Citation Nr: 18160539
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 17-11 347
DATE:	December 27, 2018
ORDER
Service connection for an abdominal muscle strain is dismissed.  
Service connection for a back disability is granted.  
Service connection for a right knee disability is granted.  
Service connection for a left knee disability is granted.  
REMANDED
Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded.
FINDINGS OF FACT
1. The Veteran withdrew his claim of service connection for his abdominal muscle strain, in his Form 9, as he intended to file a claim of increased rating for his service connected irritable bowel syndrome with chronic gastritis/duodenitis.  
2. The Veteran’s back, right knee and left knee disabilities began in service.  
CONCLUSIONS OF LAW
1. The criteria for withdrawal of a claim for service connection for an abdominal muscle strain have been met.  38 U.S.C. § 7105(d)(5); 38 C.F.R. § 20.204.  
2. The criteria for service connection for a back disability have been met.  38 U.S.C. §1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a).  
3. The criteria for service connection for a right knee disability have been met.  38 U.S.C. §1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a).  
4.  The criteria for service connection for a left knee disability have been met.  38 U.S.C. §1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a).  
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty in the United States Air Force from January 1974 to April 1994.  
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from April 1995, July 2011 and November 2012 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO).  
The Board observes that although the RO characterized the Veteran’s back claim as one to reopen, a review of the file shows that the Veteran submitted correspondence that can be construed as a notice of disagreement within one year of the original April 1995 rating decision denying service connection for a back disorder.  During the relevant time period, a “notice of disagreement” (NOD) was defined as a written communication from a claimant or the representative expressing dissatisfaction or disagreement with an adjudicative determination of an AOJ and a desire to contest the result. 38 C.F.R. § 20.201. While special wording is not required, the NOD must be in terms which can be reasonably construed as disagreement with that determination and a desire for appellate review. Id; Gallegos v. Principi, 283 F.3d 1309, 1314 (Fed. Cir. 2002). In determining whether a written communication constitutes an NOD as to a particular issue, both the actual wording of the communication and the context in which it was written must be considered. Jarvis v. West, 12 Vet. App. 559, 561 (1999). Within this framework, the U.S. Court of Appeals for Veteran’s Claims (the Court) has liberally interpreted the statement by an appellant that he “wonder[ed] why [his claim] wasn’t allowed back in 1985” to be an NOD as to the effective date of his award. Ortiz v. Shinseki, 23 Vet. App. 353, 358 (2010), rev’d sub nom. Rivera v. Shinseki, 654 F.3d 1377 (Fed. Cir. 2011) (citing Anderson v. Principi, 18 Vet. App. 371, 375 (2004)). 
In February 1996, the Veteran submitted a statement inquiring about why he did not receive a rating for his back disability.  This correspondence was received within one year of the April 1995 rating decision denying service connection for a back disorder.  When liberally construed, this statement served as a NOD.  See Ortiz, 23 Vet. App. at 358.  Because no SOC was issued in response to the Veteran’s February 1996 NOD, the claim has remained in appellate status despite the RO’s later issuance of several rating decisions addressing the Veteran’s claim. Myers v. Principi, 16 Vet. App. 228, 235-36 (2002). “[O]nce an NOD has been filed, further RO decisions, which do not grant the benefit sought, cannot resolve the appeal that remains pending before the Board.” Juarez v. Peake, 21 Vet. App. 537, 543 (2008); see also Tablazon v. Brown, 8 Vet. App. 359, 361 (1995) (holding that because the RO did not furnish the claimant with a SOC in response to a timely filed NOD, the claimant was unable to file a timely appeal to the Board, and therefore, the RO decision never became final).
Moreover, new and material evidence was received within one year of the July 2011 rating decision that addressed the Veteran’s knee claim, and thus that decision likewise did not become final.  38 C.F.R. § 3.156(b).
In July 2018, the Veteran submitted a notice of disagreement challenging the denial of service connection for hemorrhoids.  A review of the file shows that the RO is currently addressing this matter and as such, remand of the issue is not necessary at this time.
Withdrawn Claim
The Board notes the Veteran’s contention that his claim of service connection for an abdominal muscle strain was intended to be a claim for an increased rating for the Veteran’s service connected irritable bowel syndrome with chronic gastritis/duodenitis.  See February 2017 VA Form 9.  The Board interprets this statement as a request to withdraw the service connection issue. 38 C.F.R. 20.204.  Accordingly, the Board does not have jurisdiction to review this issue and it is dismissed. Id.  
Service Connection
The Veteran asserts that he experienced pain related to his back, right and left knee in-service and that his symptoms have continued since service.  
Service connection may be granted for a disability resulting in a disease or injury that is incurred in or aggravated by active military service. 38 U.S.C. §1110; 38 U.S.C. §3.303.  To establish service connection for the claimed disorder, the following criteria must be met: (1) evidence of a current disability; (2) evidence of an in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and current disability.   See 38 C.F.R. § 3.303; see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999).  
Back Disability
The Board finds service connection for the Veteran’s back disability is warranted.  September 1991 service treatment records show the Veteran began experiencing back pain after heavy lifting.  He was seen multiple times for back pain in service.  See service treatment records.  The Veteran reported that his back pain continued during service and after his separation from service, causing trouble lifting and getting up and down. November 1999 post-service VA treatment records show the Veteran was diagnosed with sciatica with associated numbness and erectile dysfunction.  December 1999 VA treatment records show his disability progressed to include spinal stenosis.  Since that time, the Veteran has been diagnosed with herniated intervertebral lumbar disc and lumbar degenerative disc disease.  See September 2009 and June 2010 VA treatment records.  The Board notes the March 2011 VA examiner’s conclusion that there is insufficient objective evidence that the Veteran has a chronic disability beyond the natural progression expected with aging, wear, and tear.  However, this opinion is entitled to less probative weight as it is based on an inaccurate factual predicate, as it is well documented that the Veteran has been diagnosed with multiple chronic back disabilities. Reonal v. Brown, 5 Vet. App. 458 (1993).  Further, because the Veteran’s back disability began in-service and he has experienced continuous symptoms since that time, service connection is warranted.  Flynn v. Brown, 6 Vet. App. 500, 503 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  
Right Knee
The Board finds service connection for the Veteran’s right knee disability is warranted.  The August 2012 VA examiner diagnosed the Veteran with residuals from a right knee arthroscopy from a meniscus tear.  April 1987 service treatment records show the Veteran had right knee pain, was diagnosed with chondromalacia, and reported chronic right knee pain for an extended period while in service.  The right knee was noted to have crepitus and effusions.  The Veteran was seen numerous times in service for his right knee pain and he now reports that since service he experienced painful motion in his right knee.  See April 2004 private treatment records; March 2009 VA treatment records.  In a February 2012 VA treatment record, the Veteran told his treating physician that he had a previous knee injury in the military and was told that he needed surgery for a medial meniscal tear, but declined to have surgery at that time.  
Ultimately, the Veteran had arthroscopic repair of his right meniscal tear in April 2012.  The Board notes the August 2012 VA examiner’s conclusion that the Veteran’s right knee disability is not related to service because he was diagnosed with chondromalacia in service and there is no evidence of continuous treatment.  However, the Board finds this opinion is entitled to less probative weight because it fails to consider multiple complaints of knee pain in-service and the Veteran’s lay statements.  The Board notes that statements made to medical providers solely for treatment purposes are inherently more credible than those made in conjunction with a claim for disability compensation benefit. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care); see also Buchanan v. Nicholson, 451 F.3d at 1331 (lack of contemporaneous medical records does not, in and of itself, render lay testimony not credible). As the Veteran has competently and credibly reported that he experienced continuous right knee pain symptoms since service, service connection is warranted. Flynn, 6 Vet. App. at 503.  
Left knee 
The Board finds service connection for the Veteran’s left knee disability is warranted.  In April 1987 service treatment records show the Veteran was diagnosed with left knee chondromalacia patella.  At that time the Veteran reported that he began experiencing pain in his left knee after playing sports and climbing a hill. March 2009 VA treatment records show the Veteran experienced burning and sensation knee pain.  The Board notes the August 2012 VA examiner’s conclusion that the Veteran’s left knee disability is not related to service because objective evidence is insufficient to form a nexus between the claimed left knee disability and active duty because there is no further documentation of a left knee disability after active duty service.  This conclusion is entitled to less probative weight because it fails to consider post-service medical records showing complaints of knee pain and the Veteran’s lay statements. As the Veteran’s left knee disability had its onset in service and he reports continuous symptoms since that time, service connection is warranted. Id.  
REASONS FOR REMAND
The Veteran asserts that he is unable to obtain or maintain employment as a result of his service-connected disabilities. TDIU may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional combined service connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 3.340, 3.341, 4.16(a).  Currently the Veteran receives a 30 percent rating for irritable bowel syndrome with chronic gastritis/duodenitis.  Pursuant to this decision, the Veteran is now service-connected for additional disabilities and it is necessary for the RO to adjudicate these claims to determine whether the Veteran meets schedular requirements for a TDIU.  
The matters are REMANDED for the following action:
After assigning the initial ratings for the Veteran’s now service-connected back and knee disabilities, readjudicate the issue of entitlement to a TDIU.

 
TRACIE N. WESNER
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	K.Ijitimehin, Associate Counsel  

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency