Citation Nr: 18160285 Decision Date: 12/26/18 Archive Date: 12/26/18 DOCKET NO. 14-28 652 DATE: December 26, 2018 ORDER An effective date earlier than June 10, 2013 for the award of a 40 percent rating for degenerative arthropathy of the left knee is denied. FINDING OF FACT 1. The Veteran submitted a claim for an increased rating for his left knee disability on October 17, 2011. 2. The Veteran’s record does not indicate he was entitled to a 40 percent rating for degenerative arthropathy of the left knee prior to June 10, 2013. CONCLUSION OF LAW The criteria for an effective date prior to June 10, 2013 for the award of an increased rating of 40 percent for the Veteran’s degenerative arthropathy of the left knee 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 in the United States Army from April 1995 to March 1998. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines. An effective date earlier than June 10, 2013 for the award of a 40 percent rating for degenerative arthropathy of the left knee. The Veteran seeks an effective date earlier than June 10, 2013 for the award of a 40 percent rating for his degenerative arthropathy of the left knee. The Veteran asserts that an effective date of October 17, 2011 is warranted. The method of determining the effective date of an increased evaluation is set forth in 38 U.S.C. § 5110 (a) and (b)(2), and 38 C.F.R. § 3.400 (o). The general rule with respect to the effective date of an award of increased compensation is that the effective date of such award "shall not be earlier than the date of receipt of application thereof." 38 U.S.C. § 5110 (a). This statutory provision is implemented by regulation which provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (o)(1). An exception to the rule applies, however, under circumstances where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. In that regard, the law provides that the effective date of the award "shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date, otherwise the date of receipt of the claim." 38 U.S.C. § 5110 (b)(2). See 38 C.F.R. § 3.400 (o)(2). The phrase "otherwise, date of receipt of claim" applies only if a factually ascertainable increase in disability occurred within one year prior to filing the claim for an increased rating. Harper v. Brown, 10 Vet. App. 125 (1997). Moreover, the term "increase" as used in 38 U.S.C. § 5110 and 38 C.F.R § 3.400 means an increase to the next disability level. See Hazan v. Gober, 10 Vet. App. 511 (1997). VA has amended the regulations concerning the filing of claims, including no longer recognizing informal claims and eliminating the provisions of 38 C.F.R § 3.157. See Fed. Reg. 57,660, 57,695 (Sept. 25. 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the claim at issue in the appeal was filed before these amendments, the prior regulatory provisions apply. The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1 (r). A claim is 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(p); 3.155. The regulation which governs informal claims, 38 C.F.R. § 3.155, provides that any communication or action, indicating an intent to apply for one or more benefits under the laws administered by [VA], from a claimant...may be considered an informal claim. Such informal claim must identify the benefit sought. Id. When a claim has been filed that meets the requirements of 38 C.F.R. § 3.151 or 3.152, an informal request for increase or reopening will be accepted as a claim. Further, under 38 C.F.R. § 3.157 (b)(1), an informal claim may consist of a VA report of examination or hospitalization. Under this regulatory provision, the date of the VA outpatient examination or hospital admission will be accepted as the date of receipt of a claim if such a report relates to examination or treatment of a disability for which service connection has previously been established. On October 17, 2011, the Veteran submitted a claim for an increased rating for his left knee disability. The Veteran asserts that his 40 percent rating for his left knee disability should be effective from the date of his claim for an increase. A review of the record shows that there was no pending, unadjudicated informal claim (to include a report of VA examination) found in the record. Thus, the Board has determined that October 17, 2011 is the date of receipt of the claim for a higher rating for the Veteran’s left knee disability. Next, the question is when was an increase in disability factually ascertainable. A December 2011 VA examination showed no evidence of any left knee condition based on x-ray. There was no limitation of motion, no objective evidence of painful motion, and no flare-ups for the left knee. Range of motion testing revealed flexion to 140 degrees or greater with no objective evidence of painful motion and 0 degrees of extension with no objective evidence of painful motion. There was no evidence of degenerative or traumatic arthritis in the Veteran’s left knee. The Veteran’s record shows he has continued to seek treatment for both of his knees. In July 2012, while seeking treatment, the Veteran stated that anything he does makes his knees hurt and he now walks with a limp. The Veteran reported that he has a loss of function, weakness, along with a sharp pain and flare-ups. However, the Veteran also stated that he had severe pain on the knee, both knees, but mainly on his right knee. A June 10, 2013 VA examination showed that the Veteran was diagnosed with left knee degenerative arthropathy by x-ray. He reported flare-ups, right more than left. He had flexion to 140 degrees or greater and extension to 0 degrees with no evidence of painful motion. After repetitive testing, there was no change is range of motion. He had crepitus in both knees, right more than left. Veteran claimed that during flare-ups, his range of motion decreases by 40 percent from the baseline. In this case, there was no objective evidence that it was factually ascertainable that the Veteran’s left knee disability met the criteria for a 40 percent disability rating. However, based on the Veteran’s reports of flare-ups that he asserted decreased his baseline range of motion by 40 percent on his June 10, 2013 VA examination, the RO granted a 40 percent rating for limitation of extension. In light of the RO’s grant, which the Board will not disturb, the Board will look to the Veteran’s statements of flare-ups as to earliest factually ascertainable evidence of record that the Veteran was eligible for an increased 40 percent rating for his left knee disability. Considering the above, the Board finds that the Veteran is not entitled to an effective date prior to June 10, 2013, for the award of a 40 percent evaluation for left knee disability. Generally, the effective date can be no earlier than the date of receipt of the claim for increase. The Board has considered the exception to that general rule, however, the evidence does not demonstrate that it was factually ascertainable that the Veteran's service-connected left knee disability was 40 percent disabling within one year prior to his claim for an increased rating. Indeed, the record does not show any evidence prior to the June 10, 2013 VA examination that demonstrates the Veteran's left knee disability met the schedular rating criteria for a higher evaluation. Therefore, an effective date earlier than June 10, 2013, is not warranted. The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by that authority. The Board finds that as the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and therefore, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Gilbert v. Derwinski, 1 Vet. App. 49 (1990) LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Mahaffey, Associate Counsel