veteran's claim "without resorting to mere speculation." This was based on the patient's medical records and there being "no objective medical records available to support this claim." The examiner's "mere speculation" conclusion is inadequate in that it contains no actual rationale, ignores the Veteran's lay statements, and ignores the medical evidence cited above. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). This opinion, therefore, does not affect the balance of the evidence in support of a grant of service connection. The Board also notes that the Veteran originally claimed entitlement to service connection as secondary to the service connected disability of torn meniscus left knee condition. But the June 2017 medical opinions provide support for this claim on a direct basis and there is no medical opinion of record addressing secondary service connection. The Board, therefore, need not specifically address this alternative basis for entitlement to service connection, as the Veteran has already met the requirements for service connection on a direct basis. B. Withdrawal of claim of entitlement to service connection for hallux valgus Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. At the May 2017 personal hearing, prior to the promulgation of a decision in the appeal, the Veteran in testimony to the undersigned notified VA that he wished to withdraw his appeal as to the denial of his claim of entitlement to service connection for right foot hallux valgus grade I-II foot condition (also claimed as a stubbed toe). This testimony has since been converted into a written transcript that has been associated with the claims file. Therefore, the Board finds that VA has received a written statement from the Veteran in which he clearly articulates his intent to withdraw these claims from appellate status and it was received by VA prior to the issuance of a final decision as to these issues. See Tomlin v. Brown, 5 Vet. App. 355 (1993) (the transcript of a personal hearing may act as a substantive appeal). As such, the Board finds that there remains no allegation of error of fact or law for appellate consideration with respect to this issue. Accordingly, the Board does not have jurisdiction and the claim is dismissed. ORDER Entitlement to service connection for right knee strain and residuals of medial meniscus tear is granted. The appeal of the denial of the claim of entitlement to service connection for right foot hallux valgus grade I-II foot condition (also claimed as a stubbed toe) is dismissed. ____________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs