Citation Nr: 1753747 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 14-01 555 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a low back disability, to include as secondary to service-connected status post total left knee replacement [hereinafter also referred to as left knee disability], and if so, whether service connection is warranted. 2. Entitlement to an effective date prior to July 20, 2011 for the 60 percent evaluation for the service-connected status post total left knee replacement/left knee disability. REPRESENTATION The Veteran represented by: Florida Department of Veteran Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Galante, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1980 to December 1983. These matters come to the Board of Veterans' Appeals (Board) on appeal from February 2011 and November 2011 rating decisions issued by the United States Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran presented sworn testimony before the undersigned Veterans Law Judge at a videoconference hearing in April 2017. A transcript of the hearing has been associated with the Veteran's electronic claims file. Since the November 2013 Statements of the Case, additional relevant evidence has been received without review by the RO in the first instance. However, at the April 2017 Board Hearing, the Veteran waived RO consideration of this evidence on the record. Additionally, evidence received after the Board hearing has been accompanied by a waiver of initial RO review signed by the Veteran and/or his representative. Accordingly, the Board may proceed with appellate review of the claims. See 38 C.F.R. § 20.1304(c) (2017). FINDINGS OF FACT 1. In November 2006, the RO issued a rating decision denying entitlement to service connection for a low back disability. This rating decision was never appealed, nor was new and material evidence received within one year. 2. In August 2009, the Veteran filed a claim to reopen entitlement to service connection for a low back disability and has since filed new and material evidence. 3. The evidence does not sufficiently demonstrate that the Veteran's currently diagnosed low back disability is etiologically related to active duty service, manifested within one year of discharge from military service; or is proximately due to, the result of, or aggravated by a service-connected disability. 4. In its November 2011 rating decision, the RO erred in assigning a July 20, 2011 effective date for the increased 60 percent disability rating for service-connected left knee. The Veteran's increased rating claim for his left knee disability was filed on August 6, 2010. CONCLUSIONS OF LAW 1. The unappealed November 2006 rating decision, which denied entitlement to service connection for a low back disability, is final. 38 U.S.C.A. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.156, 3.160, 20.302, 20.1100, 20.1103, 20.1104 (2017). 2. New and material evidence sufficient to reopen the Veteran's claim of service connection for a low back disability has been received. 38 U.S.C.A. § 5108 (2012); 38 C.F.R. § 3.156 (a)(2017). 3. The criteria for service connection for a low back disability, to include as secondary to service-connected left knee disability, have not been met. 38 U.S.C. § 1131 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2017). 4. The criteria for an earlier effective date of August 6, 2010, for the award of a 60 percent disability rating for service-connected left knee disability, have been met. 38 U.S.C. §§ 1155, 5110 (2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable the Veteran to understand the precise basis for the Board's decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims (Court). 38 U.S.C. § 7104(d)(1) (2012); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. Further, the Veteran has not alleged any deficiency with the conduct of his hearing before the undersigned as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the Federal Circuit ruled in Dickens that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott. Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board. Additionally, the regulations pertinent to this decision (38 C.F.R. §§ 3.102, 3.156, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310, 3.400) have previously been provided to the Veteran in the November 2013 Statements of the Case. The Veteran has received proper notice of the regulations governing this appeal. Accordingly, these regulations will not be repeated here, unless deemed appropriate to do so by the Board. With these procedural considerations addressed, the Board now turns to analyzing and adjudicating the claims. I. New and Material Evidence The preliminary issue for resolution before the Board is whether new and material evidence has been submitted sufficient to reopen the Veteran's previously denied claim of entitlement to a low back disability (claimed as lumbar disc disease with canal stenosis and right sciatica). After reviewing the evidence of record, the Board finds that new and material evidence has been submitted. Over the years, the Veteran has filed many claims of entitlement to service connection for a low back disability, resulting in several final decisions denying the claim. This claim was most recently denied in a November 2006 rating decision. No notice of disagreement was filed, and no new and material evidence was received within one year following the notification of that decision. Accordingly, the November 2006 rating decision became final. In order to reopen a claim which has been denied by a final decision, the Veteran must present new and material evidence. 38 U.S.C. § 5108 (2012). New evidence means evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2017). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Moreover, a veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. See Shade v. Shinseki, 24 Vet. App. 110 (2010) (holding that it would be illogical to require that a veteran submit medical nexus evidence when he has provided new and material evidence as to another missing element). In the November 2006 rating decision, the claim was denied due to a negative nexus opinion declining to link the Veteran's low back disability to his service-connected status post total left knee replacement on a secondary basis. Since that rating decision, new nexus statements, both positive and negative, have been received. Additionally, the Veteran provided new testimony relevant to his claim at the April 2017 Board hearing. This evidence is new, as it was not previously considered in the prior final rating decision, and is material as is raises questions regarding the unestablished fact of whether the Veteran's low back disability is etiologically linked to his military service or service-connected status post total left knee replacement. The Board concludes that the newly submitted evidence satisfies the low threshold requirement for new and material evidence. Shade, 24 Vet. App. at 117-18. Accordingly, this claim is reopened. The RO did reopen the claim and consider the merits in the November 2013 Statement of the Case, so the Board may do so as well. II. Service Connection Claim Generally, service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). A. Direct Service Connection Establishing direct service connection requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the present matter, the Board concedes that elements (1) and (2) have been established. VA examinations and treatment records confirm that the Veteran has experienced a current low back disability within the appeals period. Review of the Veteran's service treatment records confirm he was treated for low back pain during active duty in August 1982, and was diagnosed with a severe lower back strain accompanied by muscle spasms. Thus, the determinative issue in this case is the presence of a medical nexus between the current disability and the in-service incurrence of injury. The record fails to contain any objective medical evidence affirmatively linking the Veteran's current low back disability to his in-service injury. The Veteran was afforded a VA examination in January 2011 to assess the nature and etiology of the Veteran's low back disability. After a thorough review of the Veteran's claims file, an in-person interview regarding the Veteran's circumstances and medical history, and a comprehensive physical examination, the VA examiner concluded "[V]eteran's low back condition is not due to nor a result of low back pain shown during service in 1982." In support of her opinion , the examiner explained, "smr [service medical record] data showed lumbar strain and muscle spasm 8-1982. This condition is self-limiting by medical definition and does not cause lumbar disc disease and canal stenosis." As the only medical opinion of record providing a nexus opinion under a direct theory of service connection entitlement, the Board finds it persuasive and worthy of significant evidentiary weight. Accordingly, in the absence of a competent, positive, nexus opinion linking the Veteran's current disability to his in-service injury, the Veteran's direct service connection claim must be denied. B. Secondary Service Connection The Veteran's primary contention in this case is that his that his low back disability is the result of his service-connect left knee disability. See September 2009 Statement. He claims his left knee condition caused extra pressure on his back due to overcompensation and that this malalignment caused continuous damage to his spine. Id. In the context of claims for secondary service connection under 38 C.F.R. § 3.310, the evidence must demonstrate an etiological relationship between the service-connected disability or disabilities on the one hand, and the condition said to be proximately due to (caused by) the service-connected disability or disabilities on the other. 38 C.F.R. § 3.310(a) (2017). Secondary service connection may also be warranted for a nonservice-connected disability when that disability is aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). In the present matter, the record contains competing medical opinions on the etiological relationship between the Veteran's low back disability and his service-connected left knee disability. The Veteran's VA primary care physician, Dr. S.W., has proffered several positive nexus opinions in this matter. The Board declines to afford these opinions any evidentiary weight, as supported by the analysis below. In April 2010, Dr. S.W. stated "back issues might have contributed to left knee DJD through overuse and malalignment or compensatory biomechanics." This opinion is not particularly valuable, as the issue on appeal is whether the Veteran's low back disability is the result of his left knee disability, not the other way around. In other words, the opinion actually stated the back may have contributed to the knee condition, not the reverse. Furthermore, even if this opinion were relevant, it is expressed using the phrase "might have," which is too speculative to establish a causal relationship, and the opinion is of no probative value. See Bloom v. West, 12 Vet. App. 185, 186-87 (1999) ("By using the term 'could,' without supporting clinical data or other rationale, [the physician's] opinion simply is too speculative to provide the degree of certainty required for medical nexus evidence."). In April 2011, Dr. S.W. opined that "based on the medical and other evidence currently of record, it is just as likely as not the veteran's current low back disorder is attributable to functional impairment from his service-connected left knee disability." Aside from being inconsistent and converse from his April 2011 opinion, Dr. S.W.'s opinion is conclusory without any supporting rationale and is therefore of no probative value. Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) ("[A] mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor's opinion."); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (stating that the probative value of a medical opinion comes from the "factually accurate, fully articulated, sound reasoning for the conclusion..."). Dr. S.W.'s final nexus opinion was proffered in a May 2017 e-mail to the Veteran, in which he stated: There are precedent cases for assessing a cause and effect related to knee injuries and subsequent degenerative disc and spine disease. Entitlement to service connection for a low back disability, including... https://www.va.gov/vetapp05/files2/0508095.txt In my opinion, given the timing of the knee injury and treatment and subsequent problems with the lower spine. That it is more likely than not that this Veterans [sic] low back disease is caused by or related to his proximate knee injury and treatment. Again, this nexus opinion lacks probative value for two primary reasons. First, it is plagued by the same inadequacies as the April 2011 opinion, insofar as it is conclusory without any supporting rationale. Stefl, 21 Vet. App. at 125; Nieves-Rodriguez, 22 Vet. App. at 301. Second, the nexus opinion cites to a March 2005 Board opinion for a separate Veteran, in which the Board granted service connection for a low back disability as secondary to a service-connected knee disability. This is not persuasive. Although Dr. S.W. refers to this historical Board decision as precedential, the law is quite clear that Board decisions are not precedential and that claims for VA benefits are to be decided on the individual facts of each case. See 38 C.F.R. § 20.1303 (2017); McDowell v. Shinseki, 23 Vet. App. 207, 228 (2009). The Board decision in this claim, as in every other claim, rests on the specific facts of the case at hand. Thus, Dr. S.W.'s reference to a previous Board decision independent of the Veteran's factual circumstances, without any in-depth medical analysis or explanation as to why this Board decision is pertinent, was inappropriate and renders his opinion inadequate for adjudication purposes. For these reasons, the Board declines to afford Dr. S.W.'s medical nexus opinions any evidentiary weight. The electronic claims file contains other medical nexus opinions discussing secondary service connection. The Board weighs the probative value of these opinions, as set forth below. In July 2011, the Veteran's treating VA orthopedist, Dr. S.H. opined "this patient's unstable left knee with preop subluxation has caused a gross limping and favoring of left knee. Such gross change in gait will certainly aggravate the osteoarthritic lumbar spine." In October 2006 and January 2011, two separate VA examiners reached the opposite conclusion. After a review of the Veteran's claims file and physical evaluation, the October 2006 VA examiner concluded the Veteran's osteoarthritis of his low back was not caused by or a result of his service-connected left knee disability due to altered gait. The examiner explained, "Regarding the Veteran's contention that his altered gait because of his left knee condition caused the low back pain is not supported by medical literature. The opposite is true that low back pain results in (not from) altered gait or change in posture." Similarly, the January 2011 VA examiner reviewed the Veteran's claims files, documented his relevant medical history, and physically examined the Veteran. In an addendum medical opinion, the VA examiner addressed Dr. S.W.'s April 2010 nexus statement and correctly observed that Dr. S.W.'s opinion was speculative. The VA examiner also commented that opinions on the Veteran's left knee aggravating his low back fail to account for the Veteran's prior employment in construction and with the United States Post Office. Ultimately, the VA examiner found no evidence of aggravation of the back due to the Veteran's left knee disability. The Board must resolve these competing medical opinions. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Mere disagreement among experts does not indicate that the evidence is in equipoise. Here, the opinions of the VA examiners, when considered in the aggregate, are afforded greater evidentiary weight over the opinion of Dr. S.H. Unlike the opinion of Dr. S.H., the VA examiner's opinions were rendered following a complete review of the Veteran's claims file and past medical history, available at the time of their respective examinations. Thus, while Dr. S.H.'s opinion is competent, its credibility is diminished because it does not contemplate and consider the Veteran's entire relevant medical history. Furthermore, unlike the January 2011 VA examiner's opinion, Dr. S.H.'s opinion did not reconcile the medical evidence contrary to his opinion. Lastly, the Board questions the veracity of Dr. S.H.'s opinion that the Veteran's "unstable left knee" aggravated the Veteran's lumbar spine, when the physical examination from the same date the nexus opinion was issued showed the Veteran's left knee was "stable" with the patella tracking well. Dr. S.H. noted the Veteran's left knee was "doing well overall" two years post total knee replacement. The Board finds this treatment note inconsistent with the submitted favorable nexus opinion. Next, the Board evaluates other forms of evidence proffered by the Veteran in support of his secondary service connection claim. In June 2009, the Veteran submitted a dissertation proposal entitled "Evaluation of relationships between low back pain and unilateral knee osteoarthritis," in support of this claim. Initially, it should be noted that this document is not a peer-reviewed medical article/treatise, but rather a doctoral student's hypotheses and proposal to the University of Louisville to engage in scientific research regarding the theorized relationship between unilateral knee osteoarthritis and the development of low back pain. Furthermore, the doctoral student plainly states in the proposal, "no research has attempted to specifically examine the temporal relationship between chronic low back pain and unilateral knee osteoarthritis." Thus, even if the Board were to grant this proposal minimal evidentiary weight, it does not support the Veteran's contention that his left knee disability has resulted in his low back disability. The proposal clearly states scientific research has yet to establish the causal connection alleged by the Veteran. In light of the above, the Board declines to afford this evidence any probative value in this adjudication. The Board has reviewed and considered the testimony of the Veteran, his lay statements of record, as well as those proffered by his spouse and daughter in adjudicating this claim. As a layperson, the Veteran is competent to describe his symptoms of low back pain, which are within the realm of his personal experience. 38 C.F.R. § 3.159 (a)(2) (2017) ("Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person"); see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness). Likewise, the Veteran's spouse and daughter are competent to report their personal observation of the Veteran's symptoms and physical limitations. Id. However, to the extent that these opinions attempt to assess the etiology of the Veteran's low back symptoms, or causally relate such symptoms to the Veteran's service-connected left knee disability, they are not competent evidence. Although laypersons are competent to provide opinions on medical issues in limited circumstances, the specific claims at issue in this case involve complicated medical questions involving biomechanics and orthopedic conditions, outside the common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the Veteran and his family members lack the medical training and expertise to offer an opinion on a complex medical matter, including the diagnosis or etiology of a specific disability. Jandreau, 492 F.3d at 1376-1377. The Board finds that the Veteran's statements of record, as well has his spouse's and daughter's lay statements, are of little probative value in establishing service connection for a low back disability. In April 2011, the Veteran submitted the decision of Cornell v. State of Victoria, which he asserted was a decision of the United States Court of Appeals for Veterans Claims, pertinent to the issues on appeal. Review of this court decision reveals it was actually issued by the Magistrates' Court of Victoria at Latrobe Valley in Australia. As this decision is from a jurisdiction outside of the United States and does not apply to VA law, it is of no relevance, and is neither persuasive, nor binding in this matter. Accordingly, the Board declines to afford this court decision any evidentiary consideration. Based on the foregoing, the evidence preponderates against a finding that the Veteran's current low back disability is the result of his service-connected left knee disability. Consequently, the Veteran's claim of service connection on a secondary basis must be denied. C. Presumptive Service Connection Disabilities encompassed by the list of chronic diseases under 38 C.F.R. § 3.309(a) may be service-connected pursuant to the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology. Degenerative disc disease, i.e., arthritis, is included on the list of chronic diseases, so the provisions relating to continuity of symptomatology apply and the Board has considered them. The Board finds that the requirements for presumptive service connection have not been met. The weight of the medical and lay evidence does not show that the Veteran manifested chronic symptoms of degenerative lumbar disease in service. The service treatment records and VA examinations indicate that the Veteran's in-service injuries were, in fact, "self-limiting." See, e.g. January 2011 VA examination. Moreover, the evidence does not show that the Veteran continuously manifested symptoms of degenerative lumbar disease after service. Importantly, the Veteran was first diagnosed with a degenerative disease of the lumbar spine in 1991, nearly 8 years after his active service. See, e.g., December 1991 VA examination. The greater weight of the evidence is against finding that the Veteran had a continuity of symptomatology of degenerative disc disease based on the fact that 1984 Westview Osteopathic Hospital records and a November 1985 VA examination failed to show complaints or objective evidence of low back pain. Furthermore, there is no objective medical evidence in the record showing that the Veteran's current low back disability manifested to a compensable degree within one year of separation from active duty. Service connection for a low back disability, as a chronic disease pursuant to the provisions of 38 C.F.R. § 3.303(b) is not warranted on this record. III. Effective Date Claim Initially, the Board notes that the Veteran was in receipt of a total temporary disability (100 percent) rating pursuant to 38 C.F.R. § 4.30 for convalescence following left knee surgeries, from May 18, 2009 to July 1, 2010, and from December 16, 2015 to February 2, 2017. Thus, the forthcoming decision does not alter or affect these previous rating determinations. The Veteran was awarded a non-initial, increased rating of 60 percent for his service-connected left knee disability in a November 2011 rating decision, effective July 20, 2011. In a December 2011 notice of disagreement, the Veteran argued the proper effective date for this increased rating should have been April 29, 2010, the date he alleges his claim for an increased rating was submitted. Review of the claim file shows that on April 29, 2010, the Veteran submitted a statement in support of his claim to reopen service connection for a low back disability, to include as secondary to his service-connected left knee disability. Nowhere in this document did the Veteran include any statement that could be reasonably interpreted as an increased rating claim for his left knee disability. Thus, the Veteran's contentions simply are not supported by the evidence of record. Moreover, he was already rated 100 percent for the knee at that time. Notwithstanding the above, the Board's independent review of the electronic claims file establishes that the Veteran's increased rating claim for his left knee disability was received on August 6, 2010, instead of July 20, 2011 as determined by the RO in previous adjudications. The evidence shows that the Veteran filed his left knee disability increased rating claim on August 6, 2010. This claim was adjudicated and denied in a February 2011 rating decision. In lieu of a notice of disagreement, the Veteran filed new and material evidence within one year of the rating decision's notification. This evidence included relevant VA treatment notes and the Veteran's July 20, 2011 supplemental claim form. Accordingly, by operation of the 38 C.F.R. § 3.156(b) "pending claim" exception, the February 2011 rating decision did not become final. When the RO subsequently granted the 60 percent evaluation in its November 2011 rating decision, it erred in failing to recognize the Veteran's date of claim was August 6, 2010, not July 20, 2011. Under 38 U.S.C. § 5110(a), the effective date of an increase in a veteran's disability compensation "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C. § 5110(b)(3) provides an exception to this general rule: "The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date." While the Veteran has already been granted a 60 percent evaluation for his left knee as of July 20, 2011, the Board is tasked with determining whether this evaluation was warranted prior to July 20, 2011, back to the August 6, 2010 date of claim. In accordance with 38 U.S.C. § 5110(a), the Veteran's award of a 60 percent disability evaluation for a left knee disability is warranted as of the August 6, 2010 date the increased rating claim was filed. This conclusion is further supported by the January 2011 VA examination report. Under Diagnostic Code 5055, a 60 percent rating is warranted when the evidence shows a prosthetic replacement of knee joint, status post total knee replacement, with chronic residuals consisting of severe painful motion or weakness in the affected extremity. At the January 2011 VA examination, the examiner noted objective evidence of pain with active motion on the left and right side of the left knee, with objective evidence of pain following range of motion. The word "severe" is not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R.§ 4.6 (2017). Affording the Veteran the benefit of the doubt, the Board finds that this VA examination report sufficiently documents the presence of severe painful motion in January 2011. In addition to the range of motion findings, the examiner also noted the Veteran had limited walking ability. Thus, a 60 percent evaluation was warranted as of the August 6, 2010 filing of the Veteran's increased rating claim. The Veteran was seen by his treating VA orthopedist in November 2010 for assessment of his right hip and lower back pain. Although the focus of this visit was assessment of the Veteran's low back pain, the clinician noted normal left knee range of motion, without tenderness, and described the Veteran's left knee as "fine." No evidence of severe painful motion or weakness in the left knee was noted. However, the clinician's treatment notes contain minimal physical examination findings of the left knee, without indications that the clinician performed ligamentous stability testing in the knee or recorded pain levels upon range of motion testing. Thus, the Board affords this evidence minimal probative value. Instead, the Board finds the January 2011 VA examination results to be more illustrative of the Veteran's left knee functionality and worthy of significant evidentiary weight. Typically, the Board would further evaluate whether the Veteran's increase in disability was factually ascertainable in the one year prior to the date of the claim. However, the facts of this case are unique, insofar as the Veteran was in receipt of a total temporary disability (100 percent) rating pursuant to 38 C.F.R. § 4.30 for his left knee disability during the majority of the one year period prior to this August 6, 2010 date of claim, ending on July 1, 2010. The Veteran was fully compensated for the average impairment in earning capacity resulting from his left knee disability from August 6, 2009 until July 1, 2010. There is no objective evidence of record outlining the Veteran's left knee disability between July 1, 2010 and August 6, 2010. Accordingly, the Board declines to assign an effective date for the 60 percent evaluation of a left knee disability, earlier than August 6, 2010. In sum, the Board concludes that the Veteran is entitled to a 60 percent evaluation for his service-connected status post total left knee replacement from August 6, 2010 forward, excluding periods of total temporary disability. This is the date the Veteran's increased rating claim was filed. To this extent, the Veteran's appeal is granted. ORDER New and material evidence to reopen a claim of entitlement to service connection for a low back disability has been received; the appeal is granted to that extent only. Entitlement to service connection is denied. An earlier effective date of August 6, 2010, is granted for the Veteran's award of a 60 percent rating for his service-connected status post total left knee replacement, subject to the regulations governing payment of monetary awards. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs