Citation Nr: 18144751 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 13-21 116 DATE: October 25, 2018 ORDER Entitlement to an effective date prior to July 22, 2008, for the grant of an evaluation of 10 percent disabling for osteoarthritis of the left ankle, is denied. REMANDED Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a kidney disorder, to include as secondary to service-connected fibromyalgia and left ankle disorder, is remanded. Entitlement to an evaluation in excess of 40 percent disabling for fibromyalgia is remanded. Entitlement to an evaluation in excess of 10 percent for osteoarthritis of the left ankle is remanded. FINDING OF FACT The Veteran did not file a claim for service connection for a left ankle disability prior to July 22, 2008. CONCLUSION OF LAW The criteria for an effective date prior to July 22, 2008, for the grant of an evaluation of 10 percent disabling for osteoarthritis of the left ankle, have not been 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 September 1977 to September 1980 and from November 1990 to May 1991. He seeks an effective date prior to July 22, 2008, for the grant of an evaluation of 10 percent disabling for osteoarthritis of the left ankle. The Board finds that assignment of an earlier effective date is not warranted; the claim is denied. Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. The amendments also, inter alia, eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155, 3.157. The amended regulations, however, apply only to claims filed on or after March 24, 2015. Because the Veteran’s claim was received by VA prior to that date, the former regulations apply and are cited below. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. The effective date of an award of service connection shall be the day following the date of discharge or release if application is received within one year from such date of discharge or release. Otherwise, the effective date is the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (b)(2)(i). Except as otherwise provided, the effective date for the assignment of an increased evaluation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The applicable statute specifically 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 an application is received within one year from such date. 38 U.S.C. § 5110 (b)(2). However, if the increase became ascertainable more than one year prior to the date of receipt of the claim, then the proper effective date would be the date of the claim. In a case where the increase became ascertainable after the filing of the claim, then the effective date would be the date of increase. See generally Harper v. Brown, 19 Vet. App. 125 (1997). A claim or application means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 C.F.R. § 3.151 (a). In a Report of Contact, dated July 22, 2008, the Veteran was noted to request to “reopen” his claim for his feet and legs. The Veteran was reported to indicate that his initial claim was closed without his being notified. Subsequently, the Veteran was granted entitlement to service connection for residuals of left ankle sprain, effective July 22, 2008. Thereafter, in a July 2012 rating decision the evaluation of the Veteran’s left ankle disability was increased to 10 percent, effective February 19, 2010. Finally, in an August 2014 rating decision, the Veteran was granted entitlement to an evaluation of 10 percent for posttraumatic osteoarthritis of the left ankle as a residual of left ankle sprain from July 22, 2008. The Regional Office noted in the rating decision that the Veteran had continuously prosecuted the claim for a left ankle condition from July 22, 2008, and that the Veteran had never filed a claim for service connection for a left ankle condition before this date. Review of the claims file reveals that in a hearing before a Decision Review Officer in August 1999 the Veteran reported an injury to the left ankle while discussing his claim for service connection for a knee disability. VA examinations in July 2002 and August 2003 the Veteran was noted to have ankle pain. In a VA Form 9 dated in February 2005 the Veteran reported that he had a deformed ankle. In a July 2007 rating decision the Veteran was granted entitlement to increased evaluations for polyarthralgia of multiple joints of unknown etiology. The rating decision indicated that it was a complete grant of the benefits sought and an appeal was closed. Entitlement to an effective date prior to July 22, 2008, is not warranted. Although the Veteran was sought and was granted service connection for polyarthralgia of multiple joints prior to July 22, 2008, and VA examination reports include complaints of ankle pain prior to that date, there is no claim for service connection for a left ankle disability prior to July 22, 2008. As such, the Veteran is already in receipt of the earliest date available for service connection for left ankle disability. In addition, as the effective date for the award of the evaluation of 10 percent is the date assigned as the effective date for service connection for left ankle disability, an earlier effective date is not available for the evaluation assigned. Therefore, entitlement to an effective date prior to July 22, 2008, for the grant of an evaluation of 10 percent disabling for osteoarthritis of the left ankle, is denied. REASONS FOR REMAND The Veteran receives treatment from VA. The most recent VA treatment records associated with the claims file are dated in September 2016. On remand attempts must be made to obtain complete VA treatment records regarding the Veteran dated since September 2016. See 38 C.F.R. § 3.159. In a statement dated in October 2015 the Veteran was noted to have been awarded Social Security Administration (SSA) disability benefits, effective June 2015. Review of the claim file does not reveal that an attempt has been made to obtain the Veteran's complete SSA records. Because SSA records are potentially relevant to the Board's determination, any available SSA records should be obtained on remand. Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). The Veteran seeks entitlement to service connection for a left knee disability. Treatment records reveal that the Veteran has been diagnosed with osteoarthritis of the knees. The Veteran was afforded a VA examination in October 2012 which included after which the examiner stated the current knee condition was not likely related to the Veteran’s complaints in service. The examiner stated that the claims file was reviewed and the Veteran was diagnosed with bilateral knee chondrocalcinosis since 1998. The examiner stated that this was a metabolic condition and it was not clear whether it first occurred in service as the service treatment records only noted on complaint of right knee pain. Secondary to the longstanding chondrocalcinosis of the knees the Veteran developed superimposed osteoarthritis of the knees. The examiner stated that as to the chondrocalcinosis, it was unclear whether it was related to service and the examiner was unable to provide an opinion. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a left knee disaiblity because adequate rationale was not provided as to why an opinion could not be rendered regarding the etiology of the Veteran’s knee disability. As such, the claim is remanded for the Veteran to be afforded another VA medical examination. The Veteran was afforded examinations regarding his claim for a kidney disability. In October 2012 the examiner noted a diagnosis ureterolithiasis, but opined that it was not likely related to service-connected disabilities or to supplements used for fibromyalgia. The examiner discussed the Veteran’s report of taking supplements for his fibromyalgia and noted that the literature provided that there was a suggestion but no conclusion that food supplements high in calcium can cause kidney stones. The examiner noted that the medical records did not reveal that the Veteran was advised to take supplements. In July 2014 the examiner noted that the Veteran had ureterolithiasis in January 2010. However, the examiner opined that the Veteran did not have a kidney disability. It is unclear whether the Veteran’s kidney stones during the period on appeal represent a kidney disability and, if so, whether the Veteran’s service connected disabilities caused or aggravated this disability. As such, the Veteran must be afforded another VA examination. The record contains a contemporaneous VA examination regarding the Veteran’s left ankle disability; however, the examination does not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Although the examination contains a range of motion measurement, there is no indication whether this is an active range of motion or passive range of motion. In addition, subsequent to the most recent examination regarding the severity of the Veteran’s ankle disablity, in January 2016 an acquiantance of the Veteran noted that the Veteran limped whether he needed to move from one part of the house to another. This indicates that the Veteran’s ankle disability may have changed in severity since it was previously examined. As such, the claim must be remanded for the Veteran to be afforded another VA examination. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period beginning September 2016. 2. Obtain all appropriate records from the Social Security Administration. Document all requests for information as well as all responses in the claims file. 3. After completion of the above, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any left knee disability found to be present. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. A complete rationale must be provided for all opinions offered. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any kidney disability found to be present. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. In rendering an opinion the examiner must identify all kidney disabilities present and comment on whether the Veteran’s kidney stones represent a kidney disability. In addition, the examiner must comment on whether it is at least as likely as not any kidney disability found to be present is (1) proximately due to service-connected disability or a treatment for a service-connected disability, or (2) aggravated by a service-connected disability or treatment for a service-connected disability. A complete rationale must be provided for any opinion offered. 5. Schedule the Veteran for an examination of the current severity of his left ankle disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. (Continued on the next page)   If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). M.E. LARKIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel