Citation Nr: 21041206 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 17-02 630 DATE: July 8, 2021 ORDER Entitlement to an effective date prior to December 12, 2011, for the award of an increased rating of 20 percent for the left knee disability is denied. Entitlement to an effective date prior to December 12, 2011, for the award of an increased rating of 20 percent for the right knee disability is denied. REMANDED Entitlement to a rating in excess for 20 percent for a left knee disability is remanded. Entitlement to a rating in excess of 20 percent for a right knee disability is remanded. FINDINGS OF FACT 1. A May 2012 rating decision granted increased ratings of 20 percent for the left and right knee disabilities effective December 12, 2011. 2. The record does not contain a request for an increased rating for the left knee prior to December 12, 2011. 3. The weight of the competent and probative evidence is against finding an ascertainable date of increase in severity for the left knee disability in the year prior to December 12, 2011. 4. The record does not contain a request for an increased rating for the right knee prior to December 12, 2011. 5. The weight of the competent and probative evidence is against finding an ascertainable date of increase in severity for the right knee disability in the year prior to December 12, 2011. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to December 12, 2011, for the award of a 20 percent rating for the left knee disability have not been met. 38 U.S.C. §§ 1117, 5110; 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.400. 2. The criteria for an effective date prior to December 12, 2011, for the award of a 20 percent rating for the right knee disability have not been met. 38 U.S.C. §§ 1117, 5110; 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1983 to December 1983, and from May 2004 to May 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the claims for additional development in February 2016 and January 2019. The Board notes that the appeal for an earlier effective date for the grant of a 100 percent rating for posttraumatic stress disorder (PTSD) was addressed in a March 2020 Board decision; as such, that issue is not currently before the Board and will not be addressed below. Earlier Effective Dates 1. Entitlement to an effective date prior to December 12, 2011, for the grant of an increased rating of 20 percent for a left knee disability. 2. Entitlement to an effective date prior to December 12, 2011, for the grant of an increased rating of 20 percent for a right knee disability. The Veteran contends that should be assigned earlier effective dates for the awards of a 20 percent rating for his left and right disabilities. For claims for an increase in a service-connected disability, if an increase in disability occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o); VAOPGCPREC 12-98 (1998). 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. C.F.R. § 3.1 (p). An informal claim is any 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). Service connection for left knee and right knee disabilities was granted in a November 2006 rating decision, with initial evaluations of 10 percent, effective May 7, 2005. The Veteran did not appeal that rating decision and new and material evidence was not received within the one-year period thereafter. Thus, it became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. In December 2009, the Veteran submitted a statement requesting a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). The claim did not identify any specific service-connected disabilities. On December 12, 2011, the Veteran submitted a VA Form 21-8940, Application for TDIU, which identified, in pertinent part, the knee disabilities. The agency of original jurisdiction (AOJ) afforded the Veteran a VA examination to determine the severity of he knee disabilities and, in the May 2012 rating decision on appeal, granted increased ratings of 20 percent for each knee effective December 12, 2011. The Board finds that the record does not contain a formal or informal request for increased ratings for the knees prior to December 12, 2011. The December 2009 claim cannot be construed as an informal claim for increased ratings for the knees, as the knees were not mentioned at that time. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a TDIU is part and parcel of a claim for increased evaluation. The Court, however, did not hold that the reverse is truei.e., that an increased rating claim is part and parcel of a claim for TDIU. The Board further finds that that the weight of the competent and probative evidence is against finding an ascertainable date of increase in severity for either the left or right knee disabilities in the year prior to December 12, 2011. As noted, the effective date for a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. Accordingly, entitlement to an effective date prior to December 12, 2011, for the grants of 20 percent ratings for the left and right knees is denied. REASONS FOR REMAND 1. Entitlement to a rating in excess for 20 percent for a left knee disability is remanded. 2. Entitlement to a rating in excess of 20 percent for a right knee disability is remanded. The Veteran seeks higher ratings for the left and right knee disabilities. The most recent VA examination of the Veteran's left and right knee disabilities was conducted in May 2012, almost a decade ago. August 2015 VA treatment notes also suggest mild genu varum deformities, although it is unclear the exact nature of the clinical findings noted. Given the potentially positive clinical findings in VA treatment records, and the length of time which has elapsed since his most recent VA examination, the Veteran should be scheduled for a VA examination to determine the current severity of his left knee residuals and right knee strain. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159. Further, in Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of 38 C.F.R. § 4.59. 38 C.F.R. § 4.59 states that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." As such, pursuant to Correia, an adequate VA joints examination must, wherever possible, include range of motion testing on active and passive motion and in weight-bearing and nonweight-bearing conditions. The examination of record does not include such testing. 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. 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. The May 2012 VA examination of the knees noted the Veteran's report of flare-ups when walking, going up and down stairs, and when the weather changes or it rains; however, the detailed findings contemplated by the Sharp case have not been included. Remand for a new VA examination to address the Correia and Sharp standards is required. 38 C.F.R. § 4.2. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to assess the current severity of his left and right knee disabilities. The examiner must review the claims file in conjunction with the examination. The joints involved should be tested for pain on both active and passive motion and in weight-bearing and nonweight-bearing. These findings are required by VA regulations as interpreted by courts. If for any reason the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, or is not medically appropriate, in this case; he or she should clearly explain why that is so. The examiner should also express an opinion as to whether pain, weakness, fatigability, or incoordination cause additional functional impairment on repeated use over time or during flare-ups. The examiner should assess the additional functional impairment in terms of the degree of additional range-of-motion loss, if possible. If the Veteran is not being observed after repetitive use or during a flare-up, the examiner should still estimate any additional functional loss during flare-ups or on repeated use, based on the Veteran's description of his flares' severity, frequency, duration, and/or functional loss manifestations. If it is not feasible to determine the extent to which the Veteran experiences additional functional loss on repeated use over time or during flare-ups, without resorting to speculation, the examiner must provide an explanation for why this is so. The examiner is further advised that the inability to provide an opinion without resorting to speculation must be based 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. A complete rationale must be provided for all opinions expressed. Jeffrey A. Gelber Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Lauritzen, 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.