Citation Nr: 1800078 Decision Date: 01/03/18 Archive Date: 01/19/18 DOCKET NO. 14-35 239A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased rating for postoperative meniscectomy of the right knee. 2. Entitlement to service connection for left hip degenerative joint disease, to include as secondary to service-connected disabilities of the right knee. 3. Entitlement to service connection for a left knee disability, to include as secondary to service-connected disabilities of the right knee. 4. Entitlement to service connection for a lumbar spine condition, to include as secondary to service-connected disabilities of the right knee. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran, wife ATTORNEY FOR THE BOARD C. Edwards, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1975 to April 1977. These matters come to the Board of Veterans' Appeals (Board) on appeal from decisions of Department of Veterans Affairs (VA) Regional Offices (RO). In September 2017, the Veteran had a videoconference hearing before the undersigned VLJ; a transcript of the hearing is of record. In written statements, the Veteran requested that the Board withdraw his claims for an increased rating for his right knee condition and service connection for left hip degenerative joint disease. These claims are effectively withdrawn. At his hearing, the Veteran requested and was granted a 30-day extension to submit evidence in support of his claim for service connection for a lumbar spine condition. The requested period has expired, and no additional evidence has been submitted. In this decision, the board is granting service connection for a left knee disability. The issue of service connection for a lumbar spine condition is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a June 2017 statement, the Veteran reported his desire to withdraw his pending claim for an increased rating for his right knee disability. 2. In a December 2017 statement, the Veteran reported his desire to withdraw his pending claim for service connection for left hip degenerative joint disease. 3. Resolving reasonable doubt in the Veteran's favor, his left knee disability is proximately due to his service-connected right knee condition. CONCLUSIONS OF LAW 1. The claim for an increased rating for the Veteran's right knee disability is withdrawn. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). 2. The claim for entitlement to service connection for left hip degenerative joint disease is withdrawn. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 3. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for a left knee disability have been met. 38 U.S.C. §§ 1110, 1117, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has considered the Veteran's claims and decided entitlement based on the evidence or record. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Claim Withdrawal In written statements from June and December 2017, the Veteran reported that he wished to withdraw his claims for an increased rating for his right knee disability and service connection for left hip degenerative joint disease. A Veteran may withdraw the substantive appeal in writing at any time prior to the Board's promulgation of a decision. 38 C.F.R. § 20.204. The Board finds that the Veteran effectively withdrew his substantive appeals for a right knee disability and left hip degenerative joint disease. Therefore, the Board concludes that no allegation of fact or law remains, and the issues are dismissed. 38 U.S.C. § 7105. Service Connection The Veteran asserts that his left knee disability is due to years of compensating for his right knee disability. Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303(a), 3.304. In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury where nexus evidence establishes a connection between the service-connected disability and the current disability. 38 C.F.R. § 3.310(a) (2016); see also Wallin v. West, 11 Vet. App. 509, 512 (1998). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). Regarding the Veteran's left knee disability, he reports experiencing problems with it since 2006. He stated that he suffered from popping, catching, locking, grating, giving way, stiffness, and pain on weight bearing. The Veteran was diagnosed with degenerative joint disease of the left knee. He had steroid shots and participated in physical and aquatic therapies. Medical records to date document trouble walking and standing; joint effusion; and use of a cane, walker, wheelchair, and bilateral knee braces. A July 2017 private medical examination showed the Veteran to have left knee pain which is present all of the time. He had pain on weight bearing and at rest. He used uploader knee braces, a cane or walker, and cushioned supportive shoes. The Veteran walked with flexion contractures of both knees and had general atrophy of both quadriceps and both thigh muscles. On x-ray, bone on bone changes were present. The examiner opined that the Veteran could not walk and did not have the flexibility for a bike. He determined that "the most likely etiology of his degenerative joint of his left knee is the fact that his right knee had surgery 41 years ago and he has been favoring the left lower extremity during two-thirds of his life and that has worn his left knee out prematurely." The examiner went on to say that it is common for patients to favor a limb because of degenerative changes in the collateral side thus wearing out the limb they favor. Though the record contains negative nexus opinions, the Board finds the private medical opinion to be of the most probative value. As an orthopedic specialist, the examiner described the Veteran's left knee disability as something seen commonly, every day and based his opinion on his years of experience. The Board therefore concludes that, with the benefit of the doubt resolved in the Veteran's favor, a grant of service connection for headaches is warranted. See Gilbert v. Lewinski, 1 Vet. App. 49, 55 (1990) ("[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 claim for entitlement to an increased rating for a right knee disability is dismissed. The claim for entitlement to service connection for left hip degenerative joint disease is dismissed. Service connection for a left knee disability is granted. REMAND The issue of whether the Veteran is entitled to service connection for a lumbar spine condition is remanded for further development. The Veteran testified that, in shifting his weight to his left knee to compensate for his right, he has caused damage to his lumbar spine. As the Veteran is not a medical professional qualified to determine whether his lumbar spine pain is secondary to his right knee disability, an examination should be conducted. While on remand, additional treatment records should be obtained, if available. Accordingly, the case is REMANDED for the following action: 1. Obtain current VA treatment records. 2. Schedule the Veteran for an appropriate examination for a lumber spine condition. The examiner is asked to opine whether it is as least as likely as not (50 percent probability or more) that the Veteran's claimed lumbar spine condition had its onset in or is otherwise related to his military service. The examiner should also opine as to whether it is as least as likely as not (50 percent probability or more) that the Veteran's claimed lumbar spine condition is caused or aggravated by the Veteran's service-connected right knee disability. 3. After completing the above, and any additional development deemed warranted, readjudicate the claim on appeal. If the benefit on appeal remains denied, furnish the Veteran and his representative with a copy of a supplemental statement of the case (SSOC) and allow an appropriate time for response. Thereafter, return the file to the Board for further appellate consideration The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs