Citation Nr: 1754536	
Decision Date: 11/29/17    Archive Date: 12/07/17

DOCKET NO.  15-42 539A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1. Entitlement to service connection for cervical spine degenerative disc disease and arthritis.

2. Entitlement to service connection for peptic ulcer disease.

3. Entitlement to service connection for bilateral degenerative joint disease status post knee replacements.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESSES AT HEARING ON APPEAL

The Veteran and the Veteran's husband

ATTORNEY FOR THE BOARD

D. Ware, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the U.S. Army from June 1980 to October 1980.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  

In March 2017, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge.  A copy of the hearing transcript has been associated with the record.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1. In October 2016, the Board received notification that the Veteran wanted to withdraw the issues of entitlement to service connection for cervical spine degenerative disc disease and arthritis and peptic ulcer disease.

2. The Veteran's bilateral degenerative joint disease status post knee replacements manifested in service and is attributable to service.




CONCLUSIONS OF LAW

1. The criteria for withdrawal of the appeal with respect to the issues of entitlement to service connection for cervical spine degenerative disc disease and arthritis and peptic ulcer disease have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2017).

2. Resolving reasonable doubt in favor of the Veteran, the criteria for entitlement to service connection for bilateral degenerative joint disease status post knee replacements have been met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Withdrawal

The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105.  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204.  The Veteran or the Veteran's authorized representative may withdraw an appeal.  Id. 

In the present case, the Veteran submitted a written statement withdrawing the issues of entitlement to service connection for cervical spine degenerative disc disease and arthritis and peptic ulcer disease.  See October 2016 VA Form 21-4138 Statement in Support of Claim.  As such, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appeal, and the issues are dismissed.

Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the evidence of record supports a grant of service connection for bilateral degenerative joint disease status post knee replacements.  

First, the Board finds that there is evidence of a current disability.  The Veteran has bilateral degenerative joint disease status post knee replacements.  See November 2012 VA examination report; see also February 2009 and June 2011 Private Medical Records.

Second, there is evidence of an in-service event, disease, or injury.  Specifically, the Veteran contends that she has bilateral degenerative joint disease that began in basic training because of chondromalacia patellae.  See January 2014 Notice of Disagreement; see also March 2017 Transcript of Hearing at 4.  July to September 1980 service treatment records note that the Veteran had chondromalcia in both her right and left knees.  Additionally, in March 2017, the Veteran testified that her knee pain began during basic training from going up and down hills as well as from running and squatting.  See March 2017 Transcript of Hearing at 15-16.  The Board notes that the Veteran is competent to report events that are consistent with her service and the Board has no reason to question the credibility of her statements in this regard.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).

Third, the Board finds that the evidence is at least in equipoise as to whether the Veteran's bilateral knee condition is related to service.  Although a November 2012 VA examiner was unable to provide an opinion, a private medical provider opined that the Veteran's current degenerative joint disease in both knees was consistent with long term consequences of injuries she sustained from marching and hiking during service.  He added that the in-service knee injuries contributed to the Veteran's "ultimate need" for bilateral total knee replacements.  See Dr. B.B.'s January 2016 letter.  In support of this opinions, Dr. B.B. reviewed the Veteran's medical history and relied on his own medical expertise, knowledge, and training.  

The law is clear.  Pursuant to the "benefit-of-the-doubt" rule, where there is "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue.  38 U.S.C.A. § 5107 (West 2014).  The Board therefore concludes that, with the benefit of the doubt resolved in the Veteran's favor, a grant of service connection for bilateral degenerative joint disease status post knee replacements is warranted.  See Gilbert, 1 Vet. App. at 49, 55 ("[T]he 'benefit of the doubt' standard is similar to the rule deeply embedded in sandlot baseball folklore that 'the tie goes to the runner'.... [I]f ... the play is close, i.e., 'there is an approximate balance of positive and negative evidence,' the veteran prevails by operation of [statute].").

ORDER

The appeal for the issues of entitlement to service connection for cervical spine degenerative disc disease and arthritis and peptic ulcer disease is dismissed.

Service connection for a bilateral degenerative joint disease status post knee replacements is granted.


____________________________________________
ANTHONY C. SCIRÉ, JR.
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs