Citation Nr: 1805688 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 07-35 640 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to an earlier effective date prior to April 12, 2016 for service connection for left knee instability. 2. Entitlement to an earlier effective date prior to April 12, 2016 for service connection for right knee instability. 3. Entitlement to service connection for bilateral plantar fasciitis. 4. Entitlement to a disability rating in excess of 10 percent for L5-S1 small right paracentral disc herniation prior to November 19, 2012. 5. Entitlement to a disability rating in excess of 20 percent for L5-S1 small right paracentral disc herniation from November 19, 2012. 6. Entitlement to a disability rating in excess of 10 percent for right knee instability. 7. Entitlement to a disability rating in excess of 10 percent for right knee musculoligamentous strain with degenerative joint disease. 8. Entitlement to a disability rating in excess of 10 percent for left knee musculoligamentous strain with degenerative joint disease. 9. Entitlement to a disability rating in excess of 10 percent for left knee instability. 10. Entitlement to a compensable rating for left knee scar. 11. Entitlement to a disability rating in excess of 10 percent for cervical spine strain prior to April 11, 2017. 12. Entitlement to a disability rating in excess of 20 percent for cervical spine strain from April 11, 2017. REPRESENTATION Appellant represented by: John S. Berry, Jr. ATTORNEY FOR THE BOARD P. M. Johnson, Counsel INTRODUCTION The Veteran had active service in the Army National Guard, including active duty for training (ACDUTRA) from April 1997 to July 1997 and active duty (AD) from June 2004 to March 2005, the latter period in support of Operation Iraqi Freedom. These matters come to the Board of Veterans' Appeals (Board) from September 2012, January 2013, May 2014, February 2015, and April 2016 decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The issues of entitlement to a disability rating in excess of 20 percent for L5-S1 small right paracentral disc herniation from November 19, 2012; entitlement to disability ratings in excess of 10 percent for bilateral knee musculoligamentous strain with degenerative joint disease (DJD); and entitlement to an initial disability rating in excess of 10 percent for cervical spine strain were most recently remanded by the Board in February 2017. As discussed below, remand for additional development regarding these issues is warranted. In June 2017, the AOJ issued a rating decision that granted a 20 percent rating for the Veteran's cervical spine strain, effective April 11, 2017. As this grant, however, did not represent a total grant of benefits sought for the entire period on appeal, the Veteran's claim for a higher initial rating for his cervical spine strain remains pending before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The issues of entitlement to service connection for bilateral plantar fasciitis; entitlement to a disability rating in excess of 10 percent for L5-S1 small right paracentral disc herniation prior to November 19, 2012; entitlement to a disability rating in excess of 20 percent for L5-S1 small right paracentral disc herniation from November 19, 2012; entitlement to disability ratings in excess of 10 percent for bilateral knee musculoligamentous strain with DJD; entitlement to disability ratings in excess of 10 percent for bilateral knee instability, entitlement to a compensable rating for left knee scar, entitlement to an initial disability rating in excess of 10 percent for cervical spine strain prior to April 11, 2017, and entitlement to a disability rating in excess of 20 percent for cervical spine strain from April 11, 2017 are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Entitlement to service connection for left and righty knee instability was granted in an April 2016 rating decision, effective April 12, 2016. 2. On October 18, 2011, the Veteran requested increased disability ratings related to his service-connected left and right knee disabilities. 3. The evidence demonstrates evidence of instability of the Veteran's left and right knees on or before October 18, 2011. 4. Entitlement to a rating in excess of 10 percent for left and right knee musculoligamentous strains with DJD was denied by the Board in September 2010. This decision became final. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to an effective date of October 18, 2011, but no earlier, for the grant of service connection for left knee instability have been met. 38 U.S.C. §§ 5103, 5103A, 5110, 7105 (2014); 38 C.F.R. § 3.400 (2017). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to an effective date of October 18, 2011, but no earlier, for the grant of service connection for right knee instability have been met. 38 U.S.C. §§ 5103, 5103A, 5110, 7105 (2014); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Based on the evidence of record, the Board finds that an effective date of October 18, 2011, but no earlier, is warranted for the grant of separate entitlement to left and right knee instability. The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an original claim, or a claim for increase, "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(a). The implementing regulation clarifies this to mean, except as otherwise provided, that the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. The Veteran was granted service connection for separate entitlement to left and right knee instability, effective April 12, 2016, in an April 2016 rating decision. The rating decision reported that the effective date was assigned based upon the first date that objective evidence of instability was shown. The Veteran's left and right knee instability was noted during an April 2016 VA examination related to an increased rating claim involving the Veteran's service-connected left and right knee musculoligamentous strains with DJD. In August 2016, the Veteran, through his attorney, filed a notice of disagreement with the effective dates assigned for the grant of separate entitlement to left and right knee instability. On October 18, 2011, the Veteran requested increased ratings related to his service-connected left and right knee disabilities. This claim was denied in a September 2012 rating decision. The Veteran submitted a timely appeal of this decision stating that "[he] believes his bilateral knee condition is worse than evaluated. He states that both of his knees have a loose feeling, with the left being worse. He has been given a brace for his left knee. He reports weakness of the knees and difficulty with getting up from a squatted position." The Veteran's VA medical records indicate that the Veteran's left knee demonstrated a positive McMurray's test and that a hinged brace had been prescribed in January 2012. The Veteran's records indicate that he was also subsequently prescribed a brace for support for his right knee. Resolving the benefit of the doubt in favor of the Veteran, the Board finds that the evidence demonstrates that the Veteran had objective evidence of instability of the left and right knee from the date of claim for an increased rating, October 18, 2011. 38 C.F.R. §§ 3.102, 3.400. The Board also finds, however, that the evidence does not support an effective date earlier than October 18, 2011, the date of claim for an increased rating. 38 C.F.R. § 3.400. The Board notes that entitlement to a rating in excess of 10 percent for left and right knee musculoligamentous strains with DJD was denied by the Board in September 2010. This decision was not appealed by the Veteran and became final. 38 U.S.C. § 7104 (b) (2014); 38 C.F.R. § 20.1100 (2017). The evidence does not indicate that the Veteran filed a claim for increased rating for either of his knees between the September 2010 Board decision and October 18, 2011, and the Board does not find that it is factually ascertainable that his knee instability began in the year prior to October 18, 2011. The Board notes that the claims file indicates that the Veteran reported weakness and his left knee buckling beneath him during his September 2008 VA examination. The Board, therefore, finds that an effective date of October 18, 2011, but no earlier, is warranted for the grant of separate entitlement to left and right knee instability based upon the date of the Veteran's claim. See 38 C.F.R. §§ 3.102, 3.400. ORDER An effective date of October 18, 2011, but no earlier, for the grant of service connection for left knee instability is warranted. An effective date of October 18, 2011, but no earlier, for the grant of service connection for right knee instability is warranted. REMAND Unfortunately, the Board finds that the remainder of the Veteran's claims require additional development prior to adjudication by the Board. Pursuant to the Board's 2017 remand, the Veteran was provided VA examinations to evaluate the current severity of his lumbar spine, cervical spine, and knee disabilities in April 2017. For each of the conditions at issue, however, the examiner failed to adequately provide an opinion on the extent of the Veteran's functional impairment during periods of flare-ups. For each condition, the examiner noted reported flare-ups and that the examination was medically consistent with the Veteran's description of flare-ups; however, the examiner did not provide any opinions on the extent of additional limitation that would be caused during the reported flare-ups. The examiner noted in the remarks section that while additional limitation due to pain, weakness, fatigability, and incoordination is feasible and likely to occur for each condition that "it is not possible to determine actual degrees of additional range of motion loss due to pain and weakness on use or fatigability or incoordination during flare-ups, as an examiner must be present to objectively and clearly determine these additional losses." The examiner gave no other reason why an estimate could not be provided for the resulting additional limitations other than a flare-up not being present during the examination. In Sharp v. Shulkin, the United States Court of Appeals for Veterans Claims (Court) held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Here, the Board finds that the examiner did not adequately explain why it was necessary to result to mere speculation regarding the Veteran's functional limitations during flare-ups, when it is clear that some limitations during flare-ups were reported by the Veteran; however, the degree of these limitations and whether they result in additional limitation of motion is unclear from the examination reports. Accordingly, the Board finds that a new, VA examination should be provided that discusses any additional functional limitations during periods of flare-ups of the Veteran's conditions, if possible. The Board also notes that a medical opinion was provided regarding the etiology of the Veteran's bilateral plantar fasciitis that he contends is related to a period of his active service. The examiner noted that the Veteran had an entry in service about the heels, but also noted "tremendous" post-service issues with his feet in 2010 related to jumping out of a truck. The examiner explained that the Veteran has seen podiatry at VA in the past that discuss the history of painful feet/heels, but not of longevity. The examiner explained that "because of this information, it would be resorting to speculation to state whether the feet/plantar fasciitis issues are etiologically related to service. The post-service entries make this difficult to answer." The Board finds the examiner's opinion to be inadequate as it does not contemplate the Veteran's lay statements. The Veteran provided a description of the pain and numbness that he reports has affected his bilateral feet since 2004 or 2005. The Board notes that a post-deployment health reassessment from January 2007 reported "numbness or tingling in the hands or feet." The Veteran is competent to report symptoms that he experiences as they come to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Further, the examiner's opinion did not address the Veteran's contention that he aggravated this condition during a period of inactive duty for training (INACDUTRA) in 2013. In October 2014, the Veteran stated that his condition had been aggravated continuing his drill time activities. A "Statement of Medical Examination and Duty Status" completed on May 23, 2013 reports that the Veteran suffered a "strain of knee and left leg" that was incurred in the line of duty during his Army Physical Fitness Test (APFT). The details of the accident report that the Veteran had pain in his lower left leg during his APFT. The Veteran contends that his bilateral plantar fasciitis was permanently worsened after this in-service injury. If it determined that the Veteran's bilateral plantar fasciitis is not otherwise due to service, the Board finds that an opinion on the aggravation of this condition should be obtained. Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate efforts to schedule the Veteran for a current VA examination to determine the severity, manifestations, and effects of his service-connected lumbar spine disability, cervical spine disability, and left and right knee disabilities. The examiner must review the claims file in conjunction with the examination. All pertinent symptomatology and findings should be reported in detail. The examiner must specifically provide an opinion regarding whether the Veteran's condition would result in additional functional limitations during periods of flare-ups. If the examination is not conducted during a period of a flare-up, the examiner must provide an estimated opinion of additional functional limitations based upon the evidence of record, including the Veteran's lay statements and medical evidence of record. If the examiner is unable to provide such an opinion, the inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. 2. After the above development has been completed, the Veteran must be afforded a VA examination to determine the etiology of his bilateral plantar fasciitis. The claims file and all electronic records must be made available to the examiner. The examiner must report review of the claims file. The examiner is specifically asked to provide the following opinions: Whether it is at least as likely as not (a 50 percent probability) that the Veteran's bilateral plantar fasciitis is due to or the result of, any incident of his active service, including his period of active service from June 2004 to March 2005 or his injury suffered in the line of duty on May 23, 2013. If it is determined that the Veteran's bilateral plantar fasciitis was not caused by any period of service, please opine whether it is at least as likely as not (a 50 percent probability) that the Veteran's bilateral plantar fasciitis was aggravated by (permanently worsened) by his any period of active service, including the May 23, 2013 injury. If aggravation is found, please estimate a baseline level in terms of a percentage, if possible, of disability prior to such aggravation. If this cannot be accomplished, please explain why this is so. A complete rationale for all opinions must be provided. In providing the requested opinions, the examiner must address the Veteran's lay assertions. The Veteran's lay statements cannot be disregarded solely due to lack of contemporaneous medical evidence. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 3. After the above-development has been completed, readjudicate the Veteran's claims on appeal. If the claims remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC) and an adequate opportunity to respond, after which the matter should be returned to the Board for further adjudication, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2014). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs