Citation Nr: 21030414 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 14-00 181 DATE: May 18, 2021 ORDER A total disability rating based on individual unemployability (TDIU) is dismissed. REMANDED Entitlement to a rating in excess of 20 percent for patellofemoral dysfunction of the right knee is remanded. Entitlement to a rating in excess of 20 percent for residuals of a left knee injury with anserinus transfer is remanded. Entitlement to a rating in excess of 10 percent for degenerative joint disease of the left knee is remanded. Entitlement to a rating in excess of 10 percent for degenerative joint disease of the right knee is remanded. FINDING OF FACT On April 23, 2021, the Board received written notification from the Veteran's authorized attorney representative, that a withdrawal of the issue of a TDIU was requested. CONCLUSION OF LAW The criteria for withdrawal of the issue of a TDIU are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1967 to May 1970. This matter comes before the Board of Veterans' Appeals (Board) from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This appeal has previously been before the Board. In June 2018 the Board remanded the issues on appeal for further development. In a January 2020 decision, the Board denied the Veteran's claim for an increased disability rating of his left and right knee disabilities. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a November 2020 Order, the Court approved a Joint Motion for Remand (JMR), in which the parties requested that the Court vacate the January 2020 Board decision because the Board failed to adequately address the March 2019 VA examiner's contention that it was impossible to perform weightbearing range of motion testing on the knee, or discuss, whether, given that contention, the VA examination report was adequate in light of Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016). The JMR remanded the issues on appeal for further actions in accordance with its decision. A TDIU. The November 2020 JMR also remanded the issue of entitlement to a TDIU for consideration of the period prior to April 2014. 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55 (2020). Withdrawal may be made by the Veteran or by his or her authorized representative. Id. In the present case, the Veteran has withdrawn the issue of a TDIU and, hence, there remain no allegations of errors of fact or law for appellate consideration regarding this issue. See 4/23/2021 BVA Decision, at page 2; see also 4/23/2021 Appellate Brief, at page 1 (noting that the Veteran desires to withdraw the issue of a TDIU). These documents comply with 38 C.F.R. § 19.55(b) as it provided the Veteran's name, VA file number, and a statement that the TDIU matter is withdrawn. See Hembree v. Wilkie, No. 33 Vet. App. 1 (2020) (holding that, unlike an oral withdraw at a hearing, a written withdrawal request does not require full understanding of the consequences of such action on the part of the claimant, but needs to comply with the applicable regulation). Accordingly, the Board does not have jurisdiction to review the appeal of this issue and it is dismissed. REASONS FOR REMAND 1. A rating in excess of 20 percent for patellofemoral dysfunction of the right knee. 2. A rating in excess of 20 percent for residuals of a left knee injury with anserinus transfer. 3. A rating in excess of 10 percent for degenerative joint disease of the left knee. 4. A rating in excess of 10 percent for degenerative joint disease of the right knee. After review of the record, another remand is required in this case to ensure that VA's responsibilities under the duty to assist are followed and that the appellant is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. In this case, the Veteran has been assigned a 10 percent rating for degenerative joint disease of the right knee pursuant to DC 5010 and a 20 percent rating for patellofemoral dysfunction of the right knee pursuant to DC 5257 for right knee instability. Additionally, he has been assigned a 10 percent rating for degenerative joint disease of the left knee pursuant to DC 5010 and a separate 20 percent rating for residuals of anserinus transfer of the left knee under DC 5257. The Veteran seeks increased ratings for his disabilities of the left and right knees. See 11/3/2010 VA 21-4138. The Veteran underwent a VA examination in March 2019. The examiner stated that the he was unable to perform knee testing in active or passive motion in weightbearing. The examiner further stated that "[t]hose who state they performed weightbearing knee range of motion are untruthful or are measuring factors other than knee range of motion." See 8/26/2019 C&P Examination, at pages 5 and 6. The Board notes that in Correia, the Court held that adequate examination reports must include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. As such, the Board finds that a remand for competent medical evidence is needed to assist with adjudication of this orthopedic issue. The Veteran's representative also made this argument. See 4/23/2021 Appellate Brief, at page 2. Accordingly, the Board finds that the March 2019 examination and corresponding medical opinion are incomplete because they do not include findings as to the Veteran's functional impairment due to pain and range of motion on active and passive motion, and during weightbearing and non-weightbearing. Therefore, a remand for an adequate examination is needed. These matters are REMANDED for the following actions: 1. Obtain any and all of the Veteran's outstanding VA treatment records. Document all requests for information as well as responses in the claims file. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. 2. After completion of step # 1, schedule the Veteran for a VA musculoskeletal examination by an appropriate clinician to determine the severity of his service-connected disabilities of the left and right knees. The claims file must be made available to the examiner and all necessary testing should be conducted. The examiner is to provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria, to include range of motion should be reported, including whether and the extent to which such motion is affected by pain, weakness, fatigue, lack of endurance, incoordination or other symptoms resulting in functional loss. Specifically, range of motion testing must be conducted on active and passive motion and in weight-bearing and non-weightbearing conditions, pursuant to Correia. If the examiner is unable to conduct the required testing, they must provide an explanation as to why. Based upon a review of the medical records, lay statements submitted in support of the claim, and/or statements elicited from the Veteran during the examination, state whether the Veteran experiences flare ups of his service-connected bilateral knee disability, and how he or she characterizes the additional functional loss during a flare. If the Veteran describes experiencing flare ups, identify the: a. frequency; b. duration; c. precipitating factors; and d. alleviating factors. Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (50 percent probability or greater) that during a flare up range of motion is additionally limited to 30 degrees of flexion and/or 15 degrees of extension. Please explain why or why not. Retrospective opinion: On examination in March 2019 ROM was not tested on weight-bearing/nonweight-bearing conditions. Please state whether range of motion testing in such conditions was required to adequately assess the appellant's pain on motion. Please explain why or why not. Please state whether there is any structural abnormality of the involved joint (that is to say, whether normal excursion of the joint is impaired/not possible). If there is a structural abnormality of the joint, does that abnormality impact the joint such that passive range of motion in this case would be more limited than active? Please explain whether testing in weight-bearing conditions is more demonstrative of the degree of pathology in the Veteran's case, or whether testing in nonweight-bearing conditions would better demonstrate the severity of the disability. For all opinions: A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Fuentes, 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.