Citation Nr: 21025759 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 14-27 327 DATE: April 28, 2021 ORDER The appeal pertaining to the issue of entitlement to an effective date prior to January 25, 2012, for the award of a 50 percent rating for migraines is dismissed. The appeal pertaining to the issue of entitlement to a compensable rating for avulsion of the distal tip of the left little finger is dismissed. A separate rating of 10 percent, but no higher, for the appeal period prior to February 7, 2021, and 20 percent, but no higher, thereafter for instability of the right knee associated with post-operative right knee anterior cruciate ligament reconstruction is granted, subject to the laws and regulations governing the payment of monetary awards. REMANDED Entitlement to a TDIU is remanded. FINDINGS OF FACT 1. In a February 2021 statement, prior to the promulgation of a Board decision, the Veteran, through his representative, withdrew his appeal pertaining to the issues of entitlement to an effective date prior to January 25, 2012, for the award of a 50 percent rating for migraines and entitlement to a compensable rating for avulsion of the distal tip of the left little finger. 2. Resolving all doubt in favor of the Veteran, for the appeal period prior to February 7, 2021, his post-operative right knee anterior cruciate ligament reconstruction is manifested by lateral instability that is no more than slight in severity, and, as of February 7, 2021, such is manifested by a repaired complete ligament tear causing persistent instability with a prescription from a medical provider for a brace for ambulation. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal pertaining to the issue of entitlement to an effective date prior to January 25, 2012, for the award of a 50 percent rating for migraines by the Veteran, through his representative, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for withdrawal of the appeal pertaining to the issue of entitlement to a compensable rating for avulsion of the distal tip of the left little finger by the Veteran, through his representative, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 3. The criteria for a separate rating of 10 percent, but no higher, for the appeal period prior to February 7, 2021, and 20 percent, but no higher, thereafter for instability of the right knee associated with post-operative right knee anterior cruciate ligament reconstruction have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5257 (as in effect prior to and as of February 7, 2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1987 to December 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in August 2012 by a Department of Veterans Affairs (VA) Regional Office. In March 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In a February 2019 decision, the Board, as pertinent, denied a rating in excess of 10 percent for post-operative right knee cruciate ligament reconstruction and an effective date prior to January 25, 2012, for the award of a 50 percent rating for migraines, and remanded the claims for a compensable rating for avulsion of the distal tip of the left little finger and entitlement to a TDIU for further development. Thereafter, the Veteran appealed such denials to the U.S. Court of Appeals for Veterans Claims (Court). In January 2020, the Court granted the Secretary of VA’s and the Veteran’s (the parties’) December 2019 Joint Motion for Partial Remand (JMPR), which vacated the February 2019 Board decision only to the extent that it denied the aforementioned issues. Such claims, as well as those remanded in February 2019, now return to the Board for further appellate review. The Board observes that, since the issuance of the September 2015 statement of the case addressing the Veteran’s claim for an increased rating for his right knee disability, additional evidence relevant to such claim has been received, to include updated VA treatment records and a February 2021 VA examination report. However, in October 2018, his representative waived Agency of Original Jurisdiction (AOJ) consideration of the additionally received evidence, and the AOJ considered the remainder of such evidence in an April 2021 rating decision. 1. Entitlement to an effective date prior to January 25, 2012, for the award of a 50 percent rating for migraines. 2. Entitlement to a compensable rating for avulsion of the distal tip of the left little finger. 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 addition, for withdrawals not made on the record at a Board hearing, such must be in writing and include the file number and a statement that the appeal is withdrawn. Hembree v. Wilkie, 33 Vet. App. 1 (2020). In the instant case, prior to the promulgation of a decision, in February 2021, the Veteran, through his representative, withdrew his appeal pertaining to the above captioned issues. In this regard, such statement was in writing, authored by the Veteran’s representative, included the correct file number, and explicitly identified the issues to be withdrawn. Therefore, there remains no allegations of errors of fact or law for appellate consideration with respect to such issues. Accordingly, the Board does not have jurisdiction to review the appeal of such issues and they are dismissed. 3. Entitlement to a rating in excess of 10 percent for post-operative right knee anterior cruciate ligament reconstruction. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the Court held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). The appeal period stems from the Veteran’s January 25, 2012, claim for an increased rating for his right knee disability, plus the one-year look-back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). For the entire appeal period, such disability is rated as 10 percent disabling pursuant to 38 C.F.R. § 4.71a, DC 5259, which is the maximum available rating under such DC for symptomatic removal of the semilunar cartilage. In the February 2019 decision, the Board found that, for the entire appeal period, the Veteran’s right knee disability was manifested by subjective complaints of pain, weakness, stiffness, locking, swelling, and giving way/instability with flexion limited to 100 degrees and extension limited to zero degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without ankylosis, recurrent subluxation or lateral instability, dislocated semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum. Consequently, the Board found that the Veteran was in receipt of the maximum rating under DC 5258, and a higher or separate rating was not warranted under any other potentially applicable DC as the totality of his symptoms were contemplated by such assigned rating and, to assign a separate rating would be tantamount to pyramiding. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). However, the parties to the December 2019 JMPR found that the Board erred in failing to properly consider whether a separate rating under DC 5257, which pertains to recurrent subluxation and lateral instability, was warranted in light of the Veteran’s reports of instability and giving way, and the Court’s holding in Lyles v. Shulkin, 29 Vet. App. 107 (2017) that separate ratings may be warranted for limitation of motion, cartilage disability, and instability for the same knee, if supported by the facts. No other error, to include the denial of a rating in excess of 10 percent under DC 5258, or a higher or separate rating under DCs 5256, 5258, 5260, 5261, 5262, or 5263, was identified. Thus, the Board finds that the December 2019 JMPR is narrow in scope. In this regard, the Veteran’s representative who entered into the JMPR is an attorney in a law firm with extensive experience in VA litigation, and whose partner is the Veteran’s current representative. “[W]hen an attorney agrees to a [JMR] based on specific issues and raises no additional issues on remand, the Board is required to focus on the arguments specifically advanced by the attorney in the motion, see Forcier [v. Nicholson, 19 Vet. App. 414,] 426 [(2006)], and those terms will serve as a factor for consideration as to whether or to what extent other issues raised by the record need to be addressed.” Carter v. Shinseki, 26 Vet. App. 534, 542-43 (2014), (vacated on other grounds sub nom. Carter v. McDonald, 794 F.3d 1342 (Fed. Cir. 2015). Furthermore, upon the case’s return to the Board, the Veteran’s representative only advanced arguments as to the propriety of the assignment of a separate rating under DC 5257. Based on the foregoing, and in the interest of administrative efficiency, the Board will proceed by addressing only that aspect of its February 2019 decision that the JMPR identified as inadequate. Id. In short, the only question presently on appeal before the Board is whether a separate rating for the Veteran’s right knee disability under DC 5257 is warranted. In this regard, prior to February 7, 2021, DC 5257 provides for the assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability, a 20 percent rating when there is moderate recurrent subluxation or lateral instability, and a 30 percent rating for severe recurrent subluxation or lateral instability. However, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, to include DC 5257, were amended effective February 7, 2021. 83 Fed. Reg. 230 (Nov. 30, 2020). Thus, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021, applying the criteria that is more favorable to the Veteran. In this regard, as of February 7, 2021, DC 5257 provides ratings for patellar instability and recurrent subluxation or lateral instability. However, as there is no evidence of patellar instability, such aspect of DC 5257 is inapplicable. For recurrent subluxation or lateral instability, a 10 percent rating is warranted 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 assistance device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is assigned for one of the following: (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation, or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) 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 (e.g., cane(s), crutch(es), walker) and bracing for ambulation. Turning to the evidence of record, the Board notes that, while the Veteran denied instability in his right knee in July 2014 and January 2015 as documented in VA treatment records, and the June 2011, April 2012, January 2017, and February 2021 VA examinations revealed no history of recurrent subluxation and no lateral instability on clinical testing, the Veteran has reported giving way of the right knee that necessitated the use of a brace throughout the appeal period. In this regard, DC 5257 does not require objective medical evidence of lateral instability for a rating to be assigned. English v. Wilkie, 30 Vet. App. 347 (2018). Furthermore, March 2012 and March 2015 VA treatment records reveal instability of the right knee and a referral to prosthetics for a custom knee brace, and a February 2018 VA treatment record reflects chronic instability of the right knee. Finally, the February 2021 VA examination noted a history of lateral instability in the right knee that was no more than slight in severity. Based on the foregoing, the Board resolves all doubt in favor of the Veteran and finds that a separate 10 percent rating, but no higher, for slight instability of the right knee associated with post-operative right knee anterior cruciate ligament reconstruction is warranted under DC 5257 for the appeal period prior to February 7, 2021. In this regard, while the Veteran has reported subjective symptoms of instability, which has been documented in his VA treatment records and noted at the February 2021 VA examination, objective examinations have revealed that stability testing has been normal on clinical evaluation throughout the appeal period. Moreover, the February 2021 VA examiner assessed the Veteran’s reported history of instability and found that such was no more than slight in severity. Thus, a rating in excess of 10 percent for such disability under DC 5257 as in effect prior to February 7, 2021, is not warranted. However, as of February 7, 2021, the date DC 5257 was amended, the Board finds that a 20 percent rating, but no higher, for the Veteran’s instability of the right knee associated with post-operative right knee anterior cruciate ligament reconstruction is warranted. Specifically, under such amended DC, a 20 percent rating is warranted for (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation, or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. In the instant case, the record reflects that the Veteran sustained an acute tear of the anterior cruciate ligament and underwent reconstruction while in service. Thus, such ligament tear was repaired and there is no indication that such has failed. However, as there is evidence of a repaired complete ligament tear and a prescription for a brace, the Board finds that, as of February 7, 2021, a 20 percent rating under DC 5257 as amended is warranted. However, a 30 percent rating under such DC is not warranted as there is no evidence of an unrepaired or failed repair of complete ligament tear. In reaching such decision, the Board has also considered whether additional staged ratings under Hart, supra, are appropriate for the Veteran’s right knee instability; however, the evidence indicates the severity of such disability has remained stable throughout each period on appeal. Therefore, assigning additional staged ratings for such disability is not warranted. Further, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the increased rating claim addressed herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Thus, the Board finds that a separate rating of 10 percent, but no higher, for the appeal period prior to February 7, 2021, and 20 percent, but no higher, thereafter for instability of the right knee associated with post-operative right knee anterior cruciate ligament reconstruction is warranted. In reaching such determination, the Board applied the benefit of the doubt doctrine, which resulted in such separate rating. However, as the preponderance of the evidence is against higher ratings than those assigned herein, the benefit of the doubt doctrine is not applicable in such regard and the Veteran’s increased rating claim must otherwise be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 4. Entitlement to a TDIU. A review of the record reveals that the AOJ is in the process of developing evidence pertinent to the Veteran’s claim for a TDIU, to include obtaining verification of his prior employment and affording him VA examinations so as to assess the current severity of his service-connected disabilities and their impact on his ability to work. Specifically, at the instant time, the AOJ has requested a VA examination for the Veteran’s unspecified trauma and stressor related disorder that includes an assessment of the functional impairment associated with such disability. Therefore, as the pending development will impact the outcome of his TDIU claim, it is premature for the Board to adjudicate such matter. Moreover, there remains a question as to the nature of the Veteran’s reported part-time employment during the appeal period. Specifically, while he reported that he last worked full-time in July 2010, he indicated at the March 2016 Board hearing that he worked part-time, about 20 hours a week, as a salesperson at a tractor supply store and, in a December 2020 statement, he stated that he worked about 12 hours a week as a forklift operator and sometimes does landscaping about once or twice a week. However, he has not provided the complete hours worked or salary received for such part-time employment. Therefore, on remand, the Veteran should be requested to complete an updated Veteran’s Application for Increased Compensation Based on Unemployability (VA Form 21-8940) that includes his complete employment history, to include any part-time employment with hours worked and income received, since January 2012. Thereafter, if a response is received, the AOJ should contact employers identified by the Veteran and ask them to complete a Request for Employment Information in Connection with Claim for Disability Benefits (VA Form 21-4192), detailing the dates of his employment, income, and the reasons that he stopped working, if applicable. The matter is REMANDED for the following action: 1. Request that the Veteran complete and return a VA Form 21-8940 with his complete employment history, to include any part-time employment with hours worked and income received, since January 2012. 2. After receiving a response from the Veteran in connection with the directive in the first paragraph, the AOJ should contact his employers and request that they complete and return a VA Form 21-4192 detailing the dates of his employment, income, and the reasons that he stopped working, if applicable. 3. Thereafter, the AOJ should complete any pending development in connection with the Veteran’s TDIU claim and readjudicate it on the entirety of the evidence of record. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Waite 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.