Citation Nr: 21067761 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 12-20 845 DATE: November 5, 2021 ORDER Entitlement to an earlier effective date of February 10, 2015, but no earlier, for the grant of a 30 percent rating for headaches, is granted. REMANDED Entitlement to a rating in excess of 10 percent for service-connected right knee instability is remanded. Entitlement to a rating in excess of 10 percent for service-connected left knee strain with osteoarthritis and patellofemoral chondromalacia is remanded. FINDING OF FACT 1. The Veteran filed his claim for an increased rating for his service-connected headaches received by the VA on December 12, 2015. 2. February 10, 2015 is the earliest date that the Veteran's service-connected headaches manifested by characteristically prostrating attacks which occur on an average of once a month over last several months. 3. There are no unadjudicated formal or informal increased rating claims for headaches prior to December 12, 2015. CONCLUSION OF LAW The criteria for an earlier effective date of February 10, 2015, but no earlier, for the grant of a 30 percent rating for headaches have 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 August 1986 to August 1990 and from January 1991 to March 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2016 and October 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in October 2019, wherein the Board, in part, granted an earlier effective date from May 7, 2015 for the grant of a 30 percent rating for headaches, denied a rating in excess of 10 percent for right knee instability, and denied a rating in excess of 10 percent for left knee strain with osteoarthritis and patellofemoral chondromalacia. The Veteran appealed these claims to the United States Court of Appeals for Veterans Claims (Court). By way of a February 2021 Memorandum Decision, the Court found that vacatur and remand was warranted for these issues. The matter has returned to the Board for adjudication. In the February 2021 Memorandum Decision, the Court affirmed the Board's denial of service connection for constipation and therefore, this issue is not before the Board. 1. Entitlement to an earlier effective date of February 10, 2015 for the grant of a 30 percent rating for headaches The Veteran contends that he is entitled to an earlier effective date for the grant of a 30 percent rating for his service-connected headaches. In a claim for a higher disability rating (i.e., increased compensation), unless specifically provided otherwise, the effective date of an award based on a claim for increase shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of the application. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date. Otherwise, the effective date will be the date of receipt of the claim. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(o)(2); see also Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010) ("It is clear from the plain language of [section] 5110(b)(2) that it only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim."); Hazan v. Gober, 10 Vet. App. 511, 519 (1997) ("increase" for this purpose is one to the next disability level); VAOPGCPREC 12-98 (Sept. 23, 1998). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. See 38 C.F.R. §§ 3.150(a), 3.151(a), 3.155. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). However, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (2014); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001); Gilbert, 1 Vet. App. at 49. By way of history, the Veteran submitted a claim for increase for his headaches on December 12, 2015. At the time, the Veteran was rated at 10 percent disabling for his headaches. The RO continued the 10 percent rating in a March 2016 rating decision. The Veteran filed a Notice of Disagreement for the continuation of the 10 percent rating for headaches. In a June 2016 rating decision, the RO increased the headaches evaluation from 10 percent to 30 percent with an effective date of December 12, 2015, the date the VA received the Veteran's claim for increase. The Board affirmed the 30 percent rating for headaches in an October 2017 decision. The Veteran appealed the portion of the Board's October 2017 decision that denied a rating in excess of 30 percent for headaches to the Court. In a March 2019 Memorandum Decision, the Court vacated and remanded the portion of the Board's October 2017 decision that denied a disability rating in excess of 30 percent for headaches. The matter returned to the Board in October 2019. The Board denied entitlement to a rating in excess of 30 percent for headaches and granted an earlier effective date of May 7, 2015, but no earlier for the 30 percent increased evaluation. The Veteran appealed the claims regarding the increased rating and earlier effective date for the service-connected headaches to the Court. As previously stated, the Court issued a Memorandum Decision in February 2021. As an initial matter, in the February 2021 Memorandum Decision, the Court dismissed the appeal pertaining to an increased rating in excess of 30 percent as the Court found that the Veteran had abandoned this appeal. As such, the Veteran's claim for a rating higher than 30 percent for headaches is not before the Board. In the February 2021 Memorandum Decision, the Court found that regarding an earlier effective date for the 30 percent grant of headaches, remand was required for the Board to provide an adequate statement of its reasons or bases for its decision denying an earlier effective date for the Veteran's service-connected headaches. The Board had assigned an effective date of May 7, 2015, referencing the date of the Veteran's complaint of increased symptoms over the previous ten days. In the October 2019 decision, the Board noted a February 2015 VA treatment record that indicated the Veteran reported experiencing a migraine occurring approximately twice a month. However, the Court found that the Board did not discuss any February 2015 VA treatment record in the portion of its decision for an earlier effective date. The Court stated the Board specifically refers to a record of a report of the Veteran's twice-monthly migraines, but the Board did not discuss it in its effective-date analysis, which frustrates judicial review. Allday v. Brown, 7 Vet. App. 517 (1995). The Veteran's headache disability is rated under Diagnostic Code 8100. Pursuant to Diagnostic Code 8100, a 30 percent rating is warranted for characteristic prostrating attacks occurring on an average once a month over the last several months. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The VA treatment record from February 10, 2015, shows that the Veteran complained of a mild bifrontal headache after he felt uneasy with slight lightheadedness. The Veteran mentioned he had migraines occurring perhaps two times a month that are accompanied by occasional brief flashes of light. The Board finds that based upon the February 2015 VA treatment record, an earlier effective date of February 10, 2015, for the 30 percent rating for the Veteran's headaches is warranted. In this regard, the Veteran is competent and credible to testify as to the frequency and severity of his headaches. Accordingly, affording him the benefit of the doubt, the currently assigned 30 percent rating is assigned from February 10, 2015, when it was factually ascertainable that the Veteran underwent an increase in his disability. REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). 1. Entitlement to a rating in excess of 10 percent for service-connected right knee instability 2. Entitlement to a rating in excess of 10 percent for service-connected left knee strain with osteoarthritis and patellofemoral chondromalacia The Veteran asserts that he is entitled to a higher rating of 10 percent for each of the disabilities of his right knee instability and left knee strain. The October 2019 Board decision denied an increased rating in excess of 10 percent for the service-connected right knee instability and left knee strain. The Veteran appealed the claims for increased rating for the knees to the Court. In the February 2021 Memorandum Decision, the Court stated that both the September 2016 and March 2019 VA knee examination reports noted that the Veteran reported experiencing flare-ups of both his right and left knee conditions, but that he was not experiencing a flare-up at the time of the examinations. The Veteran reported at the September 2016 examination that he experienced flare-ups of his right knee condition which increased his pain and stiffness. In May 2018, the Board remanded the issues for new knee examinations and specifically directed that the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran. The Veteran was afforded another VA examination in March 2019, in which the VA examiner stated that, "given the fact that an actual flare-up was not directly observed, the clinical ability to predict a possibility of future flare-up occurrences or the ability of provide an estimate on the frequency, duration, and severity of decreased range of motion in degrees of such is limited if at all possible." The Court found that the Board in its October 2019 decision did not discuss the flare-ups noted during the March 2019 VA examination, nor did the Board address whether the VA examination complied with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017) or the Board's prior remand; see also Stegall v. West, 11 Vet. App. 268, 271 (1998). The Court concluded that remand for the matter was warranted as the Board did not address whether the March 2019 VA examiner's discussion of the Veteran's flare-ups was adequate to assess the degree of the Veteran's disabilities during flare-ups. Additionally, the Board also notes that the Court issued a decision which mandated new requirements for VA examinations of musculoskeletal disabilities (including disabilities of the knee as in this case) in order to satisfy judicial review in increased rating claims. See Correia v. McDonald, 28 Vet. App. 158 (2016). In Correia, the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weightbearing and non-weightbearing. Id.; see also 38 C.F.R. § 4.59. A review of the record evidence shows that the Veteran's most recent VA examination for his right and left knee conditions did not comply with Correia. For example, there is no indication in the March 2019 VA examination whether the range of motion obtained at the examinations are active or passive. Accordingly, the issues for an increase rating in excess of 10 percent for right knee instability and left knee strain must be remanded for an additional VA examination that is consistent with the findings as set forth in the February 2021 Memorandum Decision. The matters are REMANDED for the following action: 1. Obtain VA treatment records from April 2021 to present. All reasonable attempts should be made to obtain any identified records. 2. Schedule the Veteran for a VA examination to assess the severity of the service-connected left knee and right knee conditions, preferably with the examiner who conducted the March 2019 VA knee examination. The record, including a copy of this remand, must be made available to the examiner, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner must provide all examination findings, along with a complete rationale for the conclusions reached. Specifically, the Veteran's right and left knees should be tested for pain in both weight-bearing and non-weight-bearing positions, and on both active and passive motion. If this cannot be performed, the examiner should explain why. The examiner should record the range of motion of the joints observed on clinical evaluation in terms of degrees in weightbearing, non-weightbearing, passive and active motion. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins, as well as whether such pain on movement results in any loss of range of motion. If feasible, the VA examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. If the Veteran reports flare-ups, the examiner should ask him to report or demonstrate his range of motion during the flare-ups. The VA examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use and/or during flare-ups, and, to the extent possible, provide an assessment of the functional impairment on repeated use and/or during flare-ups. The VA examiner should assess the additional functional impairment on repeated use and/or during flare-ups in terms of the degree of additional range of motion loss. If the VA examiner is unable to report the degree of additional range of motion loss during repeated use and/or flare-up, the VA examiner must explain why it is not feasible to render such an opinion. In other words, the VA examiner should opine as to any resultant loss in range of motion that would occur during repeated use or flare-ups or explain why it is not feasible to render such an opinion. If the Veteran endorses experiencing them, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. Then, if the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion during repeated use and/or a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. Finally, the examiner is also asked to provide a retrospective opinion concerning the functional loss and severity of the Veteran's right knee disability beginning from July 2015 (i.e., one year prior to the Veteran's increased rating claim received in July 2016) and the left knee disability from July 2016 (date of claim). To this end, the examiner should provide a retrospective opinion addressing the VA examinations from September 2016 and March 2019 and the extent of the Veteran's functional loss during flare-ups. The examiner is asked to determine whether the Veteran's range of motion results from the September 2016 and March 2019 examinations would have been reduced if tested in both active and passive motion and in weightbearing and non-weightbearing and estimated degree of additional range of motion loss due to flare-ups. To the examiner's best ability, the additional range of motion lost should be described in degrees based on the information noted in the VA examinations, pertinent lay statements, VA treatment records, and private treatment records in the Veteran's claim file. If providing any retrospective opinion is not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, if the examiner cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. In considering any lay statements of record, the examiner should note that the Veteran is competent to attest to matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiners should provide a fully reasoned explanation. All opinions expressed should be accompanied by supporting rationale. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Kim, 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.