Citation Nr: A21017302 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 190729-14154 DATE: October 26, 2021 ORDER Service connection for bilateral elbow disability is dismissed. Service connection for bilateral shoulder disability is dismissed. Service connection for bilateral wrist disability is dismissed. Service connection for cervical spine disability is dismissed. Service connection for bilateral hip disability is dismissed. Service connection for bilateral ankle disability is dismissed. A rating in excess of 10 percent for right knee patellofemoral pain syndrome is denied. A separate 10 percent rating for right knee instability is granted. A rating in excess of 10 percent for left knee patellofemoral pain syndrome is denied. A separate 10 percent rating for left knee instability is granted. FINDINGS OF FACT 1. In May 2021, the Veteran requested in writing to withdraw his service connection claims for the cervical spine, shoulders, elbows, wrists, hips, and ankles. 2. The preponderance of the evidence is against finding the Veteran's right knee disability was manifested by flexion limited to 30 degrees, extension limited to 15 degrees, ankylosis, semilunar cartilage disability, malunion of tibia and fibula, or genu recurvatum. 3. Resolving reasonable doubt in favor of the Veteran, his right knee disability produced mild instability. 4. The preponderance of the evidence is against finding the Veteran's left knee disability was manifested by flexion limited to 30 degrees, extension limited to 15 degrees, ankylosis, semilunar cartilage disability, malunion of tibia and fibula, or genu recurvatum. 5. Resolving reasonable doubt in favor of the Veteran, his left knee disability produced mild instability. CONCLUSIONS OF LAW 1. The criteria for dismissal of the appeal for service connection for bilateral elbow disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for dismissal of the appeal for service connection for bilateral shoulder disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 3. The criteria for dismissal of the appeal for service connection for bilateral wrist disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 4. The criteria for dismissal of the appeal for service connection for cervical spine disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 5. The criteria for dismissal of the appeal for service connection for bilateral hip disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205 6. The criteria for dismissal of the appeal for service connection for bilateral ankle disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 7. The criteria for a rating in excess of 10 percent for right knee patellofemoral pain syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5003-5260. 8. The criteria for a separate 10 percent rating for right knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5257. 9. The criteria for a rating in excess of 10 percent for left knee patellofemoral pain syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5003-5260. 10. The criteria for a separate 10 percent rating for left knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2004 to April 2005. In November 2018, the Veteran opted into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a Rapid Appeals Modernization Program (RAMP) election form and selecting the higher-level review (HLR) lane. The agency of original jurisdiction (AOJ) issued a RAMP HLR decision in February 2019 and a supplemental claim rating decision in July 2019. In July 2019, VA received a VA Form 10182, Decision Review Request: Board Appeal, electing the Direct Review docket. 38 C.F.R. § 20.301. An August 2020 Board decision, in pertinent part, denied service connection for bilateral ankle, bilateral elbow, bilateral hip, bilateral shoulder, bilateral wrist, and cervical spine disabilities, as well as denied a rating in excess of 10 percent for right knee patellofemoral pain syndrome and denied a rating in excess of 10 percent for left knee patellofemoral pain syndrome. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court). In May 2021, the Court issued an order that partially vacated the Board's decision and remanded the matters on appeal for adjudication consistent with the instructions outlined in the Joint Motion for Partial Remand (JMPR) by the parties. In September 2020, VA received a VA Form 10182, Decision Review Request: Board Appeal, electing direct review of the August 2020 rating decision, arguing special monthly compensation (SMC) had been improperly evaluated. This appeal has been docketed under a separate AMA appeal stream and will be adjudicated in a separate decision. See November 2020 letter. Dismissed Claims 1. Service connection for bilateral elbow disability is dismissed. 2. Service connection for bilateral shoulder disability is dismissed. 3. Service connection for bilateral wrist disability is dismissed. 4. Service connection for cervical spine disability is dismissed. 5. Service connection for bilateral hip disability is dismissed. 6. Service connection for bilateral ankle disability is dismissed. 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. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, in May 2021, the Veteran requested in writing to withdraw his service connection claims for cervical spine, shoulders, elbows, wrists, hips, and ankles. The Veteran indicated the withdrawal was done with full understanding of the consequences. The Board finds the written withdrawal is valid. 38 C.F.R. § 20.205(b)(1). Accordingly, the Board does not have jurisdiction to review the appeals and the claims are dismissed. 7. A rating in excess of 10 percent for right knee patellofemoral pain syndrome is denied. 8. A separate 10 percent rating for right knee instability is granted. 9. A rating in excess of 10 percent for left knee patellofemoral pain syndrome is denied. 10. A separate 10 percent rating for left knee instability is granted. The Veteran is assigned a 10 percent rating for right knee patellofemoral pain syndrome and a 10 percent rating for left knee patellofemoral pain syndrome. The Veteran contends entitlement to a separate rating for bilateral knee instability. The assigned diagnostic code of DC 5260 suggests his knee disabilities are rated based on compensable limitation of flexion. 38 C.F.R. § 4.71a. However, a review of the evidence reflects his knee disabilities were rated based on painful noncompensable limitation of motion. See July 2018 rating decision. Under DC 5260, a 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a. The Board must also consider the other diagnostic codes pertaining to the knee and leg. A separate disability rating may be assigned if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Under DC 5256, a 30 percent rating is warranted for knee ankylosis with a favorable angle in full extension, or in slight flexion between zero and 10 degrees. A 40 percent rating is warranted for knee ankylosis in flexion between 10 degrees and 20 degrees. A 50 percent rating is warranted for knee ankylosis in flexion between 20 degrees and 45 degrees. A 60 percent rating is warranted for extremely unfavorable knee ankylosis, in flexion at an angle of 45 degrees or more. 38 C.F.R. § 4.71a. Under DC 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. Id. Under DC 5258, a 20 percent rating is warranted for dislocation of semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. Id. Under DC 5259, a 10 percent rating is warranted for symptomatic removal of semilunar cartilage. Id. Under DC 5261, a 10 percent rating is warranted where extension is limited to 10 degrees; a 20 percent rating is warranted where extension is limited to 15 degrees; a 30 percent rating is warranted where extension is limited to 20 degrees; a 40 percent rating is warranted where extension is limited to 30 degrees; and a 50 percent rating is warranted where extension is limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. Under DC 5262, a 10 percent rating is warranted for malunion of tibia and fibula with slight knee or ankle disability. A 20 percent rating is warranted for malunion of the tibia and fibula with moderate knee or ankle disability. A 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability. A 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion requiring a brace. Id. Under DC 5263, a 10 percent rating is warranted for genu recurvatum. Id. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Looking to evidence during the appeal period, a March 2018 VA treatment visit noted the Veteran was fitted and issued knee sleeves for the bilateral knees. An April 2018 VA examination reported recurrent intermittent bilateral knee pain and occasional knee buckling since his deployment. The Veteran stated that physical activities or exercise, such as playing basketball or soccer, can trigger or flare pain in the knees. He reported he stopped playing soccer many years ago and quit running three to four years ago due to back and knee pain. The examiner noted the Veteran reported playing basketball the day prior, so he presented with pain in his joints and back. Range of motion testing of the bilateral knees was normal. No pain was noted on examination or with weight bearing. The clinician noted mild tenderness over the anterior knees. The clinician opined that pain, weakness, fatigability, or incoordination would not significantly limit functional ability with repeated use over time or during flareups. There was no evidence of ankylosis. Joint stability testing of the bilateral knees was normal. The clinician noted regular use of knee braces for knee pain. A June 2019 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance form, filled out by a private clinician, described restrictions of the lower extremities as bilateral multiple joint pain and numbness that prevent sitting, standing, or propulsion for prolonged periods. The clinician noted the Veteran experienced knee buckling. The clinician noted the Veteran wore knee braces. The Veteran is assigned a 10 percent rating for painful noncompensable limitation of motion. The evidence does not show flexion limited to 30 degrees or extension limited to 15 degrees to warrant a higher rating for limited motion. The April 2018 VA examiner opined that pain, weakness, fatigability, or incoordination would not significantly limit functional ability with repeated use over a period of time or flareups. The Board notes the RO attempted to schedule another examination to assess the severity of his bilateral knees, but the Veteran declined and requested the decision be made based on the evidence of record. See March 2019 and April 2019 Report of General Information. Next, the Board considered whether the Veteran's right knee disability or left knee disability warranted a separate rating under a different diagnostic code pertaining to the knee and leg. The Veteran contends entitlement to a separate rating for instability. See May 2021 JMPR. Resolving reasonable doubt in favor of the Veteran, the Board finds his right knee disability and left knee disability produced slight instability. In support of finding bilateral knee instability, the Veteran reported knee buckling. The Veteran uses bilateral knee braces on a regular basis. The Board finds the preponderance of the evidence is against finding moderate or severe instability. According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount, "moderate" means limited in scope or effect, and "severe" means very painful or harmful or of a great degree. The Board finds the Veteran's lay statements describing his knee instability, as well as the objective evidence, most closely approximate mild instability. At the April 2018 VA examination, the Veteran described the frequency of his knee buckling as occasional. The Veteran reported playing basketball the day prior to the examination. Joint stability testing of the knees was normal. The June 2019 examiner noted his bilateral leg disabilities prevented prolonged standing and walking. Treatment records in February 2018 and March 2018 observed steady gait. The evidence does not show the Veteran required use of a cane, walker, or wheelchair. The preponderance of the evidence does not support, nor has the Veteran contended, ankylosis, semilunar cartilage disability, malunion of tibia and fibula, or genu recurvatum of either knee. In conclusion, the preponderance of the evidence is against a rating in excess of 10 percent for right knee patellofemoral pain syndrome or left knee patellofemoral pain syndrome. Resolving reasonable doubt in favor of the Veteran, a separate 10 percent rating is warranted for right knee instability and left knee instability. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Winkler, Associate 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.