Citation Nr: 20004170 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 18-08 151 DATE: January 16, 2020 ORDER Entitlement to an effective date earlier than August 14, 2013, for the grant of service connection for left knee scar is denied. REMANDED Entitlement to service connection for chronic fatigue syndrome is remanded. Entitlement to a rating in excess of 30 percent for tinea versicolor on the shoulder, upper back, and chest is remanded. Entitlement to a rating in excess of 10 percent for left knee strain with degenerative joint disease, status post anterior cruciate ligament (ACL) reconstruction with hardware is remanded. Entitlement to an initial compensable rating for left knee scar is remanded. FINDINGS OF FACT 1. An unappealed rating decision in August 2005 granted service connection for left knee strain, status post ACL reconstruction with hardware; no scar associated with the disability was shown. 2. A claim for an increased rating for the left knee disability was received September 2010 and denied in an unappealed February 2012 rating decision; no scar associated with the disability was shown. 3. A claim for an increased rating for the left knee disability was next received on August 14, 2013; evidence in connection with this claim showed an associated scar. 4. There is no communication of record prior to August 14, 2013, that can be construed as a formal or informal claim for VA compensation benefits based on left knee scar. CONCLUSIONS OF LAW The criteria for an effective date earlier than August 14, 2013, for the grant of service connection for left knee scar are not met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active military service from September 2001 to August 2004. This matter is on appeal from March 2014, November 2014, and December 2014 rating decisions. The Board of Veterans’ Appeals (Board) observes that the Veteran also initiated appeals on via the issues of service connection for a psychiatric disorder and sleep apnea. As service connection for those issues were granted in August and October 2018 rating decisions, respectively, those issues are not before the Board. Further, while the Veteran disagreed with the initial rating and effective date assigned to his psychiatric disability, no substantive appeal following the July 2019 Statement of the Case has been received. Also, during this appeal, the Veteran was previously represented by an attorney. In March 2019, this attorney furnished a motion to the Board indicating a request to withdraw representation because of factors which would make the continuation of representation impossible, impractical, or unethical. The Veteran was notified of this withdrawal in June 2019 but has not since responded in any manner. As the attorney withdrew from representation in March 2019, and since no new representative has been appointed, the Board concludes that the Veteran is self-represented in this appeal. 38 C.F.R. § 20.608. Earlier Effective Date The Veteran contends that an effective date earlier than August 14, 2013, for the grant of service connection for his left knee scar is warranted. January 2015 notice of disagreement. No specific argument as to why an earlier effective date is warranted has been provided. The general rule regarding effective dates is that the effective date of an evaluation and award of compensation based on an original claim, 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 C.F.R. § 3.400. The effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection on a direct basis, shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service. Otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). A specific claim in the form prescribed by the Secretary of VA 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. The term “claim” or “application” means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief of entitlement, to a benefit. 38 C.F.R. § 3.1(p). “Date of receipt” generally means the date on which a claim, information, or evidence was received by VA. 38 C.F.R. § 3.1(r). The Veteran was discharged from service in August 2004. An initial claim seeking service connection for a torn ACL in the left knee was received in January 2005. A March 2005 VA examination was provided to the Veteran; no left knee scar was noted. An August 2005 rating decision granted service connection left knee strain, status post ACL reconstruction with hardware; the Veteran did not appeal that decision and it became final. 38 U.S.C. § 7105. A claim seeking an increased rating was received in September 2010 and denied in a February 2012 rating decision. No scar was noted in a November 2010 VA examination provided to the Veteran in connection with that claim. The Veteran also did not appeal that decision and it too became final. Id. Thereafter, no claim pertaining to the left knee was received until August 14, 2013, when the Veteran sought an increased rating for left knee disability. A February 2014 VA examination noted a scar related to the left knee disability. The March 2014 rating decision on appeal granted service connection for left knee scar, effective the date of claim in August 2013. Based on a review of the evidence, the Board concludes that an effective date earlier than August 14, 2013, for the grant of service connection for left knee scar is not warranted. As noted above, the August 2005 rating decision granting service connection for the left knee disability and the February 2012 rating decision denying an increased rating are both final. 38 U.S.C. § 7105. The evidence of record at the time of those decisions did not reflect a scar associated with the left knee disability. In this case, the earliest evidence showing a left knee scar is the February 2014 VA examination, provided to the Veteran in connection with his August 2013 increased rating claim. Following the February 2012 decision, there are no statements of record prior to August 2013 indicating that the Veteran was seeking an increased rating for his left knee disability or service connection for a left knee scar. The effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). Considering that no scar associated with the service-connected left knee disability was noted until February 2014, in light of the above, the Board concludes that no date earlier than August 14, 2013, can be assigned. While the Board recognizes the Veteran’s personal belief that the effective date for the grant of service connection for his left knee scar should be earlier than August 14, 2013, the governing legal authority is clear and specific, and VA is bound by it. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply, and his claim of entitlement to an effective date earlier than August 14, 2013, for the grant of service connection for left knee scar is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for chronic fatigue syndrome is remanded. As discussed below, the Board is remanding the increased rating claims, in part, for updated treatment records. Since those records could be relevant to service connection for chronic fatigue syndrome, this claim must also be remanded. 2. Entitlement to a rating in excess of 30 percent for tinea versicolor on the shoulder, upper back, and chest is remanded. The Veteran was last provided a VA examination in December 2014, and there are no treatment records dated since July 2015. In order to assess the current severity and manifestations of of the Veteran's skin disability, he should be provided an opportunity to report for a new VA examination. 3. Entitlement to a rating in excess of 10 percent for left knee strain with degenerative joint disease, status post ACL reconstruction with hardware is remanded. While the record contains a contemporaneous VA examination in February 2014 regarding the Veteran’s left knee disability, the 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. 4. Entitlement to an initial compensable rating for left knee scar is remanded. As a VA examination for the left knee strain will most likely contain findings pertinent to the scar, remand of this issue is also necessary. The matters are REMANDED for the following action: 1. In accordance with the provisions of 38 C.F.R. § 3.159(c)(1), make efforts to obtain all records identified by the Veteran, including any outstanding VA treatment records. 2. Schedule the Veteran for a VA examination by an appropriate clinician to determine the current severity of his service-connected left knee strain with degenerative joint disease, status post ACL reconstruction with hardware and left knee scar. The most up-to-date Disability Benefits Questionnaires should be utilized. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement 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). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement 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). 3. Schedule the Veteran for a VA examination by an appropriate clinician to determine the current severity of his service-connected tinea versicolor on the shoulder, upper back, and chest. The most up-to-date Disability Benefits Questionnaires should be utilized. All opinions must be supported by a rationale. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Barstow, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.