Citation Nr: 21024136 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 08-23 966 DATE: April 22, 2021 ORDER Entitlement to service connection for left ear hearing loss has been withdrawn. Entitlement to service connection for left knee ostearthritis, status post arthroscopic surgery, is granted. FINDINGS OF FACT 1. On March 22, 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, through his authorized representative, that a withdrawal of the issue of service connection for left ear hearing loss is requested. 2. Resolving reasonable doubt in the Veteran’s favor, his left knee ostearthritis, status post arthroscopic surgery, is at least as likely as not related to the in-service left knee injuries. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim for service connection for left ear hearing loss by his authorized representative have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for service connection for left knee osteoarthritis, status post arthroscopic surgery, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from April 1986 to April 1992. The issues are on appeal from December 2006 and August 2008 rating decisions. The Board of Veterans’ Appeals (Board) notes that in a March 2019 Joint Motion for Remand (JMR), the United States Court of Appeals for Veterans Claims (CAVC) vacated and remanded the Board’s May 2018 decision, which denied service connection for a left knee injury and left ear hearing loss. In July 2019, the Board remanded these issues for compliance with the JMR. As discussed further below, the Veteran submitted a February 2021 private opinion finding that the Veteran’s left knee disability is related to service. The private examiner also opined that the Veteran met the criteria for a total disability rating based on individual unemployability (TDIU) as his service-connected posttraumatic stress disorder and left knee disability prevented him from maintaining any form of gainful employment. However, the Veteran's newly service-connected left knee disability has not yet been rated by the agency of original jurisdiction. Therefore, the potential for a TDIU based on the service-connected left knee disability granted herein is a downstream issue. The Veteran may pursue a TDIU when the corresponding disability rating is assigned. Service Connection Entitlement to service connection for left ear hearing loss 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 appellant or by his or her authorized representative. Id. In the present case, in a March 2021 written statement, the Veteran, through his authorized representative, has withdrawn his claim for entitlement to service connection for left ear hearing loss and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this issue and it is dismissed. Entitlement to service connection for left knee osteoarthritis, status post arthroscopic surgery The Veteran is seeking service connection for a left knee disability. He contends that his current disability is due to several in-service injuries. The Veteran has reported that he has had progressing left knee pain since service. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In the present case, the Board finds that the Veteran has been diagnosed with left knee osteoarthritis, status post arthroscopic surgery as documented in the medical evidence of record. Service treatment records document several in-service injuries to the left knee. In this regard, in December 1986, the Veteran complained of having injured his left knee. The assessment was a strain of the patellar ligament of the left knee. He was given an elastic wrap and was to apply ice and return to the clinic in 3 to 5 days if there was no improvement. In November 1987, he was seen for persistent pain of the left ankle and left knee. On examination his left knee was not swollen and it was stable with full range of motion. The assessments were sprains of the left ankle and left knee. An X-ray of the left knee revealed no significant abnormality. Subsequently, in April 1990, the Veteran fell off of the framework of a tent, landing on his lower left extremity. X-rays revealed no fracture, dislocation, or significant fluid collection in the left knee and no soft tissue abnormalities or degenerative changes. The impression was a medial collateral ligament strain and a patellar tendon strain. He was given a profile limiting his duties for 2 weeks. Further, in February 1992 the Veteran reported having injured his left knee playing basketball. The assessment was a patellar tendon strain. The Veteran exhibited symptoms for three weeks for which he was treated with a brace and Indocin. Turning to the question of whether there is a nexus, or link, between the currently shown disability and service, the Board finds that the evidence is, at least, in relative equipoise. The Board notes that the Veteran has reported continuing left knee pain since service. He has stated that he was not able to re-enlist into the military in October 1995 due to, in part, problems with his left knee. The Board notes that the Veteran is competent to report medical visits and his understanding of his diagnoses and conditions at a certain time. The Board finds that the Veteran has been consistent in his reports and thus, there is no reason to doubt the veracity of his statements. The Veteran was afforded a VA examination in March 2011. After a review of the file and a physical examination, the diagnoses were internal derangement of the left knee, with abnormal patellar tracking, Baker’s cyst, and osteoarthritis. The examiner opined that the current left knee condition was less likely as not caused by or a result of the left knee injury while on active duty. The rationale was that although the Veteran had had injuries of the left knee in 1986, 1990, and 1992 while on active duty, X-rays were negative and none of the injuries were serious. The medical record was then silent until he injured his left knee in a motor vehicle accident in 1999, and the record indicated that he had been treated for left knee complaints and had surgical procedures since then. An addendum opinion was provided in December 2015 by the same examiner. Once again, the VA examiner gave the opinion that it was less likely than not that the Veteran’s current knee injury is related to his military service. In support of this opinion, the examiner noted that this type of injury is more likely to be related to abnormal patellar tracking, patellar degenerative joint disease, and meniscus damage. The motor vehicle accident caused direct injury to the patella and degeneration of the patella would be common sequela of such an incident. In contrast, the Veteran submitted a February 2021 private opinion. The examiner provided a detailed outline of the medical evidence of record, including the in-service injuries. In summary, the examiner noted that although the Veteran was involved in a motor vehicle collision in 1999 with subsequent left knee arthroscopy, there are no records detailing the injuries suffered or other investigations performed. The examiner also observed that a June 2003 MRI demonstrated an abnormality of the proximal patellar tendon, which was precisely the area injured in service. The examiner noted findings of degenerative tears in 2003, four years after the motor vehicle accident. He noted that the Veteran underwent arthroscopy in February 2004 at the age of 37, which demonstrated a degenerative radial tear of the posterior horn of the medial meniscus. The examiner stated that these types of degenerative tears are typically associated with older age, obesity and female gender. The presence in a young male is indicative of advanced degenerative joint disease, which would be inconsistent with an injury that occurred only four years prior. The examiner also noted that a study showed that significant degenerative changes that developed due to trauma requires more than five years to become apparent. The examiner disagreed with the findings of the VA examiner and opined that after a thorough review of the Veterans medical records, medical opinions, lay statements and pertinent medical literature, the Veteran’s in-service knee injuries were more likely than not the proximal events that eventually lead to his diagnosis of post-traumatic osteoarthritis of his left knee. The Board is thus faced with a conflicting record as to whether the Veteran’s left knee disability is related to service. Both examiners were aware of the Veteran’s medical history and offered rationales for their opinions. Moreover, the Veteran has reported continuing pain since the in-service injuries that continued to progress. As such, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s left knee disability is related to service. In light of the foregoing, the criteria for entitlement to service connection for left knee osteoarthritis, status post arthroscopic surgery, have been met. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.N. Moats 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.