Citation Nr: 0811003 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 05-25 137 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. What rating is warranted for right knee arthritis since July 2, 2003. 2. What rating is warranted for post operative residuals of a right knee menisectomy prior to November 28, 2006. 3. Entitlement to service connection for left knee arthritis secondary to service-connected right knee arthritis. 4. Entitlement to additional benefits for the veteran's son for the period August 23, 1988 to June 22, 1992. 5. Entitlement to an effective date earlier than November 28, 2006, for a 40 percent rating for right knee traumatic arthritis. 6. The propriety of the reduction of the 20 percent rating to a non-compensable rate for post operative residuals of a right knee menisectomy. ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The veteran had active service from April 1970 to September 1977. This appeal to the Board of Veterans' Appeals (Board) arose from a December 2004 decision and rating decisions of April 2003, January 2005 and April 2007 of the Regional Office (RO) of the Department of Veterans Affairs (VA) in Roanoke, Virginia. The December 2004 decision determined that the veteran's son could not be added as a dependent. The January 2005 rating decision granted a 10 percent rating for right knee traumatic arthritis, effective July 2, 2003; continued a 20 percent rating for post operative residuals of a right knee menisectomy; and denied entitlement to service connection for the left knee disorder. The veteran submitted a timely appeal in his February 2005 Notice of Disagreement. The April 2007 rating decision increased the rating for right knee traumatic arthritis to 40 percent, effective November 28, 2006, and reduced the rating for post operative residuals of a right knee menisectomy to a noncompensable rate, effective the same date. The veteran appealed the effective date of the increased rating and the reduction action, and perfected that appeal in his August 2007 substantive appeal. The Board, however, notes a procedural anomaly which must be accounted for. As noted, the veteran submitted a timely February 2005 Notice of Disagreement to the January 2005 rating decision. His Notice of Disagreement with the December 2004 dependency determination was received by the RO in January 2005. The June 2005 Statement of the Case, however, only addressed the veteran's dependency claim. Although subsequent Supplemental Statements of the Case include issues pertaining to the ratings assigned the right knee, and the question of entitlement to service connection for a left knee disorder; no Statement of the Case exists in the claims file in response to the February 2005 Notice of Disagreement. Nonetheless, this appeal has a long and complex procedural history dating from 1986. Thus, the Board will not remand for a Statement of the Case related to the January 2005 Notice of Disagreement, as that would cause further delay for this incarcerated veteran. Instead, the Board deems the veteran's Notice of Disagreement and perfected appeal for the effective date and reduction actions to be included in the Statement of the Case and substantive appeal of those issues and thereby perfected allowing the Board to exercise jurisdiction over those issues. The veteran's claims are, in part, remanded to the RO via the Appeals Management Center (AMC), in Washington, DC, as they require further development. Thus, they are addressed in the REMAND portion of the document below and is REMANDED as stated. FINDING OF FACT The preponderance of the probative evidence indicates that the veteran's application to add his son as a dependent for retroactive benefits was not timely received. CONCLUSION OF LAW The criteria for entitlement to additional dependency benefits for a dependent child from August 23, 1988, to June 23, 1992, have not been met. 38 U.S.C.A. §§ 101(4), 1115, 5110, 5107(b) (West 2002 and Supp. 2007); 38 C.F.R. §§ 3.57, 3.401(2007). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of the VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126, have been met. There is no issue as to providing an appropriate application form or completeness of the application. A December 2002 RO letter included a VA Form 21-686c for the veteran to provide information pertinent to adding his son as a beneficiary, which requested the information related to substantiating and completing a claim. VA has fulfilled its duty to assist the veteran in obtaining identified and available evidence needed to substantiate the claim in question. The veteran was provided the opportunity to present pertinent evidence and testimony. In sum, there is no evidence of any VA error in notifying or assisting the appellant that reasonably affects the fairness of this adjudication. Governing Law and Regulation A veteran with service connected disability rated at not less than 30 percent shall be entitled to additional compensation for dependents. 38 U.S.C.A. § 1115(2) (West 2002); 38 C.F.R. § 3.4(b)(2). Except as otherwise provided, the effective date of 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 of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. An award of additional compensation for dependents based on the establishment of a rating in the percentage specified by law for that purpose shall be payable from the effective date of such rating, but only if proof of dependents is received within one year from the date of such rating. 38 U.S.C.A. § 5110(f). The effective date of the award of any benefit or increase by reason of marriage or the birth or adoption of a child shall be the date of that event if proof is received by VA within one year from the date of marriage, birth, or adoption. 38 U.S.C.A. § 5110(n). Additional compensation for dependents will be effective the latest of the following dates: (1) date of claim; (2) date the dependency arises; (3) effective date of the qualifying disability rating provided evidence of dependency is received within one year of notification of such rating action; or (4) date of commencement of the veteran's award. 38 C.F.R. § 3.401(b). The "date of claim" for additional compensation for dependents is the date of the veteran's marriage or birth or adoption of a child, if evidence of the event is received within one year of the event, otherwise, the date notice is received of the dependent's existence, if received within one year of VA's request. 38 C.F.R. § 3.401(b)(1). Payment of monetary benefits based on original, reopened, or increased awards of compensation, pension, or dependency and indemnity compensation may not be made for any period prior to the first day of the calendar month following the month in which the award became effective. 38 U.S.C.A. § 5111; 38 C.F.R. § 3.31. The term "child" for VA purposes means an unmarried person who is a legitimate child, a child legally adopted before the age of 18 years, a stepchild who acquired that status before the age of 18 years and who is a member of the veteran's household at the time of the veteran's death, or an illegitimate child. In addition, the child must also be someone who: (1) is under the age of 18 years; or (2) before reaching the age of 18 years became permanently incapable of self support; or (3) after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an approved educational institution. 38 U.S.C.A. § 101(4); 38 C.F.R. § 3.57(a). Analysis The respective positions of the veteran and the RO's basis for its denial of his claim are simple and straight-forward. The RO determined that, while the veteran included his son's name and incorrect birth date of June 21, 1977-versus June 23, 1974, on his original 1986 claim, he did not respond in a timely manner once his benefits reached the 30 percent level, which is a statutory/regulatory requirement for adding dependents to one's benefits allowance. A July 1999 rating decision granted a 10 percent rating for the veteran's right knee disability, effective April 1997, which increased his total combined rating for his then service-connected disabilities to 30 percent. The July 1999 letter which notified the veteran of that decision specifically informed the appellant that he needed to confirm the dependent-related information in his claims file within one year of the date of the letter before additional benefits could be paid for his wife. While the RO's letter only addressed the veteran's wife, his son was in fact 25 years of age at this point and no longer eligible to be included. See 38 C.F.R. § 3.57. A VA Form 21-686c was included to assist the veteran in providing the necessary information. On the completed and returned form, which the RO received in August 1999, the veteran only listed his wife as a dependent. In Block 12a, where children are listed, the veteran inserted, "not applicable." Subsequently, a significant event occurred, which the veteran asserts is the seminal event of his claim. In this regard, a November 2000 rating decision determined that a May 1993 rating decision, which severed service connection for a herniated disc, contained clear and mistakable error. The November 2000 rating decision restored entitlement to service connection for the back disorder effective retroactively to February 1991. The rating decision also increased the rating for the disability to 40 percent, effective August 1988, and to 60 percent, effective February 1991. A November 2000 letter informed the veteran of the decision. In his January 2005 Notice of Disagreement the veteran asserts that he is entitled to retroactive benefits for the period his son was under the age of 18. In so doing the veteran in essence acknowledges that his son was ineligible for benefits as of the 1999 rating decision, and that is why he only included his wife on the August 1999 VA Form 21-686c. But, the veteran accurately points out, the November 2000 rating decision was a retroactive allowance of benefits, and that changed the calculus of the entire situation. As of August 1988, his son was 14 years of age, which would have entitled him to four years of benefits. The veteran, in fact, asserts that dependent benefits should in fact be awarded back to 1986, the original date of his claim, an issue which is yet to be decided by the Board. The veteran asserts that in his January 2001 notice of disagreement that he in fact applied on that basis within one year of the November 2000 decision and, thus, he is entitled to prevail on this issue. Unfortunately, this is where his argument fails, as the probative evidence of record shows that not to be the case. As noted, the veteran did not include his son in response to the July 1999 rating decision. Hence, he did not meet the requirement of applying within one year of having reached the qualifying 30 percent rate. His alternate argument also fails. Specifically, although the veteran asserts that he in fact included his son's status in January 2001 and December 2001 statements to the RO, that is not the case. In a December 2000 letter, the veteran requested a breakdown of the retroactive benefits his wife would receive. He made no mention of his son in that letter. The Board has carefully scrutinized the veteran's January 2001 notice of disagreement with the November 2000 decision, and an addendum thereto, and finds no reference whatsoever to his son. His sole focus in his Notice of Disagreement was the effective dates of his increased ratings and the evidence he believed supported his assertions. The letter which the veteran titled "Clarification of Notice of Disagreement" was received by the RO in December 2001- more than one year after the November 2000 rating decision. The December 2001 "clarification" is the earliest document after the November 2000 rating decision to claim benefits for his son. Therein he asserted that, since he listed his son on his 1986 application for benefits and his service records noted his son, that was sufficient for VA to award retroactive benefits for his son for the period up to his 18th birthday. The Board must reject that assertion. While the veteran had included his son on his 1986 claim, it was still the appellant's duty to submit a claim for any retroactive benefits due him within one year of the November 2000 rating decision, 38 C.F.R. § 3.401, as VA would not have been aware of his son's then current status. The letter which notified him of the November 2000 rating decision is dated November 30, 2000, so that is the date his one-year period to file for his son began. 38 C.F.R. § 20.302(a). The letter in which he applied for inclusion of his son is dated December 17, 2001, i.e, more than one year after November 30, 2000. Thus, the date he mailed it has no bearing on the issue. It was received by the RO on December 19, 2001. Consequently, the evidence is clear that the veteran did not apply for his son until more than one year after the date of his retroactive award. Thus, the benefit sought on appeal is denied. In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the veteran's claim, however, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to additional benefits for the veteran's son for the period August 23, 1988 to June 22, 1992, is denied. REMAND As noted earlier, the veteran is incarcerated and, as a result, he has not received a VA examination since his current claims were filed. Governing prison officials where the veteran is confined will not allow him to be transported to a VA medical facility for an examination. The RO endeavored to arrange an examination for the veteran, but the servicing VA medical facility informed the RO that, due to "budgetary constraints," neither a VA nor fee-basis examiner would be made available to conduct an examination at the confinement facility. Thereafter, the RO arranged for a review of the claims file by a nurse practitioner. In Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), the United States Court of Appeals for Veterans Claims (Court) observed that VA adjudicators must tailor such assistance to the peculiar circumstances of confinement, and that "such individuals are entitled to the same care and consideration given to their fellow veterans." The Court further observed in Bolton v. Brown, 8 Vet. App. 185, 191 (1995), that the potential for conducting an examination at the confinement facility must be explored. The record notes that the RO did in fact exercise those efforts. The Board notes that VA medical facilities are under the auspices of the Veterans Health Administration, and that the RO, being under the Veterans Benefits Administration, exercises no oversight over a medical facility. Nonetheless, the prevailing legal precedent does not allow for "budgetary constraints" to influence whether a service connected veteran who appears entitled to an examination in fact receives one. Thus, affording the veteran a VA examination by an appropriate examiner must again be addressed on remand. The probative evidence of record is also in need of medical interpretation as to whether the veteran's post-meniscectomy rating was properly reduced to a noncompensable rate. The veteran's post operative residuals of a menisectomy are rated under Diagnostic Code 5257. That code pertains to instability and subluxation. 38 C.F.R. § 4.71a. Diagnostic Codes 5258 and 5259 rate cartilage-related symptoms. Id. In a precedental opinion, the General Counsel, VA, determined that separate ratings for instability and arthritis were allowable where indicated. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997). In VAOPGCPREC 9-98; 63 Fed. Reg. 56,704 (1998), the General Counsel observed that cartilage (or meniscus) symptomatology may in fact be a factor in limitation of motion symptomatology. If this is in fact the case, then if the veteran's post-meniscectomy is more appropriately rated under Diagnostic Code 5258 or 5259, a separate rating in addition to the current 40 percent rating for the traumatic arthritis may not be in order. See 38 C.F.R. § 4.14. On the other hand, if the veteran's right knee is manifested by instability or subluxation, then separate ratings may be in order. VAOPGCPREC 23-97. Thus, additional medical insight will be helpful to the Board's appellate review of this issue. The same holds true if the probative medical evidence shows the veteran's right knee is manifested by a limitation of extension and/or flexion to a compensable degree. In such a case he may be entitled to separate ratings for the limitation in each plane of movement. VAOPGCPREC 09-04; 69 Fed. Reg. 59,990 (2004). Confinement and VA treatment records suggest that the veteran's right knee may have manifested limitation of motion on extension to a compensable degree possibly as early as 1999. A January 2003 entry of the confinement records notes incomplete extension, but no specific values are given. See 38 C.F.R. § 4.71a, Diagnostic Code 5261. A comprehensive medical review of the claims file is needed to interpret some of the treatment notes to aid the Board in reviewing this issue. Finally, the Board received additional evidence from the veteran in January 2008, for which he did not waive initial RO review and consideration. In the absence of a waiver, the Board may not consider it. 38 C.F.R. § 20.1304. Accordingly, the case is REMANDED for the following action: 1. Send the veteran a corrective VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes an explanation as to the information or evidence needed to establish a disability rating and effective date for the claims(s) on appeal, as outlined by the Court in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008); and Dingess v. Nicholson, 19 Vet. App. 473 (2006). In particular the appellant must be given precise notice of the rating criteria pertaining to his claims of entitlement to increased ratings for right knee arthritis and post operative residuals of a right knee menisectomy. 2. The RO should ensure that all ongoing treatment records not already associated with the claims file are obtained. Any necessary release should be obtained from the veteran. 3. After the above is complete, the veteran is to be afforded a VA orthopedic examination by a physician to determine the current severity of his right knee disability. The claims folders must be made available to the examiner for review as part of the examination. The RO shall document all actions and efforts to arrange and schedule the examination and ensure that all efforts are expended to tailor VA's assistance to the veteran's specific circumstances. In addition to addressing the range of right knee motion, the examiner is to address the extent of any functional loss of use of the right knee due to pain/painful motion, weakness or premature fatigability, incoordination, limited or excess movement, etc., including at times when the veteran's symptoms are most prevalent - such as during flare-ups or prolonged use. If possible, these findings should be portrayed in terms of degrees of additional loss of motion. The examiner is to conduct a comprehensive review of the claims files and address whether there is probative medical evidence that the veteran's right knee has been manifested by a limitation of extension of 10 degrees or more. If so, the examiner should note the date that symptomatology first manifested and whether it continued or had an end date. The examiner is to determine whether the veteran's right knee manifests, or has manifested, instability or subluxation. The records are to be reviewed as part of this determination. The examiner is to opine whether post-operative residuals of a right knee menisectomy is primarily manifested by a limitation of motion or by other symptomatology to include subluxation and/or instability. The examiner is to address whether there is at least 50-50 chance that veteran's service-connected right knee disorder caused or aggravates any left knee disorder. Any opinion should be fully explained and the rationale provided. 4. After the development requested has been completed, the RO should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, the RO must implement corrective procedures at once. 5. The RO is to readjudicate the veteran's claims in light of the additional evidence obtained. If any claim is not granted to his satisfaction, the RO is to send a Supplemental Statement of the Case and give the appellant an opportunity to respond before returning the files to the Board for further appellate consideration. The case should then be returned to the Board for further appellate consideration. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action unless otherwise notified. VA will notify him if further action is required on his part. He has the right to submit additional evidence and argument concerning the claims the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs