Citation Nr: 18152166 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 16-35 231 DATE: November 21, 2018 ORDER Entitlement to an effective date earlier than June 29, 2015 for the grant of service connection for left knee torn cartilage is denied. REMANDED Entitlement to an increased rating higher than 10 percent for left knee torn cartilage is remanded. FINDING OF FACT 1. A November 2007 rating decision denied service connection for a left knee disability. The Veteran did not appeal the November 2007 decision. 2. The Veteran submitted a petition to reopen service connection for a left knee disability that was received by the RO on June 29, 2015. CONCLUSION OF LAW The criteria for an effective date prior to June 29, 2015, for the grant of service connection for a left knee disability with torn cartilage have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION 1. Entitlement to an effective date earlier than June 29, 2015 for the grant of service connection for left knee torn cartilage Generally, the effective date of an award of service connection is the date the claim was received or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The same is true for an award based on a claim reopened after final adjudication, as VA laws and regulations stipulate that the effective date of such an award shall be fixed in accordance with the facts found, but shall not be earlier than the date the claim was received, or the date entitlement arose, whichever is later. See id.; 38 C.F.R. §3.400(r). The Veteran contends that he is entitled to an effective date earlier than June 29, 2015 for the grant of service connection for a left knee disability based on the date he originally filed his claim in April 2007. The question for the Board is whether the Veteran is entitled to an effective date earlier than June 29, 2015 for the grant of service connection for a left knee disability. The Board concludes that the Veteran is not entitled to an effective date earlier than June 29, 2015, for the grant of service connection for a left knee disability. The Veteran filed a service connection claim for a left knee disability in April 2007. A November 1966 service treatment record shows that the Veteran was seen for chronic symptoms of a left knee torn medial meniscus with pain, locking, and instability. He reportedly had injured his left knee four years prior (which would have been prior to his September 1965 entry into service), and had reinjured the knee four months earlier. Post-service private treatment records were submitted that were unrelated to a left knee disability. The RO denied the Veteran’s service connection claim for a left knee disability in November 2007, noting the injury to the left knee in service but also noting that there was no further evidence of treatment for the knee or any evidence of a post-service disability. The Veteran did not appeal the RO’s denial. Thus, the November 2007 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The Veteran submitted a petition to reopen the claim for service connection for a left knee disability on June 29, 2015. Based on a careful review of the record, the Board finds that there is no evidence to support the assignment of an effective date earlier than June 29, 2015, for the grant of service connection for a left knee disability. The Board acknowledges the arguments set forth by the Veteran. Under the law, however, the effective date of an award of service connection for a reopened claim is the date the claim was received or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. As such, the RO assigned the earliest possible effective date for its grant of service connection for a left knee disability, which based on the procedural history as outlined in detail above was determined to be June 29, 2015. See Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005); Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003). Accordingly, the claim for entitlement to an effective date prior to June 29, 2015 for service connection for a left knee disability is denied. REASONS FOR REMAND 1. Entitlement to an increased rating higher than 10 percent for left knee torn cartilage is remanded. The Veteran underwent a VA examination for the left knee in October 2015. Two months later, he underwent a private examination in December 2015, which demonstrated flexion as more severely limited. As the evidence suggests that the left knee disability has increased in severity since the Veteran was last examined by VA, he should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his left knee disability. In addition, the October 2015 examination does not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examination does not contain passive range of motion measurements/pain on weight-bearing testing. The matter is REMANDED for the following action: Schedule the Veteran for an examination of the current severity of his left knee 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. To the extent possible, the examiner should identify any symptoms and functional impairments due to the left knee disability alone and discuss the effect of the Veteran’s left knee disability on any occupational functioning and activities of daily living. 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). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Sarah B. Richmond