Citation Nr: 1805408	
Decision Date: 01/26/18    Archive Date: 02/07/18

DOCKET NO.  07-31 901	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUES

1. Entitlement to an initial rating in excess of 20 percent for right shoulder impingement syndrome.

2. Entitlement to an initial rating in excess of 10 percent for lumbar spine disability.

3. Entitlement to an initial compensable rating for chronic right hamstring muscle strain.

4. Entitlement to an initial compensable rating for left lower extremity lipoma.  

5. Entitlement to service connection for a right knee strain (previously claimed as a right knee disability).


REPRESENTATION

Appellant represented by:	Daniel J. Tuley, Attorney
WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Matthew Miller, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 2000 to February 2004.

This appeal first came before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from a March 2004 rating decision of the VA Regional Office (RO) in Seattle, Washington. The Veteran now resides within the jurisdiction of the Los Angeles, California VA RO.

The appellant was afforded a Travel Board hearing in March 2016 before the undersigned Veterans Law Judge sitting at Los Angeles, California. The transcript is of record.   

In June 2016, the Board remanded the Veteran's appeal for additional evidentiary development. It has since returned to the Board for further consideration.

This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Any future consideration of this appellant's case should take into account the existence of these records. 
 


FINDINGS OF FACT

1. In December 2017 correspondence, the Veteran and his representative stated that they wished to withdraw from appellate consideration the issues of entitlement to an initial rating in excess of 20 percent for right shoulder impingement syndrome, entitlement to an initial rating in excess of 10 percent for lumbar spine disability, entitlement to an initial compensable rating for chronic right hamstring muscle strain, and entitlement to an initial compensable rating for left lower extremity lipoma. 

2. Probative medical evidence of record now demonstrates that the Veteran's right knee strain (previously claimed as a right knee disability) is as likely as not related to an injury during service or had its onset during service.


CONCLUSIONS OF LAW

1. The criteria for withdrawal of a substantive appeal on the issue of entitlement to an initial rating in excess of 20 percent for right shoulder impingement syndrome have been met and the appeal as to this issue is withdrawn. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).

2. The criteria for withdrawal of a substantive appeal on the issue of entitlement to an initial rating in excess of 10 percent for lumbar spine disability have been met and the appeal as to this issue is withdrawn. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 

3. The criteria for withdrawal of a substantive appeal on the issue entitlement to an initial compensable rating for chronic right hamstring muscle strain have been met and the appeal as to this issue is withdrawn. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204.

4. The criteria for withdrawal of a substantive appeal on the issue of entitlement to an initial compensable rating for left lower extremity lipoma have been met and the appeal as to this issue is withdrawn. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204.

5. Resolving the benefit of doubt in favor of the Veteran, the criteria for service connection for a right knee strain (previously claimed as a right knee disability) have been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.103, 3.159, 3.303, 3.304 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Dismissal

An appeal consists of a timely filed notice of disagreement in writing, and after a statement of the case has been furnished, a timely filed substantive appeal. 38 U.S.C. § 7105(a); 38 C.F.R. § 20.200 (2017). 

A substantive appeal may be withdrawn by an appellant or an appellant's authorized representative at any time before the Board promulgates a final decision. 38 C.F.R. § 20.204(b). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. In December 2017 correspondence, the Veteran and his representative stated that they wished to withdrawn the appeal for the issues of entitlement to an initial rating in excess of 20 percent for right shoulder impingement syndrome, entitlement to an initial rating in excess of 10 percent for lumbar spine disability, entitlement to an initial compensable rating for chronic right hamstring muscle strain, and entitlement to an initial compensable rating for left lower extremity lipoma.

Having met the requirements of 38 C.F.R. § 20.204, the Veteran has withdrawn his substantive appeal with respect to the above referenced issues. Accordingly, the Board does not have jurisdiction to decide the appeal for these benefits.
Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist a claimant in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C. §§ 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). The VCAA applies in the instant case. However, the Board's grant of entitlement to service connection for a right knee strain (previously claimed as a right knee disability) herein represents a complete grant of the benefit sought on appeal. Thus, no further discussion of VA's duty to notify and assist is necessary.

Legal Principles

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 

As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999).

Arthritis, if manifest to a degree of 10 percent within one year after separation from active duty, may be presumed to have been incurred in service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). Alternatively, a nexus to service may be presumed where there is continuity of symptomatology since service. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when 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. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

Analysis

The Veteran seeks entitlement to service connection for a right knee strain (previously claimed as a right knee disability).

The Veteran's service treatment records from January 2001 show an assessment of right knee pain after complaints of instability, and he was given a knee wrap to use for a few days. The Veteran later complained of additional right knee pain in January 2002 after using an exercise bike. Later that same month, the Veteran was seen in the emergency room for right knee pain with effusion, where an x-ray showed fluid in the knee. It was noted as chronic right knee pain, with probable patella tender inflammation. Reports from November 2003 showed additional knee trouble and pain, along with swollen or painful joints requiring the use of a knee brace and ice. A February 2004 record noted degenerative/arthritic changes in the knees and other joints.  

The Board observes that there are an extensive amount of post-service records documenting the Veteran's treatment for a number of conditions. While these records are silent as to an etiological opinion, it appears that the Veteran has received some VA therapy for many of his joints, including his knees.

The Veteran has also submitted a January 2016 report from his private physician, Dr. Kao. Dr. Kao stated that he had been treating the Veteran since December 2010 and that the Veteran has complained of chronic right knee pain, along with additional pain that radiates down his shoulder and back and into his legs. Dr. Kao also stated that the Veteran indicated that he has suffered from these pains since the time of his military service. 

Pursuant to the Board's June 2016 remand, the Veteran was afforded a VA examination in March 2017. The Veteran reported that his right knee pain began in 2001 after a long hike and that he has suffered from constant pain and limited movement since that time. The examiner diagnosed the Veteran with a right knee strain. Range of motion testing for the right knee was abnormal and pain/crepitus was also noted on examination. Diagnostic testing results were normal knee, bilaterally. After a review of the Veteran's electronic claims file and examination results, the examiner determined that the Veteran's right knee strain is less likely than not incurred in or caused by his service. The examiner noted the Veteran's in service treatment for his right knee pain, but reasoned that there "is no chronological medical evidence in the 13 year gap of the Veteran leaving service to suggest a chronic right knee strain that developed while in the military." 

The Veteran later submitted a December 2017 report from a different private physician, Dr. Bebout. Dr. Bebout indicated that he had reviewed the Veteran's electronic claims file and noted the relevant in service treatment records for right knee pain. Dr. Bebout concluded that:

It is clear in reviewing [the Veteran's] record, he suffered knee injuries and was treated on multiple locations while in military service. [The Veteran] continues to have issues to this day. I believe it to be at least as likely as not that his initial knee complaints and his current knee issues can be attributed to his time and activities in military service.

After carefully considering the Veteran's contentions and reviewing the evidence of record, the Board finds that the preponderance of the most probative evidence supports the grant of service connection for a right knee strain (previously claimed as a right knee disability).

When evaluating medical opinions it is the province of the Board to weigh the evidence and decide where to give credit and where to withhold the same, and in so doing, to also accept certain medical opinions over others. See Evans v. West, 12 Vet. App. 22, 30 (1999). The Board cannot make its own independent medical determinations, and there must be plausible reasons for favoring one opinion over another. See Colvin v. Derwinski, 1 Vet. App. 171 (1991).

Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail and whether there was review of the Veteran's claims file. Prejean v. West, 13 Vet. App. 444 (2000). An evaluation of the probative value of a medical opinion or diagnosis is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusions reached. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). 

When confronted with conflicting medical opinions, the Board must weigh each and favor one competent medical expert over another if its statement of reasons and bases is adequate to support that decision. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board must also determine which of the competing medical opinions is more probative of the medical question at issue. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008).

Here, the Board places substantial probative value on the December 2017 report from Dr. Bebout, as he indicated a complete review of the Veteran's electronic claims file and provided a thorough summary of the Veteran's treatment history. While the March 2017 VA examiner determined that the Veteran's right knee strain is not attributable service, the rationale was less probative and the examiner did not address the various VA treatment and therapy reports, nor did the examiner address the January 2016 report from another private provider, Dr. Kao.

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. § 5107. Here, the Board finds that the evidence of record is at least in equipoise as to whether the Veteran's right knee strain (previously claimed as a right knee disability) was incurred in service. As such, the criteria for service connection are met and the claim is granted.


ORDER

Entitlement to an initial rating in excess of 20 percent for right shoulder impingement syndrome is dismissed.

Entitlement to an initial rating in excess of 10 percent for lumbar spine disability is dismissed.

Entitlement to an initial compensable rating for chronic right hamstring muscle strain is dismissed.

Entitlement to an initial compensable rating for left lower extremity lipoma is dismissed.

Entitlement to service connection for a right knee strain (previously claimed as a right knee disability) is granted.


____________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs