Citation Nr: 20046933 Decision Date: 07/14/20 Archive Date: 07/14/20 DOCKET NO. 18-51 704 DATE: July 14, 2020 ORDER The appeal for service connection for a prostate condition (manifested by frequent urination) is dismissed. Service connection for a right elbow condition is granted. FINDINGS OF FACT 1. At the Veteran’s May 2020 Board hearing, he clearly and unambiguously withdrew the appeal for service connection for a prostate condition manifested by frequent urination. Based on the pre-hearing conference, the undersigned veterans law judge is satisfied that this was an informed withdrawal. 2. At the Veteran’s May 2020 Board hearing, he provided competent and credible testimony that his right elbow osteoarthritis, which was diagnosed in November 2016, is reasonably shown to be related to or caused by active service. CONCLUSIONS OF LAW 1. The criteria are met for withdrawal of an appeal by the Veteran (or his representative) of the claim for service connection for a prostate condition. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria are met for service connection for a right elbow condition. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1982 to April 2006. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2017 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). In May 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ) via videoconference. During the period of the appeal, in a September 2018 Rating Decision, the RO granted service connection for a testicular condition. Therefore, that claim for service connection has been resolved and is no longer before the Board on appeal. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). Withdrawal of Claim The appeal for service connection for a prostate condition (manifested by frequent urination) is dismissed. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran has withdrawn his appeal for service connection for a prostate condition, as expressed in the May 2020 hearing, and, hence, there remain no allegations of errors of fact or law for appellate consideration concerning that issue. Accordingly, the Board does not have jurisdiction to review this appeal, and it is dismissed. Service Connection Service connection for a right elbow condition is granted. The Veteran contends that his right elbow condition is related to active service. In a November 2016 private treatment report, the Veteran was diagnosed with right elbow degenerative joint disease and osteoarthritis. The private physician noted that this could represent an area of old injury or possibly degenerative change. While the Veteran’s service treatment records (STRs) are silent for any injuries or complaints of a right elbow incident during active service, in his May 2020 hearing, the Veteran testified that he injured his elbow when he fell off an obstacle course in the late 1980s or early 1990s. His STRs contain a note that he fell and injured himself, but do not mention his right elbow. He reported that he injured his shoulder and back because of the fall, and the Board notes that the Veteran is service connected for his right shoulder and back. The Veteran noted that his shoulder injury was more serious than his elbow pain, so all the treatment was focused on his shoulder. The Veteran testified that he continued serving, even though he had elbow pain, and self-medicated with Motrin. He reported that he had shoulder reconstruction surgery, but his elbow continued to hurt. The Veteran testified that he had two surgeries on his right elbow since he retired from the Marines. He reported that his right elbow hurt him every day, but that he did not start seeking treatment until 2012 or so. In a May 2018 statement, the Veteran’s spouse wrote that her husband has had “chronic right elbow pain.” She wrote that the Veteran’s pain issues were “constant.” The Veteran’s spouse noted that “he was always training and working out to stay in top physical condition… After work he would talk about how he fell down or plowed through some door or wall, etc. He would never complain to his superiors or his troops because teachers always had to act as though they were above pain or weakness.” The Veteran’s spouse reported that “sometimes he couldn’t even straighten his arm out because of the pain… I live with him and witness his chronic and constant pain daily.” The Board notes that the Veteran has never had a VA examination to determine whether his right shoulder condition is related to active service. Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1110. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. § 3.303(d). Certain disabilities, including arthritis, organic neurological disorders, and psychoses, are presumed to be serviced connected if manifested to a compensable degree within one year following service. 38 C.F.R. §§ 3.303, 3.307, 3.309. Although a causal relationship has not been demonstrated through competent medical opinion evidence, the absence of a “valid medical opinion” is not an absolute bar to service connection. Davidson v. Shinseki, 581 F.3d at 1316. The Board finds the reports by the Veteran, and the statement from his spouse, of right elbow pain beginning during active service, and continuing to the present, to be competent and credible evidence of continuing symptoms since active service. 38 C.F.R. §§ 3.303, 3.307, 3.309. The Board notes that under the continuity of symptoms provision, “symptoms, not treatment, are the essence of any evidence of continuity of symptom[s].” Savage v. Gober, 10 Vet. App. 488, 496 (1997) (referencing 38 C.F.R. § 3.303(b)). Based on the above analysis, the Board concludes that the competent and credible lay statements from the Veteran and his spouse lead the Board to determine that at the very least, the evidence is evenly balanced for and against (“in relative equipoise”) as to whether the Veteran’s right elbow condition is related to active service. Accordingly, resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection for a right elbow condition is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Abrams, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.