Citation Nr: 1330302	
Decision Date: 09/20/13    Archive Date: 09/25/13

DOCKET NO.  06-00 418	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to an initial rating higher than 10 percent for chronic orthopedic manifestations of lumbosacral strain.
 
2.  Entitlement to an initial separate rating for lower extremity radiculopathy associated with lumbosacral strain.

3.  Entitlement to an initial compensable rating for residuals of right hand trauma. 

4.  Entitlement to an initial compensable evaluation for iliotibial band syndrome of the left knee. 

5.  Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

W.T. Snyder


INTRODUCTION

The Veteran served on active duty from June 2001 to July 2004. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which granted service connection for a lumbosacral strain and assigned a 10 percent evaluation.  The RO also granted service connection for residuals of right hand trauma and iliotibial band syndrome of the left knee and assigned noncompensable evaluations.  All of these decisions were made effective July 16, 2004. 

 Jurisdiction was subsequently transferred to the RO in Montgomery, Alabama.

In August 2010 and September 2012, the Board remanded the claims for further development and the issues are once again before the Board.

The issues of entitlement to higher initial ratings for lumbosacral strain, residuals of right hand trauma and an initial rating in excess of 10 percent for iliotibial band syndrome of the left knee; as well as an initial separate evaluation for lower extremity radiculopathy associated with lumbosacral strain are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.



FINDINGS OF FACT

1.  In June 2013, prior to the promulgation of a decision on the appeal, via letter to the AMC, the Veteran requested withdrawal of his appeal of the issue of entitlement to a TDIU.

2.  The Veteran's left knee disability has been manifested by noncompensable limitation of flexion without limitation of extension, instability or subluxation throughout the initial rating period on appeal.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of an appeal by the Veteran have been met as to the claim of entitlement to a TDIU.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012).

2.  The requirements for an initial rating of 10 percent for iliotibial band syndrome of the left knee have been met since the effective date of service connection.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.159, 3.655(b), 4.1-2, 4.6, 4.10, 4.40, 4.45, 4.56, 4.59, 4.71, DC 5260; 4.73, 5399-5314 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

This decision honors the Veteran's desire to withdraw the issue of entitlement to TDIU; and grants a 10 percent rating for the left knee disability, while deferring consideration of a higher rating.  No further assistance is needed to aid the Veteran in substantiating any aspect of the issues being decided.

Withdrawal of Appeal

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.A. § 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. § 20.204.  Withdrawal may be made by an appellant or by his or her authorized representative.  38 C.F.R. § 20.204.  In the present case, in a June 2013 response to the May 2013 Supplemental Statement of the Case (SSOC), the Veteran informed the AMC he desired to withdraw the issue of entitlement to a TDIU.

The Board notes the June 2013 letter does not reflect the file number of the Veteran's appeal.  Nonetheless, in as much as the Veteran himself signed and sent the letter, it is sufficient to withdraw the appeal.  See 38 C.F.R. § 204(b).  Hence, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appeal of the named issue, and it is dismissed in the action later in this decision.

Applicable Law and Regulation

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  

Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  VA must also interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability.  38 C.F.R. § 4.2.  

VA must resolve any reasonable doubt regarding the degree of disability in favor of the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3.  Where there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7, see also 38 C.F.R. § 4.21.  The Board will consider entitlement to staged ratings to compensate for times since the effective date for grant of service connection when either disability may have been more severe than at other times during the course of the claim on appeal.  See Fenderson v. West, 12 Vet. App. 119 (1999).

VA must also evaluate functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity.  38 C.F.R. § 4.10; see Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Left Knee

Historically, the Veteran injured the knee playing basketball in active service and complained of ongoing pain upon his return from deployment in Iraq.  The residuals were diagnosed as ilotibial band syndrome.  The July 2004 rating decision reflects the RO evaluated the left knee analogously under 38 C.F.R. § 4.73, DC 5314.  See 38 C.F.R. § 4.20.

DC 5314 rates injury to MG XIV, which acts on the hip and knee.  Slight disability warrants a noncompensable rating; moderate disability, 10 percent, moderately severe, 20 percent; and, severe disability, 40 percent.  38 C.F.R. § 4.73.

The May 2004 examination report reflects the Veteran reported pain.  Physical examination of the left knee revealed no overt deformity.  There was tenderness to palpation over the lateral proximal aspect of the knee itself, and no effusion.  ROM was 0 to 130 degrees with no pain on motion, including on movement against resistance.  It was noted however, that the joint was weaker when resistance was applied, fatigability was noted on repetitive motion, and pain increased throughout the range of motion with repetitive use.  There was no ligament instability.  There were no signs of arthritis or ankylosis.

At the February 2011 examination, the Veteran reported intermittent 8/10 left lateral knee pain several times a week.  He reported weakness, stiffness, swelling, and instability, and that his knee fatigued quickly.  The Veteran denied any warmth or redness.  He also reported thrice weekly flare-ups of 9/10 pain.  Precipitating factors for the pain was playing basketball, and rest provided relief.  The Veteran estimated he experienced an additional loss of ROM of 10 percent during flare-ups.  He denied any dislocation of the knee.  In addition to problems playing basketball, the Veteran also reported problems with extended bending and stooping.

Physical examination revealed mild tenderness the left lateral tibial area.  ROM was 0 to 118 degrees with pain at the end point.  Repetitive use testing revealed an increase in pain but no additional loss of ROM.  It did reveal mild fatigue, weakness, and lack of endurance, but the examiner did not assess any additional LOM as a result.  There was no evidence of instability, as Lachman's and varus/valgus were negative.  Neither did repetitive use testing reveal any evidence of instability or incoordination.  There was no crepitus, tremor, muscular fasciculation, or atrophy.  Tibial pulses were 2+.  Left knee X-rays were interpreted as normal.

The RO has rated the left knee disability under criteria for muscle injuries.  38 C.F.R. § 4.73, DC 5314.  The Veteran's disability is also potentially ratable on the basis of limitation of motion.  38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261.  The Board notes the left knee again demonstrated LOM at 0 to 118 degrees.  To warrant a compensable rating for limitation of flexion, flexion must be limited to 45 degrees or less.  See 38 C.F.R. § 4.71a, DC 5260.  VA policy is; however to provide the minimum compensable rating whenever there are actual painful, unstable or misaligned joints due to healed injury.  38 C.F.R. § 4.59 (2012).

The normal range of knee flexion is from 0-140 degrees.  38 C.F.R. § 4.71, Plate II (2012).  At the 2004 examination the Veteran had a slightly reduced range of flexion, and was noted to have pain and fatigability.  The February 2011 examination, also demonstrated noncompensable limitation of flexion with pain.  This record shows that the Veteran has met the criteria for a 10 percent rating under 38 C.F.R. § 4.59 since the effective date of service connection on July 16, 2004.

The Board is deferring consideration of entitlement to a rating in excess of 10 percent, pending completion of the development directed in its remand.


ORDER

The appeal of the issue of entitlement to a TDIU is dismissed.

Entitlement to an initial 10 percent rating for iliotibial band syndrome of the left knee is granted, effective July 16, 2004. 


REMAND

In its previous remand, the Board instructed that the examiner who provided a February 2011 examination should be asked to provide clarification with regard to functional limitation.  If that examiner was not able to provide this information, the Veteran was to be afforded new examinations.  The AMC scheduled the Veteran for a new examination, which he failed to report for.  There is; however, no indication that the previous examiner was contacted.  Hence, it is not clear that another examination was necessary.  Cf. 38 C.F.R. § 3.655 (2012).

The record does not include a copy of the notice that was sent to the Veteran to report for the examinations for which he reportedly failed to appear.  The Federal Circuit has recently held that VA cannot apply the presumption of regularity to notice of examinations.  Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013).

Although the examination reports of record reflect there were no diagnoses of lumbar radiculopathy, the Board notes the findings of reduced or hyper knee and absent ankle reflexes.  This requires additional medial input, as the Veteran is entitled to a separate rating for associated neurological pathology.  See 38 C.F.R. § 4.71a, General Formula, Note (1); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991).

Accordingly, the case is REMANDED for the following action:

1.  Ask the examiner who provided the February 2011 examination to review the claims file and;

a.) estimate in degree the additional limitation of motion of the low back due during flare-ups.

b.) estimate in degrees the additional limitation of motion in the low back and left knee on repetitive motion due to weakness and fatigue and lack of endurance on repetitive motions.

c.) state whether there was additional limitation of motion in the right hand due to the reported tenderness.

If the February 2011 examiner is unable to provide any of this information; that fact should be documented in the record.

2.  Obtain a copy of the notice that was sent to the Veteran of the examination scheduled in March 2013.  

If the notice cannot be located, ask the Veteran whether he would be willing to report for another examination.

If the notice cannot be located, and the Veteran indicates a willingness to report schedule him for an orthopedic examination to evaluate the current severity of his low back, right hand and left knee disaiblities.

3.  Arrange for a neurology examination to determine if the Veteran's lumbar spine disability is manifested by radiculopathy.  The claims file must be provided for review as part of the examination.

Regardless of whether the Veteran reports for the examination, ask the examiner to review the August 2009 examination report.  Request the examiner to opine if there is at least a 50-percent probability that the findings of 3+ right knee jerk and absent ankle jerks reflexes are indicative of lumbar radiculopathy associated with the lumbar spine disability?

Ask the examiner to also review the February 2011 examination report.  Request the examiner to opine if there is at least a 50-percent probability that the findings of 1/1 patellar reflexes and trace Achilles tendon reflexes are indicative of lumbar radiculopathy associated with the lumbar spine disability?

The examiner should provide a full explanation of any opinion rendered.  If the examiner advises the requested opinions cannot be rendered, a full explanation as why not should be provided.

4.  If any decision remains in any way adverse to the Veteran, issue a SSOC.  

The case should thereafter be returned to the Board, if in order.  The Board intimates no opinion as to the ultimate outcome of this case.  The Veteran need take no action unless otherwise notified.  VA will notify him if further action is required on his part.  He has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs