Citation Nr: 21024653 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 17-02 877 DATE: April 23, 2021 ORDER The appeal of the claim seeking entitlement to service connection for bilateral eye disorder is dismissed. The appeal of the claim seeking entitlement to service connection for asthma, to include as secondary to exposure contaminants in the water supply at Camp Lejeune, to herbicides, and to other gaseous chemicals, is dismissed. The appeal of the claim seeking entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as secondary to exposure contaminants in the water supply at Camp Lejeune, to herbicides, and to other gaseous chemicals, is dismissed. The appeal of the claim seeking entitlement to service connection for bilateral hearing loss is dismissed. The appeal of the claim seeking entitlement to service connection for tinnitus is dismissed. REMANDED Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for obstructive sleep apnea (OSA), claimed as secondary to bilateral knee disorders, is remanded. Entitlement to service connection for diabetes mellitus, claimed as secondary to bilateral knee disorders, is remanded.   FINDING OF FACT In a statement received by VA in January 2021, the appellant’s attorney withdrew the pending appeals seeking service connection for a bilateral eye disorder, asthma, COPD, bilateral hearing loss, and tinnitus. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the claim seeking service connection for a bilateral eye disorder have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the appeal of the claim seeking service connection for asthma have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of the appeal of the claim seeking service connection for bilateral hearing loss have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for withdrawal of the appeal of the claim seeking service connection for tinnitus have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 5. The criteria for withdrawal of the appeal of the claim seeking service connection for COPD have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1975 to June 1979, and unfortunately, he died in April 2020 during the pendency of his appeal. The Veteran’s surviving spouse has since been substituted as the appellant, to allow the Board to resolve the Veteran’s pending appeal for VA compensation benefits. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in June 2013 by a Regional Office (RO) of the Department of Veterans Affairs (VA). In a January 2019 decision, the Board remanded the Veteran’s service connection claim for a bilateral eye disorder and denied his service connection claims for generalized degenerative arthritis as well as the remaining service connection claims captioned above. The Veteran then appealed these denials to the United States Court of Appeals for Veterans Claims (Court). Thereafter, the parties to this appeal entered into a Joint Motion for Partial Remand (Joint Motion), wherein they agreed that, with the exception of the denial of service connection for generalized degenerative arthritis, the Board’s January 2019 denial of the service connection claims should be vacated. The Court granted the parties’ Joint Motion in an Order issued that same month. Thereafter, VA was apprised of the Veteran’s death, and the appellant’s attorney accordingly requested that the Board dismiss the Veteran’s appeal due to his death, so as to allow the case to return to the Agency of Original Jurisdiction (AOJ) so that the appellant could be substituted as the claimant. The Board issued a decision dismissing the Veteran’s appeal in June 2020, and in July 2020, the appellant’s request for substitution was granted. In September 2020, the AOJ issued a supplemental statement of the case readjudicating the service connection claim for a bilateral eye disorder that had been remanded by the Board in January 2019, and now this claim, as well as the service connection claims returned to the Board per the Joint Motion, are now ripe for further appellate review. Withdrawn Claims 1. Entitlement to service connection for bilateral eye disorder. 2. Entitlement to service connection for asthma, to include as secondary to exposure contaminants in the water supply at Camp Lejeune, to herbicides, and to other gaseous chemicals. 3. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as secondary to exposure contaminants in the water supply at Camp Lejeune, to herbicides, and to other gaseous chemicals. 4. Entitlement to service connection for bilateral hearing loss. 5. Entitlement to service connection for tinnitus. 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. § 20.205. Withdrawal may be made by the claimant or by his authorized representative. Id. In January 2021, the appellant’s duly appointed representative, an attorney, submitted a statement in which he expressed the appellant’s desire to withdraw from appeal the above captioned five service connection claims. The Board finds that the appellant’s withdrawal of these five issues on appeal is “explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant.” DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see also Acree v O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). This was an express written statement made by the appellant and her attorney representative. Therefore, there remain no allegations of errors of fact or law for appellate consideration with regard to these issues. Accordingly, the Board does not have jurisdiction to review the appeals, and the issues are dismissed. REASONS FOR REMAND 1. Entitlement to service connection for a left knee disorder. 2. Entitlement to service connection for a right knee disorder. With regard to the Veteran’s service connection claim for a left knee disorder, the parties to the Joint Motion concluded that the Board erred by engaging in an insufficient analysis as to whether the Veteran’s left knee disorder existed prior to service. Specifically, the parties determined that the Board erred by concluding that the Veteran’s reported history of a prior left knee injury on entrance to service was prima facie evidence of a preexisting left knee impairment, whereas such a report is only a one factor to be considered in the analysis. The Board accordingly finds that a medical opinion should be obtained to determine (1)(a) the nature, if any, of the Veteran’s preexisting left knee impairment noted on entrance to service, and if so, (b) whether such a preexisting left knee impairment worsened during service, and if so (c) whether such worsening was due to the normal progression of the knee disorder; and (2) if no such preexisting left knee impairment was noted on service, (a) whether such an impairment nevertheless clearly and unmistakably preexisted service, and if so, was aggravated during service, and if not, (b) was incurred as a result of service. With regard to the Veteran’s service connection claim for a right knee disorder, the parties to the Joint Motion determined that the Board erred by relying on a June 2013 VA medical opinion that concluded the Veteran’s right knee impairment is unrelated to service, but which failed to consider the Veteran’s report of experiencing continuous ligamental right knee problems since service. Accordingly, a new medical opinion addressing a theory of direct service connection considering this relevant evidence must be obtained. However, before such an opinion is rendered, the Board finds that given the notation on entrance to service of a right knee scar, and the Veteran’s in-service reports of a pre-service right knee injury, an opinion must be obtained regarding whether the Veteran had a right knee impairment that clearly and unmistakably preexisted service, and if so, if such right knee impairment was aggravated therein. The Board acknowledges that the appellant’s attorney has submitted a private medical opinion authored in February 2021 in which the private practitioner opined that the Veteran did not have a left knee impairment that preexisted service, as his reported pre-service left knee ligamental injury had resolved prior to service, as evidenced by the lack of left knee ligamental instability detected during his entrance examination. The practitioner further opined that the Veteran’s bilateral knee impairments are related to his in-service knee complaints, diagnosed during service as chondromalacia patella, and that the Veteran’s resulting inability to exercise and related sedentary lifestyle exacerbated his obesity, which in turn caused his OSA and diabetes mellitus. However, the Board finds that this medical opinion fails to reference or consider several salient pieces of medical evidence, to include the fact that the Veteran’s left knee was not asymptomatic on his entrance to service. The entrance examination noted “pains at times now.” There was also the notation of a right knee scar on entrance to service, whereas the private examiner stated “[c]learly, there was no evidence of a pre-service right knee injury.” Otherwise, the private examiner did not consider the Veteran’s report during his June 2013 VA knee examination that his knees became symptomatic in the late 1990s. Absent consideration of these facts, the private opinion is not predicated on a complete history, and therefore it is insufficient to decide the claims. 3. Entitlement to service connection for OSA, claimed as secondary to bilateral knee disorders. 4. Entitlement to service connection for diabetes mellitus, claimed as secondary to bilateral knee disorders. With regard to the Veteran’s service connection claims for diabetes mellitus and OSA, the parties to the Joint Motion concluded that these claims are inextricably intertwined with the Veteran’s service connection claims for bilateral knee disorders, based on theory of secondary service connection with the intermediate step of obesity. Specifically, the Veteran (during his lifetime) and the appellant (currently) contend that as a result of inactivity related to the Veteran’s bilateral knee disorders, the Veteran became obese, which in turn caused his OSA and diabetes mellitus. Accordingly, if the Board’s above development results in a finding that either the Veteran’s left or right knee disorders are related to service, an opinion addressing this theory of secondary service connection must then be obtained. The matters are REMANDED for the following action: 1. Obtain an opinion from an appropriate clinician addressing the etiology of the Veteran’s bilateral knee disorders. After reviewing the record, the clinician is asked to address the following: (a.) Was a left knee condition extant at entrance into service? In other words, did the entrance examination findings, including the orthopedic evaluation, constitute evidence of an existing left knee condition, or merely a notation of a resolved pre-service left knee impairment? i. If a preexisting left knee impairment was detected on entrance to service, did this left knee impairment increase in severity during service? ii. If so, was the increase in severity due to the natural progress of the disease? (b.) If a left knee impairment was not extant on entrance to service, did the Veteran have a left knee impairment that nevertheless preexisted the Veteran’s service? i. If a left knee impairment was not noted on entrance to service but preexisted service, did this left knee impairment undergo any degree of aggravation during service? (c.) If no such left knee disorder was extant on entrance to service and did not preexist service, is it at least as likely as not that the Veteran’s left knee disorder is related to service? When rendering this opinion, the clinician is asked to consider (1) the Veteran’s in-service treatment for left knee chondromalacia patella, which a February 2021 private opinion indicated was a precursor to degenerative arthritis; (2) the Veteran’s report during his June 2013 VA examination that his left knee became symptomatic in the late 1990’s, although he and his spouse subsequently indicated that the Veteran experienced some left knee symptomatology since service; and (3) the first reference to left knee pain and diagnosis of a left knee disorder of record in a February 2008 private orthopedic treatment record. (d.) Did the Veteran have a right knee impairment that was not detected on entrance to service, but nevertheless preexisted service? The examiner should consider the right knee scar noted on entrance to service, the Veteran’s in-service report of experiencing pre-service bilateral knee injuries, and the clinical observations of the Veteran’s right knee as documented in his service treatment records. i. If a right knee impairment preexisted service, did this right knee impairment undergo any degree of aggravation or worsening during service? How certain are you in your answers to questions (a)-(d)? Would any qualified medical professional with the same information reasonably be able to reach a different conclusion? (e.) If a right knee impairment did not preexist service, is it at least as likely as not that the Veteran’s right knee disorder is related to service? When rendering this opinion, the clinician is asked to comment on (1) the Veteran’s in-service treatment for right knee chondromalacia patella, which a February 2021 private opinion indicated was a precursor to degenerative arthritis; (2) his report during his June 2013 VA examination that his right knee became symptomatic in the late 1990s, although he and his spouse subsequently indicated that the Veteran experienced some right knee symptomatology since service; and (3) the first report of and treatment for right knee pain of record in an August 2007 private family practice treatment record. 2. If, and only if, the above requested opinion results in a determination that the Veteran’s left or right knee disorder is related to service, obtain an opinion from an appropriate clinician regarding the relationship between the Veteran’s knee disorders, his development of obesity, and his development of diabetes mellitus and OSA. (a.) After reviewing the record, the clinician is asked to opine whether it at least as likely as not that the Veteran’s OSA and diabetes mellitus type II were caused or aggravated by the functional impairments resulting from any left or right knee disorders determined to be related to service? In offering such opinion, the examiner should consider the fact that the Veteran reported experiencing bilateral knee symptomatology since service and has alleged that the resulting pain, stress, and inability to exercise led to the development of obesity, or aggravated his obesity, which in turn led to OSA and diabetes mellitus type II. (b.) If the clinician finds that the Veteran’s OSA and diabetes mellitus type II are as a result of weight gain/obesity, the clinician should address whether it at least as likely as not that (1) the Veteran’s service related knee disabilities caused him to become obese or aggravated his obesity, and, if so, (2) whether such resulting obesity was a substantial factor in causing or aggravating his OSA and diabetes mellitus type II, and (3) whether his OSA and diabetes mellitus type II would not have occurred or worsened but for the obesity caused by his service-connected knee disabilities. When rendering these opinions, the clinician is asked to specifically consider the February 2021 opinion that the physical limitations and inability to exercise resulting from Veteran’s service-connected knee disabilities caused or worsened his obesity, which in turn caused his OSA and diabetes mellitus. Corey Bosely Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Northcutt, 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.