Citation Nr: 21062728 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 14-31 400 DATE: October 12, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent prior to January 14, 2016 for left knee, status-post ACL/MCL and meniscus tear/repair with surgical scars, in excess of 20 percent from January 14, 2016, forward has been withdrawn. Entitlement to a disability rating in excess of 10 percent from September 22, 2020, to June 28, 2021 for service-connected left knee strain with meniscal tear, anterior cruciate ligament tear and degenerative arthritis (instability), and in excess of 20 percent from June 29, 2021, forward has been withdrawn. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities has been withdrawn. REMANDED Entitlement to a disability rating in excess of 20 percent from December 27, 2019, to September 21, 2020 for service-connected left knee strain with meniscal tear, anterior cruciate ligament tear and degenerative arthritis (instability) is remanded. Entitlement to an initial disability rating in excess of 40 percent for left knee limitation of extension is remanded. Entitlement to an initial disability rating in excess of 10 percent for left knee limitation of flexion, and a compensable disability rating from June 29, 2021, forward is remanded. FINDINGS OF FACT 1. On August 10, 2021, the Veteran submitted a written statement, prior to the promulgation of a decision in the appeal, requesting the withdrawal of the appeal for entitlement to an initial disability rating in excess of 10 percent prior to January 14, 2016 for left knee, status-post ACL/MCL and meniscus tear/repair with surgical scars, in excess of 20 percent from January 14, 2016, forward. 2. On August 10, 2021, the Veteran submitted a written statement, prior to the promulgation of a decision in the appeal, requesting the withdrawal of the appeal for entitlement to a disability rating in excess of 10 percent from September 22, 2020, to June 28, 2021 for service-connected left knee strain with meniscal tear, anterior cruciate ligament tear and degenerative arthritis (instability), and in excess of 20 percent from June 29, 2021, forward. 3. On August 10, 2021, the Veteran submitted a written statement, prior to the promulgation of a decision in the appeal, requesting the withdrawal of the appeal for entitlement to a TDIU rating due to service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the claim for entitlement to an initial disability rating in excess of 10 percent prior to January 14, 2016 for left knee, status-post ACL/MCL and meniscus tear/repair with surgical scars, in excess of 20 percent from January 14, 2016, forward has been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for withdrawal of the appeal of the claim for entitlement to a disability rating in excess of 10 percent from September 22, 2020, to June 28, 2021 for service-connected left knee strain with meniscal tear, anterior cruciate ligament tear and degenerative arthritis (instability), and in excess of 20 percent from June 29, 2021, forward has been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 3. The criteria for withdrawal of the appeal of the claim for entitlement to a TDIU rating due to service-connected disabilities has been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1984 to May 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision. In April 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a video-conference hearing. A transcript of that hearing is of record. Most recently, in March 2021 the Board remanded the Veteran's appeal of the claims of entitlement to an initial disability rating in excess of 10 percent prior to January 14, 2016 for left knee, status-post ACL/MCL and meniscus tear/repair with surgical scars, and in excess of 20 percent from January 14, 2016, forward; and entitlement to a TDIU. During the pendency of the Veteran's appeal, he was awarded separate ratings for his left knee disability under Diagnostic Codes (DC) 5257, 5260 and 5261. Specifically, he was assigned a 20 percent rating for left knee instability under DC 5257 from December 27, 2019, to September 21, 2020, a 10 percent rating from September 22, 2020, to June 28, 2021, and a 20 percent rating from June 29, 2021, forward. Further, a July 2021 rating decision granted service connection for left knee limitation of extension and assigned a 40 percent disability rating under DC 5261, effective June 29, 2021; and service connection for left knee limitation of flexion and assigned a 10 percent disability rating under DC 5260, effective December 27, 2019 and a noncompensable disability rating, effective June 29, 2021. However, because the decision was not a full grant of the benefits sought, the issues remain before the Board on appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). 1. Entitlement to an initial disability rating in excess of 10 percent prior to January 14, 2016 for left knee, status-post ACL/MCL and meniscus tear/repair with surgical scars, in excess of 20 percent from January 14, 2016, forward has been withdrawn. 2. Entitlement to a disability rating in excess of 10 percent from September 22, 2020, to June 28, 2021 for service-connected left knee strain with meniscal tear, anterior cruciate ligament tear and degenerative arthritis (instability), and in excess of 20 percent from June 29, 2021, forward has been withdrawn. 3. Entitlement to a TDIU rating due to service-connected disabilities has been withdrawn. VA regulations provide for the withdrawal of an appeal to the Board by the submission of a written request at any time before the Board issues a final decision on the merits. See 38 C.F.R. § 20.204. After an appeal is transferred to the Board, an appeal withdrawal is effective the date it is received by the Board. Id. Appeal withdrawals must be in writing and must include the name of the Veteran, the Veteran's claim number, and a statement that the appeal is withdrawn. Id. The Veteran was issued a supplemental statement of the case (SSOC) addressing the above issues in July 2021. On August 10, 2021, prior to the promulgation of a decision in the appeal, the Board received written notification from the Veteran expressing his desire to withdraw his appeal. See July 2021 Appeals Satisfaction Notice. The Veteran's notification containing his request to withdraw the appeal has been reduced to writing, and it contains his name and claim number. The Board has not yet issued a decision concerning the above issues on appeal; thus, the criteria are met for withdrawal of the claims. Specifically, the July 2021 Supplemental Statement of the Case denied the Veteran entitlement to entitlement to an initial disability rating in excess of 10 percent prior to January 14, 2016 for left knee, status-post ACL/MCL and meniscus tear/repair with surgical scars, in excess of 20 percent from January 14, 2016, forward; entitlement to a disability rating in excess of 10 percent from September 22, 2020, to June 28, 2021 for service-connected left knee strain with meniscal tear, anterior cruciate ligament tear and degenerative arthritis (instability), and in excess of 20 percent from June 29, 2021, forward; and entitlement to a TDIU rating due to service-connected disabilities has been withdrawn. The Appeals Satisfaction Notice the Veteran received by VA on August 10, 2021, provides that by signing and submitting the form, he is asking to withdraw all remaining issue(s) contained in the most recent Statement of the Case or Supplemental Statement of the Case and asks the regional office of jurisdiction to discontinue further development actions associated with this appeal. When pending appeals are withdrawn, there are no longer allegations of factual or legal error with respect to the issues that had been previously appealed. In such an instance, dismissal of the pending claims are appropriate. See 38 U.S.C. § 7105(d). Accordingly, further action by the Board on these issues are not appropriate and they are dismissed. Id. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 20 percent from December 27, 2019, to September 21, 2020 for service-connected left knee strain with meniscal tear, anterior cruciate ligament tear and degenerative arthritis (instability) is remanded. 2. Entitlement to an initial disability rating in excess of 40 percent for left knee limitation of extension is remanded. 3. Entitlement to an initial disability rating in excess of 10 percent for left knee limitation of flexion, and a compensable disability rating from June 29, 2021, forward, is remanded. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claim on appeal, so the Veteran is afforded every possible consideration. In March 2021, the Board remanded the Veteran's appeal, in part, to obtain a retrospective medical opinion concerning any additional degrees of limited motion caused by functional loss during a flare-up as he reported flare-ups on the December 2019 VA Knee and Lower Leg Conditions Disability Benefits Questionnaire and August 2010 examination report. Pursuant to the Board's remand, the Veteran was afforded a June 2021 Knee and Lower Leg Conditions Disability Benefits Questionnaire and corresponding June 2021 medical opinion. The June 2021 medical opinion states that upon reviewing medical records, subjective evidence, and objective evidence gathered at the time of examination, it is at least as likely as not that the Veteran may have better range of motion during flare-ups on previous examinations from August 2010, December 2019, and September 2020 when compared to the June 2021 examination. The examiner explained that it is not possible to provide retrospective opinion on estimation of exact range of motion during flare-ups in degrees on previous evaluations with limited evidence available. Again, VA examiners are also required to estimate the additional loss of range of motion during a flare-up based on all procurable information from the record, as well as the Veteran's own statements. Sharp v. Shulkin, 29 Vet. App. 26, 34-35 (2017). It is not apparent why the examiner could not estimate the additional loss of range of motion based on the Veteran's statements describing his flare-ups, or why the available information in the file was not sufficient to permit such an estimate. Further, if an estimate cannot be provided without resort to speculation, it must be clear whether this is due to a lack of knowledge among the medical community at large, or insufficient knowledge of the specific examiner. Id. at 36. Therefore, a retrospective medical opinion is necessary to capture the severity of the Veteran's left knee disability. See Chotta v. Peake, 22 Vet. App. 80 (2008) (when there is an absence of medical evidence during a certain period of time, a retroactive medical evaluation may be warranted). Further, the Veteran was not provided a supplemental statement of the case addressing these claims. See 38 C.F.R. § 19.31. This must be accomplished on remand. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from March 2021 to the present. 2. After the above development is completed, obtain an addendum medical opinion by an appropriate clinician, other than the clinician that performed the December 2019 and September 2020 examinations, to determine the current severity of his service-connected left knee disability. The clinician must review the Veteran's claims file. The examiner must provide a retrospective medical opinion, as best as can be ascertained from the Veteran's self-reports as well as from clinical records and other evidence, including VA examination reports. The retrospective opinion must estimate any additional degrees of limited motion caused by functional loss during a flare-up. (Continued on the next page) The Veteran reported flare-ups of his left knee disability in the September 2020 VA Knee and Lower Legs Conditions Disability Benefits Questionnaire, December 2019 VA Knee and Lower Legs Conditions Disability Benefits Questionnaire, and August 2010 examination report. 3. Then, readjudicate the claims on appeal. If a decision is adverse to the Veteran, issue a SSOC and allow appropriate time for response. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mussey, Sean 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.