Citation Nr: 21004223 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 13-17 638 DATE: January 26, 2021 ORDER Entitlement to service connection for right knee disability is granted. Entitlement to service connection for low back disability has been withdrawn. FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, the evidence reasonably supports finding that a right knee disability had its origin during active service. 2. In correspondence received at the RO in May 2018, the Veteran expressed her desire to withdraw her appeal as to the claim of entitlement to service connection for low back disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right knee disability have been met. 38 U.S.C. §§ 1131, 1137, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309. 2. The criteria for withdrawal of entitlement to service connection for low back disability by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from February 1985 to March 1988. These matters were previously before the Board of Veterans’ Appeals (Board) in September 2017 and remanded to a Department of Veterans Affairs (VA) Regional Office (RO) for additional development. Entitlement to service connection for right knee disability Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish service connection, the evidence generally must show: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases (to include arthritis) may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time post-service (one year for arthritis). 38 U.S.C. § 1137; 38 C.F.R. §§ 3.307, 3.309. Nexus of a chronic disease to service may be established by showing continuity of symptomatology following service. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). The Veteran has a current diagnosis of right knee osteoarthritis, as noted in a September 2013 VA outpatient treatment report. She contends she has right knee disability that had its onset during active service. Her service treatment records are replete with complaints, treatment and diagnoses concerning the right knee. For example, in June 1985 the Veteran was seen at an in-service primary care clinic because she was symptomatic for right knee pain after falling in her room and landing on both knees. She complained of pain, stiffness and swelling of the right knee. The assessment was joint effusion secondary to blunt trauma (contusion of the right knee). Treatment included a brace, crutches, ice and elevation. She was put on profile for the injury. She was seen a week later at the same clinic for a check-up of her right knee. The assessments were trauma to the right knee and rule out internal derangement. Treatment included ace wrap and medication. In July 1986 the Veteran was seen at an in-service primary care clinic with complaints of right knee pain. The assessment was rule out chondromalacia. She was put on a profile. In June 1987, the Veteran sought treatment when she banged her right knee under a desk; she had achiness and swelling of the right knee. The assessment was bursitis, traumatic and blunt. The Veteran indicated in her January 1988 separation medical history report that she had “Trick” or locked knee and swollen or painful joints. The January 1988 separation medical examination report did not reveal any abnormalities of the lower extremities. Of record is the Veteran’s January 1995 Reserve medical history report, on which she indicated she had “Trick” or locked knee and swollen or painful joints. The examiner noted that the Veteran’s knees were relieved by surgery. August and November 2000 private consultation reports show that the Veteran had continued complaints of severe right knee pain, with impressions of continued right knee pain. Private treatment records dated December 2001 show that the Veteran was seen for a follow-up of right knee pain. The impression was chronic right leg pain due to a multitude of factors including internal derangement of the knee. In April 2009 the Veteran underwent a VA joints examination. She reported in-service manifestations of her right knee disability. Specifically, she related that she injured her right knee in service and was treated for an acute right knee condition and placed in an immobilizer for one week and then returned to duty. She continued to have intermittent right knee pain. She had a lateral release of the right knee due to an unstable patella. She had chronic pain in the right knee that ranged from a 3-10/10. The diagnoses were right knee strain and right knee patellofemoral syndrome. X-rays revealed normal bilateral knees with no evidence of arthritis, fracture, dislocation, bone destruction, or joint effusion. The examiner opined the Veteran’s right knee disability is less likely as not caused by or a result of the same as seen in the service or the result of a service-related injury. The rationale for the opinion was that the January 1995 Reserve examination showed a history of surgery of both knees, and the condition was relieved by surgery. In addition, the Veteran was in good health and taking no medication, and there was no evidence of any chronic right knee disability from her injury in service. February 2011 radiologic findings revealed tracer accumulation adjacent to the articular compartments of the right knee consistent with osteoarthritis. On review, the Board finds the April 2009 VA examiner’s opinion inadequate for deciding this claim because the examiner failed to give the Veteran’s service treatment records proper consideration and did not afford the Veteran’s competent and credible lay statements regarding the onset and continuity of her symptoms proper consideration. The Board also finds that the VA examiner provided an inadequate rationale for the opinion. Accordingly, resolving any reasonable doubt in the Veteran's favor, as required, the Board finds the overall evidence reasonably shows the Veteran's right knee disability was incurred during her active duty service, and service connection for right knee disability is granted. Entitlement to service connection for low back disability 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. § 19.55. Withdrawal may be made by the Veteran or by her authorized representative. In correspondence received at the RO in May 2018, the Veteran expressed her desire to withdraw her appeal as to the claim of entitlement to service connection for low back disability. Notably, in a September 2020 letter to the Veteran, the RO confirmed the withdrawal of her May 2018 appeal. Thus, the Board finds the Veteran’s expression in the May 2018 correspondence qualifies as a valid withdrawal of the issue. Since the Veteran has withdrawn the claim of entitlement to service connection for low back disability, there remain no allegations of errors of fact or law for appellate consideration with respect to that claim. The Board does not have jurisdiction to review the appeal as to that issue, and it is dismissed. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Young, 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.