Citation Nr: 18157067 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 14-04 239 DATE: December 11, 2018 ORDER An earlier effective date prior to December 16, 2013 for a 40 percent rating for a back disability is denied. An earlier effective date prior to December 16, 2013 for a 20 percent rating for right knee instability is denied. REMANDED An increased rating in excess of 40 percent for a back disability is remanded. An increased rating in excess of 20 percent for right knee instability is remanded. FINDINGS OF FACT 1. The Veteran’s record does not indicate he was entitled to a 40 percent rating for his back disability prior to December 16, 2013. 2. The Veteran’s record does not indicate he was entitled to a 20 percent rating for his right knee instability prior to December 16, 2013. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to December 16, 2013 for the award of an increased rating of 40 percent for a back disability have not been met. 38 U.S.C. §§ 5107 (b); 38 C.F.R. §§ 3.155, 3.400. 2. The criteria for an effective date prior to December 16, 2013 for the award of an increased rating of 20 percent for right knee instability have not been met. 38 U.S.C. §§ 5107 (b); 38 C.F.R. §§ 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1979 to April 1992 and from March 2003 to November 2003. Effective Date The Veteran seeks the assignment of an effective date earlier than December 16, 2013 for his 40 percent increased rating for his back disability and for his 20 percent increased rating for his right knee instability. He asserts that an effective date of July 14, 2010 is warranted. Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim or a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. For increased evaluations, except as provided in paragraph (o)(2) of this section and § 3.401(b), generally, the effective date is the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). For disability compensation, the effective date is the earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a complete claim or intent to file a claim is received within 1 year from such date, otherwise, date of receipt of claim. 38 C.F.R. § 3.400(o)(2). The Veteran has asserted on many occasions that communications from the RO regarding these two claims have stated his date of claim to be December 16, 2013. However, the Veteran says his date of claim for these increased ratings was July 14, 2010. The Veteran’s confusion is understandable. The Veteran’s date of claim for these two increased rating claims was indeed July 14, 2010. However, in the August 2014 rating decision granting the increased ratings, the RO mistakenly wrote the increased ratings were effective “December 16, 2013, the date of claim.” It appears the RO mistakenly took a letter that was received from the Veteran on December 16, 2013 regarding the severity of his two disabilities as a claim. The Veteran had an examination for his back and his right knee instability on December 19, 2013. It appears when the RO listed December 16, 2013 as the date of claim, it meant the date the entitlement arose. In its decision, the RO noted the Veteran’s forward flexion of his back was found to be to 30 degrees, which qualified the Veteran for a 40 percent rating. The RO also found the Veteran had moderate right knee instability, which qualified him for a 20 percent rating. As noted above, for increased rating claims, the effective date is the date of claim or the date entitlement arose, whichever is later. The Board has reviewed the Veteran’s record in order to ensure his entitlement of a 40 percent rating for his back disability and his 20 percent rating for his right knee instability did not arise prior to December 16, 2013. For the reasons below, the Board finds an earlier effective date for these two claims is not warranted. The Veteran’s record shows he has continued to seek treatment for his back. A September 2010 examiner noted the Veteran did not have ankylosis in his back. The Veteran’s forward flexion was to 75 degrees with no muscle spasms or guarding. The Veteran’s record shows he has continued to seek treatment for his right knee. A September 2010 examiner noted instability of the Veteran’s right knee with pain, stiffness and weakness. The examiner noted the Veteran had no subluxation or locking episodes but that the Veteran did use a cane and brace. The remainder of the evidence does not show the Veteran’s entitlement to an increased rating for his back disability or his right knee disability arose prior to December 16, 2013 as the evidence does not show the Veteran’s back disability was manifested by incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months or by unfavorable ankylosis of the entire spine or forward flexion of the thoracolumbar spine to 30 degrees or less. Nor does the evidence show the Veteran’s right knee disability was manifested by moderate recurrent subluxation or lateral instability and was not limited in motion such as would warrant a higher disability rating. Therefore, an earlier effective date for the Veteran’s back and right knee disabilities will be denied. REASONS FOR REMAND The Board finds a remand is necessary for the Veteran’s claims of an increased rating for his back disability and for his increased rating for his right knee instability. The Veteran’s representative asserted the Veteran’s previous examination for his conditions in this appeal was conducted more than three years ago and the Veteran’s conditions have worsened since that time. Additionally, in Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) held that to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of 38 C.F.R. § 4.59 (2017). The final sentence of section 38 C.F.R. § 4.59 (2017) directs that the joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. A recent Court decision addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, No. 16-1385 (Vet. App. Sept. 6, 2017). In Sharp, the 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. The Veteran was afforded an examination for his back and knees most recently in July 2015. Regarding the Veteran’s back, the examiner noted the Veteran did not have IVDS and had not suffered any incapacitating episodes in the past 12 months. However, the examiner did not offer an opinion as to whether the Veteran had ankylosis in his spine, and if so, what part of his spine. The examiner also did comply with the directives as outlined above in Correia and Sharp. The Veteran’s right knee was also examined in July 2015. The Veteran reported flare ups of his knee condition. As with the Veteran’s back, the directives outlined in Correia and Sharp were not followed. As these determinations are necessary in order to determine whether the Veteran is entitled to a higher disability rating for his back, the Board finds this examination inadequate and a new examination is warranted. The matters are REMANDED for the following action: 1. The AOJ should obtain any of the Veteran’s outstanding VA and private medical records and associate them with the claims file. If possible, the Veteran himself should submit any pertinent new evidence regarding the condition at issue in order to expedite the claim. 2. After completing the above development and all outstanding records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination for his back and right knee disabilities. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. (a) The Veteran’s back and right knee should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing, and, if possible, with the range of the opposite undamaged joint. If for any reason the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, s/he should clearly explain why that is so. (b) The examiner must estimate any functional loss in terms of additional degrees of limited motion experienced during flare-ups and repetitive use over time. If the examiner cannot provide the above-requested opinion without resorting to speculation, s/he should state whether all procurable medical evidence has been considered, to specifically include the Veteran’s description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner’s medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. The examiner should provide a complete rationale for any opinion provided. 3. After undertaking any other appropriate development deemed necessary, readjudicate the issues on appeal based on the additional evidence of record. If the determinations remain adverse to the Veteran, he must be provided with a supplemental statement of the case. An appropriate period of time must then be allowed for a response before the record is returned to the Board for further review. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Snoparsky, Associate Counsel