Citation Nr: 21036162 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 16-49 939A DATE: July 3, 2021 ORDER Entitlement to an effective date of March 24, 2008 for the award of a 30 percent disability rating for limitation of extension, left knee, is granted. FINDING OF FACT The Veteran filed his claim for increase on March 24, 2008; it was not until August 2014 when the Veteran participated in an adequate VA examination; the August 2014 VA examination estimated that the Veteran's extension was limited to 20 degrees; the Veteran provided credible testimony that his left knee limitation of extension has been the same since the date he filed his original claim for increase, March 24, 2008. CONCLUSION OF LAW The criteria for an effective date of March 24, 2008, for the award of a 30 percent rating for limitation of extension, left knee, have been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.400, Diagnostic Code 5261. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1986 until September 1996. This case has a long procedural history which the Board will briefly review. The Veteran first filed his claim for increase for a left knee disability in March 2008. After a series of rating and Board decisions, the Veteran's 30 percent rating for left knee extension was granted in a December 2014 rating decision effective July 30, 2014. After a timely appeal, in a September 2016 rating decision, the Veteran's effective date was changed to April 30, 2013. The Board notes that the Veteran participated in a hearing in April 2013 before a Veterans Law Judge who is no longer employed by the Board; a transcript of that hearing is associated with the claims file. After continuing to timely appeal, the Veteran participated in a hearing before the undersigned in February 2021; a transcript of that proceeding is associated with the claims file. The matter is now ripe for adjudication. Earlier Effective Dates The method of determining the effective date of an increased rating is set forth in 38 U.S.C. § 5110(a) and (b)(2), and 38 C.F.R. § 3.400(o). The general rule with respect to the effective date of an award of increased compensation is that the effective date of such award shall not be earlier than the date of receipt of application thereof. 38 U.S.C. § 5110(a). This statutory provision is implemented by regulation which 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 the rule applies under circumstances where 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. In that regard, the law provides that the effective date of the award shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date, otherwise the date of receipt of the claim. 38 U.S.C. § 5110(b)(2), 38 C.F.R. § 3.400(o)(2). The phrase "otherwise, the date of receipt of the claim" applies only if a factually ascertainable increase in disability occurred within one year prior to filing the claim for an increased rating. Harper v. Brown, 10 Vet. App. 125, 126-27 (1997). Moreover, the term "increase" as used in 38 U.S.C. § 5110 and 38 C.F.R. § 3.400 means an increase to the next disability level. Hazan v. Gober, 10 Vet. App. 511, 519 (1997). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). In this matter, the Veteran contends he is entitled to an earlier effective date for the 30 percent disability rating for his service-connected left knee limitation of extension, which was granted as of April 30, 2013. The evidence of record shows that the Veteran's request for an increased rating was received by VA on March 24, 2008. The Board notes that the Veteran was granted a 30 percent rating for left knee limitation of extension in September 2016, with an effective date of April 30, 2013, the date the Veteran testified before a Veterans Law Judge. The question for the Board is whether there is factually ascertainable evidence which demonstrates the Veteran's left knee extension manifested to a degree of 30 percent before April 30, 2013. For the reasons discussed below, the Board finds that there is such evidence. Pursuant to Diagnostic Code 5261, a 30 percent rating is warranted for extension limited to 20 degrees. A February 2008 letter from the Veteran's private treating physician states that he has a long history of knee pain with decreased range of motion and frequent swelling. The letter did not provide precise range of motion findings. At a September 2008 VA examination, the VA examiner found that the Veteran's extension was limited to 0 degrees. At a May 2009 VA examination, the VA examiner found that the Veteran's extension was limited to 0 degrees. The Veteran reported flare-ups of his left knee but no estimated functional loss in range of motion was given. In a December 2009 lay statement, the Veteran argued that his September 2008 and May 2009 VA examiners "refused to examine" his knee. Specifically, he reports that one of the VA examiners stated that he was "only interested in answering the questions." March 2010 VA treatment records indicate that the Veteran was given knee cortisone injections for his advanced degenerative changes of his left knee. November 2009 treatment records show that the Veteran's knee pain is getting worse and is limiting his activity as he cannot stand for long period of time. At a July 2011 VA examination, while the Veteran reported his knee pain being a 9 out of 10, the VA examiner estimated that his left knee extension was limited to 0 degrees without pain. At the April 2013 hearing, the Veteran testified and reiterated that the VA examiners never looked at his left knee at the examinations. He specifically disagreed with the VA examiners' conclusions that his left knee was improving; rather, he testified that his left knee has been getting worse since separation as he "can no longer do the things that I used to do ten plus years ago." In April 2014, the Board issued a decision, inter alia, ordering a new VA examination for the Veteran's left knee disability given that his testimony directly contradicted the findings of the previous VA examinations that his extension was not limited. At an August 2014 VA examination, the VA examiner determined that the Veteran's extension was limited to 20 degrees. The Veteran reported flare-ups at least 2 times a month, with no additional loss of function. In an April 2015 lay statement, the Veteran reiterated that his left knee began to regress and lose range of motion in about 2010 and has stayed the same since. The Veteran again stated how the VA examiners failed to physically and adequately review his left knee condition. At the February 2021 hearing, the Veteran again noted that the previous VA examiners never looked at his knee, but instead, "just asked me a bunch of questions." Importantly, the Veteran testified that his symptoms did not significantly worsen in 2013, but that he has been dealing with these same types of symptoms since 2008. In April 2021, the Veteran submitted another lay statement which further described how he was treated at his VA examinations. Therein, he stated that the September 2008 VA examiner did not ask about his flare-ups or whether his knees get worse; the Veteran reported that this VA examiner responded, "we are not here about what you are talking about. We are here for what the VA wants." The May 2009 VA examiner, in the Veteran's opinion, "had no idea about his medical history, began asking numerous questions about issues that were already in the record and interrupted me when I tried to explain them." The Veteran remembers that the VA examiner never completed the range of motion testing. For the July 2011 VA examination, the Veteran explained that the examiner took the time to discuss his knees with him but that he was still unable to move his knees without substantial pain and difficulty. Regarding the July 2014 examination, he noted that it served as the basis for his 30 percent grant for left knee extension limitation. In conclusion, the Veteran stated that "my condition has not worsened since my claim for increase in 2008. I have been having the same problems with both flexion and extension in my left knee since the mid-2000s. I have been consistently unable to sit or stand more than ten minutes at a time . . . I have used and continue to use a bulky knee brace to allow me to ambulate in any fashion." Based on the foregoing, and resolving all doubt in the Veteran's favor, the Board concludes that his left knee extension should be assigned a 30 percent rating from March 24, 2008, the date he originally filed his claim for increase. First, the Veteran's allegations regarding the September 2008, May 2009, and July 2011 VA examinations are credible. The Veteran has been consistent throughout the appeal period as to how he was treated by them, to include not having range of motion testing performed. There is no reason to doubt his credibility. As such, the Board finds that the September 2008, May 2009, and July 2011 VA examinations are inaccurate summaries of his left knee limitation of extension. This finding is bolstered by the April 2014 Board decision which ordered a new VA examination for the Veteran's left knee disability given that his testimony directly contradicted the previous VA examinations finding that his extension was not limited. Second, while it was not until the August 2014 VA examination which determined that the Veteran's extension was limited to 20 degrees (providing the basis for a 30 percent rating under Diagnostic Code 5261), the Board will not hold this unnecessary delay against the Veteran. Indeed, this delay will not be prejudicial against the Veteran in this context as he has credibly testified that "my condition has not worsened since my claim for increase in 2008. I have been having the same problems with both flexion and extension in my left knee since the mid-2000s." This information weighs in favor of establishing an effective date of March 24, 2008 for a 30 percent rating for his left knee limitation of extension. In sum, the Veteran has consistently pursued the highest possible rating for his left knee condition since his March 24, 2008 claim for increase. While the Veteran did not participate in an adequate VA examination until August 2014, this delay is not the Veteran's fault and will not be held against him. Furthermore, he has credibly testified that his condition has remained the same since his original 2008 claim. For this reason, the Board assigns March 24, 2008 as the effective date for his 30 percent rating under Diagnostic Code 5261 for his left knee limitation of extension. No other aspect of the Veteran's left knee disability is before the Board at this time. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Finelli, 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.