Citation Nr: 21069619 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 13-03 020 DATE: November 19, 2021 ORDER The appeal for entitlement to an increased rating for right shoulder bursitis is dismissed since it has been withdrawn. The appeal for entitlement to an increased rating for bilateral pes planus is dismissed since it has been withdrawn. The appeal for entitlement to an increased rating for hypothyroidism is dismissed since it has been withdrawn. REMANDED Entitlement to an increased rating for left ankle sprain with trauma residuals is remanded. Entitlement to an increased rating for right ankle sprain with degenerative joint disease is remanded. Entitlement to an increased rating for right knee retropatellar pain syndrome with degenerative changes is remanded. Entitlement to an increased rating for left knee retropatellar pain syndrome with degenerative changes is remanded. Entitlement to an increased rating for thoracolumbar spine degenerative disc disease, including considering whether separate ratings are warranted for lower extremity radiculopathy, is remanded. Entitlement to a total disability rated based on individual unemployability (TDIU) is remanded. FINDING OF FACT During his February 2021 hearing before this Board, so prior to the promulgation of a decision in this appeal, the Veteran's agent clearly and unambiguously indicated the Veteran is withdrawing his claims for increased ratings for his right shoulder disability, bilateral pes planus, and hypothyroidism. CONCLUSION OF LAW The criteria are met for withdrawal of the appeal of these claims. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from February 1989 to September 2004. He testified in support of these claims during January 2016 and February 2021 "virtual" teleconference hearings before the undersigned Veterans Law Judge of the Board. Transcripts of the proceedings are of record. These claims were previously before the Board in December 2018, so in the interim, but were remanded back to the local Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ), for further development and consideration including for VA examinations reassessing the severity of these service-connected disabilities. Withdrawn Claims The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55. In this case at hand, during the February 2021 hearing before this Board, the appellant, through his authorized agent, withdrew the appeals for increased ratings for the right shoulder disability, bilateral pes planus, and hypothyroidism. In Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) found reasonable and adopted the standard for effective oral withdrawals at a hearing set forth in DeLisio v. Shinseki, 25 Vet. App. 45 (2011). Under that standard, an oral statement by an appellant, or his or her authorized representative, at a Board hearing is an effective withdrawal of an appeal under 38 C.F.R. § 20.204 where it is (1) "explicit"; (2) "unambiguous"; and (3) "done with a full understanding of the consequences of such action on the part of the claimant." According to the transcript of the February 2021 hearing before this Board, in a pre-hearing conference it was discussed that the Veteran was withdrawing his claims of entitlement to increased ratings for his right shoulder disability, bilateral pes planus, and hypothyroidism. At the conclusion of the hearing, when the Veteran was done testifying regarding the remaining claims, this presiding Veterans Law Judge asked the Veteran and his agent whether they had anything else to add. Neither of them indicated, in response, they had anything additional or else to add so, notably, including regarding the claims that had been indicated as being withdrawn. The hearing since has been transcribed, so reduced to writing. Hearing testimony, once transcribed, can satisfy the requirement that a statement be "in writing". See, e.g., Tomlin v. Brown, 5 Vet. App. 355, 357-58 (1993). The Board finds that the oral withdrawal of these claims for increased ratings for the right shoulder disability, bilateral pes planus, and hypothyroidism during the February 2021 hearing before this Board was explicit, unambiguous, and done with a full understanding of the consequences of that action. Hence, there remain no allegations of errors of fact or law for appellate consideration concerning these claims. Accordingly, the Board does not have jurisdiction to review the appeals of these claims and they are summarily dismissed. REASONS FOR REMAND Entitlement to increased ratings for right and left ankle disabilities The Veteran's left ankle sprain with trauma residuals is rated as 10 percent disabling under DC 5271. His right ankle sprain with degenerative joint disease is rated as 10 percent disabling under DC 5003-5271. Under DC 5271, ratings are based on whether limitation of motion is moderate or marked. These descriptive words "moderate" and "marked" were not defined in the VA Rating Schedule at time of the earlier rating of these disabilities. Effective February 7, 2021, changes to DC 5271 now define moderate limitation as motion with less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion and marked limitation as motion with less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. In addition, under DC 5262 (Tibia and fibula, impairment of), the terms "marked," "moderate," or "slight knee or ankle disability" language for "malunion of have been removed. Under the new rating criteria, "malunion of" the tibia and fibula is now rated under appropriate knee or ankle diagnostic codes, "whichever results in the highest evaluation". The clinical evidence is against a finding that the Veteran has marked limitation of motion. For example, he had dorsiflexion from 0 to 10 degrees, and plantar flexion from 0 to 30 degrees (March 2008), normal range of motion of the right ankle with no objective evidence of pain, and full flexion, but plantar dorsiflexion limited to 10 degrees for the left ankle (March 2014), normal range of motion (March 2019), normal range of motion for the right ankle (with repeated use, it was expected he would have 0 to 15 degrees of dorsiflexion, but retain 0 to 45 degrees of plantar flexion; with a flare-up, it was expected that he would have 0 to 10 degrees of dorsiflexion, while retaining 0 to 45 degrees of plantar flexion), and for the left ankle 0 to 15 degrees of dorsiflexion, but full plantar flexion (with repeated use, it would be expected that his dorsiflexion would remain from 0 to 15 degrees, but his plantar flexion would be reduced by 5 degrees, or from 0 to 40 degrees; during a flare-up, it would be expected that he would have 0 to 10 degrees of dorsiflexion, and 0 to 40 degrees of plantar flexion (June 2019). The Veteran was also noted to have no history of instability (March 2008), no joint instability upon testing (March 2014), no joint instability upon testing for the right ankle, but some laxity for the left ankle (talar tilt test) (the examiner noted that the Veteran's pain with walking was not due to instability but due to the Veteran's size (i.e., obesity) (2019). However, the Veteran testified at the February 2021 Board hearing that there is nothing in the left ankle that "basically would stop [him] from twisting an ankle if I step on any kind of uneven surface". He reported that his right ankle is not as "loose as his left" but it is also unstable, and that his left ankle ligaments are "so loose" that his foot hangs down. He also stated that he has a "drop foot" due to the left ankle, and has been told that the ligaments in his left leg are "pretty much non-existent now". At the 2021 hearing, his representative asserted that the Veteran is seeking separate evaluations based on instability of the ankle joints because the Veteran has "recently been disabled with chronic instability of both ankles" (see Board hearing transcript, page 14). As ankle instability is not considered under DC 5271, a separate rating may be warranted under DC 5262, which is the rating code for tibia and fibular impairment that considers ratings for ankle disabilities. Thus, another examination may be helpful as the most recent examination is now more than three years old and the Veteran has indicated a worsening. Entitlement to increased ratings for right and left knee retropatellar pain syndrome with degenerative changes The most recent examination was in 2019, more than three years ago. A June 2019 DBQ reflects that the Veteran reported stiffness and when he walks, the pain becomes sharp and the knees "feel like they just want to go out because of the sharpness with pain". He denied locking or the knees getting "stuck". Upon testing, he had range of motion from 0 to 115 degrees bilaterally. There was no evidence of crepitus, and no instability in any of the tests. There was no history of lateral instability, and no history of recurrent effusion. It was further noted that the Veteran did not have, and had never had, a meniscus condition. A May 2020 VA record reflects that the Veteran had left lateral knee pain after slipping. It was noted that he did not have any clinical features suggesting a ligamentous tear or instability. An October 2020 VA record reflects that the Veteran reported increased right knee pain since he jumped out of a truck on the fourth of July. He reported that pain and stability are worse when walking on rocks or uneven ground. The examiner noted that it seems that the Veteran should be able to fully extent the knee but that the Veteran stopped because it was "too painful" and the Veteran reported that it was "mechanical. It won't go that straight". The Veteran testified at the February 2021 Board hearing that with regard to the right knee, he has a "strong lack of stability", and that if he tries to put on his shoes or socks, he gets a "lot of movement within the knee and a lot of cracking, and he has a "very limited ability to bend" the knee. He reported that instability has caused him to fall. He further testified that he has been told that his cartilage or meniscus is "completely worn away". For the left knee, he also indicated that there is "no stability" on any kind of uneven ground of if he goes down steps, and the ability to bend it is "very small". A new examination will be useful in deciding these claims. See Snuffer v. Gober, 10 Vet. App. 400 (1997). Entitlement to increased ratings for thoracolumbar spine degenerative disc disease. The most recent DBQ is from June 2019. It reflects that the Veteran does not have ankylosis. Upon initial testing, he had 0 to 45 degrees of forward flexion, and 0 to 10 degrees of extension. It was noted that during a flare-up or after repetitive use, he would have 0 to 40 degrees of forward flexion, and 0 to 10 degrees of extension. During a flare-up, he would have limited range of motion due to pain in that he would not be able to lift, carry, or lean much. The Veteran testified at the 2021 Board hearing that he has chronic pain and that his back "locks up on a regular basis" which prevents him from even being able to stand straight. He reported that he has an "extremely little small ability to bend forward" and he is getting tingling sensations and weird sensations now" in his legs and feet on a daily basis. He testified that he has episodes of back pain two to three times a month, during which he will have to lay in bed or recline for three to five days (i.e., six to 15 days a month). He also testified that he has to drag his right leg. The Veteran's testimony indicates a potential worsening of his back symptoms since his 2019 examination; thus, a more recent examination is warranted, to include consideration of whether the Veteran's situation is the functional equivalent of ankylosis, or the more severe unfavorable ankylosis. Favorable" ankylosis, meaning fixation of the spine in a neutral position (0 degrees), is contemplated by the existing 40 percent rating according to the General Rating Formula for Diseases and Injuries of the Spine. Note (5) in this General Rating Formula explains that, contrastingly, "unfavorable" ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine, is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. See Chavis v. McDonough, No. 18-2928 (April 16, 2021). In addition, at the hearing, the Veteran's representative stated that the Veteran was seeking separate ratings of 20 percent for right and left lower extremity radiculopathy; a 20 percent would equate with moderate incomplete paralysis of the sciatic nerve. The Veteran testified at the February 2021 Board hearing that he has been told that he has radiculopathy in both lower extremities, more so in the right. There is some conflicting evidence as to whether the Veteran has radiculopathy. A January 2009 record reflects significant right lower extremity weakness compared to the left lower extremity. In addition, the deep tendon reflexes (DTRs) were "affected". A February 2009 PT record reflects no numbness, tingling at present, and "no noted radicular symptoms at present. DTRs normal." An August 2013 neurosurgery consult reflects that the Veteran reported that a week earlier, he had sudden radiation of back pain into the left leg. He reported that at time, his entire leg is numb; he was assessed with lumbar radiculopathy. A March 2014 DBQ reflects that the Veteran did not have radiculopathy. However, a March 2014 VA record reflects that an August 2013 MRI showed new left lateral recess L3-L4 level disc extrusion which "could account for the left L4 radicular symptoms." A January 2015 and a March 2015 VA clinical record reflect that the Veteran has no paresthesias or neuropathies. An October 2016 record by nurse practitioner K. Szygorski reflects that the Veteran has "radicular low back pain, intermittent tingling in feet" and described the Veteran's radiculopathy as "moderate". A June 2019 DBQ reflects that the Veteran does not have radiculopathy, has all normal deep tendon reflexes, has normal strength, and has all normal sensory examination findings. The report specifically notes that he "doesn't have leg symptoms from his back radiating down into his legs." It also notes that the Veteran "denies any numbness tingling tremors radiation pain in the lower extremity". However, a November 2019 VA record reflects that the Veteran has was assessed with radiculopathy including facetogenic and myofascial pain. Given the conflicting evidence, the Veteran's 2021 testimony, and that it has now been more than three years since the last examination, the Board finds a more recent examination may be useful. The examiner should consider the Veteran's contentions as well as objective findings. Entitlement to a TDIU This TDIU claim is "inextricably intertwined" with the claims for a higher and/or separate ratings. Thus, consideration of this claim must be deferred pending completion of the additional development being directed concerning the claims noted above. Accordingly, these claims are REMANDED for the following action: 1. Schedule the Veteran for an examination of his right and left ankle disabilities to ascertain their current severities. In addition to determining range of motion, the examination should determine if there is objective evidence of instability, or "drop foot" of either ankle. If the Veteran had a "drop foot", the clinician should opine as to whether it is related to the Veteran's back disability, ankle disability, or some other disability. The examiner should opine as to whether the Veteran has slight, moderate, or marked ankle symptoms separate and apart from any limitation of motion and provide evidence as to why it manifests to any such degree. In rendering an opinion, the examiner must consider that the Veteran has multiple lower extremity disabilities, and the examiner should, to the extent reasonably possible, differentiate ankle symptoms from knee, pes planus, and/or black/sciatic symptoms. 2. Schedule the Veteran for an examination to ascertain the severity of his right and left knee retropatellar pain syndrome with degenerative changes. In addition to determining range of motion, the examination should determine if there is objective evidence of instability. The examiner should also opine as to whether the Veteran has a meniscus condition (tear, dislocation, removal) which is as likely as not (50 percent or greater probability) related to his service-connected retropatellar pain syndrome with degenerative changes. In rendering an opinion, the examiner must consider that the Veteran has multiple lower extremity disabilities, and the examiner should, to the extent reasonably possible, differentiate knee symptoms from ankle, pes planus, and/or back/sciatic symptoms. 3. Schedule the Veteran for an examination to ascertain the current severity of his thoracolumbar spine disability. The examiner should opine as to whether the Veteran's spine disability is akin to the functional equivalent of unfavorable ankylosis of the spine (i.e., the entire thoracolumbar spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.) 4. Schedule the Veteran for an examination to determine if he has radiculopathy of the lower extremities related to his back disability, and if so, the severity. In this regard, the examiner should consider that there is confliction clinical evidence as to whether the Veteran has radiculopathy; thus, diagnostic testing and objective findings are important. In rendering an opinion, the examiner must consider that the Veteran has multiple lower extremity disabilities, and the examiner should, to the extent reasonably possible, differentiate any symptoms related to the Veteran's back/sciatic nerve, from those of his knees, ankle, and pes planus. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Wishard 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.