Citation Nr: 21040624 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 16-61 048 DATE: July 6, 2021 ORDER Entitlement to an effective date earlier than April 25, 2013, for the award of service connection for right knee tendonitis, is denied. Entitlement to an effective date earlier than April 25, 2013, for the award of service connection for thoracolumbar sprain, is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for right knee tendonitis with arthritis is remanded. Entitlement to an initial rating in excess of 20 percent for thoracolumbar sprain with arthritis is remanded. Entitlement to service connection for right elbow disorder, to include as secondary to right knee tendonitis and thoracolumbar sprain, is remanded. Entitlement to service connection for left elbow disorder, to include as secondary to right knee tendonitis and thoracolumbar sprain, is remanded. Entitlement to service connection for arthritis of the feet, to include as secondary to right knee tendonitis and thoracolumbar sprain, is remanded. Entitlement to service connection for a right-hand disorder, to include as secondary to right knee tendonitis and thoracolumbar sprain, is remanded. Entitlement to service connection for a left-hand disorder, to include as secondary to right knee tendonitis and thoracolumbar sprain, is remanded. FINDINGS OF FACT 1. VA received the Veteran's original claim for service connection for a low back condition on April 25, 2014. 2. VA received the Veteran's original claim for service connection for a right knee condition on April 25, 2014. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to April 25, 2013, for the award of service connection for right knee tendonitis, have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2019). 2. The criteria for an effective date prior to April 25, 2013, for the award of service connection for thoracolumbar sprain, have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1988 to July 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The June 2015 rating decision denied the Veteran's claims for entitlement to service connection for arthritis of the ankles, entitlement to service connection for arthritis of the shoulders, entitlement to service connection for arthritis of the hips, entitlement to service connection for arthritis of the knees, and entitlement to service connection for arthritis of the back. Following a timely appeal, a January 2020 rating decision granted the Veteran's claims. As such, they are no longer before the Board. Effective Date Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 C.F.R. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, the effective date of an award of a claim is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400 (b)(2). Under the provisions of Public Law No. 112-154, Section 506, an effective date for an original application may be "backed up" for one year prior to the receipt of the application, providing other pertinent conditions are met. See 38 U.S.C.A. § 5010. Entitlement to an effective date earlier than April 25, 2013, for the award of service connection for right knee tendonitis Entitlement to an effective date earlier than April 25, 2013, for the award of service connection for thoracolumbar sprain The record reveals that the Veteran submitted a fully developed claim that was received by VA on April 25, 2014, which included the claims for service connection for a right knee disorder and service connection for a low back disorder. The Veteran was awarded service connection for right knee tendonitis and service connection for thoracolumbar sprain in a June 2015 rating decision, effective April 25, 2013, which was one year prior to the date the Veteran's application form was received. He was informed that this effective date was awarded pursuant to Section 506 of Public Law 112-154. Those provisions, now codified at 38 U.S.C. § 5010, provide for a one-year retroactive award from the date of the receipt of an original claim provided that it is a fully-developed claim (as determined by the Secretary). There is also no record or other evidence of a prior unadjudicated informal claim seeking service connection for these disabilities. In addition, while the Veteran has maintained that he had been suffering from the claimed disabilities prior to this date, in view of the lack of a prior unadjudicated claim, this alone does not constitute a basis to assign an earlier effective date under the applicable provisions. Thus, the date of April 25, 2013, is properly assigned. Accordingly, the preponderance of the evidence is against entitlement to an effective date for the grant of service connection for these disabilities prior to April 25, 2013. REASONS FOR REMAND Entitlement to an initial rating in excess of 10 percent for right knee tendonitis with arthritis Entitlement to an initial rating in excess of 20 percent for thoracolumbar sprain with arthritis The Veteran's last VA examination for his service-connected thoracolumbar sprain and right knee tendonitis was in March 2017. Based on the results of the examination, and a subsequent addendum opinion, arthritis of the back was added as an additional service-connected low back disability, and in January 2020, the rating for the Veteran's thoracolumbar sprain with arthritis was increased to 20 percent, effective April 25, 2013. The Veteran was also granted service connection for right knee degenerative joint disease/arthritis, effective March 16, 2017, which was combined with the existing evaluation for right knee tendonitis. The 10 percent rating was continued. Prior to this examination, the Veteran was examined in March 2015, and information regarding range of motion in passive motion and testing in nonweight-bearing was not conducted. Consequently, the Board must remand the claim in order for another VA examination to be accomplished, to include a retroactive opinion with regards to whether the results of the March 2015 and March 2017 VA examinations would have been reduced if tested in both active and passive motion and in weight-bearing and nonweight-bearing. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Correia v. McDonald, 28 Vet. App. 158 (2016) (38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint). The Board notes that the March 2017 VA examiner found that there was objective evidence of pain on passive motion testing and nonweight-bearing testing of the back and right knee but did not provide range of motion estimates. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court also noted that for a joint examination to be adequate, the examiner "must express an opinion on whether pain could significantly limit" a veteran's functional ability, and that determination "should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." Furthermore, the Court stated that the examiner must "obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment [resulting from flare-ups] from the veterans themselves." Sharp, 29 Vet. App. at 34. The examiner must also "offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans," and the examiner's determination "should, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups. Id. at 10. Entitlement to service connection for right elbow arthritis Entitlement to service connection for left elbow arthritis Entitlement to service connection for arthritis of the feet Entitlement to service connection for a right-hand disorder Entitlement to service connection for a left-hand disorder The Veteran submitted his substantive appeal, VA Form 9, in December 2016 and indicated that previous doctors found that his arthritic conditions could be due to his body compensating for the pressure that his knee and back had experienced throughout the years. The Veteran received VA examinations in May 2017 for his elbow, feet, and hand conditions, and the examiner found that they were less likely as not caused or aggravated by his service-connected conditions. He concluded that the elbow and hands, and knees and back, were in different anatomical planes and function, and were non-adjacent organs. Therefore, there was no pathology available to explain how the knee and back conditions would cause the elbow and hand conditions. With regard to the feet condition, the examiner concluded that neither back pain nor knee degenerative joint disease could cause plantar fasciitis. With regards to aggravation, the examiner found that there was no evidence of aggravation noted in the records. At the outset, the Board notes that the examiner did not consider the Veteran's competent lay statements that he was told his arthritic conditions were due to compensating from the pain in his back and knees. Furthermore, the aggravation opinion is premised on the lack of medical records. A medical opinion based solely on the absence of documentation in the record is inadequate and that a medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). Therefore, these claims must be remanded for a new examination. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination so as to determine the current severity of his right knee disability. The claims file must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. Full range of motion testing must be performed. The right knee must be tested in both active and passive motion, in weight-bearing and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should also request the Veteran identify the extent of his functional loss during flare-ups and, if possible, offer range of motion estimates based on that information. If the examiner is unable to provide an opinion on the impact of flare-ups on the Veteran's range of motion, he/she should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. The examiner is also asked to determine whether the Veteran's range of motion results from the March 2015 and March 2017 VA examinations would have been reduced if they had been tested in both active and passive motion and in weight-bearing and nonweight-bearing. To the examiner's best ability, the additional range of motion loss should be described and estimated in degrees. If the examiner is unable to provide the requested opinion in this case, he or she should clearly explain the basis for this decision. 2. Schedule the Veteran for a VA examination so as to determine the current severity of his back disability. The claims file must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. Full range of motion testing must be performed. The back must be tested in both active and passive motion, in weight-bearing and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should also request the Veteran identify the extent of his functional loss during flare-ups and, if possible, offer range of motion estimates based on that information. If the examiner is unable to provide an opinion on the impact of flare-ups on the Veteran's range of motion, he/she should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. The examiner is also asked to determine whether the Veteran's range of motion results from the March 2015 and March 2017 VA examinations would have been reduced if they had been tested in both active and passive motion and in weight-bearing and nonweight-bearing. To the examiner's best ability, the additional range of motion loss should be described and estimated in degrees. If the examiner is unable to provide the requested opinion in this case, he or she should clearly explain the basis for this decision. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of his elbow, feet, and hand conditions. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner is asked to opine as to whether it is as least as likely as not (50 percent probability or more) that the Veteran's elbow, feet, and hand disorders had their onset in service or are otherwise the result of an incident in service. The examiner is also asked to opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's elbow, feet, and hand disorders were caused or aggravated by his service-connected thoracolumbar sprain and/or right knee tendonitis. Aggravation is defined for these purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Daniels, 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.