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