Citation Nr: 21040845 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 14-20 725A DATE: July 7, 2021 ORDER Entitlement to a separate evaluation prior to July 10, 2020 for left knee instability due to service-connected left knee strain with patellofemoral pain syndrome is granted. Entitlement to an effective date of April 7, 2009, but no earlier, for the assignment of a 40 percent evaluation for service-connected left knee strain with patellofemoral pain syndrome (left knee strain) is granted. REMANDED Entitlement to service connection for a left hip disorder, to include as secondary to service-connected left knee strain and right knee lateral meniscus tear, is remanded. Entitlement an evaluation in excess of 40 percent prior to March 1, 2015, 10 percent on and after March 1, 2015 and prior to July 10, 2020, and 30 percent on and after July 10, 2020, for limitation of extension due to service-connected left knee strain is remanded. Entitlement to an evaluation in excess of 10 percent for instability due to service-connected left knee strain is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. For the appeal period prior to July 10, 2020, the Veteran's service-connected left knee strain manifested in left knee instability. 2. Within one year of a May 2009 rating decision granting service connection for left knee strain, new and material evidence was received. 3. An April 7, 2009 VA examination report showed entitlement to a 40 percent evaluation as it noted left knee extension was limited to 45 degrees. CONCLUSIONS OF LAW 1. For the appeal period prior to July 10, 2020, the criteria for a separate evaluation for instability due to service-connected left knee strain have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 2. The criteria for an effective date of April 7, 2009, but no earlier, for the grant of a 40 percent evaluation for service-connected left knee strain are met. 38 U.S.C. §§ 5101, 5107, 5110, 5111; 38 C.F.R. §§ 3.400, 3.156(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1984 to March 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. Initially, the Board notes that in June 2020, in addition to the issues noted above, it remanded the issue of entitlement to service connection for a mood disorder. In a September 2020 rating decision, the RO granted service connection for a mood disorder. Thus, this issue is no longer on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). 1. Entitlement to a separate evaluation for left knee instability due to service-connected left knee strain before July 10, 2020 is granted. The Veteran asserts entitlement to an increased evaluation for the left knee strain. This inherently includes a claim for all separate evaluations that are supported by the evidence of record. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991) (holding that the Board must consider all potentially applicable regulatory provisions). Initially, the Board finds that this issue is not inextricably intertwined with the increased evaluation issues being remanded herein. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other). The evidence clearly indicates that a separate evaluation for instability is warranted throughout the appeal period, this evaluation contemplates symptoms entirely separate from the evaluation being remanded herein, and the AOJ must assign the percentage or percentages in the first instance. Notably, while on remand, a separate evaluation for left knee instability was granted in a September 2020 rating decision. See Rating Decision (September 2020). The issue of an increased evaluation for the service-connected left knee instability is already on appeal. See SSOC (September 2020). Although the request for an increased evaluation for the left knee strain is remanded, the Board has considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). The Board finds that a separate evaluation for instability is warranted throughout the appeal period. See 38 C.F.R. § 4.71a, DC 5257. In an April 2009 VA examination, the Veteran reported left knee instability with several near falls. There was guarding in lateral collateral ligament testing. There was no evidence of ligament instability. See VA Examination (April 2009). In an August 2009 VA record, the Veteran reported that his left knee had been giving out. See CAPRI (May 2019). In a November 2009 VA record, the Veteran reported that he felt the knee was unstable. Although testing showed a negative posterior drawer test, there was also a positive anterior drawer test. The clinician noted that the Veteran's signs and symptoms were consistent with the diagnosis of left knee instability as evidenced, in part, by the positive anterior drawer test. See CAPRI (May 2019). At a September 2010 VA joints examination, the Veteran reported instability. Examination showed a positive left patellar apprehension test. See VA Examination (September 2010). In a May 2011 VA record, the Veteran reported that his left knee buckled when going upstairs and he fell. See CAPRI (November 2013). In April 2012 VA records, there was no abnormal ligament laxity, but testing showed positive anterior drawer and posterior drawer tests. See CAPRI (November 2013). An August 2012 VA examination report found there was no left knee instability upon objective testing. See VA Examination (August 2012). In an April 2015 VA record, the Veteran reported he fell a few weeks ago when his left knee gave out. See CAPRI (June 2020). In a June 2019 VA examination, the Veteran reported his left knee sometimes feels stable and other times feels like it will swivel. The Veteran declined the ligament examination. See C&P Exam (June 2019). The Veteran's complaints of instability have been consistent throughout the appeal period. The 2009 VA clinician diagnosed instability due to the service-connected left knee strain, based primarily on objective testing. Throughout the rest of the appeal, the objective findings varied in whether there was evidence of left knee instability. Resolving all doubt in favor of the Veteran, however, the Board finds that the evidence supports a finding of a separate evaluation for instability. The particular percentage shall be assigned by the RO in the first instance. 2. Entitlement to an effective date of April 7, 2009, but no earlier, is warranted for the assignment of a 40 percent evaluation for service-connected left knee strain. The Veteran seeks an effective date prior to August 16, 2010, for the assignment of a 40 percent rating for a left knee strain. The Board concludes that the preponderance of the evidence supports an effective date of April 7, 2009, for the assignment of a 40 percent rating for a left knee strain because it is the later of the date of claim and date entitlement arose. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Notably, the Board finds that this issue is not inextricably intertwined with the increased evaluation issues being remanded herein. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other). The RO is free to increase any assigned evaluation on remand, within the parameters of the evidence of record and the currently assigned effective dates. Generally, the effective date of an evaluation and award of compensation for a grant of service connection and for an increased rating claim is the later of the date of receipt of the claim or the date entitlement arose. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1). Prior to March 24, 2015, a claim was "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p). An informal claim is "[a]ny communication or action indicating intent to apply for one or more benefits." 38 C.F.R. § 3.155(a). VA must look to all communications from a claimant that may be interpreted as applications or claims - formal and informal - for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). The essential elements for any claim, whether formal or informal, are: (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits). Also prior to March 24, 2015, in some cases, a report of examination or hospitalization may be accepted as an informal claim for benefits. 38 C.F.R. § 3.157(b). The date of outpatient or hospital examination or date of admission to a VA hospital will be accepted as the date of receipt of a claim when such reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. 38 C.F.R. § 3.157(b). A report of examination implies that the medical record describes the results of a specific, particular examination and reflects a worsening of the condition. Massie v. Shinseki, 25 Vet. App. 123, 133-34 (2011) (noting that a letter from a VA physician generated for a pending Social Security claim was not a report of examination). An exception to the general rule applies where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of the claim for increased compensation. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010) ("It is clear from the plain language of [section] 5110(b)(2) that it only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim."); Hazan v. Gober, 10 Vet. App. 511, 519 (1997) (stating that an increase for this purpose is one to the next disability level); VAOPGCPREC 12-98 (Sept. 23, 1998). Under these circumstances, the effective date of the award is the earliest date at which it was ascertainable that an increase occurred. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125, 126 (1997). The question of when an increase in disability is factually ascertainable is based on the evidence in the veteran's claims folder. Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992). Additionally, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). VA is considered to be in constructive receipt of all relevant and reasonably connected VA records, even if those records are not physically a part of the Veteran's claim file. Bell v. Derwinski, 2 Vet. App. 611 (1992). All VA treatment records created within one year of a decision are constructively before the benefits adjudicator and relevant VA treatment records "are always reasonably related to a veteran's claim." Lang v. Wilkie, 971 F.3d 1348, 1356 (Fed. Cir. 2020). At the outset, the procedural history is relevant. On December 2, 2008, the Veteran filed a claim for service connection for, among other things, a left knee disorder. See VA 21-526 Veterans Application for Compensation or Pension (December 2008). In a May 2009 rating decision, service connection was granted, and a 10 percent evaluation assigned, effective December 2, 2008. See Rating Decision (May 2009). VA medical records dated in August and November 2009 indicate treatment for the left knee, to include left knee pain on extension, and extension limited to 20 degrees. See CAPRI (May 2019). On August 16, 2010, the Veteran filed an informal claim for an increased evaluation. See VA 21-4138 Statement in Support of Claim (August 2010). In an August 2011 rating decision, the RO continued the 10 percent evaluation. See Rating Decision (August 2011). The RO conducted its own review of the rating and subsequently determined there was a clear and unmistakable error in that determination. Accordingly, in September 2011, the RO assigned a 40 percent evaluation, effective August 16, 2010. See Rating Decision (September 2011). In October 2011, the Veteran filed a notice of disagreement that the RO interpreted as disagreeing with the effective date for that evaluation. See NOD (October 2011). Eventually, the Veteran perfected an appeal of the issue. See SOC (May 2014); Form 9 (May 2014). Here, the Board finds that new and material evidence was received within one year of the May 2009 rating decision, such that it was not final and remained pending. See 38 C.F.R. § 3.156(b). VA medical records dated in August and November 2009 indicate treatment for the left knee, to include left knee pain on extension, and extension limited to 20 degrees. See CAPRI (May 2019). The 2009 VA medical records were constructively in VA's possession as they were generated by VA and are connected to the Veteran's claim because they address the severity of the left knee. Moreover, the records are new and material as they indicate a higher evaluation may be for assignment. 38 C.F.R. § 4.71a, DC 5261. Accordingly, the 2009 rating decision was not final and has remained pending. The Board therefore finds that the date of claim is December 2, 2008. The Veteran filed an initial claim for service connection on December 2, 2008. There was no earlier submission that could be interpreted as a formal or informal claim. See VA 21-526 Veterans Application for Compensation or Pension (December 2008). Prior to that submission, the most recent correspondence between VA and the Veteran occurred in 1986. See e.g., Notification Letter (June 1986). Thus, the relevant date of claim is December 2, 2008. The Board also finds that the date of entitlement is April 7, 2009, which is the date of the VA examination that showed left knee extension limited to 45 degrees, which contemplates at least a 40 percent evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5261 (providing that a 40 percent rating is warranted for extension limited to 30 degrees and a 50 percent rating is warranted for extension limited to 45 degrees). There is no earlier evidence of the severity of the left knee strain. The later of these two dates is April 7, 2009. An earlier effective date is thus warranted. Finally, the Board finds that the exception does not provide for an effective date earlier than April 7, 2009. There is no lay or medical evidence of record prior to that date that supports a 40 percent evaluation. Thus, an effective date of April 7, 2009, but no earlier, is warranted for the grant of the 40 percent evaluation. Accordingly, the claim is granted. REASONS FOR REMAND 1. Entitlement to service connection for a left hip disorder, to include as secondary to a service-connected left knee strain and right knee lateral meniscus tear, is remanded. The Veteran asserts that his left hip disorder is caused by his service-connected right and left knee disabilities. See NOD (March 2013); NOD (June 2014); Form 9 (March 2016). The Board finds that remand of this issue is required for clarification of its appellate status. In June 2020, the Board remanded the issue of entitlement to service connection for a left hip disorder. See BVA Decision (June 2020). The RO obtained a July 2020 VA examination and opinion. The examiner opined that the left hip disorder was caused by the right and left knee disabilities. See C&P Exam (July 2020). Then, in a September 2020 rating decision, the RO granted service connection for right hip degenerative arthritis with impairment of the thigh, limitation of extension, and limitation of flexion, effective in March 2013. The rating decision specifically cited to the July 2020 VA examination and opinion that provided a positive nexus opinion regarding the left hip disability. The RO noted that this decision was a full grant of the benefits sought on appeal and the issue was considered resolved in full. See Rating Decision (September 2020). The Board finds that although it appears that the RO may have intended to grant service connection for the left hip, it has granted service connection for the right hip, which was not an issue on appeal. As noted by the Veteran's representative, this appears to be a procedural error and should be corrected on remand. See Appellate Brief (June 2021). If the RO meant to grant service connection for the left hip, it should correct the September 2020 rating decision. If the RO actually intended to grant service connection for a right hip disorder, then the issue of entitlement to service connection for a left hip disorder should be readjudicated in a supplemental statement of the case. 2. Entitlement to an evaluation in excess of 40 percent prior to March 1, 2015, 10 percent on and after March 1, 2015 and prior to July 10, 2020, and 30 percent on and after July 10, 2020, for limitation of extension due to service-connected left knee strain is remanded. Remand is required to obtain an adequate VA examination and addendum opinion. In increased evaluation claims, a VA examination report is not adequate without an explanation for an examiner's failure to evaluate the functional effects of a flare-up. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board may accept a VA examiner's statement that he or she cannot offer an opinion in that regard without resorting to speculation, but only after determining that this is not based on the absence of procurable information or on a particular examiner's shortcomings or general aversion to offering an opinion on issues not directly observed. Although not binding on VA examiners, the VA Clinician's Guide instructs examiners when evaluating certain musculoskeletal conditions to obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves. Sharp, 29 Vet. App. at 34-35, citing VA CLINICIAN'S GUIDE, ch. 11. For example, a VA examination report is not adequate when the VA examiner failed to elicit relevant information as to the veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of record- including the veteran's lay information-or explain why she or he could not do so. Sharp, 29 Vet. App. at 34-35. The Board must rely on independent medical evidence, and not its own judgment, when the rating criteria involve a medical assessment. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (concluding Board may consider only independent medical evidence to support findings and may not rely on its own medical judgment). If necessary, a retrospective opinion should be obtained which considers the additional functional loss in terms of degrees of motion limited during flare-ups and on repeated use throughout the appeal period. See Chotta v. Peake, 22 Vet. App. 80, 85 (2008) (holding that the duty to assist may include obtaining a retrospective medical opinion to fill in gaps in the medical evidence of record). In an August 2020 VA examination report, the Veteran reported flare-ups, which included increased pain. The examiner noted that the examination was medically consistent with the Veteran's statements describing functional loss during flare-up. The examiner also determined that pain, weakness, fatigability, or incoordination significantly limited functional ability with flare-ups and noted that they could provide an estimate of such in terms of range of motion. The examiner then listed the same range of motion findings as were found upon initial examination implicitly finding that there was no effect on range of motion, despite earlier stating that flare-ups did limit range of motion. See C&P Exam (August 2020). This conflicting finding must be reconciled on remand. Additionally, in a September 2010 VA examination, the Veteran reported significant flare-ups, but the examiner made no estimates of the effects on functional limitation. See VA Examination (September 2010). Although the 2019 VA examination primarily addressed the right knee, the Veteran did deny flare-ups. See C&P Exam (June 2019). A retrospective estimate for the 2010 should also be requested on remand. 3. Entitlement to an evaluation in excess of 10 percent for left knee instability due to service-connected left knee strain is remanded. As the severity of the instability of the left knee will necessarily be part of any new examination of the knee, this issue is inextricably intertwined with the issue of an entitlement to an increased evaluation for the service-connected left knee strain. See Harris, 1 Vet. App. 180. Thus, this issue must be remanded as well. 4. Entitlement to TDIU is remanded. The Board finds the Veteran's claim for a TDIU is inextricably intertwined with the claims for entitlement to increased ratings for left knee strain and left knee instability and for service connection for a left hip disability, as increased evaluations or grants of service connection will affect the Veteran's entitlement to schedular TDIU during the appeal period. See Harris, 1 Vet. App. 180. Therefore, remand is required as these issues are addressed on remand. The matters are REMANDED for the following action: 1. Clarify via appropriate administrative action whether the issue of entitlement to service connection for a left hip disorder has been granted. 2. Schedule the Veteran for an examination of the current severity of his service-connected left knee strain and instability. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to left knee alone and discuss the effect of the Veteran's left knee on any occupational functioning and activities of daily living. 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). 3. Obtain retrospective findings from an appropriate clinician to determine the severity of the Veteran's service-connected left knee disability for the below identified past examinations. If it is not possible to provide a specific measurement without speculation, the clinician 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 clinician (does not have the knowledge or training). (a) Provide an addendum retrospective opinion for the Veteran's service-connected left knee disability to supplement the April 2009 VA examination report that (i) estimates the amount in degrees of ROM lost due to pain in both weightbearing and non-weight bearing positions, and on both active and passive motion based on the evidence of record and the Veteran's statements; and (ii) estimates the amount in degrees of ROM lost due to flare-ups experienced by the Veteran based on the evidence of record and the Veteran's statements. (b) Provide an addendum retrospective opinion for the Veteran's service-connected left knee disability to supplement the September 2010 VA examination report that (i) estimates the amount in degrees of ROM lost due to pain in both weightbearing and non-weight bearing positions, and on both active and passive motion based on the evidence of record and the Veteran's statements; and (ii) estimates the amount in degrees of ROM lost due to flare-ups experienced by the Veteran based on the evidence of record and the Veteran's statements. (c) Provide an addendum retrospective opinion for the Veteran's service-connected left knee disability to supplement the August 2012 VA examination report that (i) estimates the amount in degrees of ROM lost due to pain in both weightbearing and non-weight bearing positions, and on both active and passive motion based on the evidence of record and the Veteran's statements; and (ii) estimates the amount in degrees of ROM lost due to flare-ups experienced by the Veteran based on the evidence of record and the Veteran's statements. (d) Provide an addendum retrospective opinion for the Veteran's service-connected left knee disability to supplement the August 2020 VA examination report that (i) estimates the amount in degrees of ROM lost due to pain in both weightbearing and non-weight bearing positions, and on both active and passive motion based on the evidence of record and the Veteran's statements; and (ii) estimates the amount in degrees of ROM lost due to flare-ups experienced by the Veteran based on the evidence of record and the Veteran's statements. 5. Ensure that any medical opinions obtained include a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is 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. 6. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M., 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.