Citation Nr: A25035293 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240927-477786 DATE: April 16, 2025 ORDER Entitlement to an effective date before February 7, 2021, for service connection for right knee patellar instability is denied. REMANDED Entitlement to service connection for right knee ligament tear is remanded. FINDINGS OF FACT 1. Service connection for right knee osteoarthritis was granted in an October 2020 rating action, effective January 23, 2017. 2. Thereafter, in April 2021 the Veteran submitted an increased rating claim for right knee disability, during the pendency of which service connection for right knee patellar instability was granted, effective February 7, 2021. 3. The evidence does not establish the presence of right knee patellar instability prior to February 7, 2021. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to February 7, 2021, for service connection for right knee patellar instability have not been met. 38 C.F.R. §§ 3.400, 3.2500. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1977 to May 1997. The relevant procedural histories are outlined in the appropriate sections below. 1. Entitlement to an effective date before February 7, 2021, for service connection for right knee patellar instability The Veteran and his representative contend that the Veteran is entitled to an earlier effective date for his patellar instability because his right knee disability has been continuously pursued since January 2017 and the record shows entitlement back to that date. The procedural history of the Veteran's claim is important to the disposition of the Veteran's patellar instability, and so the relevant history is described here. In October 2020, the Veteran submitted a Supplemental Claim for a right knee condition. This claim was supplemental to a previous claim stream for the Veteran's right knee which had become final after the Veteran took no action (until this Supplemental Claim) following a January 2018 rating decision denying service connection. The Veteran was granted service connection for right knee osteoarthritis in an October 2020 rating decision. Then, in April 2021, the Veteran submitted a new application on VA Form 21-526EZ - the form used for new claims - for bilateral knee bursitis, which the agency of original jurisdiction (AOJ) treated as an increased rating claim for the Veteran's service-connected knee conditions. The Veteran did not contest this characterization, and increased compensation was denied in a July 2021 rating decision of which the Veteran sought higher-level review (HLR). An October 2021 rating decision identified a pre-decisional duty to assist error, and the Veteran was then granted service connection for right knee patellar instability in a February 2022 rating decision, with an effective date of February 7, 2021. Following two more rounds of HLR - the first of which identified another pre-decisional duty to assist error, which resulted in an August 2022 rating decision, treated as a Supplemental Claim rating decision - the Veteran was denied an earlier effective date for his right knee patellar instability in a September 2023 rating decision, of which the Veteran received notice in October 2023. The Veteran then appealed the denial of an earlier effective date for right knee patellar instability in a September 2024 (filed within one year of notice of the previous rating decision) notice of disagreement (NOD) and elected the Direct Review docket. The last round of HLR which identified a pre-decisional duty to assist error resulted in the August 2022 rating decision. The Veteran also sought HLR of this decision, but that round of review did not identity a pre-decisional duty to assist, so it was not converted to a Supplemental Claim. Therefore, for the right knee patellar instability claim, the Board may only consider the evidence of record at the time of the August 2022 AOJ decision, which was subsequently subject to HLR. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Factual Background In December 2010, the Veteran was given a right knee MRI, which noted some effusion, but found that the Veteran's right knee was otherwise normal. Records from November and December 2010 also note that the Veteran had no right knee patella femoral symptoms. A June 2017 treatment note records that the Veteran's knee was negative for patellar displacement or apprehension. In an October 2017 knee condition VA examination, the Veteran was subject to right knee stability testing. That examiner noted that the Veteran did not have any right knee instability, and stability testing yielded normal results on anterior, posterior, medial, and lateral assessments. The examiner also noted that the Veteran had no history of right knee recurrent subluxation or lateral instability. In December 2017, the Veteran reported to VA medical center staff that his left knee was unstable and that his right knee was affected because of overcompensation. However, he did not report right knee instability at that time. VA medical center records from December 2017 and March 2018 also record the Veteran's patella mobility as normal. A January 2018 rating decision denied service connection for right knee disability. In September 2020, the Veteran was given a new MRI of his right knee. This MRI identified a meniscal tear, but the report makes no note of any patellar instability. The evidentiary record is otherwise silent for reports of patellar stability or instability until the Veteran was given a new VA examination for his claimed knee conditions in April 2021. At that time, the examiner noted that the Veteran did have recurrent subluxation or persistent instability and patellar instability. Neither the notes included in the exam or the opinion's rationale describe any dates previous to the exam which affirmatively show the Veteran was suffering from right knee patellar instability. In a June 2021 addendum opinion, the examiner was asked to provide any pre-February 7, 2021, instances of patellar instability and none were given. In August 2021, the Veteran reported to VA medical center staff for the first time that he was experiencing right knee instability. Analysis Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. That is, the effective date of an award "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C. § 5110(a). If entitlement arises as the result of a continuously pursued claim then the "the effective date will be fixed in accordance with the date of receipt of the initial claim or date entitlement arose, whichever is later." 38 C.F.R. § 3.2500(h)(1). However, if a Supplemental Claim is received more than one year after the latest rating decision on an issue, then the earliest effective date is the later of the date of the new Supplemental Claim or when entitlement arose. 38 C.F.R. § 3.2500(h)(2). A Veteran establishes continuous pursuit of an issue by timely filing, in response to an AOJ rating decision, an HLR, an NOD, or a Supplemental Claim.38 C.F.R. § 3.2500(c). Prior to March 24, 2015, a claim could be either a formal or informal written communication "requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." See 38 C.F.R. § 3.1(p) (2014). A claim, whether "formal" or "informal," must be "in writing" in order to be considered a "claim" or "application" for benefits. See Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). Currently, 38 C.F.R. § 3.1(p) now provides that a "claim" must be submitted on an application form prescribed by the Secretary. Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. 38 C.F.R. §§ 3.151, 3.155. A non-Supplemental Claim for an increased rating filed on a VA Form 21-526EZ is considered an initial claim. 38 C.F.R. § 3.1(p). Here, there is no basis on which to grant entitlement to an effective date earlier than that granted by the AOJ. The claim stream that resulted in this appeal and the grant of service connection and a separate rating for the Veteran's right knee patellar instability began with a VA Form 21-526EZ filed by the Veteran on April 18, 2021. In the first rating decision responsive to this filing, issued on July 22, 2021, the AOJ characterized the claim for bilateral bursitis as one for an increased rating for the Veteran's knee disabilities. The Veteran did not object to this characterization, and after a round of HLR, the Veteran was granted service connection for right knee patellar instability in a February 10, 2022, rating decision, effective February 7, 2021. This application thus fails to establish continuous pursuit of an earlier knee claim. Following the plain language of 38 C.F.R. § 3.2500(c), the April 18, 2021, VA Form 21-526EZ is an initial claim that defeats the possibility of seeing this as a continuously pursued issue. Had the Veteran wanted to establish continuous pursuit, he could have requested HLR or appealed to the Board the October 2020 rating decision which granted service connection for right knee osteoarthritis, of which the April 2021 application was later viewed as an increased rating claim. He might also have filed a Supplemental Claim on the proper form. He did not pursue these options, opting for a new claim on a new claim form, and so established the current claim stream which began on April 18, 2021. Because the filing which began the current claim stream was filed on April 18, 2021, and this was not an extension of an earlier established continuous pursuit, this generally ought to have been the earliest available date for service connection for the Veteran's patellar instability. The Board notes that even if April 2021 claim could be construed as continuous pursuit, as explained below, the date entitlement arose is still February 2021. Because that claim was treated as one for an increased rating - whether properly or not, this went uncontested by the Veteran - the Board will address whether this entitles the Veteran to the benefit of an earlier effective date. Because the April 2021 claim application was treated as a freestanding increased rating claim, the relevant period on review begins one year prior to the date of his claim, and the Board will consider evidence of symptomatology from that period. 38 C.F.R. § 3.400(o); Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010); Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). That is, if the record affirmatively shows entitlement to service connection for right knee patellar instability from the year prior to the April 2021 filing, then that may operate as the effective date. The AOJ characterized the Veteran's entitlement arising as of the date that the rating schedule was amended - February 7, 2021 - to explicitly include patellar instability as a ratable condition. However, this is incorrect. The addition of the condition to the rating schedule did not create a new entitlement for patellar instability, it simply amended the rating schedule to allow for a direct rating for patellar instability rather than by analogy or as subluxation generally. Thus, the date entitlement arises ought to have been considered the date where the record shows that the Veteran suffered from patellar instability. This is determined on a "facts found" basis. See 38 U.S.C. § 5110 (a); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000). This means the date the disability manifested, once it has been determined that it is service-connected. The effective date for a grant of service connection can be no earlier than the date the disability first manifested. McGrath v. Gober, 14 Vet. App. 28 (2000). Here, the first time that the record affirmatively shows that the Veteran suffered from right knee patellar instability is in the April 30, 2021, VA examination which notes the Veteran does have right knee subluxation and patellar instability. Medical records from before this date do not confirm patellar instability. Indeed, as described above there were indications from earlier records that the Veteran did not have patellar instability. Thus, April 30, 2021, considering the April 2021 claim application as one for increased rating, would be the earliest possible effective date. For this reason, even were the April 18, 2021, claim viewed as establishing continuous pursuit (rejected above) the earliest proper effective date would still have been April 30, 2021. For this reason, even were the Board to, as the AOJ has done, view an October 2020 filing by the Veteran as an Intent to File, entitlement did not arise until April 30, 2021, and so an earlier Intent to File would not operate to grant an earlier effective date. Based on the above, it appears that the AOJ gave the Veteran the benefit of an earlier date unsupported by the regulations. Indeed, the Board finds that the award of service connection for right knee patellar instability and the corresponding initial rating should have been effective from the date entitlement arose, April 30, 2021, and no earlier. Although the Board will not disturb the Veteran's favorable grant of multiple months of additional benefits, the Board finds no basis to award any earlier effective date than already in place. Thus, for the above reasons the evidence is persuasively against the claim, the benefit-of-the-doubt doctrine is not for application, and an effective date before February 7, 2021, is not warranted. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for right knee ligament tear is remanded. The Veteran and his representative contended that he is entitled to service connection for his right knee meniscal ligament tear. The Veteran applied for service connection for a right knee meniscal tear in June 2021 via VA Form 21-526EZ. This claim was denied in an August 2022 rating decision by the AOJ. The Veteran then requested HLR of that decision, and the claim was again denied in a September 2023 rating decision. The Veteran appealed that decision in a September 2024 NOD, and elected the Direct Review Docket. Therefore, the Board may only consider the evidence of record at the time of the August 2022 AOJ decision, which was subsequently subject to HLR. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. However, because the Board is remanding the claim for a right knee ligament tear, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). Factual Background The facts relevant to the remand of the Veteran's claim are outlined below. An April 1990 service treatment record notes that the Veteran had ligamentous laxity in his knees. In September 2020, the Veteran was given an MRI of his right knee, which confirmed he had a meniscal tear. In his June 2021 claim application, the Veteran contended that his meniscus tore during physical therapy for his service-connected lower back condition. In a separate June 2021 statement, the Veteran claimed that following June 2020 surgery for his back condition, he was in physical therapy and recovery and this caused his meniscal tear. He does not provide detail on how the injury was incurred. The Veteran's CAPRI records include physical therapy notes, but do not include any reference to a meniscal injury during physical therapy. It does not appear that VA undertook any additional development efforts to identify or retrieve any potentially relevant documents that may have shown the ligament tear or noted its cause. In a June 2021 addendum VA opinion, the examiner noted that the Veteran's meniscal tear did not have overlapping symptomatology with the Veteran's osteoarthritis, but did not provide the same analysis with the Veteran's patellar instability or other service-connected knee disabilities. An April 2021 VA examination noted that the Veteran did have a complete right knee ligament tear, but includes no information on how that injury was incurred. Following his claim application, the Veteran was given a VA examination for his meniscal tear in August 2022. The examiner opined that the Veteran's right knee meniscal tear was less likely than not proximately due to the Veteran's lower back disability because they are separate joints and the medical literature did not suggest how one joint's injury may cause injury in another with the Veteran's fact pattern. However, the examiner only addressed how the ligament tear may have been directly secondary to the lower back disability, and did not address the Veteran's specific contention that his right meniscus tore during physical therapy for his lower back. The examiner also did not opine on potential aggravation of the tear by the Veteran's lower back disability. The opinion also did not undertake any assessment of potential theories of entitlement reasonably raised by the record, such as whether any of the Veteran's other service-connected knee disabilities may have caused or aggravated the meniscal tear, nor whether the tear might be related to the ligamentous laxity noted in service. Analysis As part of its duty to assist, VA has a duty to ensure any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (overruled on other grounds, Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)). A medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board's evaluation will be fully informed. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). An adequate opinion must provide a rationale and not be conclusory, must consider the Veteran's relevant lay statements, and cannot be based on an inaccurate factual premise. Id.; Bloom v. West, 12 Vet. App. 185, 187 (1999); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Dalton v. Nicholson, 21 Vet. App. 23 (2007); Reonal v. Brown, 5 Vet. App. 458 (1993). For an opinion on secondary service connection to be adequate, it must address the question of aggravation of the claimed disability by a service-connected disability, as well as direct causation by the service-connected disability. See Atencio v. O'Rourke, 30 Vet. App. 74, 91 (2018) (holding that aggravation of a condition by a service-connected disability must be considered independently of direct causation, and medical examinations must provide adequate reasoning and conclusions on both points); El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (holding that medical opinions addressing the issue of secondary service connection are inadequate when they fail to adequately encompass the question of aggravation). Finally, in Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023), the U.S. Court of Appeals for the Federal Circuit held that 38 U.S.C. § 1110, from which 38 C.F.R. § 3.310(a) is derived, establishes a "but for" causation standard, rather than one involving proximate cause. The Federal Circuit also invalidated that portion of the regulation referencing consideration of the "natural progress" of the disability. Unless an appeal can be granted in full, the Board shall remand it back to the AOJ for correction of duty to assist errors made prior to the date of the rating decision on appeal. 38 U.S.C. § 5103A(f)(2)(A); 38 C.F.R. § 20.802(a). Here, failure to provide an adequate opinion that may substantiate the claim were pre-decisional duty to assist errors. First, the VA opinion on the Veteran's right knee meniscal tear claim was inadequate. The opinion did not address the Veteran's explicit contention of a physical therapy and recovery injury. Further, the opinion did not fully address the evidentiary record, as it made no reference to the ligamentous laxity noted in service and it did not address the Veteran's other service-connected knee disabilities which the Veteran's representative rightfully argues is a reasonably raised theory of entitlement as these disabilities directly affect the claimed joint, or the opposite joint (the left knee), which has been shown in the record to aggravate the Veteran's right knee in the past. The opinion also did not address the potential overlap of symptomatology with the Veteran's right knee patellar instability, which was service-connected by the time of the August 2022 rating decision denying the Veteran's meniscal tear. Thus, a decision by the Board would not be fully informed, and this renders the opinion inadequate. The opinion is also inadequate because it addressed only causation and not aggravation (either by the lower back disability or the Veteran's other service-connected knee disabilities). Finally, the opinion also used the invalidated legal standards of proximate cause and natural progression. All of this renders the opinion inadequate, and failure to provide an adequate opinion was a pre-decisional duty to assist error. Because of this pre-decisional duty to assist error, the claim is remanded. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an examiner of appropriate expertise to determine the nature and etiology of the Veteran's right knee meniscal tear. The electronic claims file should be made accessible to and be reviewed by the clinician. (a.) The examiner should opine as to whether the Veteran's right knee meniscal tear was at least as likely as not incurred in or caused by service. (b.) The examiner should opine on whether the Veteran's right knee meniscal tear was caused or aggravated by any of the Veteran's other service-connected knee disabilities, his service-connected lower back disability, or any other service-connected disability which the record reasonably suggests may be related to his right knee meniscal tear. This should include an opinion on whether treatments or therapies for those other service-connected disabilities caused or aggravated the Veteran's right knee meniscal tear, especially the Veteran's contention that he tore his right meniscus during physical therapy following a lower back surgery. (c.) The examiner should opine on the potential overlapping symptoms of the Veteran's meniscal tear and his other service-connected knee disabilities, including the Veteran's right knee patellar instability. (d.) The examiner must include a rationale with all opinions, citing to supporting clinical data/medical literature as appropriate. All pertinent evidence should be considered. If an opinion cannot be provided without resorting to speculation, the examiner must explain why this is so and 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), or the record (additional facts are required). Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Kronick 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.