Citation Nr: 20021544 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 19-27 994 DATE: March 26, 2020 ORDER Entitlement to an effective date earlier than October 23, 2018, for the grant of a 10 percent rating for the left knee disability is denied. REMANDED Entitlement to a rating higher than 10 percent for a left knee disability is remanded. FINDING OF FACT During the one-year period prior to October 23, 2018, the Veteran’s left knee disability was not manifested by symptomatology that more nearly approximates a disability rating of 10 percent. CONCLUSION OF LAW The criteria for an effective date earlier than October 23, 2018, for the grant of a 10 percent rating for the left knee disability have not been met. 38 U.S.C. §§ 1155, 5107, 5110 (2012); 38 C.F.R. §§ 3.400; 4.71a, Diagnostic Codes 5010, 5260 (2019).   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had service in the Army with active duty training from November 1986 to April 1987 and active duty from December 1990 to March 1991. He also served in the Navy with active duty from August 1993 to October 2008. These matters come before the Board of Veterans Appeals (Board) on appeal from a December 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to an effective date earlier than October 23, 2018, for the grant of a 10 percent rating for the left knee disability The Veteran asserts that he should be awarded an earlier effective date for the grant of a 10 percent rating for his left knee disability, but no argument specific to the claim has been received from either him or his representative. In general, unless specifically provided otherwise, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final adjudication, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. Regarding claims for increase, VA laws and regulations provide that the effective date “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore,” unless specifically provided otherwise. 38 U.S.C. § 5110 (a). Section 5110(b)(2) provides otherwise by stating that the effective date of an increased rating “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.” Under 38 C.F.R. § 3.400 (o)(1), except as provided in paragraph (o)(2), the effective date is “date of receipt of claim or date entitlement arose, whichever is later.” Paragraph (o)(2) provides that the effective date is the “[e]arliest date as of which it is factually ascertainable that an increase in disability had occurred if a claim is received within one year from such date otherwise, date of receipt of claim.” Service connection for the left knee disability was established in a July 2010 rating decision, which assigned a noncompensable rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5010, effective December 15, 2009. The Veteran filed a formal claim for increased rating that was received on October 23, 2018. See VA Form 21-526EZ. The December 2018 rating decision that is the subject of this appeal increased the rating assigned for the left knee disability to 10 percent effective October 23, 2018, the date on which the RO received the Veteran’s claim, pursuant to Diagnostic Codes 5010 and 5260. The RO cited a finding of functional loss due to painful motion in assigning the 10 percent rating. As noted above, the effective date of an increased rating “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.” Thus, the question presented is whether the Veteran’s left knee disability manifested symptoms sufficient to warrant an increase in his disability evaluation to 10 percent in the one year prior to his October 23, 2018, date of claim. The Board finds, however, that the probative evidence of record does not support entitlement to an effective date earlier than October 23, 2018, for the award of an increased 10 percent rating for the left knee disability. Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Diagnostic Code 5003 provides that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Diagnostic Code 5260 provides ratings for limitation of flexion. Flexion of either leg limited to 60 degrees is noncompensable, flexion limited to 45 degrees merits a 10 percent rating, limitation of flexion to 30 degrees warrants a 20 percent evaluation, and a 30 percent evaluation requires that flexion be limited to 15 degrees. For rating purposes, normal range of motion of the knee is from zero to 140 degrees. See 38 C.F.R. § 4.71a, Plate II. The Board has considered all the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. There is no medical evidence pertinent to the Veteran’s left knee during the period from October 23, 2017 to October 23, 2018. While there are some VA treatment records dated during this timeframe, none relate to treatment for the left knee. Thus, the Board concludes that there is no medical evidence relating to the left knee during the relevant period prior to the current effective date of October 23, 2018, upon which to factually ascertain any increase in severity. Further, the June 2018 VA examination that is most proximate to the relevant timeframe does not show findings consistent with a higher 10 percent rating. Rather, the Veteran was found to have normal flexion from zero to 140 degrees and there was no indication of functional loss due to painful motion. In sum, the most probative evidence indicates that the Veteran’s left knee disability did not more nearly approximate the criteria for a 10 percent rating during the one-year period prior to October 23, 2018. 38 C.F.R. § 3.400(o). Thus, the Board concludes that an effective date earlier than October 23, 2018, for the assignment of a 10 percent rating for the left knee disability is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).   REASONS FOR REMAND 1. Entitlement to a rating higher than 10 percent for a left knee disability is remanded. Updated VA treatment records should be requested. Additionally, the Board notes that a VA examination that included the Veteran’s left knee was conducted in December 2019. Remand is needed for the issuance of a supplemental statement of the case. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records and associate them with the claims file. 2. Readjudicate the claim for increased rating with consideration of all pertinent evidence received since the claim was originally certified to the Board, to include the December 2019 VA examination. If the benefit sought on appeal remains denied, a supplemental statement of the case should be issued. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Van Wambeke, 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.