Citation Nr: 18142771 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 16-28 213 DATE: October 17, 2018 ORDER Entitlement to an effective date prior to November 10, 2014 for the grant of a 30 percent disability rating for service-connected osteoarthritis of the left knee is denied. FINDING OF FACT The preponderance of the evidence shows that the Veteran’s service-connected osteoarthritis of the left knee prior to November 11, 2014 was characterized by flexion limited to 124 degrees at the worst with consideration of additional loss of function on repetitive use and flare-ups, full extension with consideration of additional functional loss on repetitive use and flare-ups with no evidence of ankylosis, dislocation of the semilunar cartilage with frequent episodes of locking, pain and effusion into the joint; recurrent subluxation or instability, impairment of the tibia and fibula, or genu recurvatum, and therefore, the November 11, 2014 VA examination is the first evidence confirming that the Veteran’s range of motion, particularly extension, was limited enough to warrant a 30 percent disability rating. CONCLUSION OF LAW The criteria for an effective date prior to November 10, 2014 for the grant of a 30 percent disability rating for service-connected osteoarthritis of the left knee are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1967 to June 1976. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a rating decision dated in January 2015 by a Department of Veterans Affairs (VA) Regional Office (RO). As an initial matter, the Board observes that following the Veteran’s February 2015 notice of disagreement, the RO issued a statement of the case on March 24, 2016. Thereafter, the RO received the Veteran’s completed VA Form 9, substantive appeal, on June 16, 2016. The RO did not inform the Veteran that the substantive appeal was untimely and continued to process the appeal. In December 2017, the Board sent a letter to the Veteran informing him that his appeal was placed on the Board’s docket. In February 2015, the Veteran informed the RO that his address changed and provided his new address. The RO mailed the March 2016 statement of the case to the Veteran’s most recent address of record. In June 2016 when the Veteran submitted the substantive appeal, he also notified the RO of a change in address. In light of the Veteran’s notification of a change of address with his substantive appeal and because VA has continued to treat his claim as being on appeal, the Board concludes that any issue as to the timeliness of the Veteran’s substantive appeal has been waived, and the issue is properly before the Board. See Percy v. Shinseki, 23 Vet. App. 37, 47-48 (2009). Entitlement to an effective date earlier than November 10, 2014 for the grant of a 30 percent disability rating for service-connected osteoarthritis of the left knee. The RO received the Veteran’s claim for an increased rating for his service-connected left knee disability on September 17, 2012. The RO denied the claim for an increase in a November 2012 rating decision. The Veteran appealed this decision. The RO sent the Veteran a statement of the case in January 2015. The Veteran did not perfect an appeal with respect to the January 2015 statement of the case. In a January 2015 rating decision, the RO granted a 30 percent disability rating for the left knee based on limitation of extension, effective November 10, 2014, the date the evidence first showed that a higher disability rating was warranted. He submitted a notice of disagreement in February 2015 regarding the effective date of the award for the 30 percent disability rating. The Veteran asserts that the effective date of the 30 percent disability rating should be September 17, 2012, the date the original increase rating claim was received by VA. VA law provides that the effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if application is received within one year from such date; otherwise, the effective date will be the date of VA receipt of the claim for increase, or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a), (b)(2); 38 C.F.R. § 3.400(o); Hazan v. Gober, 10 Vet. App. 511 (1997); Harper v. Brown, 10 Vet. App. 125 (1997); VAOPGCPREC 12-98. Here, the Veteran seeks an effective date prior to November 10, 2014 for the award of a 30 percent disability rating for osteoarthritis of the left knee. He asserts that the effective date of the assigned rating of 30 percent for osteoarthritis of the left knee should be September 17, 2012, the date RO received his original claim requesting an increase rating for his left knee. See February 2015 notice of disagreement. In this regard, the Veteran asserts that the November 2012 VA examiner did not adequately evaluate his left knee during the examination as he did not do range of motion testing. See June 2016 substantive appeal. He contends that the November 2014 VA examination actually evaluated his left knee and documented an increase in disability. The Veteran claims that his left knee was this bad back when he filed his increase rating claim in September 2012. On September 12, 2012, the RO received the Veteran’s claim for an increased rating for his service-connected left knee disability. In the November 2012 rating decision, the RO continued the 10 percent disability rating for chondromalacia of the left knee based on painful motion. The Veteran appealed this decision in a November 2013 notice of disagreement. The RO sent the Veteran a statement of the case in January 2015 informing him of the partial grant of his increased rating claim. The Veteran did not perfect his appeal with respect to his increased rating claim as he did not submit a substantive appeal within the required time frame. In a January 2015 rating decision, the RO granted a 30 percent rating for osteoarthritis of the left knee, effective from November 10, 2014. The Veteran filed a notice of disagreement with the effective date of the increased award of 30 percent in February 2015 and he perfected the appeal in the June 2016 substantive appeal in response to the June 2016 statement of the case. In this case, the earliest possible effective date for the award of an increased rating for a left knee disability is September 12, 2011. See 38 U.S.C. § 5110(a) and 38 C.F.R. § 3.400(o)(2) (if, the ascertainable increase precedes receipt of the formal or informal claim, then the effective date is the date of ascertainable increase, if the claim is received within one year thereof). Regarding the date of entitlement, the term “date entitlement arose” is not defined in the current statute or regulation. However, the Court has interpreted it as the date when the claimant met the requirements for the benefits sought. This is determined on a “facts found” basis. See 38 U.S.C. § 5110(a) (West 2014); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000). It is important to note that an effective date generally can be no earlier than the “facts found.” DeLisio v. Shinseki, 25 Vet. App. 45 (2011). These “facts found” include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation. See generally 38 C.F.R. § 3.400. For instance, if a claimant filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008). Pertinent to this case, the Board acknowledges that the Veteran’s increased rating claim for his left knee disability was received on September 17, 2012. Although the Veteran asserted that his left knee disability had increased in severity and warranted a 30 percent rating as of September 17, 2012, the objective medical evidence of record does not demonstrate that extension of the left knee was limited to 20 degrees until the November 10, 2014 VA examination. See VA examination reports dated in November 2012 and November 2014 and VA treatment record dated in January 2013. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. 38 U.S.C. § 5107 (b). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the current appeal arose from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). In evaluating disabilities of the musculoskeletal system, additional rating factors include functional loss due to pain supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Inquiry must also be made as to weakened movement, excess fatigability, incoordination, and reduction of normal excursion of movements, including pain on movement. 38 C.F.R. § 4.45. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or misaligned joints, due to arthritis, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The United States Court of Appeals for Veterans Claims (Court) has emphasized that when assigning a disability rating, it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, and pain on motion. DeLuca v. Brown, 8 Vet. App. 202 (1995). A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Moreover, when evaluating the reduction of excursion due to pain, not all painful motion constitutes limited motion. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-40 (2011). Pain on motion can only be characterized as limiting pain constituting functional loss when the evidence shows the pain actually affects some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, or endurance. Id. at 37. In other words, pain may cause a functional loss, but pain, by itself, does not constitute a functional loss. Id. at 36. In Mitchell, the Court held that the evaluation of painful motion as limited motion only applies when limitation of motion is 0 percent disabling (i.e., noncompensable) under the applicable diagnostic code. The Court further explained that, although painful motion is entitled to a minimum 10 percent rating under Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), when read together with Diagnostic Code 5003 concerning arthritis, it does not follow that the maximum rating is warranted under the applicable diagnostic code pertaining to range of motion simply because pain is present throughout the range of motion. Moreover, where the diagnostic code is not predicated on the loss of range of motion, or the Veteran already has the highest available rating based on restriction of motion, the provisions regarding pain in 38 C.F.R. §§ 4.40 and 4.45 do not apply. Johnson v. Brown, 9 Vet. App. 7, 11 (1996); Johnston, 10 Vet. App. at 84-85. The Veteran’s left knee disability was originally rated as 10 percent disabling under Diagnostic Code 5257 for mild instability. However, in the November 2010 rating decision, the RO determined that the Veteran’s left knee instability was more accurately evaluated based on painful motion of the left knee as the evidence did not show left knee instability. The RO determined that a 10 percent rating was warranted based on painful motion pursuant to 38 C.F.R. § 4.40, 4.45, and 4.59. Under 38 C.F.R. § 4.71a, Diagnostic Code 5003 specifies that arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. If the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. Id. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. For purposes of rating disability from arthritis, VA regulations consider major joints to be the shoulder, elbow, wrist, hip, knee, and ankle. 38 C.F.R. § 4.45(f). Diagnostic Codes 5260 and 5261 evaluate limitation of motion of the knee. If a Veteran has both limitation of flexion and limitation of extension of the same knee, separate ratings under Diagnostic Codes 5260 and 5261 are warranted so that the Veteran is adequately compensated for functional loss associated with injury to the knee. See VAOPGCPREC 9-04 (September 17, 2004). Under Diagnostic Code 5260, (limitation of flexion), a 10 percent disability rating is warranted for flexion limited to 45 degrees. Limitation of flexion of the knee to 30 degrees warrants a 20 percent disability rating. Flexion of the knee limited to 15 degrees warrants a 30 percent disability rating. In order for the Veteran to receive a 10 percent rating under Diagnostic Code 5261 (limitation of leg extension), the evidence must show that the Veteran’s left knee disability is manifested by leg extension limited to 10 degrees. A 20 percent rating under Diagnostic Code 5261 is warranted if the evidence shows leg extension limited to 15 degrees. Knee extension limited to 20 degrees warrants a 30 percent disability rating and knee extension limited to 30 degrees warrants a 40 percent disability rating. The Veteran underwent a VA examination in November 2012. The examiner documented that flexion of the left knee was limited to 130 degrees with objective evidence of painful motion beginning at 130 degrees. Extension of the left knee was to zero degrees with no objective evidence of painful motion. The Veteran was able to perform repetitive use testing with no evidence of additional limitation in range motion for flexion or extension of the left knee. The examiner noted that the Veteran had less movement than normal and pain on movement in the left knee. There was evidence of tenderness or pain to palpation of the joint line or soft tissues of the left knee. Anterior instability, posterior instability, and medial-lateral instability tests of the left knee were normal. There was no evidence of patellar subluxation or dislocation of the left knee. The examiner documented that the Veteran did not have any meniscal conditions or surgical procedures for a meniscal condition. The Veteran reported that he occasionally wore a brace on his left knee for support. There was x-ray evidence of degenerative or traumatic arthritis of the left knee. The examiner noted that the Veteran did not report that flare-ups impacted the function of the left knee or lower leg. A VA treatment record dated in January 2013 shows that active flexion of the Veteran’s left knee was limited to 124 degrees and active extension was within normal limits. Based on the evidence of record, the Veteran’s osteoarthritis of the left knee did not demonstrate limited flexion of approximately 45 degrees or less and/or extension limited to 10 degrees or more to warrant a disability rating in excess of 10 percent based on limitation of flexion and/or extension prior to November 10, 2014. Flexion of the left knee was at worst limited to 124 degrees even with consideration of pain on movement of the left knee. The Veteran’s left knee had full extension to zero degrees prior to November 10, 2014. There was evidence of pain on motion, but it did not result in or cause functional loss. The evidence of record also reveals that the Veteran did not experience weakness, incoordination, fatigability, lack of endurance, interference with sitting, standing, or weight-bearing, swelling, deformity, instability of station, disturbance of locomotion, or flare-ups. The Board has also considered whether the Veteran is entitled to a higher rating or a separate rating for his left knee disability under alternate Diagnostic Codes. In this regard, a separate disability rating is also allowed for arthritis with limitation of function and subluxation or instability of the knee under Diagnostic Code 5257. VAOPGCPREC 23-97 (July 1, 1997) published at 62 Fed. Reg. 63,604 (1997) (authorizing separate evaluations for arthritis and subluxation or instability of the knee under Diagnostic Codes 5003 and 5257). The medical evidence shows that the Veteran’s osteoarthritis of the left knee is not characterized by recurrent subluxation or lateral instability. Thus, the Veteran is not entitled to a separate disability rating under Diagnostic Code 5257 for recurrent subluxation or instability of the left knee. Disabilities of the knee may also be evaluated under Diagnostic Codes 5256, 5258, 5259, 5262 or 5263. However, the Veteran’s left knee disability is not manifested by ankylosis, dislocation of the semi-lunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint, symptomatic removal of semilunar cartilage, any impairment of the tibia and fibula, or genu recurvatum. Accordingly, Diagnostic Codes 5256, 5258, 5259, 5262 and 5263 are not applicable in this case. As noted above, the Veteran asserts that his left knee was as bad in September 2012 when he applied for a disability increase as it was at the time of the November 2014 VA examination. Although the Veteran is competent to report to symptoms of pain that limit his activities, the Board finds the objective evidence of range of motion testing results from the November 2012 examination report and the January 2013 VA treatment record is more probative evidence with respect to the severity of the limitation of motion the Veteran experienced in his left knee. In other words, to the extent that the Veteran is competent to opine on the question of the degree of limitation of flexion and extension of the left knee, the Board finds the specific examination findings of the trained health care professionals are of greater probative weight than the lay evidence on the issue of limitation of motion. With respect to the Veteran’s assertion in the June 2016 substantive appeal that that the November 2012 VA examination was conducted at the end of the day, the VA examiner rushed through the examination, and the VA examiner did not conduct range of motion testing of the left knee, the Board notes that the November 2012 VA examiner noted that the examination was conducted at 1:30 pm and documented complete range of motion testing for flexion and extension in the examination report. The VA examiner also reported that he conducted repetitive use testing and provided the results of such test. Furthermore, the range of motion documented in the November 2012 VA examination is similar to the results in the January 2013 VA treatment record. Thus, there is no indication in the medical record that the November 2012 VA examination was not adequate. In conclusion, the objective medical evidence of record does not demonstrate left knee extension more closely approximated limitation to 20 degrees until the November 10, 2014 VA examination, the date the RO has assigned as the effective date for the award of a 30 percent disability rating for osteoarthritis of the left knee due to limited extension. Accordingly, the Board finds that November 10, 2014 is the date on which it was first factually ascertainable that the Veteran met the requirements for the benefit sought. An effective date earlier than November 10, 2014 for the award of a 30 percent disability rating for osteoarthritis of the left knee must be denied. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Berry, Counsel