Citation Nr: 21040034 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 16-57 860 DATE: July 2, 2021 ORDER Entitlement to an effective date earlier than February 4, 2013 for the award of service connection for left knee chondromalacia patellae (CMP) is denied. Entitlement to an effective date earlier than February 4, 2013 for the award of service connection for right knee CMP is denied. REMANDED Entitlement to service connection for left knee degenerative joint disease (DJD), to include as secondary to left knee CMP, is remanded. Entitlement to service connection for right knee DJD, to include as secondary to right knee CMP, is remanded. Entitlement to service connection for a ruptured left quadriceps tendon, to include as secondary to left knee CMP, is remanded. Entitlement to an initial rating greater than 10 percent for left knee CMP is remanded. Entitlement to an initial rating greater than 10 percent for right knee CMP is remanded. FINDING OF FACT The Veteran filed his initial service connection claim for left and right knee conditions on February 4, 2013; nothing in the electronic record could be construed as an earlier informal claim seeking service connection for a left and right knee condition. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than February 4, 2013 for the award of service connection for left knee CMP have not been met. 38 U.S.C. §§ 5107, 5110 (2018); 38 C.F.R. §§ 3.102, 3.156, 3.157 3.159, 3.400 (2014) (2020). 2. The criteria for an effective date earlier than February 4, 2013 for the award of service connection for right knee CMP have not been met. 38 U.S.C. §§ 5107, 5110 (2018); 38 C.F.R. §§ 3.102, 3.156, 3.157, 3.159, 3.400 (2014) (2020). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from May 1976 to November 1983 with additional Army Reserve service. He appeals a March 2014 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) granting entitlement to service connection for both left and right knee CMP but assigning an effective date for service connection no earlier than February 4, 2013 and denying initial ratings greater than 10 percent for each knee. Additionally, the Veteran appeals the AOJ's denial of service connection for left and right knee DJD and a ruptured left quadriceps tendon. The Board acknowledges that the Veteran submitted a Rapid Appeals Modernization Program (RAMP) opt-in election form that was received by VA in April 2018; however, the appeal had already been activated at the Board of Veterans' Appeals (Board) and is therefore no longer eligible for the RAMP program. Accordingly, the Board will undertake appellate review of the case. Generally, the effective date of an evaluation and award of compensation based on a claim for service connection will be on the date of receipt of the claim or the date entitlement arose, whichever date is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1). For original claims for service connection, the effective date can be the day following separation from active service only if the claim is received within one year after separation from service. Otherwise, the rule is the date of receipt of claim or date entitlement arose, whichever is later. Id. The date of receipt shall be the date on which a claim, information, or evidence was received by VA. 38 C.F.R. § 3.1(r). Importantly, a claim must be filed in order for any type of benefit to accrue or be paid. 38 U.S.C. § 5101(a); Jones v. West, 136 F.3d 1296, 1299 (1998). Here, the Veteran filed his claim prior to March 24, 2015, when a claim could be either a formal or informal written communication evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1(p). However, an essential element to any claim is that it must be in writing and must identify the benefit sought. 38 U.S.C. § 5101; 38 C.F.R. §§ 3.1(p), 3.151, 3.155; Rodriguez v. West, 189 F.3d 1351 (1999); Lalonde v. West, 12 Vet. App. 377 (1999). Importantly here, another essential element is the intent to apply for benefits. Criswell v. Nicholson, 20 Vet. App. 501 (2006). Medical evidence reflecting treatment for and diagnosis of a condition does not constitute, by itself, an informal original claim for service connection under 38 C.F.R. § 3.155(a) (2014), "because the mere presence of the medical evidence does not establish an intent on the part of the veteran to seek" service connection for that condition. See MacPhee v. Nicholson, 459 F.3d 1323, 1326 (2006). After review of the record, the Board finds no evidence the Veteran filed any formal or informal claim for VA benefits for a knee condition, or provided any statements indicating an intent to file such a claim prior to his original claim for service connection for a left and right knee condition, received by VA on February 4, 2013. While there are references in the record documenting that the Veteran experienced bilateral knee CMP prior to February 4, 2013; it was not until that date the Veteran expressed the necessary intent to seek compensation benefits from VA. See MacPhee, 459 F.3d at 1326. As such, the AOJ assigned the correct effective date for these disabilities. The Veteran separated from service in November 1983. See DD Form 214. He contends he is entitled to an earlier effective date because October 1984 VA treatment records, within one year of his separation from service, note he was treated and diagnosed with bilateral CMP. See July 2014 notice of disagreement (NOD). The Board notes the physician assistant even wrote, "Veteran needs to apply for service connection." See October 1984 VA treatment records. However, the effective date for an award of service connection is not based on the earliest medical evidence demonstrating a causal connection, but on the date of the claim for service connection. See Lalonde, 12 Vet. App. 377; see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000). The Veteran did not file any claim for service connection for a knee condition until February 4, 2013, well more than one year from his discharge; therefore, an assignment of an effective date back to the day following discharge is not possible. The Veteran also contends this October 1984 VA treatment record constituted an informal claim. See July 2014 NOD. Although VA treatment records may be accepted as an informal claim in some instances under 38 C.F.R. § 3.157(b), that regulation is not applicable to this case as VA treatment records may only constitute an informal claim for service connection if service connection has been previously established or denied on the basis that the condition is noncompensable. See MacPhee, 459 F. 3d 1323. Furthermore, the VA treatment records do not indicate a clear intent to apply for benefits. The October 1984 VA treatment records state the "Veteran needs to apply for service connection," and notes "DAV to apply for service connection," which does not reflect intent on the behalf of the Veteran to seek service connection; rather, it is a suggestion by the physician's assistant to the Veteran for future action. Finally, the October 1984 VA treatment record was not in possession of VA adjudicators (or VBA), even on a constructive basis, until the Veteran filed his February 2013 application for service connection. In this regard, there is nothing to support that VA adjudicators were made aware of the existence of those VA treatment records until the Veteran first applied for service connection in February 2013. Nor would such records otherwise "reasonably be expected to be part of the record" as the Veteran did not have any active claims or appeals until February 2013. See Monzingo v. Shinseki, 26 Vet. App. 97, 102 (2012). Thus, the Board finds the October 1984 VA treatment records cannot serve as the basis for an earlier effective date under 38 C.F.R. § 3.157, or under 38 C.F.R. § 3.155 relating to informal claims. Accordingly, the AOJ assigned the earliest possible effective date provided by law and an effective date earlier than February 4, 2013 for the award of service connection for left and right knee CMP is not warranted. REASONS FOR REMAND Service connection for Left and Right knee DJD and a Ruptured Left Quadriceps Tendon The Veteran was diagnosed with bilateral CMP in service, for which he is already service connected. See, e.g., December 1978 service treatment records. In July 2004, he ruptured his left quadriceps tendon and he also has left and right knee DJD. See July 2004 VA treatment records; see also May 2015 VA treatment records. He contends these conditions were aggravated by his service-connected left and right knee CMP. See July 2014 NOD. The Veteran states that his bilateral knee pain and trauma has led to, and continued to aggravate, his bilateral knee arthritis and was the impetus behind his left quadriceps tendon rupture. Id. In October 2013, a VA examiner opined these conditions were less likely than not caused or aggravated by his service-connected bilateral knee CMP. As rationale, the VA examiner stated he knew "of no medical authority or peer reviewed medical literature" to support the Veteran's contentions. He noted the left quadriceps tendon rupture "was the result of an athletic injury which occurred in 2004 and which is unrelated to the Veteran's service-connected conditions." He also noted "CMP is an interior compartment disease caused by a patellar tracking disorder and is not associated with or related to the weight bearing surfaces of the knees." The Board finds the October 2013 examination opinion inadequate. First, the VA examiner did not consider January 2003 VA treatment records, including x-ray imaging prior to the Veteran's July 2004 left quadriceps tendon rupture, noting degenerative changes of the left and right knee. At the January 2003 VA consultation, the Veteran reported bilateral knee "pain for 15 to 20 years" with more severe left knee symptoms. See January 2003 VA treatment records. At the consultation, the Veteran's physician wrote the following assessment note: "1. Patellofemoral knee syndrome. 2. DJD knee due to #1." Id. Second, a different VA physician noted September 2016 x-ray imaging of the bilateral knees revealed the Veteran's "degenerative changes are more pronounced at the patellofemoral compartments bilaterally, left greater than right. Bilaterally, there is patella alta with heterotopic ossification adjacent to the patella, suggesting prior injury. Clinical correlation is suggested." See September 2017 VA examination report. These records support the Veteran's contention that his service-connected left and right knee CMP either caused or aggravated his bilateral DJD and left quadriceps tendon rupture. As the October 2013 VA medical opinion did not consider the pertinent lay and medical evidence of record, a remand is required. Increased Initial Ratings for Left and Right CMP A VA examination is inadequate when an examiner does not elicit relevant information as to the Veteran's flare-ups or ask him to describe additional functional loss, if any, he suffered during flare-ups and then does not "estimate the [Veteran's] functional loss due to flare-ups based on all the evidence of record (including the [Veteran's] lay information) or explain why he could not do so." Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017). At the September 2016 VA examination, the Veteran reported he suffered from left and right knee flareups, but the VA examiner stated she was unable to estimate any additional functional loss or ROM loss during a flare-up or on repeated use without resorting to speculation. As such, the September 2016 VA examination is inadequate and remand is required to properly address the Veteran's symptoms. The matters are REMANDED for the following action: 1. Obtain any outstanding and updated relevant VA and/or private treatment records and associate the same with the claims file. 2. After the development of #1 above is complete, schedule the Veteran for a VA examination to determine the nature and severity of each of his service-connected left and right knee chondromalacia patellae (CMP). The examiner must test the Veteran's pain with weight-bearing and without weight-bearing. The examiner must attempt to elicit information regarding the severity, frequency, precipitating and alleviating factors, and duration of any flare-ups, and the degree of functional loss during flare-ups and with repetitive use over time. To the extent possible, the examiner should identify any symptoms and functional impairments due solely to his (1) left knee CMP, and (2) right knee CMP and discuss the effect of each on any occupational functioning. If it is not possible to provide a specific measurement or an opinion regarding flare-ups, symptoms, or functional impairment 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). The examiner should consider that the Veteran is competent to report his bilateral knee symptoms and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, a reason for doing so should also be provided. 3. After the development of #1 above is complete, obtain an opinion from an appropriately qualified clinician, to determine the nature and etiology of the Veteran's bilateral knee DJD and left quadriceps tendon rupture. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the clinician. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After a thorough review of the record to include all in-service and post-service treatment records, the reviewing clinician should answer the following for each left knee DJD, right knee DJD, and left quadriceps tendon rupture: (a). Is it at least as likely as not (a 50 percent probability or more) the Veteran's current disability was incurred in or is otherwise related to his time in service? (b). Is it at least as likely as not (a 50 percent probability or more) that the Veteran's current disability was (1.) caused OR (2.) aggravated by his bilateral service-connected chondromalacia patellae? The reviewing clinician is directed to discuss the following: (1.) January 2003 VA treatment records noting complaints of "knee pain for 15 to 20 years" with the physician's assessment note: "1. Patellofemoral knee syndrome. 2. DJD knee due to #1." (emphasis added), (2.) September 2016 VA examination report noting x-ray imaging of the bilateral knees revealed "degenerative changes are more pronounced at the patellofemoral compartments bilaterally, left greater than right. Bilaterally, there is patella alta with heterotopic ossification adjacent to the patella, suggesting prior injury. Clinical correlation is suggested," and (3.) the Veteran's contentions within his July 2014 notice of disagreement. The reviewing clinician should note the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the reviewing clinician rejects the Veteran's reports of symptomatology, a reason for doing so should also be provided. The reviewing clinician should not mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A full and complete rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the reviewing clinician cannot provide a requested opinion without resorting to mere speculation, it must be stated, and the reviewing clinician must provide the reasons why an opinion would require speculation. 4. After the above has been completed, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bona, 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.