Citation Nr: 21023199 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 15-12 953 DATE: April 20, 2021 ORDER The issue of entitlement to an initial disability rating in excess of 10 percent for a right ankle disability has been withdrawn and is dismissed. The issue of entitlement to an initial disability rating in excess of 10 percent for a right wrist disability has been withdrawn and is dismissed. Entitlement to an initial disability rating in excess of 10 percent for a right knee disability is denied. FINDINGS OF FACT 1. In a February 2021 written statement, prior to the promulgation of a decision in the appeal, the Veteran’s attorney requested a withdrawal of the issues of entitlement to 1) an initial disability rating in excess of 10 percent for a right ankle disability and 2) an initial disability rating in excess of 10 percent for a right wrist disability. 2. The Veteran’s right knee disability is manifested by painful motion but is not manifested by objective evidence of flexion limited to 30 degrees, or less than full extension. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to an initial disability rating in excess of 10 percent for a right ankle disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of entitlement to an initial disability rating in excess of 10 percent for a right wrist disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for entitlement to a disability rating in excess of 10 percent for a right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, Diagnostic Codes 5260, 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from April 2007 to April 2011. Withdrawal of Claims 1. The issue of entitlement to an initial disability rating in excess of 10 percent for a right ankle disability has been withdrawn and is dismissed. 2. The issue of entitlement to an initial disability rating in excess of 10 percent for a right wrist disability has been withdrawn and is dismissed. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 C.F.R. § 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55 (a). The withdrawal should be filed with the Board and must include the name of the veteran, the applicable VA file number, and a statement that the appeal is withdrawn. If the appeal involves multiple issues, the withdrawal must specify that the appeal is withdrawn in its entirety or list the issue(s) withdrawn from the appeal. 38 C.F.R. § 19.55 (b)(1). Withdrawals are effective when received by the Board if a decision has not been promulgated. 38 C.F.R. § 19.55 (b)(3). Withdrawal of an appeal will be deemed a withdrawal of the Notice of Disagreement as to all issues to which the withdrawal applies. 38 C.F.R. § 19.55 (c). In the present case, in a February 2021 written statement, received prior to a decision by the Board, the Veteran’s explicitly withdrew the appeals for increased disability ratings for his service-connected right ankle and right wrist disabilities. See Hembree v. Wilkie, No. 18-3856 (U.S. Vet. App. August 31, 2020) (holding that a withdrawal that fully complies with the requirements of the regulation is effective when received). Specifically, the authorized representative stated that the appellant “no longer wishe[d] to appeal these claims.” The request included the Veteran’s name, his social security number, and specified the issues to be withdrawn. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review these issues, and they are dismissed. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered because of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA must determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a “staged rating.” See Fenderson, 12 Vet. App at 119; Hart v. Mansfield, 21 Vet. App. 505 (2008). The Board notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). 3. Entitlement to an initial disability rating in excess of 10 percent for a right knee disability is denied. The Veteran maintains entitlement to an initial disability rating in excess of 10 percent for a right knee disability, currently evaluated under Diagnostic Code 5260. The Board observes that the schedular criteria for evaluating disabilities of the musculoskeletal system, including the knee joint, have undergone revision during the pendency of this appeal. Specifically, and as relevant to this case, revisions to Diagnostic Code 5257 were made effective February 7, 2021. See 85 Fed. Reg. 76460, 76457 (Feb 7, 2021). The diagnostic codes that focus on limitation of motion of the knee are Diagnostic Codes 5260 (limitation of flexion) and 5261 (limitation of extension). For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. The Rating Schedule provides for ratings of 0, 10, 20, or 30 percent where there is limitation of flexion of the leg to 60, 45, 30, or 15 degrees, respectively, and for ratings of 0, 10, 20, 30, 40, or 50 percent for limitation of extension of the leg to 5, 10, 15, 20, 30, or 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. VA’s General Counsel has held that separate ratings are available for limitation of flexion and limitation of extension under Diagnostic Codes 5260 and 5261. VAOPGCPREC 9-2004 (2004). As it pertains to recurrent subluxation or instability of the knee, and as noted above, revisions to Diagnostic Code 5257 were made effective February 7, 2021. See 85 Fed. Reg. 76457 (Feb 7, 2021). Because these changes took effect during the pendency of the Veteran’s appeal, both the former and revised criteria will be considered in evaluating the Veteran’s service-connected right knee disability. However, application of the new criteria prior to the effective date of the amended regulation is not allowed. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); Green v. Brown, 10 Vet. App. 111, 116-119 (1997); see also 38 U.S.C. § 5110 (g). Prior to February 7, 2021, instability of the knee was rated under Diagnostic Code 5257, which provided ratings of 10, 20, and 30 percent for recurrent subluxation or lateral instability of the knee, which is slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Effective February 7, 2021, Diagnostic Code 5257 provides ratings for both recurrent subluxation or instability of the knee and for patellar instability. As it pertains to recurrent subluxation or instability of the knee, Diagnostic Code 5257 provides a 10 percent rating for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is warranted for either (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device, or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation. As it pertains to patellar instability of the knee, Diagnostic Code 5257 provides a 10 percent rating for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker. A 30 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2): A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). See DC 5257 (Effective February 7, 2021). Diagnostic Code 5258 provides a 20 percent rating may be assigned for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. Diagnostic Code 5258 provides a 20 percent rating may be assigned for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. Diagnostic Code 5259 provides for a 10 percent rating for symptomatic removal of the semilunar cartilage. Turning to the evidence of record, the Veteran underwent a VA examination in December 2011. There, the Veteran denied experiencing flare-ups of right knee pain. Range of motion testing revealed right knee flexion to 140 degrees or greater, with no objective evidence of painful motion. Right knee extension was to 0 degrees, with no objective evidence of painful motion. The Veteran was able to perform repetitive-use testing with three repetitions without functional loss, functional impairment, or additional limitation of range of motion after repetitive use. The Veteran did not exhibit tenderness or pain to palpation for the joint line or soft tissues of the knee. Muscle strength testing was normal. Joint stability testing was also normal. There was no evidence or history of recurrent or patellar subluxation/dislocation. The Veteran never had “shin splints” (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. The Veteran had no meniscal condition or surgical procedure for a meniscal condition. He had not undergone a total knee joint replacement or other knee surgery. No scars (surgical or otherwise) related to the condition were found. The Veteran did not use any assistive devices. Functioning of the Veteran’s knee was not so diminished that amputation with prosthesis would equally serve the Veteran. Diagnostic testing did not show degenerative or traumatic arthritis and there was no X-ray evidence of patellar subluxation. While the Veteran had a past diagnosis of patellar subluxation, the examiner found that it had resolved and that there was no symptomatology at the current examination to render a diagnosis. On the May 2013 Notice of Disagreement (NOD), the Veteran averred that his condition was worse than assessed at the December 2011 VA examination. Thus, another examination was provided in January 2015. During the January 2015 VA examination, the Veteran complained of achiness in the right knee that was improved with stretching and squatting at home at the end of the day. He denied swelling or flare-ups or gross patellar dislocation. Range of motion testing revealed right knee flexion to 140 degrees and extension to 0 degrees. No pain was noted on examination. There was no objective evidence of pain with weightbearing. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran was able to perform repetitive-use testing with three repetitions without functional loss, functional impairment, or additional limitation of range of motion after repetitive use. The Veteran was not examined immediately after repetitive use over time and the examination neither supported nor contradicted the Veteran’s statements describing functional loss with repetitive use over time. The examiner was unable to say whether pain, weakness, fatigability, or incoordination significantly limited the Veteran’s functional ability with repeated use over time. Muscle strength testing was normal; the Veteran did not have muscle atrophy. He did not display ankylosis. Joint stability testing was also normal. There was no evidence or history of recurrent or patellar subluxation/dislocation. The Veteran never had “shin splints” (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. The Veteran had no meniscal condition. No scars (surgical or otherwise) related to the condition were found. The Veteran did not use any assistive devices. Functioning of the Veteran’s knee was not so diminished that amputation with prosthesis would equally serve the Veteran. Diagnostic testing did not show degenerative or traumatic arthritis and there was no objective evidence of crepitus. A prior diagnosis of patellar dislocation was listed. At the Veteran’s June 2015 VA history and physical, his right knee was assessed as normal with no additional treatment needed. Additional VA treatment records throughout the appeal period reveal no evidence of decreased range of motion of the right knee. The Veteran underwent a VA examination most recently in October 2020. At that time, the Veteran stated that the current symptoms were pain and instability in the right knee. He denied any current treatment, including the use of a knee brace. Regarding functional impact, the Veteran described difficulty standing or walking for long distances or periods of time. Concerning flare-ups, the Veteran stated that they occurred weekly and were mild. They were precipitated by long periods of standing or walking long distances and alleviated by rest and the occasional ice/heat pack. The Veteran did not report having any functional loss or functional impairment of the right knee, including, but not limited to, with repeated use over time. Range of motion testing revealed flexion to 130 degrees, with objective evidence of pain. Extension was to 0 degrees. There was evidence of pain with weightbearing. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue or objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with three repetitions without functional loss, functional impairment, or additional limitation of range of motion after repetitive use. The Veteran was not examined immediately after repetitive use over time and the examination neither supported nor contradicted the Veteran’s statements describing functional loss with repetitive use over time. The examiner noted that pain significantly limited the Veteran’s functional ability with repeated use over time. The examiner found that the limitation was flexion to 125 degrees. The Veteran was not examined during a flare-up and the examination neither supported nor contradicted the Veteran’s statements describing functional loss during a flare. The examiner noted that pain significantly limited the Veteran’s functional ability with repeated use over time. The examiner found that the limitation was flexion to 120 degrees. Muscle strength testing was normal; the Veteran did not have muscle atrophy. He did not display ankylosis. A history of slight recurrent subluxation was identified but joint stability testing yielded normal results. The Veteran never had “shin splints” (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. The Veteran had no meniscal condition. No scars (surgical or otherwise) related to the condition were found. The Veteran did not use any assistive devices. Functioning of the Veteran’s knee was not so diminished that amputation with prosthesis would equally serve the Veteran. A prior diagnosis of patellar subluxation was listed. After careful review of the record, the Board finds that the most probative evidence does not show that the Veteran’s right knee disability manifested functional impairment to the extent that a rating in excess of 10 percent may be assigned. The Veteran’s right knee disability has been consistently manifested by painful range of motion, not otherwise compensable. Such impairment is contemplated by the current 10 percent rating. The Veteran’s range of motion has not met the requirements for a compensable rating under the relevant criteria for limited motion. See 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. Specifically, the Veteran’s flexion was limited, at its lowest, to 120 degrees on flare-ups. See October 2020 VA Examination. Further, there is no evidence that extension of the Veteran’s right knee has been restricted at all during the appeal period. Thus, the objective medical evidence of record does not show evidence of flexion limited to 30 degree or limitation of extension to the extent that either a separate or a higher compensable rating may be assigned. Id. The Board has considered functional impairment due to the Veteran’s service-connected right knee disability and acknowledges the subjective complaints of pain made throughout the course of the Veteran’s claim, as well as the objective evidence of pain on movement and reduced movement during range of motion testing. While the Veteran experiences pain, the Board finds that the 10 percent evaluation assigned for the right knee limitation of motion adequately portrays any functional impairment, pain, and weakness that the Veteran experienced because of use of his left knee. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). The Board bases this determination in part on the competent, credible October 2020 findings of the VA examiner who reviewed the entirety of the record, examined the Veteran, and duly considered his subjective complaints prior to finding that there was no empirical basis on which to find that such pain and weakness resulted in additional functional loss. Therefore, a higher evaluation for a right knee disability based on functional loss is not warranted for the period on appeal. See DeLuca, 8 Vet. App. at 204-06. The Board has also considered whether the Veteran is entitled to any additional separate ratings for his right knee disability. The clinical evidence does not establish ankylosis, dislocated semilunar cartilage, impairment of the tibia or fibula, or genu recurvatum; therefore, Diagnostic Codes 5256, 5258, 5262, 5263 are not for application. The Veteran’s representative has averred that the Veteran is entitled to a separate disability rating under Diagnostic Code 5257. The Board notes that a prior diagnosis of patellar subluxation has been noted on examination reports and that the Veteran first described symptoms of instability in his right knee at the October 2020 VA examination. However, at no time during the appeals period have there been accompanying, objective findings of instability, to include during clinical evaluation the Veteran’s knee or with diagnostic testing, nor has there been observed or prescribed use of a brace indicative of such. Thus, a separate rating for instability is not warranted.   For these reasons, a disability rating in excess of 10 percent for a right knee disability is denied because the overall disability picture for the right knee does not more closely approximate the criteria for a higher rating under the applicable Diagnostic Codes. 38 C.F.R. § 4.71a. Therefore, the preponderance of the evidence weighs against this claim. 38 C.F.R. § 4.3. T. Berry Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Bush 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.