Citation Nr: 0814874 Decision Date: 05/06/08 Archive Date: 05/12/08 DOCKET NO. 04-37 228 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for low back disability. 2. Entitlement to service connection for low back disability. 3. Entitlement to service connection for genitourinary disability, claimed as a neurogenic bladder. 4. Entitlement to an initial rating in excess of 10 percent for service-connected chondromalacia of the left patella. 5. Entitlement to an initial rating in excess of 10 percent for service-connected chondromalacia of the right patella. 6. Entitlement to an effective date prior to June 5, 2003 for service connection for chondromalacia of the left patella. 7. Entitlement to an effective date prior to June 5, 2003 for service connection for chondromalacia of the right patella. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The veteran served on active duty from February 1982 to February 1985. This matter came to the Board of Veterans' Appeals (Board) on appeal from RO rating decisions, dated in October 2003, March 2004, and December 2005. In its October 2003 decision, the RO granted the veteran's claim of service connection for chondromalacia of the patellae and assigned a noncompensable rating for each knee, effective April 19, 2000, and a 10 percent rating for each knee, effective October 9, 2002. The veteran disagreed with those ratings, as well as the assigned effective dates, and those issues became part of the current appeal. During the course of the appeal, the RO found that the assignment of the effective dates for service connection for the veteran's knee disabilities had been clearly and unmistakably erroneous. 38 C.F.R. § 3.105(a) (2007). After reviewing the record, the Board found that in each instance, the correct effective date should have been June 5, 2003. Therefore, by a rating action in November 2007, the RO revised the effective date for service connection for chondromalacia in each knee accordingly. In its March 2004 decision, the RO, in part, denied the veteran's claims of service connection for the following disabilities: the residuals of a torn right medical meniscus, status post-operative; disability manifested by fatigue; hearing loss disability, and respiratory disability, claimed as bronchitis. On March 25, 2004, the veteran was notified of that decision, and in May 2004, he submitted a Notice of Disagreement. On May 17, 2005, the RO issued the veteran a Statement of the Case and informed the veteran that he had 60 days to perfect his appeal. However, the veteran did not submit a timely substantive appeal; and, therefore, the decision on those issues became final under the law and regulations then in effect. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2004). Accordingly, the Board has no jurisdiction over those issues, and they will not be considered below. 38 U.S.C.A. § 7104(a) (West 2002 and Supp. 2007); 38 C.F.R. § 20.101 (2007). In August 2004, the RO denied the veteran's claims of entitlement to service connection for visual impairment and for psychiatric disability. On September 2, 2004, the veteran was notified of that decision, and in October 2004, he submitted a Notice of Disagreement. On April 16, 2005, the RO issued the veteran a Statement of the Case with respect to his claim for service connection for psychiatric disability and informed him that he had 60 days to perfect his appeal or the remainder of the year from the date of the letter which notified him of the appeal (i.e., until September 2, 2005). However, the veteran did not submit a timely substantive appeal; and, therefore, the denial of service connection for psychiatric disability also became final under the law and regulations then in effect. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2004). Accordingly, the Board has no jurisdiction over that issue, and it will not be considered below. 38 U.S.C.A. § 7104(a) (West 2002 and Supp. 2007); 38 C.F.R. § 20.101 (2007). In December 2005, the RO denied the veteran's claims of entitlement to service connection for bilateral shoulder disability and for cervical spine disability. The veteran disagreed with those decisions, and the following month he submitted a Notice of Disagreement. The veteran was issued a Statement of the Case, and in October 2006, he perfected his appeal with respect to those issues. However, in December 2007, the RO received a statement from the veteran withdrawing those issues from the appeal. Accordingly, the Board has no jurisdiction over those issues, and they will not be considered below. 38 U.S.C.A. § 7104(a) (West 2002 and Supp. 2007); 38 C.F.R. § 20.101 (2007). In March 2008, the veteran had a hearing at the RO before the Veterans Law Judge whose name appears at the end of this decision. During that hearing, the veteran raised contentions to the effect that service connection was warranted for disability manifested by fatigue; respiratory disability; hearing loss disability; and hip disability. None of those claims have been certified to the Board on appeal nor have they otherwise been developed for appellate purposes. Therefore, the Board has no jurisdiction over any of those claims, and none will be considered below. 38 U.S.C.A. § 7104(a) (West 2002 and Supp. 2007); 38 C.F.R. § 20.101 (2007). However, they are referred to the RO for appropriate action. After reviewing the record, the Board finds that further development is warranted with respect to the claims of entitlement to service connection for low back disability and entitlement to service connection for genitourinary disability. Accordingly, those issues are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1 In an unappealed rating action in September 2000, the RO denied the veteran's claim of service connection for low back disability. 2. Evidence associated with the record since the September 2000 decision is neither cumulative nor redundant and, by itself or in connection with evidence previously assembled, relates to an unestablished fact or raises a reasonable possibility of substantiating the claim of entitlement to service connection for low back disability. 3. Since service connection became effective June 5, 2003, the veteran's chondromalacia of the left patella, manifested primarily by tenderness to palpation, pain on motion, crepitus, effusion, flexion to as little as 50 degrees, and a limping gait for which the veteran uses knee braces and a cane, has been productive of moderate impairment. 4. Since service connection became effective June 5, 2003, the veteran's chondromalacia of the right patella, manifested primarily by tenderness to palpation, pain on motion, crepitus, flexion to at least 50 degrees, and a limping gait for which the veteran uses knee braces and a cane, has been productive of moderate impairment. 5. In an unappealed rating action in September 2000, the RO denied the veteran's claim of service connection for bilateral knee disability. 6. On June 5, 2003, the RO received the veteran's application to reopen his claim of entitlement to service connection for bilateral knee disability. CONCLUSIONS OF LAW 1. The RO's September 2000 rating decision, which denied the veteran's claim of entitlement to service connection for low back disability, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2002). 2. New and material evidence has been submitted to reopen the veteran's claim of entitlement to service connection for low back disability. 38 U.S.C.A. § 5108 (West 2002 and Supp. 2006); 38 C.F.R. § 3.156 (2007). 3. The criteria for an initial 20 percent rating for the veteran's service-connected chondromalacia of the left patella have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 and Supp. 2007); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.7, 4.10, 4.20, 4.40, 4.45, 4.71a, Diagnostic Code 5257 (2007). 4. The criteria for an initial 20 percent rating for the veteran's service-connected chondromalacia of the right patella have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 and Supp. 2007); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.7, 4.10, 4.20, 4.40, 4.45, 4.71a, Diagnostic Code 5257 (2007). 5. The criteria for an effective date prior to June 5, 2003 for service connection for chondromalacia of the left patella have not been met. 38 U.S.C.A. § 5110(a) (West 2002 and Supp. 2007); 38 C.F.R. § 3.400(q)(1)(ii) (2007). 6. The criteria for an effective date prior to June 5, 2003 for service connection for chondromalacia of the right patella have not been met. 38 U.S.C.A. § 5110(a) (West 2002 and Supp. 2007); 38 C.F.R. § 3.400(q)(1)(ii) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist Prior to consideration of the merits of the veteran's appeal, the Board must determine whether VA has met its statutory duty to assist the veteran in the development of the following issues: 1) Whether new and material evidence has been received to reopen a claim of entitlement to service connection for low back disability and 2) entitlement to increased ratings for his service-connected chrondromalacia of the left and right knees. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. In September 2000, the RO denied the veteran's claim of service connection for bilateral knee disability and for low back disability, on the basis that there was no evidence of then-current back disability. The veteran was notified of those decisions, as well as his appellate rights; however, a notice of disagreement was not received with which to initiate an appeal. Accordingly, those decisions became final under the law and regulations then in effect. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 20.1103 (2000). In June 2003, the veteran submitted an application to reopen his claim of service connection for bilateral knee disability and for low back disability. In order to successfully reopen a previously and finally disallowed claim, the RO/AMC must ensure compliance with VA's duty to notify in accordance with Kent v. Nicholson, 20 Vet. App. 1 (2006) (Holding that when a veteran seeks to reopen a previously denied claim, VA must examine the bases for the denial in the prior decision and advise the veteran what evidence would be necessary to substantiate the element or elements require to establish service connection that were found insufficient in the previous denial.). Although VA did not specifically advise the veteran of the evidence necessary to substantiate the element or elements required to establish service connection for bilateral knee disability or low back disability that were found insufficient in the previous denial, that error was essentially harmless. Indeed, service connection was subsequently established for bilateral knee disability; and in the decision below, the Board finds that the veteran has submitted additional evidence sufficient to reopen the claim. Accordingly, the error could not be considered prejudicial to the veteran in either case. With respect to the claim for increased ratings for chondromalacia of the left and right patellae, VA must notify the veteran that he must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the veteran's employment and daily life. 38 U.S.C.A. § 5103(a); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Further, the veteran must be notified that, if an increase in disability is found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. The foregoing requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a veteran before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also, Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, VA may proceed with adjudication of a claim if errors in the timing or content of the notice are not prejudicial to the veteran. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Pelegrini, 18 Vet. App. at 121. In order to cure a timing defect, a compliant notice must be issued followed by the readjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (Mayfield II). In August 2003, the RO notified the veteran of the information and evidence necessary to reopen his claim of service connection for bilateral knee disability. By a rating action in October 2003, service connection was granted for chondromalacia and a 10 percent rating was assigned for each knee. The veteran disagreed with that rating and the appeal for an increased rating for each knee ensued. In September 2007, during the course of the appeal, the veteran stated that he was seeking a combined rating of 40 percent for his bilateral knee disabilities. In February 2008, the RO notified the veteran as to considerations in assigning a disability rating and effective date of service connection or increased disability. Though such notice effectively fulfilled the considerations set forth in Dingess, it was not followed by a readjudication of the claim and, on its face, constitutes a notice timing error. Mayfield II. However, as above, such error was essentially harmless. During his March 2008 hearing before the undersigned Veterans Law Judge, the veteran testified as to the manifestations and effect of his service-connected chondromalacia of the left and right patellae. However, despite the notice he received in February 2008, his testimony was generally consistent with his complaints during the pendency of the appeal; and he did not alter the amount of compensation which he was claiming. Moreover, in this decision, the Board has granted a 20 percent disability rating for each knee, as argued by the veteran. Therefore, any timing notice error with respect to the veteran's claims for increased ratings for his bilateral knee disability has not resulted in prejudice to the veteran. After reviewing the record, the Board finds that VA has met its duty to assist the veteran in the development of information and evidence necessary to support his application to reopen his claim for service connection for low back disability as well as his claims for increased ratings for bilateral knee disability. It appears that all relevant evidence identified by the veteran has been obtained and associated with the claims folder. Indeed, he has not identified any further outstanding evidence, which could be used to support his either of those claims. As such, the record has been fully developed, and it is difficult to discern what additional guidance VA could provide to the veteran regarding what further evidence he should submit to substantiate his claim. Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Therefore, further action is unnecessary in order to meet VA's statutory duty to assist him in the development of his application to reopen his claim for service connection for low back disability and his claim for increased ratings for bilateral knee disabilities. See, e.g., Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (development that would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Accordingly, the Board will proceed to the merits of those issues. Analysis Low Back Disability The veteran seek service connection for low back disability, either as a result of an injury in service or as a result of his service-connected chondromalacia of the patellae. Therefore, he maintains that service connection is warranted. A review of the record discloses that VA has previously denied the veteran's claim for service connection for low back disability and that such decision has become final. However, the veteran has submitted an application to reopen that claim, as well as additional evidence which supports that application. Accordingly, that issue is reopened. Service connection connotes many factors, but basically, it means that the facts, shown by the evidence, establish that a particular disease or injury resulting in disability was incurred coincident with active military, naval, or air service, or, if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may, however, be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a particular disability, there must be competent evidence of current disability (generally, a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in- service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498, 506 (1995). For certain disabilities, such as arthritis, service connection may be presumed when such disability is shown to a degree of 10 percent or more within one year of the veteran's discharge from service. 38 U.S.C.A. § 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Such a presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307. Service connection may also be granted when the evidence shows that a particular disability is proximately due to or the result of a disability for which service connection has already been established. 38 C.F.R. § 3.310(a). Any increase in the severity of a nonservice-connected disease or injury that is proximately due to or the result of a service- connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. Id. The RO received the veteran's initial claim for service connection for low back disability in April 2000. In developing the claim, the RO requested that the veteran provide evidence of a disease or injury which had been incurred in or aggravated by service; evidence of then- current disability; evidence of a relationship between the current disability and the disease or injury in service. However, the veteran did not respond to that request. In September 2000, the RO denied the veteran's claim on the basis that there was no evidence of then-current back disability. In reaching its determination, the RO noted that the veteran's service medical records had not been received for the record but that even if they had, they could not provide evidence of current disability. The veteran was notified of that decision, as well as his appellate rights; however, a notice of disagreement was not received with which to initiate an appeal. Accordingly, that decision became final under the law and regulations then in effect. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 20.1103 (2000). In June 2003, the veteran submitted an application to reopen his claim of service connection for low back disability. Generally, a claim which has been denied by the RO may not thereafter be reopened and allowed, and a claim based upon the same factual basis may not be considered. 38 U.S.C.A. § 7105. The exception to this rule is 38 U.S.C.A. § 5108 which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA shall reopen the claim and review the former disposition of the claim. When a veteran seeks to reopen a final decision based on new and material evidence, the Board must first determine whether the veteran has, in fact, presented new and material evidence under 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. If new and material evidence is presented, the Board may then proceed to evaluate the merits of the claim but only after insuring that the duty to assist the veteran in the development of his claim has been fulfilled. See, Elkins v. West, 12 Vet. App. 209 (1999). Relevant evidence added to the record since the RO's September 2000 decision includes the report of a VA orthopedic examination which shows that the veteran has arthritis and myositis, as well as bulging discs in his lumbar spine. Such evidence is new in the sense that it has not previously been before the VA. It is also material in that it relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for low back disability. That is, the additional evidence establishes the presence of current back disability. It is neither cumulative nor redundant of the evidence of record in September 2000 and raises a reasonable possibility of substantiating the claim. As such, it is sufficient to reopen the claim. Chondromalacia of the Patellae The veteran seeks an initial rating in excess of 10 percent for his service-connected chondromalacia of the left patella and an initial rating in excess of 10 percent for chondromalacia of the right patella. He specifically seeks a combined 40 percent evaluation for both knees. After reviewing the record, the Board finds that the manifestations of those disabilities more nearly approximate the criteria for a 20 percent evaluation for each knee. Accordingly, increased initial ratings are warranted. Disability evaluations are determined by comparing the manifestations of a particular disability with the criteria set forth in the Diagnostic Code's of the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155, 38 C.F.R. Part 4 (2007). There is no Diagnostic Code specifically applicable to rating chondromalacia of the patella. Therefore, it is rated by analogy to rate knee impairment associated with recurrent subluxation or lateral instability. 38 C.F.R. §§ 4.20, 4.71a, Diagnostic Code 5257. A 10 percent rating is warranted for slight knee impairment, manifested by recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate impairment, while a 30 percent rating is warranted for severe impairment. Potentially applicable in rating the veteran's service connected chondromalacia of the patellae is 38 C.F.R. §§ 4.71a, Diagnostic Code's 5260 and 5261. Under those codes, a 10 percent rating is warranted when flexion of the leg is limited to 45 degrees or when extension of the leg is limited to 10 degrees. A 20 percent rating is warranted when flexion is limited to 30 degrees or when extension is limited to 15 degrees. A 30 percent rating is warranted when flexion is limited to 15 degrees or when extension is limited to 20 degrees. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity (in civilian occupations) resulting from service-connected disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In determining the adequacy of assigned disability ratings, consideration is given to factors affecting functional loss. DeLuca v. Brown, 8 Vet. App. 202 (1995). Such factors include a lack of normal endurance and functional loss due to pain and pain on use, specifically limitation of motion due to pain on use including that experienced during flare ups. 38 C.F.R. § 4.40. Consideration is also given to weakened movement, excess fatigability, and incoordination, as well as the effects of the disability on the veteran's ordinary activity. 38 C.F.R. § 4.10, 4.45. The RO's October 2003 decision on appeal, which granted entitlement to service connection for chondromalacia of the patellae and resulted in the assignment of separate 10 percent ratings for the left and right knee, was an initial rating award. When an initial rating award is at issue, a practice known as "staged" ratings may apply. That is, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999). Therefore, the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. 38 C.F.R. §§ 4.1, 4.2; see Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Since service connection became effective June 5, 2003, the competent evidence of record shows that the veteran has been followed by the VA Orthopedic service and that he has been examined by VA in October 2003, May 2005, and October 2006. Such evidence shows that each knee disability is manifested primarily by tenderness to palpation, crepitus, effusion, and limitation of motion. Although he is able to fully extend each knee, he is not able to fully flex each knee. Indeed, he has as little as 50 degrees of flexion, bilaterally. While not compensable, such limitation is well below the range considered normal. 38 C.F.R. § 4.71, Plate II (2007). Moreover, he has been prescribed braces for each knee and uses a cane to walk. He also takes medication for pain and has undergone physical therapy; and during the most recent VA examination, it was noted that he could not mow his lawn or walk, sit, or stand in one position for too long. By themselves, the foregoing manifestations have generally been found to be no more than mild in degree. However, taken together, they more nearly approximate the criteria for moderate impairment compatible with a 20 percent rating for each knee under Diagnostic Code 5257. At the very least, there is an approximate balance of evidence both for and against the claim that his chondromalacia of the left patella and of the right patella have undergone an increase in disability. Under such circumstances, all reasonable doubt is resolved in favor of the veteran. 38 U.S.C.A. § 5107(b) ; 38 C.F.R. § 3.102. Accordingly, 20 percent ratings are warranted for each of the veteran's service connected knee disabilities. To that extent, the appeal is allowed and in accord with the veteran's contentions relative to his disorder. Nevertheless, the Board has considered the possibility of a still-higher schedular evaluation. A further review of the evidence is generally negative for any evidence of more that moderate impairment in each knee. None of the health care providers or examiners have so stated, and the preponderance of the competent evidence of record is negative for associated instability, recurrent subluxation, swelling, heat, discoloration, deformity, weakness or atrophy, sensory deficits, or abnormal reflexes. While the veteran complains of weekly exacerbations, repeat testing on examination does not, generally, result in excess fatigability, lack of endurance, or incoordination in either knee. Moreover, evidence, such as the report of the most recent VA examination, shows that the veteran's knee disabilities did not affect his usual occupation or daily activities. Therefore, a rating of 20 percent, and no more, is warranted for each knee. In arriving at these decisions, the Board finds that the manifestations of each knee disability have been, generally, consistent since service connection became effective June 5, 2003. Therefore, there is no basis for the assignment of staged ratings noted in Fenderson. Earlier Effective Date for Service Connection for Chondromalacia of the Patellae The veteran seeks entitlement to an effective date prior to June 5, 2003, for service connection for chondromalacia of the left patella and of the right patella. After reviewing the record, however, the Board finds that the correct effective date has been assigned in accordance with the governing law and regulations. Accordingly, an effective date prior to June 5, 2003 is not warranted. Generally, the effective date of an award of service connection 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.A. § 5110(a); 38 C.F.R. § 3.400(b)(2). There is an exception in that the effective date of disability compensation will be the day following the veteran's separation from active service, if the claim is received within 1 year after the veteran's separation from service. Otherwise, the effective date will be the date of the receipt of the claim, or the date entitlement arose, whichever is later (emphasis added). 38 U.S.C.A. § 5110(a)- (b)(1); 38 C.F.R. § 3.400(b)(2)(1). A specific claim in the form prescribed by the VA must be filed in order for benefits to be paid to any individual under the laws administered by the VA. 38 U.S.C.A. § 5101(a) (West 2002 and Supp. 2007); 38 C.F.R. § 3.151(a) (2007). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the VA from a claimant, his duly authorized representative, a Member of Congress, or some person acting as next friend of a veteran who is not sui juris 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 veteran for execution. If received within 1 year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (2007). The mere presence of medical evidence, however, does not establish an intent on the part of the veteran to seek service connection. The veteran must have asserted the claim expressly or impliedly. Brannon v. West, 12 Vet. App. 32, 35 (1998). Although the veteran's initial claim of entitlement to service connection for bilateral knee disability was received by the RO in April 2000, that disability was denied by the RO in its September 2000 rating action. The veteran was notified of that decision, as well as his appellate rights; however, a notice of disagreement was not received with which to initiate an appeal. Accordingly, that decision became final under the law and regulations then in effect. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 20.1103 (1999). On June 5, 2003, the RO received the veteran's application to reopen his claim of service connection for bilateral knee disability. That application resulted in the grants of service connection for chondromalacia of the left and right patellae, effective June 5, 2003. When new and material evidence is received after a final disallowance, the effective date of service connection will be the date of the 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(q)(1)(ii). Therefore, even if the initial manifestations of chondromalacia in either knee had occurred earlier than June 5, 2003, the date of the receipt of the claim controls, as it occurred later than the date entitlement arose. Thus, there is simply no legal basis for an effective date earlier than June 5, 2003 for service connection for chondromalacia in either knee. The law is dispositive of the issue; and, therefore, the appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In arriving at this decision, the Board has considered the possibility of a claim being filed between the time of the September 2000 RO decision and June 5, 2003. However, there is no evidence of any communication which could be construed as an application, formal or informal, to reopen his claim of service connection for left or right knee disability. VA has a duty to notify the veteran of the information and evidence necessary to substantiate his claim and to assist him in the development of that claim. However, since the law, and not the facts, is dispositive of the earlier effective date issues, no amount of development would allow the veteran to prevail. Such development would serve no useful purpose and, therefore, need not be performed in meet VA's statutory duty to assist the veteran in the development of those issues. See Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (the duty to assist the veteran in the development of a claim does not affect matters on appeal from the Board when the question is limited to statutory interpretation.); see also, Sabonis (development which would only result in unnecessarily imposing additional burdens on VA with no benefits flowing to the veteran are to be avoided). ORDER New and material evidence having been presented, the veteran's claim of the entitlement to service connection for low back disability is reopened. Entitlement to an initial rating of 20 percent for service- connected chondromalacia of the left patella is granted, subject to the law and regulations governing the award of monetary benefits. Entitlement to an initial rating of 20 percent for service- connected chondromalacia of the right patella is granted, subject to the law and regulations governing the award of monetary benefits. Entitlement to an effective date prior to June 5, 2003 for service connection for chondromalacia of the left patella is denied. Entitlement to an effective date prior to June 5, 2003 for service connection for chondromalacia of the right patella is denied. REMAND In light of the foregoing decision, the VA may proceed to evaluate the merits of the veteran's claim of entitlement to service connection for low back disability. Elkins. It would be premature for the Board to do so prior to the RO, as such action could result in prejudice to the veteran's claim. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993); VAOPGCPREC 16-92. Indeed, additional development of the record is warranted, including another request for the veteran's service medical records. When the veteran's claim for service connection for low back disability was initially before VA in September 2000, his service medical records were not before the RO for review. In June 2003, when the veteran sought to reopen his claim of service connection for low back disability, VA had difficulty obtaining his service medical records. In August 2003, the National Personnel Records Center reported that the veteran's service medical records had not been retired. Although a copy of those records was retrieved through the United States Army Reserve Personnel Command, the veteran testified during his hearing that all of his service medical records had not been obtained. Consequently, additional development is warranted on this aspect of the appeal The veteran also seeks entitlement to service connection for genitourinary disability, claimed as a neurogenic bladder. Although his theory of the case involves both direct and secondary service connection, VA has not yet considered the possibility of secondary service connection. Accordingly, that aspect of the claim must also be developed. Schroeder v. West, 212 F.3d 1265 (Fed. Cir 2000); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994) (Both for the general proposition that in claims involving presumptive service connection, the Board must also examine the evidence of record to ascertain if there is any other basis upon which to develop or grant the claim, including direct service connection) see Bingham v. Principi, 421 F.3d 1346 (Fed.Cir. 2005); Roebuck v. Nicholson, 20 Vet. App. 307, 312-313 (2006). In its December 2005 rating decision, the RO found that the veteran had not had genitourinary disability in service and that there was no competent evidence showing that such disability was related to service. Therefore, the RO denied service connection on a direct basis. In his Notice of Disagreement, received in January 2006, the veteran raised contentions to the effect that his genitourinary disability was due to or had been aggravated by his service-connected chondromalacia of the patellae. Therefore, he maintained that service-connection was warranted on a secondary basis. 38 C.F.R. § 3.310 (2007); see Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). To date, VA has not considered that aspect of the veteran's claim. In the interests of judicial economy and to avoid piecemeal litigation, VA must consider whether the veteran has genitourinary disability which is proximately due to or aggravated by his service-connected chondromalacia of the patellae. See Smith v. Gober, 236 F.3d. 1370 (Fed. Cir. 2001). During its review of the record, the Board noted that the veteran had submitted statements which had not been translated into English: VA Form 21-4138, received by the RO on June 4, 2004 and VA Form 9, received by the RO on October 20, 2004. In light of the foregoing, further development of the record is warranted prior to further consideration by the Board. Accordingly, the case is REMANDED for the following action: 1. Ensure compliance with VA's duties to notify and the veteran in the development of his claims of service connection for low back disability and for genitourinary disability, claimed as a neurogenic bladder. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Such compliance must include, but is not limited to, notification and assistance with respect to his contentions that his genitourinary disability is secondary to his service- connected chondromalacia of the patellae. 38 C.F.R. § 3.310. 2. Through official channels, such as the National Personnel Records Center, make another request for the veteran's service medical records. A failure to respond or a negative reply to any request must be noted in writing and associated with the claims folder. Efforts to obtain such records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non- existence or unavailability of such records must be verified by each Federal department or agency from whom they are sought. 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(2). 3. When the actions requested in parts 1 and 2 have been completed, undertake any other necessary development, such as the scheduling of any indicated VA examinations, if deemed by the RO/AMC to be appropriate under the law. Also ensure that all documents have been translated into English. Then readjudicate the issues of entitlement to service connection for low back disability and of entitlement to service connection for genitourinary disability on all reasonably applicable theories of the case. In particular, ensure that the claim of service connection for genitourinary disability is considered on a secondary, as well as a direct basis. If the benefits sought on appeal are not granted to the veteran's satisfaction, he and his representative must be furnished a Supplemental Statement of the Case and afforded an opportunity to respond. Thereafter, if in order, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The veteran need take no action unless he is notified to do so. The veteran has the right to submit any additional evidence and/or argument on the matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369, 372-73 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs