Citation Nr: 21040930 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 17-54 269 DATE: July 7, 2021 ORDER Entitlement to an effective date prior to September 23, 2016 for the award of a 10 percent disability rating for service-connected right knee meniscal tear, ACL tear with surgery and resultant osteoarthritis (previously rated as right knee meniscal tear with anterior cruciate ligament tear and osteoarthritis) is denied. REMANDED Entitlement to a rating in excess of 10 percent disabling prior to October 31, 2017 and in excess of 20 percent disabling thereafter for service-connected right knee meniscal tear, ACL tear with surgery and resultant osteoarthritis (previously rated as right knee meniscal tear with anterior cruciate ligament tear and osteoarthritis) is remanded. FINDINGS OF FACT 1. In a May 1996 rating decision, the RO granted service connection for right knee meniscal tear with anterior cruciate ligament teart and osteoarthritis and assigned a noncompensable rating effective January 17, 1996. The Veteran did not appeal that decision, and no new and material evidence was received within one year of receiving written notice of the decision. The decision therefore became final. 2. Following the May 1996 final rating decision, there was no formal or informal claim for an increased rating for the Veteran's right knee meniscal tear with anterior cruciate ligament tear and osteoarthritis prior to the September 23, 2016 claim for increase. 3. In a January 2017 rating decision the RO increased the Veteran's rating for his service-connected right knee meniscal tear, ACL tear with surgery and resultant osteoarthritis (previously rated as right knee meniscal tear with anterior cruciate ligament tear and osteoarthritis) from noncompensable to 10 percent disabling effective September 23, 2016, the date of the Veteran's claim for increase. CONCLUSION OF LAW An effective date prior to September 23, 2016 is not warranted for an increased rating of 10 percent for service-connected right knee meniscal tear, ACL tear with surgery and resultant osteoarthritis (previously rated as right knee meniscal tear with anterior cruciate ligament tear and osteoarthritis). 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.151, 3.400, 3.400(o). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from July 1985 to June 1993. In February 2020 the Veteran testified before the undersigned Veterans Law Judge at a Board hearing. A transcript of the hearing is of record. The Board notes that the Veteran has additional claims pending, to include additional increased rating and earlier effective date claims. The Veteran filed substantive appeals in these claims (via VA Form 9's) in April 2020. However, as it appears that the Veteran requested hearings on such claims and that the hearings are still pending, the claims are not before the Board at this time. Entitlement to an effective date prior to September 23, 2016 for the award of a 10 percent disability rating for service-connected right knee meniscal tear, ACL tear with surgery and resultant osteoarthritis (previously rated as right knee meniscal tear with anterior cruciate ligament tear and osteoarthritis) is denied. The Veteran seeks to establish an effective date prior to September 23, 2016 for the award of a 10 percent disability rating for right knee meniscal tear, ACL tear with surgery and resultant osteoarthritis (previously rated as right knee meniscal tear with anterior cruciate ligament tear and osteoarthritis). The statutory and regulatory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. As a general proposition, the law regarding the effective date of an award of service connection benefits is well-understood. The effective date of an award of benefits based on an original claim cannot be earlier than the date that the VA received the claim. See 38 U.S.C. § 5110 (a); Adams v. Shinseki, 568 F.3d 956, 960 (Fed. Cir. 2009). The effective date of an evaluation and an award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date the claim was received or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. The provisions of 38 C.F.R. § 3.400 (b)(2) allow for assignment of an effective date the day following separation from active service if a claim is received within 1 year after separation from service. Effective March 24, 2015, VA amended its regulations to require all claims be filed on a standard form. The amendments implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant's effective date of benefits must be received in one of three specified formats. The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. § 3.157. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1 (p), 3.151, 3.155). In effect prior to March 24, 2015, any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155 (a). The amendments apply only to claims filed on or after March 24, 2015. Because the Veteran's claim was received by VA after that date, the amended regulations apply. Here, the Veteran was granted service connection and assigned a noncompensable rating for right knee meniscal tear with anterior cruciate ligament tear and osteoarthritis, effective January 17, 1996, in a May 1996 rating decision. Nothing was received in the year following notification of the May 1996 decision that can be considered as expressing dissatisfaction or disagreement with the agency determination regarding the service connection claim and the assigned rating or a desire to contest the result, a requirement for a valid notice of disagreement. 38 C.F.R. § 20.201. New evidence material to that issue was also not received during the requisite time period. 38 C.F.R. § 3.156. As such, the May 1996 decision is final. In September 2016, the Veteran submitted a claim for an increased rating for his service-connected right knee meniscal tear with anterior cruciate ligament teart and osteoarthritis. The RO granted an increased rating of 10 percent, effective September 23, 2016 (date of the increased rating claim) in a January 2017 rating decision. The Veteran submitted a notice of disagreement to the effective date of his award in February 2017. There is no document dated between the RO's final denial in May 1996 and September 2016 that could be construed as a claim for entitlement to an increased disability rating for right knee meniscal tear with anterior cruciate ligament tear and osteoarthritis. As such, the relevant date of claim in this case is September 23, 2016. Although the Board is sympathetic to the Veteran's claim, the Board is bound by the applicable statutes and regulations. 38 U.S.C. § 7104 (c); 38 C.F.R. § 20.101 (a). The May 1996 rating decision was a final denial and a new claim was not filed until September 2016. Thus, the effective date cannot be earlier than September 23, 2016 unless the evidence reflects that the worsening of the Veteran's disability occurred in the year prior to the claim. See 38 C.F.R. § 3.400 (o). Based on a review of the record, there is no medical evidence that shows worsening of the Veteran's right knee meniscal tear with anterior cruciate ligament tear and osteoarthritis one year prior to the September 2016 claim. Hence, the current effective date of September 23, 2016 is proper. As such, the preponderance of the evidence is against entitlement to an earlier effective date for the award of 10 percent for right knee meniscal tear, ACL tear with surgery and resultant osteoarthritis (previously rated as right knee meniscal tear with anterior cruciate ligament tear and osteoarthritis). Reasonable doubt does not arise, and the benefit-of-the-doubt doctrine does not apply; the Veteran's claim of entitlement for an earlier effective date for the award of 10 percent rating for right knee meniscal tear, ACL tear with surgery and resultant osteoarthritis (previously rated as right knee meniscal tear with anterior cruciate ligament tear and osteoarthritis) is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to a rating in excess of 10 percent disabling prior to October 31, 2017 and in excess of 20 percent disabling thereafter for service-connected right knee meniscal tear, ACL tear with surgery and resultant osteoarthritis (previously rated as right knee meniscal tear with anterior cruciate ligament tear and osteoarthritis) is remanded. Relevant to the Veteran's claim for increased ratings for his right knee meniscal tear with anterior cruciate ligament tear and osteoarthritis, the Court has held that, where the record does not adequately reveal the current state of a claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the last examination. Allday v. Brown, 7 Vet. App. 517, 526 (1995). The Board finds that the Veteran's claim for increased ratings for his service-connected right knee meniscal tear with anterior cruciate ligament tear and osteoarthritis must be remanded in order to afford him a contemporaneous VA examination in order to assess the current nature and severity of his service-connected disability. In this regard, the record reflects that the Veteran was most recently afforded VA Knee and Lower Leg examinations in December 2016 and October 2017. As will be discussed further below, the Board finds both examinations inadequate for adjudication purposes. Furthermore, since the October 2017 examination, the Veteran has noted an increase in the severity of his symptoms and alleges that higher ratings are warranted. In light of the allegations of worsening symptoms, the degenerative nature of the Veteran's condition, the amount of time which has passed since the Veteran's prior examinations, and the inadequacies of the prior examinations, the Board finds that a remand is required in order to afford the Veteran a contemporaneous VA examination so as to determine his current level of impairment with regard to his service-connected right knee meniscal tear with anterior cruciate ligament tear and osteoarthritis. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Furthermore, a remand is also required so that range of motion testing can be conducted pursuant to a recent decision issued by the Court in Correia v. McDonald, 28 Vet. App. 158 (2016). The new examination should include specific findings regarding the Veteran's range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. The examiner must be as explicit as possible and distinguish between the Veteran's right and left knees. Finally, the Board also notes that in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the Court addressed the adequacy of "mere speculation" opinions. The Court explained that case law and VA guidelines do not require direct observation of functional impairment after repetitive use or during a flare-up as a prerequisite to offering a DeLuca opinion. DeLuca v. Brown, 8 Vet. App. 202 (1995). Indeed, it is not expected that such observation will usually occur; therefore, VA examiners should offer opinions based on estimates derived from information procured from all relevant sources, including the lay statements of veterans. If a non-speculative opinion still cannot be offered, the VA examiner must explain the basis for this conclusion. It must be apparent that the inability to provide an opinion without resorting to speculation reflects the limitation of knowledge in the medical community at large and not a limitation - whether based on lack of expertise, insufficient information, or unprocured testing - of the individual examiner. As the December 2016 and October 2017 examiners failed to provide the detailed findings contemplated by the Sharp case, they are inadequate for adjudication purposes. Furthermore, in Sharp, the Court 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 Therefore, on remand a contemporaneous examination should be obtained which adequately address the Correia and Sharp standards. 38 C.F.R. § 4.2. Due to the amount of time which will pass on remand, updated treatment records should be obtained. The matters are REMANDED for the following action: 1. Obtain updated treatment records. 2. The Veteran should be afforded a VA examination to determine the current nature and severity of his service-connected right knee disability. The claims file, to include a copy of this remand, must be made available and be reviewed by the examiner, and the examination report should note that review. Any indicated evaluations, studies, and tests should be conducted. In addition to all findings identified on the appropriate examination form, the examiner should determine the effective range of motion in the Veteran's right knee and present the results of range of motion tests in written reports which comply with 38 C.F.R. § 4.59 by recording separate sets of the range of motion test results for both active and passive motion, and in weight bearing and nonweight-bearing. The examiner's report should describe objective evidence of painful motion, if any, during each test. IT IS NOT SUFFICIENT MERELY TO INDICATE WHETHER OR NOT PAIN WAS PRESENT DURING ONE OF THE REQUIRED RANGE OF MOTION TESTS. If possible, the VA examiner should also provide retrospective medical opinions addressing the ranges of motion, additional functional impairment, and severity of the Veteran's service-connected right knee disability since 2016. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare or repetitive testing cannot be performed, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use. Again, if possible, the VA examiner should provide a retrospective medical opinion addressing the functional impairment of the Veteran's right knee disability since 2016. If any of these findings are not possible, please provide an explanation. The examiner should provide a rationale for any opinion expressed and reconcile that opinion with all pertinent evidence of record, including all relevant VA medical records and any lay evidence suggesting that the Veteran's service-connected right knee problems are worse than shown on some prior examinations. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Unger, 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.