Citation Nr: 21028517 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-12 228 DATE: May 11, 2021 ORDER Entitlement to service connection for chronic fatigue syndrome is dismissed. REMANDED Entitlement to an initial rating in excess of 30 percent for status post left knee replacement and patellofemoral joint arthroplasty, and left knee degenerative joint disease with medial meniscal tear, prior to April 26, 2012, and in excess of 30 percent from August 1, 2013 to November 13, 2019, and in excess of 60 percent from November 14, 2019 is remanded. Entitlement to an initial rating in excess of 30 percent for status post right knee replacement and patellofemoral joint arthroplasty, and right knee degenerative joint disease with medial meniscal tear, prior to April 26, 2012, and in excess of 30 percent from August 1, 2013 to November 13, 2019, and in excess of 60 percent from November 14, 2019 is remanded. Entitlement to a rating in excess of 50 percent for adjustment disorder with depression to include anxiety, and to a separate rating for residuals of a traumatic brain injury is remanded. FINDING OF FACT In September 2020, prior to the promulgation of a decision in the appeal, the Board of Veterans' Appeals (Board) received written notification from the Veteran that he wanted to withdraw his appeal for chronic fatigue syndrome. CONCLUSION OF LAW The criteria for withdrawal of entitlement to service connection for chronic fatigue syndrome by the appellant (or his or her authorized representative) are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from July 1988 to July 2011. This matter comes before the Board on appeal from Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) rating decisions dated in November 2013 and December 2014. Specifically, the Veteran appealed the ratings assigned for his knee disabilities in the November 2013 rating decision, and he appealed the rating assigned for a psychiatric disability in the December 2014 rating decision. The appeal pertaining to the November 2013 rating decision was before the Board in April 2019, at which time it was remanded to the AOJ for additional development. On remand, the AOJ granted service connection for sleep apnea in a July 2020 rating decision. That represents a full grant of the benefits sought, so that issue is no longer in appellate status. The issue in the December 2014 rating decision has been merged with the appeal of the November 2013 issues. As explained below, the Veteran has withdrawn one of the issues that was previously on appeal, and another remand of the other issues is required. 1. Entitlement to service connection for chronic fatigue syndrome Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Further, a substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the Veteran or by his authorized representative. Id. In correspondence received on September 5, 2020, the Veteran indicated that he wanted to withdraw his appeal for chronic fatigue syndrome. The Veteran wrote, "Chronic Fatigue Syndrome (CFS):...Please close this appeal." The written statement included the Veteran's name, VA file number, and a statement of withdrawal. Because the Veteran has withdrawn the issue on appeal, there remain no allegations of error of fact or law for appellate consideration, and the Board does not have further jurisdiction over the issue of entitlement to service connection for chronic fatigue syndrome. Accordingly, the issue on appeal is dismissed. 38 U.S.C. § 7104. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 30 percent for status post left knee replacement and patellofemoral joint arthroplasty, and left knee degenerative joint disease with medial meniscal tear, prior to April 26, 2012, and in excess of 30 percent from August 1, 2013 to November 13, 2019, and in excess of 60 percent from November 14, 2019 is remanded. 2. Entitlement to an initial rating in excess of 30 percent for status post right knee replacement and patellofemoral joint arthroplasty, and left knee degenerative joint disease with medial meniscal tear, prior to April 26, 2012, and in excess of 30 percent from August 1, 2013 to November 13, 2019, and in excess of 60 percent from November 14, 2019 is remanded. After reviewing the November 2019 VA examination of the Veteran's knees, the Board concludes that examination report is inadequate for rating purposes, making another remand necessary. In order to be adequate, VA examiners must provide opinions regarding flare-ups based upon estimates derived from information procured from relevant sources, including lay statements, when a flare-up is not observable at the time of examination. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The November 2019 examiner documented flare-ups of the Veteran's knees, but noted that it was not possible to describe functional loss in terms of range of motion. The examiner indicated that there was "no basis to offer additional loss of function or motion." Notably, the Veteran reported that his knees were worse with cold, walking, and standing, which limited his activities of daily living. Under Sharp, before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation, the examiner must "[E]licit relevant information as to the veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares[.]" Sharp, 29 Vet. App. at 35. The Board notes that the examiner did not adequately consider the relevant information obtained from the Veteran prior to the examination concluding that an estimation could not be provided, and did not explain why the provided information would not permit such an estimate. Additionally, the examiner should have elicited additional information, such as how far the Veteran could flex and extend his knees during a flare-up, or whether the flare-up was akin to functional ankylosis. In other words, the examiner did not elicit sufficient information regarding flares in order to estimate the average limitation of range of motion or which rating criteria the Veteran's disability most closely approximates. See 38 C.F.R. §§ 4.1,4.3, 4.7. Thus, to comply with Sharp, a remand is necessary in order for the examiner to elicit additional information regarding flares and to estimate the Veteran's functional loss based on all the evidence of record, including, but not limited to, the Veteran's own statements. 3. Entitlement to a rating in excess of 50 percent for adjustment disorder with depression to include anxiety, and to a separate rating for residuals of a traumatic brain injury is remanded. In February 2018 correspondence, the Veteran asserted that the AOJ committed clear and unmistakable error (CUE) in the December 2014 and February 2018 rating decisions that rated the Veteran's residuals of a traumatic brain injury (TBI) with his psychiatric disorder, and by not assigning a separate rating for TBI residuals. The Veteran has argued that his symptoms attributable to a TBI and not a psychiatric disorder include brain atrophy, encephalopathy, headaches, cognitive impairment, light sensitivity, endocrine dysfunction, and nerve dysfunction. Notably, a favorable determination of the Veteran's claim of CUE could impact adjudication of the claim for an increased rating for a psychiatric disability. Thus, the claims are inextricably intertwined. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). The Board points out, however, that the AOJ has not considered whether there was CUE in the December 2014 and February 2018 rating decisions, and the Board cannot address this matter in the first instance. See Bowen v. Shinseki, 25 Vet. App. 250, 254 (2012) (requests for revision of an AOJ decision based on CUE must first be submitted to and adjudicated by the AOJ before the Board can attain jurisdiction over the request). Accordingly, the Board must remand the claim on appeal for initial AOJ consideration of the inextricably intertwined claim of CUE, in the first instance, and, if the CUE claim is denied, to afford the Veteran full opportunity to perfect an appeal of that matter. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to assess the current severity of his service-connected bilateral knee disabilities, or by other means if an in-person examination is not feasible. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. Specifically, the examiner must test the Veteran's active motion, passive motion, ranges of motion of the opposing joint, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups during the appeal period beginning in 2011. If this information cannot be obtained or determined, the examiner should give a detailed explanation why. To the extent possible, the examiner should identify any symptoms and functional impairments due to the service-connected knee disabilities and discuss the effect of the Veteran's service-connected disability on any occupational functioning and activities of daily living. (a.) The examiner must review the VA examinations of the Veteran's knees dated in November 2019, and, if possible, provide a retrospective opinion regarding limitation of range of motion during flare-ups. If it is not possible, the examiner must explain why and what, if any, additional information would be needed to provide such an opinion. (b.) A fully reasoned explanation for all opinions expressed must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 2. After accomplishing any necessary notification and/or development action, adjudicate the claims of CUE in the December 2014 and February 2018 rating decisions that rated the Veteran's TBI residuals with his psychiatric disability instead of granting a separate rating, in light of all pertinent evidence (to include submitted medical records and argument) and legal authority. (a.) If the CUE claim is denied, the Veteran and his representative must be notified of the denial of the claim and of the Veteran's appellate rights, and afforded full opportunity to perfect an appeal as to the matter. (Continued on the next page) (b.) The Veteran and his representative are hereby reminded that to obtain appellate jurisdiction of an issue not currently in appellate status, a timely appeal (consisting of an NOD, and, after issuance of an SOC, a substantive appeal) must be perfected. While the Veteran must be afforded the appropriate time period in which to do so, the Veteran should perfect an appeal of the claim, if desired, as soon as possible to avoid unnecessary delay in the consideration of the appeal. SONJA S. AN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Smith, 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.