Citation Nr: 20046063 Decision Date: 07/09/20 Archive Date: 07/09/20 DOCKET NO. 20-20 094 DATE: July 9, 2020 ORDER Entitlement to an earlier effective prior to June 16, 2009 for the grant of service connection for lumbar strain with lumbar degenerative disc disease and lumbar spondylosis as secondary to the service-connected disability of a degenerative joint disease of the left ankle is denied. Entitlement to an earlier effective prior to June 16, 2009 for the grant of service connection for left knee degenerative joint disease with left knee patellofemoral dysfunction as secondary to the service-connected disability of degenerative joint disease of the left ankle is denied. REMANDED Entitlement to an initial rating in excess of 20 percent for lumbar strain with lumbar degenerative disc disease and lumbar spondylosis is remanded. Entitlement to an initial rating in excess of 10 percent for left knee degenerative joint disease with left knee patellofemoral dysfunction is remanded. FINDINGS OF FACT 1. An August 2009 rating decision granted service connection for degenerative joint disease of the left ankle with an effective date of June 16, 2009. 2. A January 2018 rating decision granted service connection for lumbar strain with lumbar degenerative disc disease and lumbar spondylosis, and left knee degenerative joint disease with left knee patellofemoral dysfunction. Service connection for each disability was granted as secondary to the Veteran’s service-connected degenerative joint disease of the left ankle with an effective date of June 16, 2009, the same date on which entitlement arose. CONCLUSIONS OF LAW 1. The criteria for an earlier effective date prior to June 16, 2009, for the grant of service connection for lumbar strain with lumbar degenerative disc disease and lumbar spondylosis as secondary to the service-connected disability of a degenerative joint disease of the left ankle have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.157, 3.159, 3.340, 3.341, 3.400. 2. The criteria for an earlier effective date prior to June 16, 2009, for the grant of service connection for left knee degenerative joint disease with left knee patellofemoral dysfunction as secondary to the service-connected disability of a degenerative joint disease of the left ankle have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.157, 3.159, 3.340, 3.341, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1950 to December 1953. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2018 rating decision. I. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Effective Date Generally, the effective date of an award of a claim is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found, but will not be earlier than the date of the claimant' application. 38 U.S.C. § 5100(a). If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2). In regards to the date of entitlement, the term "date entitlement arose" is not defined in the current statue or regulation. However, the Court has interpreted it as the date when the claimant met the requirements for the benefits sought. This is determined on a "facts found" basis. See 38 U.S.C. § 5110(a); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000). It is important to note that an effective date generally can be no earlier that the facts found. DeLisio v. Shinseki, 25 Vet. App. 45 (2011). For instance, if a claimant filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008). 1. Entitlement to an earlier effective date prior to June 16, 2009 for the grant of service connection for lumbar strain with lumbar degenerative disc disease and lumbar spondylosis as secondary to the service-connected disability of a degenerative joint disease of the left ankle; and entitlement to an earlier effective date prior to June 16, 2009 for the grant of service connection for left knee degenerative joint disease with left knee patellofemoral dysfunction as secondary to the service-connected disability of degenerative joint disease of the left ankle. The Veteran contends that he is entitled to an effective date earlier than June 16, 2009 for his back disability and left knee disability that were service-connected based on each disability being secondary to his service-connected degenerative joint disease of the left ankle. In a January 2018 rating decision, the Agency of Original Jurisdiction (AOJ) implemented the Board’s grant of service connection in an April 2017 decision for lumbar strain with lumbar degenerative disc disease and lumbar spondylosis, and service connection for left knee degenerative joint disease with left knee patellofemoral dysfunction. Both disabilities were granted as secondary to the Veteran’s service-connected degenerative joint disease of the left ankle. The grant of service connection for each disability was effective from June 16, 2009, the date service connection was established for degenerative joint disease of the left ankle. Regarding the effective date of the left ankle disability, the record shows that an August 2009 rating decision granted service connection for degenerative joint disease of the left ankle effective from June 16, 2009. The Veteran submitted a notice of disagreement for the effective date of this grant of service connection in August 2010, and the AOJ issued a statement of the case denying the issue in January 2018. The Veteran did not, however, file a timely VA Form 9 in response to the statement of the case, and no further evidence was received prior to the expiration of the appeal period. As a result, the August 2009 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103. Turning to the date entitlement arose, the Board notes that service connection cannot be established as secondary to a non-service-connected disability. See 38 C.F.R. § 3.310. Though a secondary condition may have its onset before the effective date of the award for service connection for or diagnosis of the primary condition, Frost v. Shulkin, 29 Vet. App. 131 (2017), it would be illogical for a secondary disability to have an effective date prior to the effective date of service connection for the primary disability. See Ellington, 541 F.3d at 1369-70 (Fed. Cir. 2008) (noting (1) that effective dates for primary and secondary conditions be afforded the same treatment under 38 C.F.R. § 3.400 and (2) that secondary conditions arise at the same time or after primary conditions). As the grant of service connection for degenerative joint disease of the left ankle was not effective until June 16, 2009, the date entitlement arose for the Veteran’s lumbar spine disability and left knee disability cannot be earlier than June 16, 2009. Consequently, the date entitlement arose for both disabilities was June 16, 2009, the currently assigned effective date. It is unnecessary to determine whether the date of claim was prior to June 16, 2009, as the date entitlement arose would be the later of the two and, hence, the correct effective date. The earliest possible effective date the Veteran may receive for the lumbar spine and left knee disabilities is therefore June 16, 2009. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The appeal is denied. REASONS FOR REMAND 3. & 4. Entitlement to an initial rating in excess of 20 percent for lumbar strain with lumbar degenerative disc disease and lumbar spondylosis and entitlement to an initial rating in excess of 10 percent for left knee degenerative joint disease with left knee patellofemoral dysfunction are remanded. The Veteran has not had a VA examination for his back and left knee disabilities claims within the last ten years. Moreover, the Veteran has asserted that these disabilities have increased in their severities since they were last assessed. See November 2019 Statement from Representative. He has also specifically requested new examinations to assess the current severities of these disabilities. Thus, the Board finds that the Veteran should be afforded new examinations. See Snuffer v. Gober, 10 Vet. App. 400 (1997). The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the level of severity of his lumbar strain with lumbar degenerative disc disease and lumbar spondylosis. In light of the COVID-19 epidemic, all flexibility and understanding in affording the Veteran any warranted examination should be given to the Veteran. The examiner should review the file and provide a complete rationale for all opinions expressed. The examiner should also provide an opinion regarding the functional impact of the Veteran’s lumbar strain with lumbar degenerative disc disease and lumbar spondylosis disability upon his ability to work. 2. Schedule the Veteran for an appropriate VA examination to determine the level of severity of his left knee degenerative joint disease with left knee patellofemoral dysfunction. In light of the COVID-19 epidemic, all flexibility and understanding in affording the Veteran any warranted examination should be given to the Veteran. The examiner should review the file and provide a complete rationale for all opinions expressed. The examiner should also provide an opinion regarding the functional impact of the Veteran’s left knee degenerative joint disease with left knee patellofemoral dysfunction upon his ability to work. 3. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 4. The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. K.C. Spragins Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C.J. Cho, 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.