Citation Nr: 21021784 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 17-41 891 DATE: April 14, 2021 ORDER New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for left knee arthritis is granted. Service connection for left knee arthritis, to include as secondary to the service-connected right knee arthritis, is granted. An effective date prior to January 10, 2014 for the assignment of a 10 percent disability rating for the service-connected right knee arthritis with chondromalacia is denied. A total disability rating based on unemployability (TDIU) due to service-connected generalized anxiety disorder with panic disorder, agoraphobia, major depression, and posttraumatic stress disorder (PTSD) is granted for the period covered by the claim. REMANDED Service connection for right hip arthritis, to include as secondary to the service-connected right knee arthritis with chondromalacia, is remanded. Service connection for left hip arthritis, to include as secondary to the service-connected left knee arthritis, is remanded. A disability rating in excess of 10 percent for the service-connected right knee arthritis with chondromalacia is remanded. A disability rating in excess of 70 percent for the service-connected generalized anxiety disorder with panic disorder, agoraphobia, major depression, and PTSD is remanded. FINDINGS OF FACT 1. In a March 1991 rating decision, the RO denied service connection for left knee chondromalacia patella; and, sent the Veteran notice of that determination in April 1991, but he did not appeal. 2. A September 2009 rating decision reopened and denied the claim of service connection for a left knee disability, characterized as arthritis. The RO sent notification of the rating decision in September 2009; but the Veteran did not file an appeal or submit new and material evidence within the applicable one-year appeal period. 3. Evidence submitted since the September 2009 rating decision was not previously of record and relates to unestablished facts necessary to substantiate the claim of service connection for left knee arthritis. 4. The evidence is at least evenly balanced as to whether the Veteran’s left knee arthritis is related to an in-service injury, event, or disease. 5. In an unappealed September 2009 rating decision, the RO denied a compensable rating for the service-connected right knee arthritis with chondromalacia. No communication prior to the claim received on January 10, 2014 can be construed as an informal or formal claim for increase; and, an increase in disability is not factually ascertainable within the one-year period prior to January 10, 2014. 6. The Veteran completed college and has not worked since June 16, 2014; he had experience as a postal worker. 7. As of his last date of employment, the Veteran’s service-connected disabilities included generalized anxiety disorder with panic disorder, agoraphobia, major depression, and PTSD, rated as 70 percent disabling, atopic eczema and tinea cruris, rated as 10 percent disabling, chondromalacia patella of the right knee with arthritis, rated as 10 percent disabling, internal hemorrhoids, rated as noncompensable, and postoperative status, mole, left side of chest, rated as noncompensable. 8. The Veteran’s service-connected generalized anxiety disorder with panic disorder, agoraphobia, major depression, and PTSD, considered alone, at least as likely as not precludes him from maintaining substantially gainful employment consistent with his education and work history. CONCLUSIONS OF LAW 1. The March 1991 rating decision that denied service connection for chondromalacia patella; and, the September 2009 rating decisions that reopened the previously denied claim of service connection for left knee arthritis but denied the claim on the merits, are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Evidence received since the September 2009 rating decision is new and material and sufficient to reopen the claim of service connection for left knee arthritis. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for left knee arthritis are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307. 4. The criteria for an effective date prior to January 10, 2014 for the assignment of a 10 percent disability rating for the service-connected right knee arthritis with chondromalacia have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.400. 5. From January 10, 2014, the criteria for entitlement to a TDIU have been more nearly approximated. U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 13 to August 29, 1975 in the U.S. Army, from February 1977 to February 1982 in the U.S. Navy, and from February 1985 to November 1990 in the U.S. Army. This case is before the Board of Veterans’ Appeals (Board) on appeal from June and November 2014 Department of Veterans Affairs (VA) Regional Office (RO) rating decisions. In the June 2014 decision, the RO denied service connection for osteoarthritis of the left knee, left hip arthritis, status post replacement, and right hip arthritis; assigned a 10 percent disability rating for service-connected chondromalacia patella of the right knee with arthritis, effective January 10, 2014 and denied a disability rating in excess of 70 percent for the service-connected generalized anxiety disorder with panic disorder, agoraphobia, major depression, and PTSD. In the November 2014 decision, the RO confirmed and continued the previously assigned 70 percent for the service-connected generalized anxiety disorder with panic disorder, agoraphobia, major depression, and PTSD and, additionally, denied assignment of a TDIU. In March 2015, VA received the Veteran’s Notice of Disagreement (NOD). In July 2017, the RO issued a Statement of the Case (SOC). In August 2017, VA received the Veteran’s VA Form 9 appeal to the Board. In June 2020, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of that testimony is associated with the claims file. New and Material Evidence 1. Whether new and material evidence has been received to reopen the previously denied claim of service connection for left knee arthritis. A finally adjudicated claim shall be reopened and reviewed if new and material evidence is presented or secured. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(c). VA regulation defines “new” evidence as evidence not previously submitted to agency decision makers and “material” evidence as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new. This analysis is undertaken by comparing the newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). Furthermore, for purposes of the “new and material” analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. See id. at 118, 124 (Lance, J. concurring). In January 1991, VA received the Veteran’s original claim for service connection for a left knee disability. In a March 1991 rating decision, the RO denied the claim. In April 1991, the Veteran was notified of the decision. However, he did not appeal the decision or submit new and material evidence within the applicable one-year appeal period. Therefore, the January 1991 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 20.1103. In March 2009, VA received the Veteran’s request to reopen the previously denied claim of service connection for a left knee disability. In a September 2009 rating decision, the RO determined that new and material evidence had been received but denied the claim on the merits. The Veteran was notified of the decision in September 2009 but did not submit an appeal or new and material evidence within the one-year period for appeal. Therefore, the March 2009 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 20.1103. In January 2014, VA received a new claim for service connection for a left knee disability. In a June 2014 rating decision, the RO denied the claim for service connection for a left knee disability (now characterized as “osteoarthritis of the left knee”), reaching the merits of the claim. Evidence of record at the time of the September 2009 rating decision included VA and private treatment records, employment records, a Veteran statement received in April 2009, and a September 2009 VA examination and opinion. Evidence received since the September 2009 rating decision includes a May 2014 examination of the Veteran’s left knee, additional VA and private treatment records and lay statements, the June 2020 Board hearing transcript, and notably, a September 2020 private medical opinion, received at the Board in January 2021. The evidence received after the September 2009 rating decision relates to an unestablished fact necessary to substantiate the claim and is not cumulative or redundant. Therefore, reopening of the claim for service connection for a left knee disability is warranted. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303.  The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease, such as arthritis, is shown as such in service, subsequent manifestations of the same chronic disease are generally service-connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required.  Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki 708 F.3d 1331 (Fed. Cir. 2013).  In addition, such chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service.  38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a).  Service connection for a claimed disability may be established on a secondary basis if that disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a).  Establishing service connection as secondary to a service-connected disability requires a current disability that was either caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a).  Regarding aggravation, 38 C.F.R. § 3.310(b) provides that any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service connected. In reaching this determination as to aggravation of a nonservice-connected disability, consideration is required as to the baseline level of severity of the nonservice-connected disease or injury (prior to the onset of aggravation by service-connected condition), in comparison to the current level of severity of the nonservice-connected disease or injury.    2. Entitlement to service connection for left knee arthritis, to include as secondary to the service-connected right knee arthritis with chondromalacia. The Veteran contends that his left knee arthritis is related to service, or alternatively, is proximately due to or aggravated by his service-connected right knee disability. Initially, the Veteran has a diagnosis of left knee arthritis from approximately 2009. See May 2014 VA examination report. Regarding the direct theory, during the June 2020 Board hearing, the Veteran reported that he tore ligaments in both knee during a baseball game against Dutch soldiers while stationed in Holland. See Hearing Transcript, pp. 6-7. He testified that he was unable to get any treatment for 5 weeks “because we were out in the field” and he was “the officer in charge of our site and I couldn’t leave the site.” Per the Veteran, there were no doctors available at the site. He indicated that his left knee pain continued while stationed in Germany in 1988. Service treatment records (STRs) partially corroborate the Veteran’s testimony regarding the circumstances of his claimed in-service left knee injury. In this regard, a September 1987 STR indicates that the Veteran began to experience leg cramps sand anterior thigh pain while playing a baseball game. In August 1990, the Veteran sought treatment for a “twisted left knee” with pain “worse on standing.” He received a diagnosis of patellofemoral syndrome. Finally, during a September 1990 medical evaluation board proceeding, the Veteran reported that he had “torn ligaments in both legs” during a two-month deployment to Holland during the Reforger Exercise Campaign of 1987. Although there is no contemporaneous evidence that the Veteran tore ligaments in both knees in 1987 while stationed in Holland, the above evidence nevertheless suggests that the Veteran incurred a left knee injury during service. While the Veteran is not competent to report unobservable symptomatology such as a torn ligament, he is competent to report symptoms such as pain. Therefore, the Veteran’s statements regarding incurrence of a left knee injury after a 1987 baseball game are competent. Furthermore, these statements are credible because they are consistent with the STR evidence of record. Turning to the post-service medical evidence, a February 1991 x-ray of the left knee was normal. However, a December 2007 letter from a treating physician, Dr. M.C., contains a reference to a 1993 x-ray confirming the existence of arthritis in both knees. Subsequent x-rays from November 2007 revealed “extensive arthritis in both knees.” Dr. M.C., December 2007 letter. Turning to whether a medical nexus exists between the Veteran’s currently diagnosed left knee arthritis and service, the Veteran received VA examinations for his left knee arthritis in September 2009 and May 2014. Furthermore, the Veteran’s representative has submitted a September 2020 private medical opinion from Dr. F.G., an orthopedic surgeon. The September 2009 examiner opined that “it is not likely [that] current osteoarthritis of either knee is related to military service 19 years ago.” The examiner reasoned that “available progress notes … do not indicate knee pain prior to 2003.” The examiner also cited “veteran statements during the interview,” namely, that he “did not have knee problems until 2007,” and “x-rays noting only ‘tiny osteophytes’” in support of the opinion. The May 2014 examiner opined that the Veteran’s left knee arthritis “is not the result of service and instead is the sole result of aging,” giving no further rationale. In the September 2020 private medical opinion, Dr. F.G. opined that the Veteran “more likely than not” developed left knee osteoarthritis as a result of trauma to his knees during the 1987 baseball game (mis-identified as a “basketball game” in the opinion). Dr. F.G. observed that the Veteran likely incurred “anterior cruciate and collateral ligament injuries leading to instability and accelerating cartilage breakdown at the patella femoral joint and tibial femoral joints.” Dr. F.G. observed that the knee instability would lead to “shear forces” on the knee “even with normal daily activity.” Finally, Dr. F.G. noted that “shear forces are poorly tolerated by the cartilage surfacing of the knee and degenerative osteoarthritic change ensues.” Regarding the September 2009 and May 2014 VA opinions, neither is afforded any probative value. In this regard, both opinions failed to discuss pertinent STR and lay evidence. Furthermore, neither opinion provided meaningful discussion of whether the Veteran’s left knee arthritis may be related to service, irrespective of the gap in time between separation and initial diagnosis of left knee arthritis. However, in the September 2020 private medical opinion, Dr. F.G. specifically listed and considered pertinent in- and post-service medical records as well as the Veteran’s lay statements. Furthermore, the opinion is supported by thorough medical rationale. In light of the above, the September 2020 private medical opinion is afforded significant probative value. In conclusion, the evidence is at least evenly balanced as to whether the Veteran’s left knee arthritis is related to an in-service injury, event, or disease. When the evidence is in relative equipoise, the claimant prevails.  Accordingly, service connection for left knee arthritis is warranted.  See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Effective Date 3. Entitlement to an effective date prior to January 10, 2014 for the assignment of a 10 percent disability rating for the service-connected right knee arthritis with chondromalacia. VA law provides that 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 application is received within one year from such date. See Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). Otherwise, the effective date will be the date of VA receipt of the claim for increase, or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a), (b)(2); 38 C.F.R. § 3.400(o). Prior to March 25, 2015, a claim could be either a formal or informal written communication “requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit.” See 38 C.F.R. § 3.1(p) (2014). But see 38 C.F.R. § 3.1(p) (2015) (now providing that a “claim” must be submitted on an application form prescribed by the Secretary); 79 Fed. Reg. 57,696 (Sept. 25, 2014) (eliminating informal claims by requiring that, effective March 24, 2015, claims be filed on standard forms). Under former 38 C.F.R. § 3.157 (effective prior to March 24, 2015), a report of examination or hospitalization will be accepted as an informal claim for increase or to reopen, if the report relates to a disability that may establish entitlement. However, there must first be a prior allowance or disallowance of a claim. See 38 C.F.R. § 3.157(b) (2014). Nevertheless, to qualify as an informal claim a document must evince an intent to apply for benefits and identify the benefits sought. See Shea v. Wilke, 926 F.3d 1362, 1367 (Fed. Cir. 2019); Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). A legally sufficient claim must identify the sickness, disease, or injury for which benefits are sought at least at a “high level of generality.” Sellers v. Wilkie, 965 F.3d 1328, 1337 (Fed. Cir. 2020). Until VA “comprehends the current condition on which the claim is based,” VA “does not know where to begin to develop the claim to its optimum.” Id. In March 2009, VA received an informal claim for assignment of a compensable disability rating for service-connected right knee chondromalacia. A September 2009 rating decision denied assignment of a compensable disability rating. The Veteran did not appeal within one year of the rating decision. Therefore, the decision became final. VA did not receive an informal or formal claim until an informal claim for increased rating was received on January 10, 2014. There is no document that can be construed as an informal claim, to include a VA report of hospitalization or VA examination, prior to the January 10, 2014 informal claim. As such, the earliest possible effective date for the assignment of a 10 percent rating for the service-connected right knee arthritis with chondromalacia is January 10, 2013, if an increase in disability was ascertainable as of that date. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(2). Regarding the date of entitlement, the term “date entitlement arose” is not defined in the current statute 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 than the “facts found.” DeLisio v. Shinseki, 25 Vet. App. 45 (2011). These “facts found” include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation. See generally 38 C.F.R. § 3.400. 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). In the September 2014 rating decision, the RO assigned a 10 percent rating for the service-connected chondromalacia (now also including arthritis) based on x-ray evidence of arthritis in the right knee and painful motion of the right knee joint during a May 2014 VA examination for the right knee. Essentially, the RO granted service connection for right knee arthritis in addition to the already-service-connected chondromalacia and increased the rating to 10 percent based on x-ray evidence of arthritis. However, the diagnosis of arthritis of the right knee based on x-ray evidence long precedes the one-year period prior to the January 10, 2014 claim. As indicated in the section above, there was x-ray evidence of arthritis in both knees since at least November 2007. Accordingly, the evidence does not show a factually ascertainable increase in the Veteran’s service-connected right knee arthritis with chondromalacia within the one-year period prior to January 10, 2014. As the arthritis was factually ascertainable more than one year prior to the date of the January 10, 2014 claim, the earliest possible effective date for the increase is the date of claim. The Court has interpreted the laws and regulations pertaining to the effective date for an increase as follows: if the increase 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 award 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)(3); 38 C.F.R. § 3.400 (o)(1), (2); Harper v. Brown, 10 Vet. App. 125 (1997). See also Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010) (stating that section 5110(b)(2), now section 5110(b)(3), requires that "an increase in a veteran's service-connected disability must have occurred during the one year prior to the date of the veteran's claim in order to receive the benefit of an earlier effective date"). A veteran’s claim for increased disability compensation must be filed within one year of an increase in the disability, as shown by the evidence, in order to obtain an effective date earlier than the date of claim. Gaston at 984. Finally, as noted below in the Remand section, there may be outstanding Social Security Administration (SSA) records. However, as the current record provides x-ray evidence of right knee arthritis prior to the one-year period before the January 10, 2014 claim for increased rating, any SSA records available are irrelevant to deciding the effective date issue. Therefore, the assigned of an effective date prior to January 10, 2014 for the assignment of a 10 percent disability rating for the service-connected right knee arthritis with chondromalacia is not warranted. TDIU 4. Entitlement to a TDIU. The Veteran contends that he is unable to maintain substantially gainful employment as a result of his service-connected disabilities. Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In Faust v. West, 13 Vet. App. 342 (2000), the Court defined “substantially gainful employment” as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran’s earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to TDIU is whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. In determining unemployability, consideration should be given to the veteran’s prior education, training, and work experience, but not to age or impairment from nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Faust, 13 Vet. App. 342 (2000). Entitlement to a TDIU does not require 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). All reasonable doubt as to any material matter, including the degree of disability, will be resolved in favor of the claimant. 38 U.S.C. § 5107, 38 C.F.R. § 4.3. As of the Veteran’s last day of employment on June 16, 2014, the Veteran’s service-connected disabilities included generalized anxiety disorder with panic disorder, agoraphobia, major depression, and PTSD, ratable as 70 percent disabling, atopic eczema and tinea cruris, ratable as 10 percent disabling, chondromalacia patella of the right knee with arthritis, ratable as 10 percent disabling, internal hemorrhoids, ratable as noncompensable, and postoperative status, mole, left side of chest, ratable as noncompensable. Because the Veteran had one disability ratable as at least 60 percent disabling, the schedular criteria for a TDIU are met as of the Veteran’s last day of employment on June 16, 2014. Accordingly, the only remaining question is whether the Veteran’s service-connected disabilities preclude substantially gainful employment consistent with his education and work history. According to the Veteran’s VA Form 21-8940 Application for Increased Compensation Based on Unemployability, received in June 2014, the Veteran worked at the U.S. Postal Service for 22 years, between April 1992 and June 2014. He received a bachelor’s degree with a double major in telecommunications and history. During the June 2020 Board hearing, the Veteran testified that, around the time of his retirement from the U.S. Postal Service, his work schedule was reduced to two to three days due to anxiety and panic attacks. See Hearing Transcript, pp. 15-18. A January 2016 VA psychiatric examination report reflects that chronic sleep impairment also factored into the Veteran’s poor work attendance. Furthermore, the January 2016 examination report shows that the Veteran was afraid of leaving his home and worried about his safety at work. Regarding safety at work, a May 2014 VA psychology note shows that the Veteran twice called the police due to fear of his supervisor. An August 2014 statement from the Veteran’s acting supervisor shows that the Veteran was on “limited duty of sit down work.” Employer documents show that the Veteran had failed “to maintain a regular schedule.” Regarding his panic attacks, the Veteran has reported numerous emergency room visits due to panic attacks. A January 2019 report of hospitalization indicates an admitting diagnosis of generalized anxiety disorder. Psychiatric symptoms noted during May 2014, January 2016, and March 2017 VA examinations show that the Veteran experienced symptoms including depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, include in a work or work-like setting, and suicidal ideation. Regarding impact of the service-connected psychiatric disability on his employment, the May 2014 examiner concluded that the Veteran’s psychiatric symptoms did not impose any vocational impairments. However, no rationale was provided in support of this opinion. Accordingly, it merits no further consideration. The January 2016 examiner found that the Veteran’s “occupational and relational functioning has worsened since the most recent exam.” Finally, the March 2017 examiner concluded that the Veteran’s psychiatric disability “would have a moderate to severe adverse impact on his ability to secure and maintain employment” due to “depression, anxiety, agoraphobia, PTSD, and sleep disturbance” as well as “difficulty dealing with other individuals.” In January 2021, the Veteran’s representative submitted an employability opinion from S.M., C.R.C. S.M. opined that the Veteran had been unemployable since 2014, in large part, due to his psychiatric disability. She reasoned that “the veteran’s anxiety has been crippling for years to the extent he more likely than not could not make a successful vocational adjustment in a job at any exertional level.” In addition, S.M. noted that the Veteran “does not have the emotional resilience to acclimate to a new work environment, to learn new skills, [or] to integrate easily into a different work culture which would include engaging with new coworkers and supervisors.” After considering all of the evidence of record, including the Veteran’s statements and the medical evidence, the Board finds that the preponderance of the evidence shows that the Veteran’s service-connected disabilities, to include generalized anxiety disorder with panic disorder, agoraphobia, major depression, and PTSD alone, preclude performance of substantially gainful employment. The determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 77F.3d 1350, 1354 (Fed. Cir. 2013). Specifically, the Veteran’s psychiatric disability has been shown to result in anxiety, panic attacks, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, include in a work or work-like setting, among other symptoms. As such, the Veteran’s symptoms result in in inadaptability to work consistent with his history of employment. Although the Veteran’s last date of employment was in June 2014, the Veteran credibly testified that he was not able to maintain employment prior to that date. As noted above, the Veteran was only working 2 to 3 days per week by the time he left employment. As such the evidence is in equipoise as to whether the Veteran was able to maintain substantially gainful employment prior to the date that he last worked. Therefore, and resolving reasonable doubt in the Veteran’s favor, the Veteran was not able to maintain substantially gainful employment as of January 10, 2014, the date that VA received the Veteran’s claim for increased rating. Finally, in a January 2021 brief, the Veteran’s representative appeared to assert that a 1999 VA psychiatric examination should be considered as an informal claim for TDIU. However, this contention is without merit. Specifically, a December 1999 rating decision continued the 70 percent rating already assigned for the Veteran’s psychiatric disability. The Veteran did not appeal within one year of the decision. In essence, the Veteran’s representative has submitted a freestanding claim for an earlier effective date for increased rating. There is no basis in VA law for a freestanding claim for an earlier effective date for matters addressed in a final decision. Rather, when a decision is final, only a request for a revision premised on clear and unmistakable error (CUE) could result in the assignment of an earlier effective date. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). Consequently, any attempt to overcome the finality of the December 1999 rating decision by raising a freestanding claim for entitlement to an earlier effective date in conjunction with the present claim must fail, absent a finding of CUE. No CUE motion has been filed in this case. Thus, given the lay and medical evidence indicating the Veteran’s functional limitations due to his service-connected disabilities, and in light of his work experience, training, and education, the preponderance of the evidence supports the Veteran’s claim for a TDIU as due solely to the service-connected generalized anxiety disorder with panic disorder, agoraphobia, major depression, and PTSD. Accordingly, assignment of a TDIU is warranted from January 10, 2014, the date VA received the Veteran’s claim for an increased rating. REASONS FOR REMAND 1. Entitlement to service connection for right hip arthritis, to include as secondary to the service-connected right knee arthritis. 2. Entitlement to service connection for left hip arthritis, to include as secondary to the service-connected right knee arthritis. During the June 2020 Board hearing, the Veteran claimed that there was a direct nexus between his bilateral hip arthritis and service. In this regard, he testified that he first felt pain in his hips during a two-week air assault course involving repelling from helicopters in full gear – weighing in excess of 70 pounds – as well as “running, jumping,” and “an 18-mile march.” He also recalled experiencing bilateral hip pain in addition to knee pain while stationed in Germany in 1988. See Hearing Transcript, pp. 4-7. The sole reference to hip pain in the Veteran’s STRs is a September 1987 STR note describing anterior thigh pain starting while playing a baseball game. An October 2002 VA x-ray report provides the earliest evidence of osteoarthritis of the hips. Subsequently, in 2013 and 2014, the Veteran had total hip replacements of both hips. The Veteran received an initial VA examination and opinion for his right and left hip disabilities in May 2014. The examiner only provided an opinion regarding the Veteran’s theory of secondary service connection, and in this regard, opined only that the bilateral hip arthritis “was the result of aging.” Regarding the above opinion, the examiner failed to address pertinent STR evidence and lay statements, does not address the Veteran’s theory of direct entitlement, and provides only a limited rationale in support. In the September 2020 private medical opinion, Dr. F.G. also provided an opinion regarding the Veteran’s bilateral hip disabilities. However, the opinion is incomplete. Specifically, although Dr. F.G. noted the Veteran’s reported history of helicopter and parachute jumps in full gear, Dr. F.G. then stated that: A condition of femoral head avascular necrosis and degenerative osteoarthritis of both hips led to a 2012 and then a 2013 total hip arthroplasty. The presence of total hip arthroplasty in an individual that young is casual to an inevitable risk of need for revision arthroplasty during his lifetime. The total hip arthroplasty releases wear debris which is casual to an inflammatory response around the prosthesis leading to slow and gradual bone reabsorption and subsidence of the femoral and acetabular components leading to the need to revision. In effect, the above opinion from Dr. F.G. cites the Veteran’s statements regarding in-service incurrence of hip injuries, states the Veteran’s prognosis, and describes the process of total hip arthroplasty, but fails to provide any nexus between the Veteran’s current bilateral hip arthritis and service. As a result, there are no adequate opinions addressing the etiology of the Veteran’s right and left hip arthritis in the claims file. As such, remand is warranted for a new VA examination and opinion regarding the Veteran’s bilateral hip arthritis. 3. Entitlement to a disability rating in excess of 10 percent for the service-connected right knee arthritis. The Veteran last received a VA examination for his right knee in March 2017. As of March 2017, the Veteran was only taking one medication, tramadol, for knee pain and used a knee brace only occasionally. The examiner indicated that the Veteran would be able to walk up to 6 blocks. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires an examiner to record the results of range of motion testing “for both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Notably, the March 2017 examination does not include Correia findings. Moreover, the examiner declined to estimate additional functional loss following repeated use over time and during flare-ups because “no flares were witnessed during or following the three repetitions of motion of the right knee; therefore, significant additional limitations of functional ability due to pain, weakness, fatiguability, or incoordination cannot be determined or described without mere speculation.” However, under Sharp, an examiner may not state inability to estimate functional impairment during flare-ups solely due to being unable to observe the Veteran during a flare-up. See Sharp, 29 Vet. App. at 26. Given the above omissions, the March 2017 VA examination is incomplete for rating purposes. Furthermore, during the June 2020 Board hearing, the Veteran testified that he was now taking three medications – gabapentin, naproxen, and acetaminophen – right knee pain. Furthermore, he reported constant use of a cane and that he keeps multiple canes present in various rooms in his house. The Veteran estimated that he would be able to walk no more than “one or two blocks.” Therefore, there is also evidence that the Veteran’s right knee disability may have worsened since his last VA examination approximately four years ago. Finally, while the September 2020 private examination by Dr. F.G. summarized the Veteran’s recent history of care for the right knee and lay statements regarding current symptoms, Dr. F.G. included no objective findings regarding the current severity of the Veteran’s right knee disability, to include range or motion and joint testing, and failed to question the Veteran regarding symptoms during flare-ups. Accordingly, the September 2020 private examination is inadequate for rating purposes. As such, remand is warranted for a new VA examination that addresses the current severity of the Veteran’s service-connected right knee arthritis. 4. Entitlement to a disability rating in excess of 70 percent for the service-connected generalized anxiety disorder with panic disorder, agoraphobia, major depression, and PTSD. In August 2017, the Veteran’s representative submitted a SSA notification letter reflecting that the Veteran had been granted disability benefits from March 2016. However, no SSA records have been associated with the claims file to date. On remand, the RO should associate the missing SSA records with the claims file and then readjudicate the claim for a disability rating in excess of 70 percent for the service-connected generalized anxiety disorder with panic disorder, agoraphobia, major depression, and PTSD. See Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010); Murincsak v. Derwinski, 2 Vet. App. 363 372-73 (1992). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any relevant SSA records, including a favorable disability determination and any associated medical records concerning that determination. 2. Schedule the Veteran for a VA examination for his right and left hip arthritis. The examiner must review the claims file, including a copy of this Remand. A rationale for all opinions must be provided. The examiner is asked to provide a response to the following: (a.) Is the right and left hip arthritis at least as likely as not (a 50 percent probability or greater) related to service? In particular, the examiner should address :the Veteran’s statements during the June 2020 Board hearing regarding pain in his hips bilaterally during air assault training, which included jumps from helicopters in full gear; and the Veteran’s report of anterior thigh pain following a 1987 baseball game. The examiner should also consider the September 2020 opinion by Dr. F.G. (b.) Is the right and left hip arthritis at least as likely as not proximately due to the service-connected right knee arthritis? (c.) Is the right and left hip arthritis at least as likely as not aggravated, i.e., worsened beyond its natural progression, due to the service-connected right knee arthritis? 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right knee arthritis. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement 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). Furthermore, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement 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). 4. After receipt of relevant SSA records, if available, readjudicate the claim for a disability rating in excess of 70 percent for the service-connected generalized anxiety disorder with panic disorder, agoraphobia, major depression, and PTSD. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Small, Attorney Advisor 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.