Citation Nr: 21032246 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 18-44 686 DATE: May 26, 2021 ORDER Entitlement to service connection for cervical spine disease is granted. Entitlement to an increased rating in excess of 10 percent for right knee chondromalacia with vertical tear of medial meniscus and root of post horn (right knee chondromalacia) is dismissed. FINDINGS OF FACT 1. The Veteran's cervical spine disease is related to his active duty service. 2. During his May 2021 Board hearing, the Veteran explicitly and unambiguously withdrew his appeal of entitlement to an increased rating in excess of 10 percent for right knee chondromalacia with full understanding of the consequences of such action. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for cervical spine disease have been met. 38 U.S.C. §§ 1131, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). 2. The criteria for dismissal of entitlement to an increased rating in excess of 10 percent for right knee chondromalacia have been met. 38 U.S.C. §§ 7104, 7105(b)(2), (d)(5) (2018); 38 C.F.R. §§ 19.22, 19.55 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1983 to June 1990, with an additional period of active duty for training from July 1982 to December 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision by the Department of Veterans Affairs (VA). In May 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. 1. Entitlement to service connection for a cervical spine disability. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). The Veteran has repeatedly reported that he injured his neck during a parachute jump during service. See, e.g., May 2021 Board hearing. Service treatment records (STRs) corroborate neck pain and he was diagnosed with muscle strain. See October 1985 STRs. He stated that he did not report neck pain upon discharge from service because he was attempting to be processed quickly to visit his gravely ill brother and if he reported any symptoms he would have been delayed. See May 2021 statement. He reported that he has had continuous symptoms since his in-service injury. See May 2021 Board hearing. A December 2016 VA examiner diagnosed cervical spine degenerative arthritis, degenerative disc disease, and congenital stenosis at the C5-C6 vertebrae. The examiner opined it was less likely than not that the Veteran's disabilities were related to service because there was no medical documentation of neck pain until 2016. This opinion is inadequate because it relied solely on the absence of medical evidence. As a result, the opinion is given no probative weight. In May 2021, a private physician diagnosed cervical spine disease and discussed that the Veteran had endured a sentinel cervical spine injury which progressed to cervical spine degenerative disc disease and post-traumatic arthritis. The physician opined it was at least as likely as not that the Veteran's neck disability was related to service and noted that post-traumatic arthritis was the most plausible explanation for the Veteran's neck pain and that he suffered from accelerated degeneration of the cervical spine due to the Veteran's high impact activities during service. The Board finds the May 2021 private opinion to be adequate for appellate review. The examiner relied on a review of the file, and he provided a full and detailed rationale that included discussion of the Veteran's diagnosed disabilities and lay statements of reported history. Although the physician did not discuss whether the Veteran had congenital spinal stenosis, the Board notes that VA treatment records reflect a diagnosis of spinal canal stenosis that is a result of the Veteran's cervical spine degenerative changes in addition to baseline congenital spinal canal stenosis. See August 2016 VA treatment records. Because the record otherwise reflects that the Veteran has non-congenital spinal canal stenosis, the Board finds the exclusion of a discussion of congenital spinal stenosis non-prejudicial. After considering the Veteran's lay statements, STRs, and the May 2021 private opinion, the probative evidence reflects that the Veteran's cervical spine disease is related to his military service. Thus, service connection is warranted. 2. Entitlement to an increased rating in excess of 10 percent for right knee chondromalacia. 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. The withdrawal of an appeal must be either in writing or on the record at a hearing. Id. Withdrawal can be by the Veteran or by his representative. Id. During his May 2021 Board hearing, the Veteran explicitly and unambiguously withdrew his appeal of entitlement to an increased rating in excess of 10 percent for right knee chondromalacia with full understanding of the consequences of such action. The Board finds that there remain no allegations of errors of fact or law for appellate consideration with respect to this issue. Accordingly, as the Board has no further jurisdiction to review an appeal on this matter, it is dismissed. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Sandler, 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.