Citation Nr: 0843394 Decision Date: 12/17/08 Archive Date: 12/23/08 DOCKET NO. 05-28 717A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for residuals of a right knee arthroscopy with degenerative changes (right knee disability). 2. Entitlement to an effective date earlier than February 25, 2004, for service connection for a right knee disability. 3. Entitlement to service connection for a respiratory disorder, to include as due to asbestos exposure. 4. Entitlement to service connection for a psychiatric disorder. 5. Entitlement to service connection for hypertension. 6. Entitlement to service connection for a left knee disorder, to include as secondary to the service-connected right knee disability. 7. Entitlement to service connection for a bilateral hand disorder. 8. Entitlement to service connection for a pain medication addiction. 9. Entitlement to total disability based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Morales, Associate Counsel INTRODUCTION The veteran served on active duty from November 1984 to May 1985 and from January 1987 to February 1995. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The veteran's claim for a bilateral hand disorder was based on a March 2004 statement from the veteran in which he explained that he had sustained severe burns of the hands following service in 1997. The veteran reports that he was denied treatment at the VA and told to go to a Naval hospital. By the time he received treatment, he had nearly lost his hands. While this has been treated as a claim for service connection, it appears it may also be a claim for compensation under 38 U.S.C.A. § 1151. This matter is REFERRED to the RO for clarification. In March 2006, the veteran filed a notice of disagreement with a December 2005 rating decision denying service connection for hypertension. A statement of the case has not been issued on this claim and remand is therefore required. See Manlincon v. West, 12 Vet. App. 238 (1998). The issues of entitlement to an increased initial evaluation for a right knee disability, and service connection for a respiratory disorder, a psychiatric disorder, hypertension, a left knee disorder, a bilateral hand disorder, a pain medication addiction, and TDIU are addressed in the Remand portion of the decision below and are remanded to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. An original claim for service connection for a right knee disability was received by VA on February 25, 2004. 2. In June 2004, the RO granted service connection for a right knee disability and assigned a 10 percent disability rating effective February 25, 2004, the date of receipt of the claim. 3. There is no communication of record prior to February 25, 2004, that can reasonably be construed as a formal or informal claim for entitlement to VA compensation benefits based on a right knee disability. CONCLUSION OF LAW The criteria for an effective date prior to February 25, 2004, for the grant of service connection for a right knee disability have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran contends that he is entitled to an effective date for the grant of service connection for a right knee disability prior to February 25, 2004. Duties to Notify and to Assist Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of a letter sent to the veteran in June 2004 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. There is no allegation from the veteran that he has any evidence in his possession that is needed for full and fair adjudication of this claim. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. In cases such as this, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, supra; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet.App. 128 (2008). That burden has not been met in this case. Therefore, adequate notice was provided to the veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). In addition, the duty to assist the veteran to develop the claim is fulfilled. VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained and the veteran has submitted VA and private treatment records. Although the most current VA treatment records (from 2005 forward) were not obtained, the Board finds that obtaining them would not assist VA in deciding this claim, as these records would in no way indicate whether the veteran had filed a claim prior to 2004. The veteran was afforded a VA medical examination in April 2004. Service connection was actually granted. Significantly, neither the veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist the veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The record establishes the veteran was afforded a meaningful opportunity to participate in the adjudication of the claims. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006). All requirements of the duty to notify the veteran and the duty to assist the veteran are met. Effective Date Claim Under 38 U.S.C.A. § 5110(b)(1) and 38 C.F.R. § 3.400(b)(2)(i), the effective date for a grant of direct service connection will be the day following separation from active service, or the date entitlement arose if a claim is received within one year after separation from service. Otherwise the effective date is the date of receipt of claim or date entitlement arose, whichever is later. A specific claim in the form prescribed by the Secretary is necessary for disability benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151. In this context, it should be noted that the provisions of 38 U.S.C.A. § 5110 refer to the date an "application" is received. While the term '"application" is not defined in the statute, the regulations use the terms "claim" and "application" interchangeably, and they are defined broadly to include "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p); Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). Any communication or action, indicating an intent to apply for VA benefits from a claimant, his duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a) (2008). The basic facts in this case are not in dispute. The veteran was discharged from the service in February 1995. He filed a claim for service connection for a right knee disability, which is date stamped February 25, 2004. From 1995 to 2004, the veteran filed a claim for vocational rehabilitation benefits. Evidence associated with the file during this time included a psychiatric report and service medical records. The Board has reviewed the evidence to determine whether a claim, formal or informal, exists before February 25, 2004 (the date of the veteran's application). A careful review of the record reflects that, although the veteran had previously filed a claim for vocational rehabilitation benefits, that claim did not indicate a desire or intent to claim service connection for a right knee disability. The Board acknowledges the veteran's contention that since he experienced symptoms of a right knee disability since service, he is entitled to compensation from that point. However, there is no provision in the law for awarding an earlier effective date based on the veteran's assertion that the disability existed before he filed the claim. Specifically, "the mere presence of the medical evidence [in the record] does not establish an intent on the part of the veteran' to seek service connection for a condition." Brannon v. West,12 Vet. App. 32, 35 (1998). The Court has emphasized this point: "The effective date of an award of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection . . . but on the date that the application upon which service connection was actually awarded was filed with VA." The record shows that the first and only claim for VA benefits based on a right knee disability was the one date- stamped as received at the RO on February 25, 2004, well after one year from the veteran's discharge. The claims file does not include any communication of record dated prior to February 25, 2004, that may reasonably be construed as an informal claim for this benefit. 38 C.F.R. § 3.155(a). Accordingly, the earliest date that may be assigned for service connection for a right knee disability is the date the veteran filed his claim, February 25, 2004. 38 U.S.C.A. §§ 5101(a), 5107 (West 2002); 38 C.F.R. §§ 3.151(a), 3.400(b)(2) (2008). The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by it. Because the law, and not the facts, is dispositive of the issue, the veteran has failed to state a claim upon which relief may be granted, and, as a matter of law, the claim must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); see also 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2008). ORDER An effective date prior to February 25, 2004, is denied. REMAND The veteran has stated on multiple occasions that he is receiving treatment at the VA facilities in Huntsville and Atlanta. Currently, the claims file contains Atlanta records dated December 2005 at the latest, despite the fact that the veteran submitted a statement in March 2006 that he is still receiving treatment at that facility. Before decisions can be made on any of the claims being remanded herein, these records must be obtained. New medical records have been submitted since the July 2005 statement of the case, which addressed the claims for an increased initial disability rating, and service connection for a left knee disorder, a bilateral hand disorder, and a pain medication addiction. These records do not contain evidence regarding the right knee disability, the left knee disorder, or the bilateral hand disorder. However, they do contain previously unconsidered evidence of psychiatric treatment which is relevant to the claim for a pain medication addiction. In a decision on May 1, 2003, the United States Court of Appeals for the Federal Circuit (Federal Circuit) invalidated 38 C.F.R. § 19.9(a)(2) and (a)(2)(ii). See Disabled American Veterans, et al. v. Secretary of Veterans Affairs (DAV), 327 F.3d 1339 (Fed. Cir. 2003). The Federal Circuit held that 38 C.F.R. § 19.9(a)(2) was invalid because in conjunction with 38 C.F.R. § 20.1304, it allowed the Board to consider additional evidence without having to remand the case to the agency of local jurisdiction for initial consideration and without having to obtain the appellant's waiver, which was contrary to 38 U.S.C.A. § 7104(a). Here, the record has been supplemented with additional evidence that has not been reviewed by the RO absent a written waiver of agency of original jurisdiction initial consideration of such evidence. Under DAV, the Board has no recourse, under the circumstances of this case, but to remand the case for agency of original jurisdiction initial consideration of additional evidence. While the Board could attempt to solicit a waiver from the veteran in accordance with Chairman's Memorandum No. 01-05-09 (May 25, 2005), as this matter is being remanded for additional development as set forth below, the RO will be directed to consider the additional evidence pursuant to the Board Remand. Right Knee Disability. The veteran was granted service connection for a right knee disability in June 2004 and assigned a 10 percent disability rating. The last VA examination of the right knee was conducted in April 2004, prior to the grant of service connection. Given that over four years have passed since the last examination, the Board finds that a new examination is needed to determine the current severity of the right knee disability. When the available evidence is too old for adequate evaluation of the veteran's current symptomatology, the duty to assist requires providing a new examination. See Caffrey v. Brown, 6 Vet. App. 377 (1994) (holding a 23-month old psychiatric examination too remote in time to adequately support the Board's decision in an appeal for an increased rating). Respiratory Disorder. The veteran claims he has a respiratory disorder due to asbestos exposure in service. His medical records show he has been diagnosed with acute bronchitis. The veteran did serve onboard a ship during his Naval service. Service medical records contain multiple questionnaires regarding whether the veteran was exposed to asbestos. On one he replied "uncertain," on another he replied "no," and on another he signed but did not answer the questions. There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular have been included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, 7.21. The Court has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines. See Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). VA Manual M21-1, Part VI, para. 7.21 (October 3, 1997) provides cancers of the larynx and pharynx, as well as the urogenital system (except the prostate) are also associated with asbestos exposure. Thus persons with asbestos exposure have increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. See M21-1, Part VI, para 7.21(a). The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. In short, with respect to the claim for service connection for a respiratory disorder, which involves asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post- service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See M21-1, Part VI, 7.21; DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). A remand is necessary to obtain any information or military records which could verify the veteran's claim of asbestos exposure, and obtain information of civilian asbestos exposure. Pain Medication Addiction and Hypertension. The veteran is entitled to a statement of the case which addresses his claims of entitlement to service connection for a pain medication addiction and hypertension, if that has not already been done. Manlincon, supra; VAOPGCPREC 16-92. The issue should be returned to the Board after issuance of the statement of the case only if the veteran files a timely substantive appeal. The veteran should be informed that the submission of a substantive appeal as to the issues has not been accomplished, and the veteran should be specifically advised as to the length of time he has to submit a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Left Knee Disorder. The veteran claims he is entitled to service connection for a left knee disorder secondary to a right knee disability. He was afforded a VA examination in April 2004 and the examiner concluded that arthralgia of the left knee with mild loss of function was "probably compensatory to his right knee problem." For purposes of determining service connection, a new examination is needed which determines whether the left knee disorder is "at least as likely as not" due to the right knee disability. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (VA must provide a medical examination when it is necessary to decide the claim). The veteran has not yet received notice on the evidence required to substantiate his claim that his left knee disorder is secondary to his right knee disability. Such notice must be provided. TDIU. The Board finds that the claims being remanded herein are inextricably intertwined with the veteran's claim for TDIU. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (noting that two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The other issues should therefore be addressed by the originating agency before the Board renders a decision on the TDIU claim. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall provide the veteran with additional VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The notice should advise the veteran that he should provide evidence of in-service asbestos exposure. Ask him to provide a list of the all jobs he has held wherein he was exposed to asbestos. He should detail the circumstances including dates and locations of the exposure in service. His descriptions should include how and when he was exposed, and the names of other service persons who were with him at the time of exposure. He must also provide a complete employment history, pre and post service, and should indicate how long he performed each job. The notice should also advise the veteran as to the evidence required to substantiate his claim that his left knee disorder is secondary to his right knee disability. 2. The RO/AMC shall endeavor to obtain additional records related to asbestos exposure, including the veteran's service personnel file, from the National Personnel Records Center in St. Louis, Missouri. These records should be associated with the claims file. If these records cannot be obtained, then evidence of attempts to retrieve these records should be associated with the claims file. 3. The RO/AMC shall obtain the veteran's current and complete treatment records from the VA facilities in Huntsville and Atlanta that are not already of record. Evidence of attempts to obtain these records should be associated with the claims file. 4. The RO/AMC shall make a determination as to whether the veteran was exposed to asbestos during service, taking into consideration M21-1, Part VI. 5. The RO/AMC shall obtain a VA medical opinion if it is determined that the veteran was exposed to asbestos during service. The claims file must be made available to the physician and the physician indicate in his/her report whether or not the claims file was reviewed. The physician should consider the determination of whether or not the veteran was exposed to asbestos during service. The physician should opine as to whether it is more likely than not, less likely than not, or at least as likely as not, that the veteran's acute bronchitis or any other respiratory disorder is related to service, to include asbestos exposure, if he was so exposed. A rationale for any opinion expressed should be provided. The examination report should include a summary of the relevant history and any asbestos exposure, prior to, during, and after service. All radiologic reports obtained in conjunction with this examination should be associated with the claims file. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against causation. 6. The RO/AMC will schedule the veteran for a VA orthopedic examination to assess the current nature and severity of his service-connected right knee disability, and to opine as to the nature and etiology of his asserted left knee disorder. The veteran's claims file must be reviewed by the examiner in conjunction with conducting the examination. The VA examiner should conduct all necessary testing, including range of motion studies (measured in degrees, with normal range of motion specified), and should review the results of any prior testing in conjunction with conducting the examination of the veteran. The examiner must determine whether there are objective clinical indications of pain or painful motion; weakened movement; premature or excess fatigability; or incoordination; and, if feasible, these determinations should be expressed in terms of the degree of additional range of motion loss due to such factors. This includes instances when these symptoms "flare-up" or when the right knee is used repeatedly over a period of time. This determination should also be portrayed, if feasible, in terms of the degree of additional range of motion loss due to these factors. The examiner should also specify whether the veteran has any instability in the knee and, if so, the severity thereof (e.g., slight, moderate or severe), and whether there are episodes of locking. If an opinion cannot be rendered in response to these questions, the reason therefore should be explained. The examiner should also determine whether any left knee disorder found on examination was either caused by, or is aggravated by, the veteran's service- connected right knee disability. If the service-connected right knee disability aggravates (i.e., permanently worsens) any left knee disorder found on examination, the examiner should identify the percentage of disability which is attributable to the aggravation. A complete rationale for any opinion expressed should be provided. It is requested that the examiner discuss the prior medical evidence in detail and reconcile any contradictory evidence. 7. The RO/AMC shall issue a statement of the case as to the claims for service connection for a pain medication addiction and hypertension, if that has not already been done. See Manlincon, supra. If the decision remains adverse to the veteran, the veteran should be informed that he must file a timely and adequate substantive appeal if he wishes to appeal the claims to the Board. See 38 C.F.R. §§ 20.200, 20.202, and 20.302(b). The veteran must be informed of the time period allowed for perfecting a timely appeal, including information as to the specific date by which the appeal must be received by VA as well the information supplied in the form letter. 8. The RO/AMS shall, after completing the above action, readjudicate the remaining claims, to include the claim for a TDIU. If the claims remain denied, a supplemental statement of the case should be provided to the veteran and his representative. After the veteran and his representative have had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (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. 2008). ______________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs