Citation Nr: 20052931 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 16-17 935 DATE: August 10, 2020 ORDER 1. The appeal as to the propriety of the rating reduction of the Veteran’s service-connected reflex sympathetic dystrophy of the left lower extremity from 30 percent disabling to 0 percent disabling is dismissed as withdrawn. 2. Entitlement to an increased rating for reflex sympathetic dystrophy of the left lower extremity, currently evaluated as 0 percent disabling, is denied. FINDINGS OF FACT 1. In a written correspondence signed by the Veteran and his representative, dated and received in July 2019, prior to the promulgation of a decision in the appeal, the Veteran, through his representative, indicated that a withdrawal of his appeal was requested as to the issue of the propriety of the rating reduction of the Veteran’s service-connected reflex sympathetic dystrophy of the left lower extremity from 30 percent disabling to 0 percent disabling. 2. The evidence of record does not contain competent probative objective demonstration that the Veteran has reflex sympathetic dystrophy of the left lower extremity manifested by symptoms or manifestations productive of functional impairment comparable to at least mild incomplete paralysis of the external popliteal nerve (common peroneal nerve).   CONCLUSIONS OF LAW 1. The criteria for withdrawal by the Veteran, through his representative, of the appeal as to the issue of the propriety of the rating reduction of the Veteran’s service-connected reflex sympathetic dystrophy of the lower left extremity from 30 percent disabling to 0 percent disabling have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.205. 2. The criteria for a compensable rating for service-connected reflex sympathetic dystrophy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.21, 4.124a, Diagnostic Codes 8599-8521. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1989 to August 1998. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In a March 2008 rating decision, the RO granted entitlement to service connection for reflex sympathetic dystrophy of the left lower extremity and assigned a 30 percent initial evaluation, effective March 16, 2006. In a September 2014 Application for Disability Compensation and Related Compensation Benefits, VA form 21-526 EZ, the Veteran requested an increased rating for his service-connected reflex sympathetic dystrophy of the left lower extremity. In a February 2015 rating decision, following the Veteran’s November 2014 VA Knee and Lower Leg Conditions examination, the RO proposed that the rating for the Veteran’s service-connected reflex sympathetic dystrophy of the left lower extremity be reduced from 30 percent to 0 percent disabling. In the April 2015 rating decision on appeal, the RO reduced the rating for reflex sympathetic dystrophy of the left lower extremity disability from 30 percent to noncompensable, effective July 1, 2015. In a July 2015 Notice of Disagreement, the Veteran disagreed with both the evaluation of the reflex sympathetic dystrophy of the left lower extremity disability and well as the propriety of the rating reduction for the same disability, and elected the Decision Review Officer (DRO) process. In a March 2016 Statement of the Case, the RO confirmed and continued the noncompensable rating reduction for the reflex sympathetic dystrophy of the left lower extremity disability. The RO then certified the issue of entitlement to an increased rating for reflex sympathetic dystrophy of the left lower extremity to the Board in June 2016. The Board notes that the issue of entitlement to an increased rating is distinct from the issue of entitlement to restoration of a reduced rating for the same disability. The United States Court of Appeals for Veterans Claims (Court) has emphasized that rating reduction cases are separate from rating increase cases. Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991); Dofflemeyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992). Thus, as there are two separate issues of increased rating for the Veteran’s reflex sympathetic dystrophy of the left lower extremity disability and the propriety of the rating reduction for the same disability, the Board has characterized the issues on appeal as shown on the title page of this decision. The Veteran requested a hearing before a Veteran’s Law Judge of the Board. See VA Form 9, Appeal to Board of Veterans’ Appeals, received June 2018. However, in July 2019, the Veteran, through his attorney, submitted a statement indicating that he wished to withdraw his hearing request. Under 38 C.F.R. § 20.704 (e), a request for hearing may be withdrawn by an appellant at any time before the hearing. Therefore, the Board finds that the hearing request has been withdrawn. 1. Withdrawal of appeal - propriety of the rating reduction of the Veteran’s service-connected reflex sympathetic dystrophy of the left lower extremity 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. § 20.204. Withdrawal may be made by the Veteran or by his authorized representative. Id. Withdrawal is only effective if it is explicit, unambiguous, and done with the Veteran’s full understanding of the consequences. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Withdrawal of an appeal will be deemed a withdrawal of the notice of disagreement and, if filed, the substantive appeal, as to all issues to which the withdrawal applies. 38 C.F.R. § 20.204(c). In a written correspondence signed by the Veteran and his representative, dated and received in July 2019, prior to the promulgation of a decision in the appeal, the Veteran, through his representative, indicated that a withdrawal of his appeal was requested as to the issue of the propriety of the rating reduction of the Veteran’s service-connected reflex sympathetic dystrophy of the left lower extremity from 30 percent disabling to 0 percent disabling. It was explicitly stated that the Veteran’s signature to the document certified his request to withdraw his appeal. As such, the Board finds that the withdrawal of the appeal was explicit and unambiguous. The Board also finds that the withdrawal of the appeal was done with the Veteran’s full understanding of the consequences as he was represented by an attorney at the time. As such, the Board finds that the withdrawal of the appeal as to the issue of the propriety of the rating reduction of the Veteran’s service-connected reflex sympathetic dystrophy of the left lower extremity from 30 percent disabling to 0 percent disabling was explicit, unambiguous, and done with the Veteran’s full understanding of the consequences, as required by DeLisio. Because the appeal of the issue of the propriety of the rating reduction of the Veteran’s service-connected reflex sympathetic dystrophy of the left lower extremity from 30 percent disabling to 0 percent disabling has been withdrawn, there remains no allegations of error of fact or law for appellate consideration with regard to the issue. Accordingly, the Board does not have jurisdiction to review the issue, and the appeal for the issue is dismissed as withdrawn. 2. Entitlement to an increased rating for reflex sympathetic dystrophy of the left lower extremity, currently evaluated as 0 percent disabling The Veteran contends that he is entitled to an increased rating for his service-connected reflex sympathetic dystrophy of the left lower extremity. See September 2014 Application for Disability Compensation and Related Compensation Benefits, VA form 21-526 EZ. The April 2015 rating decision decreased the evaluation of the Veteran’s reflex sympathetic dystrophy of the left lower extremity from 30 percent to 0 percent, effective July 1, 2015, effectively denying the Veteran’s increased rating claim. The Board finds that the Veteran has provided a timely Notice of Disagreement as to the denial of the Veteran’s increased rating claim in the April 2015 rating decision. The March 2016 Statement of the Case affirmed the noncompensable rating assigned. A timely substantively appeal, including as to an increased rating for the disability at issue, was received in April 2016. With regard to the claim of entitlement to an increased rating for reflex sympathetic dystrophy of the left lower extremity, the claim for an increased rating was received on September 29, 2014. As such, normally the rating period for consideration would be from one year prior to the date of receipt of the claim. 38 C.F.R. § 3.400. However, as noted above, the Veteran has withdrawn his appeal as to the reduction of the rating for the service-connected disability at issue from 30 percent to noncompensable, effective from July 1, 2015. As such, that portion of the April 2015 rating decision as to the rating assigned prior to July 1, 2015 is final. 38 U.S.C. § 7105. Hence, the rating period for consideration on appeal is from July 1, 2015. Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 The Veteran’s service-connected reflex sympathetic dystrophy of the left lower extremity is currently rated as noncompensable under 38 C.F.R. § 4.124a, Diagnostic Codes 8599-8521. Hyphenated codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. Here, the use of Diagnostic Code 8599-8521 reflects that there is no diagnostic code specifically applicable to the Veteran’s service-connected reflex sympathetic dystrophy of the left lower extremity, and that the disability has been rated by analogy to paralysis of the external popliteal nerve (common peroneal) under Diagnostic Code 8521. 38 C.F.R. § 4.20. Pursuant to Diagnostic Code 8521, a 10 percent rating is warranted for incomplete paralysis of the external popliteal nerve (common peroneal) which is mild. A 20 percent rating is warranted for moderate incomplete paralysis, and a 30 percent rating is warranted for severe incomplete paralysis. A maximum 40 percent rating is warranted for complete paralysis of the external popliteal nerve (common peroneal) manifested by foot drop and slight droop of first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; anesthesia covers entire dorsum of foot and toes. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable rating under the Diagnostic Code are not met. 38 C.F.R. § 4.31. As noted above, the Veteran was seen at a November 28, 2014 VA examination for re-evaluation of his service-connected reflex sympathetic dystrophy of his left lower extremity and service-connected left knee postoperative residuals with posttraumatic degenerative changes. It was noted as medical history by the examiner that the Veteran denied ever having heard that he had been diagnosed with reflex sympathetic dystrophy of the left lower extremity. The Veteran denied that he had flare-ups which impacted the function of the lower leg. It was noted that he had pain without clinical distinction as to whether such was attributable to reflex sympathetic dystrophy of his left lower extremity, and/or service-connected left knee postoperative residuals with posttraumatic degenerative changes, which affected his ability to walk, stand and kneel. Following clinical examination, the impressions did not include reflex sympathetic dystrophy of his left lower extremity. Additionally, review of VA treatment records received and obtained in support of this claim did not reveal evidence showing that reflex sympathetic dystrophy of his left lower extremity currently meets the criteria for a compensable evaluation. A January 2016 VA physician emergency note, when the Veteran was seen for migraine headache, noted that neurologic examination revealed motor and sensory examinations were normal, and that the Veteran had a normal gait. On neurology consult that same day, the disability at issue was not included in the list of active problems. Motor examination revealed strength of the left lower extremity was 4+5/5 or 5/5 in all areas tested. Muscle tone of the lower extremities was noted as normal. Assessment of muscle bulk showed no atrophy or fasciculation. Reflex testing revealed left extremity was 0 or 2+ in areas tested. The Veteran’s toes were downgoing, bilaterally, and clonus was absent. As to his stance/gait, it was noted that he used a cane, and had left side weakness. On June 2016 VA examination of lower leg conditions, muscle strength of the left knee and left ankle was noted to be 4/5, but the reduction in muscle strength was noted to be entirely due to a claimed condition in the Diagnosis Section of the report, which did not include reflex sympathetic dystrophy of his left lower extremity. There was no muscle atrophy. The Veteran used a cane to ambulate. In order to warrant a compensable rating for the disability at issue, there must be demonstration of associated functional impairment comparable to at least mild incomplete paralysis. The Board notes that words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, such is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2 , 4.6. The Board finds that the evidence outlined above does not provide objective evidence of impaired function, or symptomatology associated with the disability at issue, or complaints thereof. Therefore, in the absence of medical evidence showing that the Veteran’s reflex sympathetic dystrophy of the left lower extremity is manifested by symptoms or functional impairment that currently meets the criteria for a compensable evaluation, the preponderance of the evidence is against the claim for entitlement to a compensable rating. As such, the appeal is denied. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. E. Leary, Associate Attorney 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.