Citation Nr: 20030331 Decision Date: 04/29/20 Archive Date: 04/29/20 DOCKET NO. 17-47 613 DATE: April 29, 2020 REMANDED Entitlement to a rating in excess of 10 percent for a left knee disability is remanded. Entitlement to an effective date prior to July 5, 2016 for the increased 10 percent evaluation for the left knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1977 to September 1980. This matter is on appeal from a November 2016 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In his September 2017 VA Form 9, Appeal to Board of Veterans’ Appeals, the Veteran requested a Board hearing. However, in a February 2020 written correspondence, the Veteran withdrew his request for a hearing. Thus, the hearing request is deemed to be withdrawn. 38 C.F.R. § 20.704(d).   1. Entitlement to a rating in excess of 10 percent for a left knee disability is remanded. The Veteran contends that he is entitled to a rating in excess of 10 percent for his left knee disability. The Veteran was provided with a VA examination in October 2016. He reported flare-ups which cause increase pain with prolonged use; however, the examiner stated that he was unable to estimate the degree of additional functional limitation during a flare-up because the Veteran was not experiencing one during the examination. However, observation of functional impairment during a flare-up is not a prerequisite to offering an opinion that estimates the degree of additional limitation of motion. When estimating the additional functional limitation during a flareup, an examiner must obtain adequate information (i.e., frequency, duration, characteristics, severity, or functional loss) to estimate functional loss during these flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017). As such, a new VA examination is needed to elicit specific information regarding the reported flare-ups of the Veteran’s left knee disability, and if the examination is not conducted during a flare-up, the examiner must use this information to estimate the additional functional loss during such flare-ups. Id. at 33. The record also reflects the Veteran receives VA treatment; thus, updated VA treatment records should be associated with the claims file. 2. Entitlement to an effective date prior to July 5, 2016 for the increased 10 percent evaluation for the left knee disability is remanded. The Veteran contends that he is entitled to an earlier effective date prior to July 5, 2016 for the increased 10 percent evaluation assigned for his left knee disability. A November 1981 rating decision initially awarded the Veteran service connection for his left knee disability, effective September 21, 1980 and assigned a noncompensable rating. On July 5, 2016, VA received a VA Form 21-0966, Intent to File a Claim for Compensation and/or Pension or Survivors Pension and/or DIC. The Veteran subsequently filed VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, on September 12, 2016 in which the Veteran requested a non-initial increased rating for his service-connected left knee disability. For non-initial claims, the effective date for an increased rating will be the earliest date as of which it is factually ascertainable that an increase in disability occurred if a claim is received within one year from such date; otherwise, the effective date is the date of receipt of the claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Therefore, the earliest possible effective date for the increased rating is July 5, 2015 (i.e., one year prior to the date of the receipt of the VA Form 21-0966), if the increase in disability is factually ascertainable from that date. As evidence obtained in conjunction with the increased rating claim for the left knee being remanded above could contain evidence pertinent to whether there was a factually ascertainable increase during this period and could affect the currently assigned rating and effective date, the Board finds that it would be premature to adjudicate this issue at this time. Therefore, the issue is remanded. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from August 2017 to the present. 2. After completing the development in item 1, schedule the Veteran for an examination of the current severity of his left knee disability. To the extent possible, the examiner should identify any symptoms and functional impairments due to the disability and discuss the effect of the disability on any occupational functioning and activities of daily living. The examiner must provide an estimate of the additional limitation in range of motion during a flare-up. 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). M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. H. White, Associate 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.