Citation Nr: 21030894 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 18-39 170 DATE: May 19, 2021 ORDER The appeal as to the issue of entitlement to an initial rating in excess of 20 percent for left knee instability from August 22, 2016 to June 14, 2017 is dismissed. The appeal as to the issue of entitlement to an initial rating in excess of 10 percent for limitation of left knee flexion from August 22, 2016 to June 14, 2017 is dismissed. The appeal as to the issue of entitlement to an initial rating in excess of 10 percent for limitation of left knee extension from August 22, 2016 to June 14, 2017 is dismissed. The appeal as to the issue of entitlement to a rating in excess of 60 percent for the residuals of a left knee replacement for the period since August 1, 2018 is dismissed. The appeal as to the issue of entitlement to an effective date earlier than August 22, 2016, for the grant of service connection for a left knee disability is dismissed. The appeal as to the issue of entitlement to an effective date earlier than August 22, 2016, for the grant of service connection for a right knee disability is dismissed. REMANDED The issue of entitlement to an initial rating in excess of 10 percent for a right knee disability is remanded for further evidentiary development. FINDINGS OF FACT 1. In February 2021, prior to the promulgation of a decision by the Board, the Veteran stated that he wished to withdraw from appellate review his claim of entitlement to an initial rating in excess of 20 percent for left knee instability from August 22, 2016 to June 14, 2017. 2. In February 2021, prior to the promulgation of a decision by the Board, the Veteran stated that he wished to withdraw from appellate review his claim of entitlement to a rating in excess of 10 percent for limitation of left knee flexion from August 22, 2016 to June 14, 2017. 3. In February 2021, prior to the promulgation of a decision by the Board, the Veteran stated that he wished to withdraw from appellate review his claim of entitlement to a rating in excess of 10 percent for limitation of left knee extension from August 22, 2016 to June 14, 2017. 4. In February 2021, prior to the promulgation of a decision by the Board, the Veteran stated that he wished to withdraw from appellate review his claim of entitlement to a rating in excess of 60 percent for the residuals of a left knee replacement for the period since August 1, 2018. 5. In February 2021, prior to the promulgation of a decision by the Board, the Veteran stated that he wished to withdraw from appellate review his claim of entitlement to an effective date earlier than August 22, 2016, for the grant of service connection for a left knee disability. 6. In February 2021, prior to the promulgation of a decision by the Board, the Veteran stated that he wished to withdraw from appellate review his claim of entitlement to an effective date earlier than August 22, 2016, for the grant of service connection for a right knee disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim of entitlement to an initial rating in excess of 20 percent for left knee instability from August 22, 2016 to June 14, 2017 are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the claim of entitlement to a rating in excess of 10 percent for limitation of left knee flexion from August 22, 2016 to June 14, 2017 are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of the claim of entitlement to a rating in excess of 10 percent for limitation of left knee extension from August 22, 2016 to June 14, 2017 are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for withdrawal of the claim of entitlement to a rating in excess of 60 percent for the residuals of a left knee replacement for the period since August 1, 2018 are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 5. The criteria for withdrawal of the claim of entitlement to an effective date earlier than August 22, 2016, for the grant of service connection for a left knee disability are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 6. The criteria for withdrawal of the claim of entitlement to an effective date earlier than August 22, 2016, for the grant of service connection for a right knee disability are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1974 to December 1980. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in November 2016 and March 2019 by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. A substantive appeal may be withdrawn in writing or on the record at a hearing, by the Veteran or his authorized representative, at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. At the February 2021 Board hearing, prior to the Board promulgating a decision, the Veteran stated that he wished to withdraw from appellate review the aforementioned increased rating claims and claims for earlier effective dates of service connection. The Board finds this communication to be an explicit, unambiguous withdrawal made with a full understanding of the consequences of the action. Delisio v. Shinseki, 25 Vet. App. 45 (2011). Therefore, the Board finds that the February 2021 testimony satisfies the requirements for withdrawal of a substantive appeal. 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(d)(5); 38 C.F.R. § 19.55. As the pertinent criteria for withdrawal of these issues are satisfied, there remains no allegations of errors of fact or law for appellate consideration with respect to those issues. The Board consequently does not have jurisdiction to review them, and they are dismissed. REASONS FOR REMAND The issue of entitlement to an initial rating in excess of 10 percent for right knee arthritis is remanded. The Veteran currently has a single 10 percent rating for limitation of right knee flexion under 38 C.F.R. § 4.71a, Diagnostic Code 5260. The Veteran's statements at the February 2021 Board hearing suggest that the severity of his service-connected right knee disability may not be accurately reflected by the evidence currently of record. Particularly, the Veteran testified that as a result of his total left knee replacement in June 2017, he puts more weight and stress on his right knee. He stated this has caused increased pain and swelling, and additional impairment in flexion, extension, and instability. The Veteran reported that he uses a walker, a knee brace, walking shoes, and a wheelchair to ambulate. Accordingly, the Veteran should be afforded a new VA examination to assess the current nature, extent, and severity of his service-connected right knee disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Updated VA treatment records and private treatment records should also be requested on remand. 38 U.S.C. § 5103A(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if the material could be determinative of the claim). The matter is REMANDED for the following actions: 1. Identify any outstanding records of pertinent medical treatment from VA or private health care providers. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. Take all reasonable measures to schedule the Veteran for a VA examination to assess the current nature and severity of his service-connected right knee disability. 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. (a.) 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 right knee disability, and how he characterizes the additional functional loss during a flare. If the Veteran describes experiencing flare ups, identify the: frequency; duration; precipitating factors; and alleviating factors. (b.) 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 45 degrees for flexion (the measurement required for the next higher rating). Please explain why or why not. (c.) 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 repetitive use over time additionally limits motion to 45 degrees or less (for flexion) or 10 degrees or more (for extension). Please explain why or why not. (d.) 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 the disability is manifested by effusion and/or locking. If the examiner cannot provide the requested opinions without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Bilstein, 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.