Citation Nr: 21007062 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 14-26 768 DATE: February 8, 2021 ORDER Entitlement to service connection for anxiety is dismissed as withdrawn. Entitlement to service connection for left knee patellofemoral syndrome is granted. Entitlement to service connection for right knee patellofemoral syndrome is granted. FINDINGS OF FACT 1. In November 2017, at a hearing before the Board of Veterans Appeals prior to the promulgation of a decision in the appeal, the Veteran withdrew the claim of entitlement to service connection for anxiety. 2. Resolving any reasonable doubt in the Veteran’s favor, his left knee patellofemoral syndrome began during active service. 3. Resolving any reasonable doubt in the Veteran’s favor, his right knee patellofemoral syndrome began during active service. CONCLUSIONS OF LAW 1. The criteria for dismissal due to withdrawal of the appeal for entitlement to service connection for anxiety by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for entitlement to service connection for left knee patellofemoral syndrome have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for entitlement to service connection for right knee patellofemoral syndrome have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 2005 to April 2013. These matters come before the Board of Veterans’ Appeals (Board) on appeal from August 2013 (anxiety) and October 2013 (bilateral knees) rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, the Board previously denied the Veteran’s claims in a September 2018 Board decision. The Veteran appealed the Board’s September 2018 Board decision to the Court of Appeals for Veterans Claims (CAVC). A May 2020 CAVC Memorandum Decision vacated and remanded the issues on appeal, noting inadequate reasons and bases in the September 2018 Board decision. As such, the issues on appeal have been returned to the Board for readjudication. The Board notes that the Veteran provided testimony before a Veterans Law Judge (VLJ) at a November 2017 video conference hearing regarding his claims for entitlement to service connection for bilateral knee patellofemoral syndrome and anxiety. A copy of the transcript has been associated with the claims file. After the VLJ who held the November 2017 hearing retired from the Board, the Veteran was offered the opportunity to appear at another hearing before a different VLJ and provided 30 days to respond. See December 2020 Board Letter. To date, there has been no response to the December 2020 Board Letter, no other request for a hearing has been received, and the 30-day period to respond has expired. As such, the Board may proceed with adjudicating the Veteran’s claims. Entitlement to service connection for anxiety is dismissed as withdrawn. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. See 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. See 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his authorized representative. Id. By way of background, the Veteran appeared at a hearing before a VLJ in November 2017. At that hearing, prior to the start of the hearing, the VLJ indicated the Veteran requested to withdraw his appeal of the claim for entitlement to service connection for anxiety. See November 2017 Hearing transcript. On the record, the VLJ asked the Veteran if he was withdrawing the issue from appellate review of service connection for anxiety in which he answered in the affirmative. Id. In September 2018, the Board dismissed the appeal seeking entitlement to service connection for anxiety. As noted, the Veteran appealed that decision to the CAVC. In a May 2020 CAVC Memorandum Decision, the CAVC agreed with the parties that the Board erred when it failed to ascertain whether the appellant fully understood the implication of withdrawing his anxiety claim at his hearing and remanded for the Board to make a finding of whether the appellant fully understood the consequences of withdrawing his anxiety claim in light of Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018) and DeLisio v. Shinseki, 25 Vet. App. 45 (2011). That is, a withdrawal must be “explicit, unambiguous, and undertaken with a full understanding of its consequences.” Acree, 891 F.3d at 1013; DeLisio, 25 Vet. App. at 57. The Board now re-visits the matter of the validity of the verbal withdrawal of the appeal at the November 2017 hearing, and finds that the Veteran, on the record, explicitly, unambiguously, and with full understanding of its consequences requested withdrawal of his appeal seeking service connection for anxiety. In reviewing the November 2017 Board hearing transcript, the VLJ conducting the hearing alluded to a pre-hearing discussion (off the record) during which the issues on appeal were discussed. On the record, she identified the issue of entitlement to service connection for anxiety and stated that she had been advised that the Veteran is withdrawing his claim. See November 2017 hearing transcript. The VLJ asked the Veteran, in the presence of his accredited representative, whether he was withdrawing the issue of entitlement to service connection for anxiety from appellate review, and the Veteran responded, “Yes.” Id. The VLJ then identified the remaining issues on appeal as entitlement to service connection for left knee and right knee patellofemoral syndrome and asked the Veteran’s representative if the remaining issues were stated correctly. Id. The Veteran’s representative responded, “Yes ma’am.” Id. There was no further testimony taken regarding the issue of entitlement to service connection for anxiety at the November 2017 Board hearing. Id. The Board notes that the Veteran, nor his representative, at any time following the Board’s September 2018 dismissal, asserts that did not intend to withdraw the issue of entitlement to service connection for anxiety. The Veteran’s positive response to the VLJ’s question during his hearing regarding the issue being withdrawn makes the withdrawal “explicit and unambiguous.” Although the discussion on the record was brief, it was only intended to memorialize the discussion that was held prior to going on the record. It can be inferred that the Veteran knew that his withdrawal of the appeal would result in the Board discontinuing its consideration of the claim without issuing a decision on the matter. It is significant that the withdrawal was made in the presence of the Veteran’s representative, who may be presumed to know the impact of requesting an appeal withdrawal before the Board. There was no misunderstanding or objection once the Board went on the record and asked the Veteran if he did in fact wish to withdraw the issue as his intention to withdraw the issue was unmistakably raised prior ot going on the record. No testimony was offered, or taken, at the Board hearing on the issue of entitlement to service connection for anxiety. It is further noted that the Veteran’s representative submitted additional arguments in a November 2020 appellate brief. The Veteran’s representative did not assert that the Veteran did not intend to withdraw the issue of entitlement to service connection for anxiety, nor any argument regarding the merits of the claim. In light of the above, the Board finds that the Veteran’s withdrawal of the issue of entitlement to service connection for anxiety was “explicit, unambiguous, and done with full understanding of the consequences of such action on the part of the claimant.” Acree, 891 F.3d at 1013; DeLisio, 25 Vet. App. at 57. Therefore, there remains no allegation of error of fact or law for appellate consideration as to the issue of entitlement to service connection for anxiety. Accordingly, the Board does not have jurisdiction to review the appeal in the matter, and the appeal is dismissed without prejudice. Entitlement to service connection for left knee patellofemoral syndrome. Entitlement to service connection for right knee patellofemoral syndrome. The Veteran seeks service connection for bilateral knee patellofemoral syndrome. See April 2013 VA Form 21-526c. Generally, service connection may be established on a direct incurrence basis for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303. To establish service connection on a direct incurrence basis, the Veteran must show: (1) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). As an initial matter, the Board notes that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Therefore, where there is evidence showing that a disorder manifested or was incurred in service, and this disorder is not noted on the veteran’s entrance examination report, this presumption of soundness operates to shield the veteran from any finding that the unnoted disease or injury preexisted service. See Gilbert v. Shinseki, 26 Vet. App. 48 (2012); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991); 38 C.F.R. § 3.304(b). In this case, the Board, previously denied the Veteran’s claim to entitlement to service connection for bilateral knee patellofemoral syndrome in September 2018. The Board relied on a September 2013 VA medical opinion that determined the Veteran’s bilateral knee condition clearly and unmistakably existed prior to the Veteran’s active service and found the presumption of soundness was inapplicable. As noted, the Veteran appealed the Board’s September 2018 denial to the CAVC. The CAVC, in the May 2020 Memorandum Decision, reversed the Board’s September 2018, found that the presumption of soundness attaches, and remanded to the Board for readjudication with the finding that the Veteran was presumed sound regarding his bilateral knee patellofemoral syndrome. Specifically, the CAVC noted that the Veteran was not diagnosed or noted with patellofemoral syndrome upon entry into active duty service. See December 2004 Report of Medical Examination. Therefore, the Board finds that the presumption of soundness attaches pursuant to the May 2020 CAVC Memorandum Decision. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The evidence of record for and against the Veteran’s claim for service connection for bilateral knee patellofemoral syndrome is in a state of relative equipoise. The record reflects the Veteran has a current diagnosis for bilateral knee patellofemoral syndrome. See May 2013 VA examination. As such, the first element of service connection has been met. See Shedden, 381 F.3d at 1167. As to an in-service injury or disease, the Veteran’s service treatment records demonstrate the Veteran reported left and right knee pain. See October 2012 service treatment records. The Veteran was assessed with patellofemoral syndrome with right knee pain greater than in the left knee, likely due to ITB tightness. Id. The Veteran was initially afforded a VA examination in May 2013, less than a month following separation from service. The VA examiner noted the Veteran’s report that his symptoms had its onset in 2006 as a result of running during active military service and that his condition had worsened. See May 2013 VA examination. The Veteran also reported that he participated in combat activity. Id. The VA examiner diagnosed the Veteran with bilateral knee patellofemoral pain syndrome; however, did not provide an opinion as to whether the Veteran’s bilateral knee conditions were etiologically related to his active duty service. Id. As such, the May 2013 VA examination is inadequate for decision making purposes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). The Veteran was afforded a second VA examination in September 2013. The VA examiner opined that the Veteran’s condition clearly and unmistakably existed prior to service and was not aggravated beyond its natural progression by an in-service injury, event, or illness. See September 2013 VA examination. The VA examiner’s medical opinion relied on the determination that the Veteran’s bilateral knee condition preexisted service; therefore, the September 2013 VA examination is inadequate for decision making purposes since the presumption of soundness applies pursuant to the May 2020 CAVC Memorandum Decision. See Nieves-Rodriguez, 22 Vet. App. at 302. The Veteran testified that his military occupation specialty was infantryman and was required to undergo rigorous training. See November 2017 hearing transcript. The Veteran testified that as a combat instructor he was required to carry heavy loads during training. Id. The Veteran further testified that he did not complain about his knees but about a year in, started having flare ups and knee pain that became a daily and regular problem. Id. The Veteran is competent to provide lay evidence of the existence of symptoms that are capable of lay observation and may provide sufficient support for a claim of service connection. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Moreover, in appropriate situations, the Veteran can report symptoms to establish the link between an in-service incurrence and subsequent diagnosis of a disability. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The Board finds that the Veteran is competent and credible to assert that he experienced observable knee problems in service, supported by his October 2012 assessment for patellofemoral syndrome during service, and May 2013 VA examination diagnosis of bilateral knee patellofemoral syndrome. The Board finds the record adequate to grant the Veteran’s claims to service connection for bilateral knee patellofemoral syndrome and remanding the Veteran’s claims for a nexus addendum opinion is unnecessary. Although patellofemoral pain syndrome is not a presumptive disability, the fact that the Veteran was diagnosed in service with patellofemoral syndrome in service, and within a year following separation from service, along with no indication of any post-service injury, supports a finding that his right and left knee patellofemoral syndrome had its onset during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Further, the May 2013 and September 2013 VA examinations are inadequate for decision making purposes. In light of the Veteran’s competent and credible lay statements, the Board finds the evidence of record is in a state of relative equipoise. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for right and left patellofemoral syndrome is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. P. Moore, Associate 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.