Citation Nr: 21005340 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 14-15 546 DATE: February 1, 2021 ORDER Entitlement to an effective date earlier than June 1, 2010, for an increased 10 percent rating for a right knee disability is denied. Entitlement to an effective date earlier than June 16, 2010, for an increased 20 percent rating for a lumbar spine disability is denied. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to secondary service connection for right lower extremity radiculopathy associated with a lumbar spine disability is remanded. Entitlement to secondary service connection for left lower extremity radiculopathy associated with a lumbar spine disability is remanded. Entitlement to a rating in excess of 10 percent for a right knee disability is remanded. Entitlement to a rating in excess of 20 percent for a lumbar spine disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Service connection for right knee and lumbar spine disabilities was awarded in a May 1998 rating decision as noncompensable, effective December 1, 1996. The Veteran did not appeal that decision and new and material evidence was not received within one year of its issuance. 2. On June 1, 2010, the Veteran filed an increased rating claim for his right knee disability. 3. On June 16, 2010, the Veteran filed an increased rating claim for his lumbar spine disability. 4. The record does not reflect the Veteran filed a formal or informal claim for an increased rating for his right knee or lumbar spine after the final May 1998 rating decision and, prior to June 1, 2010, and June 16, 2010, respectively, an increase in disability was not factually ascertainable within one year prior to these claims. CONCLUSIONS OF LAW 1. The May 1998 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The criteria for an effective date earlier than June 1, 2010, for the award of an increased rating for the Veteran’s right knee disability have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 3. The criteria for an effective date earlier than June 16, 2010, for the award of an increased rating for the Veteran’s lumbar spine disability have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from November 1972 to November 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which increased the right knee disability rating to 10 percent, effective June 1, 2010, and increased the lumbar spine disability rating to 10 percent, from June 16, 2010. During the pendency of the appeal, in a February 2014 rating decision, the RO, in relevant part, found clear and unmistakable error (CUE) in the assigned rating for the Veteran’s lumbar spine, and increased the rating to 20 percent, effective June 16, 2010. Although a higher rating has been assigned by the RO, the increased rating matter remains in appellate status as the maximum rating has not been assigned. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board remanded the appeal for further development in January 2016 and December 2018. Earlier Effective Dates 1. Entitlement to an effective date earlier than June 1, 2010, for an increased 10 percent rating for a right knee disability is denied. 2. Entitlement to an effective date earlier than June 16, 2010, for an increased 20 percent rating for a lumbar spine disability is denied. The provisions governing the assignment of the effective date of an increased rating are set forth in 38 U.S.C. § 5110(a) and (b)(2), and 38 C.F.R. § 3.400(o). Generally, the effective date of an award of increased compensation “shall not be earlier than the date of receipt of the application thereof.” 38 U.S.C. § 5110(a). This statutory provision is implemented by regulation that provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). An exception to that rule regarding increased ratings applies, however, under circumstances where the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. If an increase in disability occurred within one-year prior to the claim, the increase is effective as of the date the increase was “factually ascertainable.” If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(2); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010) (explaining the legislative intent to provide veterans with a one-year grace period for filing their claims); Dalton v. Nicholson, 21 Vet. App. 23, 31-32 (2007); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(1)(2); VAOPGCPREC 12-98 (1998). Furthermore, according to 38 C.F.R. § 3.157(b)(1) (in effect prior for claims filed prior to March 24, 2015), receipt of a VA outpatient or hospital examination or admission to a VA hospital could be accepted as an informal claim for increased benefits” when such report relate[s] to examination or treatment of a disability for which service-connection has previously been established.” 38 C.F.R. § 3.157(b)(1); see MacPhee v. Nicholson, 459 F.3d 1323, 1328 (Fed. Cir. 2006); see also Crawford v. Brown, 5 Vet. App. 33, 35-36 (1993). The date on the VA outpatient or hospital examination will be accepted as the date of claim. 38 C.F.R. § 3.159(b). When the evidence is from a private physician, the date of receipt of such evidence will be accepted as the date of receipt of an informal claim. 38 C.F.R. § 3.157(b)(2) (in effect for claims filed prior to March 24, 2015). The Veteran seeks an effective date earlier than June 1, 2010, for the award of an increased 10 percent rating for a right knee disability, and an effective date earlier than June 16, 2010, for the award of an increased 20 percent rating for a lumbar spine disability. A May 1998 rating decision awarded service connection for right knee chondromalacia with degenerative changes and lumbar strain. Noncompensable ratings were assigned, effective December 1, 1996. The Veteran did not appeal that decision, and new and material evidence was not received within the one-year appeal period. Accordingly, the May 1998 rating decision became final. See 38 U.S.C. § 7105(c); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. On June 1, 2010, and June 16, 2010, VA received the Veteran’s claims for increased ratings for his service-connected right knee and lumbar spine disabilities, respectively. In a February 2011 rating decision, the RO granted increased (10 percent) ratings for the Veteran’s right knee disability, effective June 1, 2010, and for his lumbar spine disability, effective June 16, 2010, the date of each of his claims. In a February 2014 rating decision, the RO granted an increased rating (20 percent) for the Veteran’s lumbar spine disability, effective June 16, 2010. Neither the Veteran nor his representative have asserted that the Veteran filed a claim for an increased rating for his right knee following the May 1998 rating decision and prior to June 1, 2010, or for his lumbar spine prior to June 16, 2010, and there are no relevant VA treatment records or private treatment records that can be construed as prior informal claims. Rather, the Veteran’s representative asserts that he was service-connected for his disabilities dating back to December 1996 and that he did not just “wake up on June 16, 2010 to find that his {back} condition went from noncompensable to a moderate degree on that particular morning”. See August 2014 Third Party Correspondence. However, absent earlier claims for increase for his right knee and/or lumbar spine, or evidence showing an increase in the disabilities within one year prior to the date the claim was received, which is not demonstrated in this case, the earliest effective date that is warranted is the currently assigned date of June 1, 2010, for his right knee, and June 16, 2010, for his lumbar spine, which are the earliest effective dates allowed by law. REASONS FOR REMAND 3. Entitlement to service connection for obstructive sleep apnea is remanded. Pursuant to the Board’s December 2018 remand directives, the Veteran was afforded a VA examination in March 2019. The examiner opined negatively on the Veteran’s diagnosed obstructive sleep apnea being related to service. However, the opinion did not correctly address the theory of entitlement, and focused solely on whether obstructive sleep apnea caused insomnia. Thus, on remand an addendum opinion is warranted that adequately addresses the issue. 4. Entitlement to a rating in excess of 10 percent for a right knee disability is remanded. 5. Entitlement to a rating in excess of 20 percent for a lumbar spine disability is remanded. 6. Entitlement to secondary service connection for right lower extremity radiculopathy associated with a lumbar spine disability is remanded. 7. Entitlement to secondary service connection for left lower extremity radiculopathy associated with a lumbar spine disability is remanded. Pursuant to the Board’s December 2018 remand directives, the Veteran was most recently afforded VA knee and back examinations in March 2019; however, these examinations are insufficient in light of the recent decision in Correia v. McDonald, 28 Vet. App. 158 (2016) (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, and in weight-bearing and nonweight-bearing). In this regard, the March 2019 VA examiner merely noted that that passive and nonweight-bearing testing did not produce pain, which is not sufficient. Moreover, the examiner indicated that flexion for his right knee and back produced pain but did not indicate where the pain begins. On remand, a new examination that complies with Correia and adequately addresses any functional loss is needed. As any neurologic abnormalities, including radiculopathy, will be addressed during the new back examination, action on the bilateral lower extremity radiculopathy claims are deferred pending this development. 8. Entitlement to a TDIU is remanded. During the December 2018 remand, the Board noted the Veteran raised the issue of entitlement to a TDIU during the pendency of his appeal for his increased rating claims, thus entitlement to a TDIU is part and parcel of the instant appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). However, it does not appear the TDIU claim has been sufficiently developed, thus, development on the TDIU claim should be accomplished on remand. Any outstanding treatment records should also be secured on remand. The matters are REMANDED for the following action: 1. Provide the Veteran and representative with notice regarding how to substantiate a claim for TDIU, to include VA Forms 21-8940 and 21-4192. Notify the Veteran that if he fails to provide the requested information, his claim will be adversely affected. 2. Obtain any outstanding VA treatment records. 3. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 4. Obtain an addendum opinion from a VA examiner other than the March 2019 examiner to determine the nature and etiology of the Veteran’s obstructive sleep apnea. The claims file, to include a copy of this remand, must be made available to the examiner for review, and the examination report must reflect that such a review was accomplished. No additional examination of the Veteran is necessary, unless the examiner determines otherwise. (a) For diagnosed obstructive sleep apnea (see March 2019 VA examination report), please opine whether it is at least likely as not (50 percent or greater probability) that such disability had its onset during service, or is otherwise related to service, to include his in service complaints of insomnia. (b) In addressing this question, please assume as true the Veteran’s reports of insomnia during service and please provide a discussion of whether a nexus relationship between the Veteran’s obstructive sleep apnea and service is “medically consistent” with such reports. Otherwise, the opinion will be rendered inadequate. A complete rationale should be given for all opinions and conclusions expressed. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 5. Then schedule the Veteran for VA examinations to determine the current nature and severity of the right knee and lumbar spine disabilities. The claims file should be made available to and reviewed by the examiner and all findings should be reported in detail. The examiner should address the following: (a) Please provide an opinion as to the full range of motion of the Veteran’s right knee and back in (1) active motion, (2) passive motion, (3) in weight-bearing and (4) in nonweight-bearing. Please specify range of motion measurements in all areas outlined above. If the examiner cannot provide an opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). (b) For any pain produced during range of motion in active, passive, weight-bearing, nonweight-bearing, please indicate where the pain begins in terms of degrees. (c) If the Veteran reports flare-ups during the examination, please also provide an opinion describing functional impairment of the Veteran’s right knee and back, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. If unable to provide such an opinion without resorting to speculation, please provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran”, what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. (d) Please determine whether there is any separate neurologic condition, including radiculopathy, regarding the Veteran’s bilateral lower extremities. E. BLOWERS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Asante 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.