Citation Nr: 21002517 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 11-00 050A DATE: January 13, 2021 ORDER An effective date earlier than September 30, 2014, for the grant of service connection for left lower extremity radiculopathy is denied. REMANDED The issue of a rating greater than 10 percent from July 14, 2011, (excluding a period of convalescence from July 14, 2011, to August 31, 2011) is remanded. The issue of a rating greater than 30 percent for service-connected status post total knee replacement (right knee disability) is remanded. FINDING OF FACT The Veteran did not submit a claim of service connection for left lower extremity radiculopathy prior to a VA examination on September 30, 2014; moreover, it was not factually ascertainable that the condition existed prior to that time. CONCLUSION OF LAW The criteria for an effective date earlier than September 30, 2014, for the award of service connection for left lower extremity radiculopathy have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1978 to June 1991. This appeal to the Board of Veterans’ Appeals (Board) arose from October 2012, December 2013, and February 2016 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In the October 2012 decision, the RO, inter alia, denied an increased rating greater than 10 percent for the Veteran’s service-connected left knee disability, characterized as chondromalacia. In the December 2013 rating decision, the RO, inter alia, denied an increased rating greater than 30 percent for the Veteran’s service-connected status post total right knee replacement due to degenerative joint disease. The Veteran timely disagreed with, and perfected appeals as to, those denials. In the February 2016 rating decision, the RO, inter alia, granted service connection for radiculopathy of the left lower extremity, evaluated as 10 percent disabling, effective from September 30, 2014. The Veteran disagreed with the assigned effective date and, following a December 2018 remand of that matter for issuance of a statement of the case (SOC), perfected an appeal of that issue to the Board. The lengthy procedural history of this case has been detailed in the prior actions in the appeal, and will only be repeated herein as needed to explain the state of the issue currently before the Board. In a March 2018 decision, the Board, inter alia, denied a rating greater than 30 percent for the Veteran’s service-connected right knee disability. The Board also increased the Veteran’s left knee rating to 20 percent, but not higher, for the period prior to July 14, 2011, but denied a rating greater than 10 percent for the period from September 1, 2011. (In this regard, the Board notes that the Veteran was assigned a temporary total evaluation for her left knee for the period from July 14, 2011, to September 1, 2011, in accordance with the provisions of 38 C.F.R. § 4.30.) Thereafter, the Veteran filed an appeal with the United States Court of Appeals for Veterans Claims (Court). In January 2019, the Veteran’s attorney and VA’s General Counsel filed a Joint Motion for Partial Remand (Joint Motion) with the Court to vacate the Board’s decision insofar as it had denied entitlement to a rating greater than 10 percent for the Veteran’s service-connected left knee disability and had denied entitlement to a rating greater than 30 percent for the Veteran’s service-connected right knee disability. (The Board notes that in its March 2018 action, the Board had also denied higher ratings for service-connected adjustment disorder and a left ankle disability; in their Joint Motion, the parties noted that the Veteran had elected not to challenge the Board’s denial of these claims and requested that the Court dismiss the appeal with regard to those claims.) The Court granted the parties’ Joint Motion that month and the issues of increased ratings greater than 10 and 30 percent, respectively, for the Veteran’s service-connected left and right knee disabilities were remanded to the Board for further proceedings consistent with the Joint Motion. The increased rating matters were then remanded by the Board, for further development by the agency of original jurisdiction (AOJ), in July 2019 and April 2020 actions. Notably, in its April 2020 action, the Board expanded the Veteran’s appeal regarding her left knee rating to include to period prior to July 14, 2011, for which the Veteran was awarded an increased rating of 20 percent, but not higher, by the Board in its March 2018 decision. The Board points out that the parties’ Joint Motion does not address the Board’s March 2018 award of an increased rating for the Veteran’s left knee disability for the period prior to July 14, 2011, to include raising any assertion of error with the Board’s determination that a rating greater than 20 percent was not warranted for the period prior to July 14, 2011. Indeed, the parties requested only that the Court vacate the March 2018 Board decision insofar as it had denied a rating greater than 10 percent for the service-connected left knee disability. Given the terms of the parties’ Joint Motion, to include that nothing in the Joint Motion can be read as requesting vacatur of the March 2018 determination that a rating greater than 20 percent was not warranted for the appeal period prior to July 14, 2011, the Board finds that the Veteran’s appeal with regard to her left knee rating is limited to the period from July 14, 2011, forward, and that the Board’s inclusion of appeal period prior to July 14, 2011, in its most recent remand action was in error. Accordingly, the Board has recharacterized the issue on appeal as set forth above. Also, this appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.900(c). Earlier Effective Date Except as otherwise provided, the effective date of an award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. In the instant case, the Veteran did not file a claim for service connection for radiculopathy of the left lower extremity. Rather, in February 2011, the Veteran filed a claim for service connection for radiculopathy of the right lower extremity, secondary to her service-connected low back disability. In connection with that claim, the Veteran was afforded a VA examination in June 2011. At that time, the Veteran denied radiating symptoms in the left leg and there was no indication of radiculopathy of either lower extremity on examination of the Veteran. On September 30, 2014, in connection with a claim for a higher initial rating for her service-connected low back disability, the Veteran was afforded a VA examination of the thoracolumbar spine. A review of the examination report shows that the Veteran was diagnosed as having radiculopathy of the left lower extremity, associated with her low back disability. In consideration of that diagnosis, the RO awarded service connection for radiculopathy of the left lower extremity, effective September 30, 2014, the date that the evidence first showed a diagnosis of that condition. Upon review of the evidence, the Board finds that entitlement to an effective date earlier than September 30, 2014, for the award of service connection for left lower extremity radiculopathy is not warranted. As indicated, the Veteran never filed a claim for service connection for left lower extremity radiculopathy. Rather, the condition was first noted upon VA examination in September 2014, and the RO granted service connection for the condition as secondary to a service-connected low back disorder. The date for the grant of service connection was the date of the examination when the condition was first noted. In consideration of the above, the Board finds no basis upon which to assign an effective date earlier than September 30, 2014, for the award of service connection for left lower extremity radiculopathy. This is so because there is no document of record that was received by the RO earlier than September 30, 2014, wherein the Veteran specifically requested service connection for left lower extremity radiculopathy and left lower extremity radiculopathy was not diagnosed until the September 30, 2014, VA examination. In this regard, the Board notes that the Veteran has not argued that he filed a specific claim for service connection for left lower extremity radiculopathy. Nor has the Veteran or her attorney advanced any argument as to why an earlier effective is warranted in this case. Consequently, as the Veteran is already in receipt of the earliest possible effective date for the award of service connection for left lower extremity radiculopathy, the assignment of an effective date earlier than September 30, 2014, for the award of service connection for left lower extremity radiculopathy is not warranted and the claim must be denied. See 38 C.F.R. § 3.400. REASONS FOR REMAND As discussed above, in January 2019, the parties filed a Joint Motion to vacate the Board’s March 2018 denial of ratings in excess of 10 and 30 percent, respectively, for the Veteran’s service-connected left and right knee disabilities, which motion was granted by the Court. The basis for the parties’ Joint Motion was that the Board had erred by failing to ensure that VA had complied with its duty to assist. Specifically, the parties agreed with that the report of a May 2017 VA examination was inadequate to rely upon for adjudication purposes because the examiner had not opined regarding the functional impact of flare-ups and repetitive use over time and because the examiner had not indicated at what point during the Veteran’s range of knee motion the onset of pain began. In response to the parties’ Joint Motion, the Board, in July 2019, remanded the increased rating matters for the Veteran to be afforded a new VA examination that addressed the functional impact of pain on motion and during flareups. The Veteran was afforded a VA examination in February 2020. Notably, although the examiner observed painful right and left knee motion, the examiner did not indicate that point at which pain set in, stating only that the Veteran experienced pain with flexion. Additionally, regarding range of motion during flare-ups and after repetitive use, the examiner stated that it was not possible, without resorting to mere speculation, to estimate loss of range of motion because there was no conceptual or empirical basis for making such a determination without directly observing function under these conditions. In an April 2020 action, the Board determined that the February 2020 examination report was inadequate to rely upon because it did not comply with the terms of the parties’ Joint Motion, the terms of the Board’s July 2019 remand, or the Court’s holding in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), in which the Court addressed the adequacy of “mere speculation” opinions and held that case law and VA guidelines do not require direct observation of functional impairment after repetitive use or during a flare-up as a prerequisite to offering an opinion. The matters were thus again remanded for the Veteran to be afforded a new VA examination. Specifically, the Board directed the VA examiner to conduct range of motion testing, stating that if there was objective evidence of pain on motion, the examiner was to indicate the point at which pain began. The Board further directed that the examiner should indicate whether, and to what extent, the Veteran experiences functional loss of either knee due to flare-ups and/or with repeated use, stating this if the examination was not being conducted during a flare-up, the functional impact of a flare-up should be estimated based on relevant sources, including the Veteran’s lay statements. The Veteran was afforded an additional VA examination in October 2020. A review of the examination report reveals that the examiner diagnosed the Veteran with right total knee replacement and left knee chondromalacia. The examiner conducted range-of-motion testing, the results of which were noted to show abnormal or outside of normal range of motion for the right and left knee. The examiner also indicated objective evidence of pain with motion, to include on right and left knee flexion, but made no specific finding as to the degree of range-of-motion loss due to pain on use. Thus, it is unclear from the November 2020 examination report at what point the Veteran experienced painful motion. The Court has found similar examination findings to be inadequate because the examiner did not explicitly report “whether and at what point during the range of motion the appellant experienced any limitation of motion that was specifically attributable to pain.” Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). The Court stressed that such a finding is important in providing a “clear picture of the nature of the veteran’s disability and the extent to which pain is disabling,” so as to “allow the Board to ensure that the disabling effects of pain are properly considered when evaluating any functional loss due to pain that is attributable to the veteran’s disability.” Id. Additionally, the findings provided by the October 2020 examiner do not comply with the terms of the Board’s prior remands, as the remand directives stated specifically that if painful motion was observed during the examination, the examiner was to identify the point at which pain began. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Moreover, with regard to flare-ups, the record now contains conflicting information regarding whether the Veteran experiences flare-ups of right and left knee symptomatology. Specifically, although it was indicated by the October 2020 examiner that the Veteran did not report flare-ups, the Veteran did report flare-ups during the May 2017 and February 2020 VA examinations. Additionally, VA treatment records contain references to flare-ups of knee symptomatology. The Board again points out that previous examiners’ findings with regard to flare-ups, which findings were found to be inadequate, were the subject of the parties’ Joint Motion. Thus, in order to comply with the terms of the Joint Motion, it is imperative that the record contain accurate findings with regard to flare-ups, to include an estimation of any functional loss due to those flare-ups (even if now resolved). Ultimately, the Board finds that the medical evidence of record developed since the matters were returned to Board from the Court is insufficient to properly evaluate the Veteran’s service-connected right and left knee disabilities. Additionally, there has not been compliance with the terms of the Board’s prior remand actions, or with the parties’ Joint Motion. Accordingly, the matters must again be remanded for the Veteran to be afforded another VA knee examination to obtain testing results and clinical findings needed to better assess the current severity of her service-connected right and left knee disabilities. The matters are REMANDED for the following action: Arrange for the Veteran to undergo a VA knee examination to determine the current severity of her service-connected right and left knee disabilities. All indicated tests and studies should be accomplished (with all results furnished to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. For each knee, the examiner must conduct range of motion testing (reported in degrees). Specifically, the examiner should test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly so state, and explain why. In conducting range of motion testing, the examiner must render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. If pain on motion is observed, the examiner must indicate the point at which motion limiting pain begins. The examiner is remined that to simply indicate pain with flexion and/or extension is insufficient; the examiner must state at what point during flexion and/or extension the onset of pain begins. The examiner must also inquire as to periods of flare-up and additional functional loss due to repetitive use over time and note the frequency and duration of any such incidents. If the examination is not conducted during a flare up, based on examination results and the Veteran’s documented history and assertions the examiner must estimate the effect of any functional losses during flare-ups or repetitive use over time, including due to pain, incoordination, lack of endurance, weakness, fatigability, by equating the disability experienced due to all such losses to loss of motion (stated in degrees) beyond what is shown clinically. If flare-ups are not indicated at the time of examination, the examiner should elicit from the Veteran information necessary to provide an estimation of functional loss during past flare-ups, as noted in past VA examinations. All examination findings/testing results, along with a complete, clearly stated rationale for the conclusions reached, must be provided. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Neilson, 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.