Citation Nr: 1237700	
Decision Date: 11/02/12    Archive Date: 11/09/12

DOCKET NO.  03-29 859	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUES

1.  Entitlement to an effective date prior to July 20, 2002 for the grant of a total disability rating based on unemployability due to service-connected disability (TDIU).  

2.  Entitlement to an effective date prior to July 20, 2002, for basic eligibility for Dependents' Educational Assistance (DEA), pursuant to 38 U.S.C. Chapter 35 and permanent total status. 

3.  Entitlement to an effective date prior to July 20, 2002 for the evaluation of a 10 percent evaluation for a right knee disorder.  


REPRESENTATION

Appellant represented by:	Tennessee Department of Veterans' Affairs



ATTORNEY FOR THE BOARD

Nadine W. Benjamin, Counsel


INTRODUCTION

The Veteran (appellant) served on active duty from March 1973 to June 1976.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana.  

In November 1998, April 2000, January 2002, and July 2004 the Board remanded this claim for additional development.  In November 2005, the Board denied the claim.  The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court).  In a June 2007 Memorandum Decision, the Court set aside the Board decision and remanded the claim for further adjudication consistent with its decision.  The Court directed the Board as to the issue now on appeal to send the Veteran adequate VCAA notice regarding the effective date for the TDIU claim.  In March 2008, the Board remanded the claim.  The Board is satisfied that there was substantial compliance with its remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  In this regard, a proper VCAA notice letter was sent to the Veteran in March 2008.  The case has been returned to the Board and is ready for further review.  

While the case was in remand status the Veteran perfected his appeal regarding entitlement to an earlier effective date prior to July 20, 2002 for the awarding of DEA benefits and for the assignment of a 10 percent evaluation for a right knee disorder.  The claims are now before the Board for adjudication.  



FINDINGS OF FACT

1.  The competent (medical) evidence of record does not show that the Veteran was unemployable due to service-connected disabilities until July 20, 2002.  

2.  The Veteran was not eligible for DEA benefits pursuant to 38 U.S.C. Chapter 35 prior to July 20 2002, as he did not have a permanent and total disability based on a service-connected disability

3.  The Veteran's disability was permanent and total as of July 20, 2002, the effective date of his increase for the right knee disorder.  

4.  It was not factually ascertainable that the Veteran's total disability was permanent in nature prior to July 20, 2002; therefore basic eligibility to DEA benefits was met on such date.

5.  In the November 2003 decision the RO granted an increased rating of 10 percent for the Veteran's right knee disorder; the RO effectuated that decision by assigning an effective date from the date of the VA examination showing increased disability on July 20, 2002.  

6.  It was not factually ascertainable that the Veteran's right knee met the criteria for a 10 percent rating until a VA examination was performed in July 2002.  


CONCLUSIONS OF LAW

1.  An effective date for the award of TDIU prior to July 20, 2002, is not warranted.  38 U.S.C.A. §§ 1155, 5110 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.151, 3.155, 3.400, 4.15, 4.16 (2012). 

2.  The basic eligibility requirements for entitlement to Dependents' Educational Assistance allowance under Chapter 35, Title 38, United States Code and permanent total status were not met prior to July 20, 2002.  38 U.S.C.A. §§ 3500, 3501(a)(1) (West 2002); 38 C.F.R. §§ 3.807, 21.3021 (2012).

3.  The criteria have not been met for an effective date prior to July 20, 2002, for the assignment of a 10 percent disability rating for a right knee disorder.  38 U.S.C.A. §§ 1155, 5110 (West 2002); 38 C.F.R. §§ 3.400, 4.118, Diagnostic Code 7804 (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VCAA

The Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim, including obtaining medical examinations or opinions if necessary.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156, 3.159, and 3.326 (2012).  VA is not required to provide assistance to a claimant, however, if there is no reasonable possibility that such assistance would aid in substantiating the claim.  See 38 U.S.C.A. § 5103A. 

The VCAA and its implementing regulations also require VA to notify a claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, that was not previously provided to VA that is necessary to substantiate a claim.  As part of that notice, VA is to specifically inform the claimant and the claimant's representative, if any, of what portion, if any, of the evidence is to be provided by the claimant, and which part, if any, VA will attempt to obtain on behalf of the claimant.  38 U.S.C.A. § 5103(a).  VA has elaborated on its duty by undertaking to inform claimants to submit relevant evidence in their possession.  38 C.F.R. § 3.159(b).  

The United States Court of Appeals for Veterans Claims (Court) has stated that the notice requirement is not met unless VA can point to a specific document in the claims file.  See Quartuccio v. Principi, 16 Vet. App. 183 (2002).  The Court has subsequently emphasized VA's duties under the VCAA to notify claimants.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

In this case, VA has provided the Veteran with sufficient notice that complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159, and has told him to submit evidence in his possession.  The Court has also held that a claimant is entitled to VCAA notice prior to initial adjudication of the claim.  See Pelegrini at 120.  In this case, while the RO denial with regard to the issues on appeal preceded VCAA notice, the Board finds that this is essentially harmless error in view of the actions that have taken place.  As noted above, the case was remanded by the Board for procedural and substantive purposes and the Veteran was provided with a comprehensive communication regarding development of additional evidence and informing him of VA's duty to assist him in telling him what was needed for the earlier effective date for the issues on appeal in March 2008.  Accordingly, the Board finds the Veteran has been provided adequate notice regarding the types of evidence needed to substantiate his claim.  The Board finds that no additional notice is required under the provisions of 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159(b).  

VA's General Counsel has held that failure to provide notice of the evidentiary matter specified in the statute or regulation before an initial decision by the RO does not constitute error.  The crucial question according to the Court in Pelegrini is whether the Veteran was prejudiced thereby.  In the instant case, it is clear that the Veteran has not been inasmuch as he has been accorded opportunity to submit additional argument.   The Board therefore concludes that appellate consideration of the claim at this time is not prejudicial to him.  

The Board also notes that the VCAA provides that VA should make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits unless no reasonable possibility exists that such assistance would aid in substantiating a claim.  The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim.  The claims folder contains the Veteran's service treatment records, as well as records of post service medical treatment and evaluation.  

With respect to the claims for earlier effective dates for TDIU and DEA eligibility, as well as for the assignment of the 10 percent rating for a right knee disorder, the medical evidence contained in the Veteran's VA treatment records establishes that an increase in severity of the Veteran's service-connected knee disorder was first reported on VA examination in July 2002.  That report of increase ultimately led to the finding that the Veteran was permanently unable to maintain employment.  In light of the foregoing, the Board finds that the medical evidence of record is sufficient for an adequate factual determination.  Thus, further remand would not result in a benefit flowing to the Veteran and is unnecessary.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 

As a result, the Board has carefully considered the provisions of the VCAA in light of the record on appeal.  For the reasons expressed above, the Board finds that the development of this claim has been consistent with the provisions of the VCAA.  Accordingly, the Board will proceed to a decision on the merits. 

Law and Regulations

It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  38 C.F.R. § 4.16.  A finding of total disability is appropriate, "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation."  38 C.F.R. §§ 3.340(a)(1), 4.15.  As the claim for TDIU is a claim for increase, the scope of review encompasses a one year period prior to the date of claim.  See 38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997).

"Substantially gainful employment" is that employment, "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides."  Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991).  Marginal employment is not considered substantially gainful employment.  38 C.F.R. § 4.16(a).  In Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income. . . ." 

A claim for a total disability rating based upon individual unemployability, "presupposes that the rating for the [service-connected] condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider."  Vettese, supra.  In evaluating a Veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by non service-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19. 

For a Veteran to prevail on a total rating claim, the record must reflect some factor that takes the claimant's case outside the norm.  The sole fact that a Veteran is unemployed or has difficulty finding employment is not enough, since a high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment; the question is whether the claimant is capable of performing the physical and mental acts required for employment, not whether the claimant can find employment.  See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). 

TDIU may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service connected disability.  38 C.F.R. §§ 3.340, 3.341, 4.16.  The regulations further provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a).  For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disability of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular- renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war.  38 C.F.R. § 4.16. 

In any event, it is the policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service connected disability shall be rated totally disabled.  38 C.F.R. § 4.16(b).  Thus, if a Veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extra-schedular rating is for consideration where the Veteran is unemployable due to service-connected disability.  38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993).  The Board, however, does not have the authority to make such an assignment in the first instance.  Rather, the Board may only grant a total rating under section 4.16(b) after the issue of extra-schedular consideration has been first referred to and denied by VBA's Director of Compensation & Pension Services.  

Additionally, the Court has recognized that, "the effect of a service-connected disability appears to be measured differently for purposes of extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) ... [than] for purposes of a TDIU claim under 38 C.F.R. § 4.16."  Kellar v. Brown, 6 Vet. App. 157, 162 (1994).  While the former regulatory provision requires marked interference with employment, the latter requires evidence of unemployability.  Id.

Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase (to include TDIU) will be the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 U.S.C.A. § 5110; 38 C.F.R. § 3.400.  An exception to this rule provides that the effective date of an award for increased disability compensation shall be the earlier date as of which it is factually ascertainable that an increase in disability has occurred, if the claim is received within one year from such date; otherwise, it is the date of receipt of the claim.  38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2).  When considering the appropriate effective date for an increased rating, VA must consider the evidence of disability during the period one year prior to the application.  See Hazan v. Gober, 10 Vet. App. 511 (1997). 

A specific claim in the form prescribed by the Secretary must be filed in order for 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(a).  A "claim" or "application" is 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).  If a formal claim is received within one year of an informal claim, it will be considered filed as of the date of receipt of the informal claim.  38 C.F.R. § 3.155.

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; see also Gilbert, supra.  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany, supra, citing Gilbert, 1 Vet. App. at 54.

The Board also acknowledges Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), wherein the Court held that a request for a TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate 'claim' for benefits, but rather, can be part of a claim for increased compensation.  In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue whether a TDIU is warranted as a result of that disability.  

DEA benefits are derivative of an award of total service connected disability, permanent in nature. Accordingly, basic eligibility to DEA benefits can be no earlier than the effective date of the Veteran's permanent total disability rating.  
Basic eligibility for DEA benefits under Chapter 35 exists where the Veteran was discharged from service under conditions other than dishonorable and has a total disability permanent in nature as a result of a service-connected disability. 38 U.S.C.A. § 3501(a)(1); 38 C.F.R. § 3.807(a). With certain exceptions that are not applicable here, the effective date for the grant of such award shall, to the extent feasible, correspond to effective dates for awards of disability compensation. 38 U.S.C.A. § 5113(a). When determining the effective date of such an award based on an original claim by an eligible person who meets the criteria in paragraph (b)(2), VA may consider that person's claim as having been filed on his or her "eligibility date" (the date on which the individual became an eligible person) if that eligibility date is more than one year before the date of the "initial rating decision" (a VA decision that adjudicates the Veteran's service-connected disability as permanent and total in nature). 38 U.S.C.A. § 5113(b) (1) & (b)(3). 

Basic eligibility for DEA exists if a Veteran has a permanent total service-connected disability.  38 U.S.C.A. §§ 3500, 3501 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.807(a), 21.3021 (2012).  As noted, a total disability may be assigned where the Veteran's service-connected disabilities are rated 100 percent disabling under the rating schedule, or if the Veteran is unemployable due to service-connected disabilities.  38 C.F.R. §§ 3.340, 3.341 (2012).  Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person.  Diseases and injuries of long standing which are actually totally incapacitating will be regarded as permanently and totally disabling when the probability of permanent improvement under treatment is remote.  The age of the disabled person may be considered in determining permanence.  38 C.F.R. § 3.340(b) (2012).

Generally, the effective date of an award of compensation based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400(o)(1) (2012).  An exception to this rule is that the effective date of an award of increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the claim is received within one year from such date; otherwise, it is the date of receipt of the claim.  38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). 

The Court has clarified that 38 C.F.R. § 3.400(o)(2) is applicable only where an increase in disability precedes a claim for an increased disability rating.  In other cases, the general rule of 38 C.F.R. § 3.400(o)(1) applies.  See Harper v. Brown, 10 Vet. App. 125 (1997).  Section 3.400(o)(2) is intended to be applied in those instances where the date of increased disablement can be factually ascertained with a degree of certainty and is not intended to cover situations where a disability worsened gradually and imperceptibly over an extended period of time and there is no evidence of entitlement to increased evaluation prior to the date of claim.  See VAOPGCPREC 12-98 (Sept. 23, 1998). 

Thus, the Court and VA's General Counsel have interpreted the provisions of 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400 as meaning that if the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable."  If the increase occurred more than one year prior to the claim, the increase is effective the date of claim.  If the increase occurred after the date of claim, the effective date is the date of increase.  Harper, 10 Vet. App. at 126-27; VAOPGCPREC 12-98 (1998). 

A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a).  Any communication or action indicating an intent to apply for one or more VA benefits from a claimant, his or her 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.  38 C.F.R. § 3.155.  Such informal claim must identify the benefit sought.  See Kessel v. West, 13 Vet. App. 9 (1999).  VA is required to identify and act on informal claims for benefits.  38 U.S.C.A. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a) (2012).  See Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992).  If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim.  38 C.F.R. § 3.155(a) (2012). 

In addition, an informal claim may consist of a VA report of examination or hospitalization.  The date of the examination or hospital admission will be accepted as the date of receipt of a claim if such a report relates to examination or treatment of a disability for which service connection has previously been established.  38 C.F.R. § 3.157(b)(1).  To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim.  See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992).

Analysis 

The Veteran essentially argues that he should be awarded TDIU benefits much earlier than 2002.  The Board disagrees.  The Board believes there is no evidence of record prior to July 20, 2002, indicating that the Veteran was unemployable due to the severity of his service-connected disorders alone.  Prior to the assignment of a 10 percent disability rating for the Veteran's right knee disability, following the examination on July 20, 2002, his combined disability rating was 50 percent.  Accordingly, he did not meet the schedular criteria for the assignment of a TDIU.  The Veteran's principal disability is thrombophlebitis of the left lower extremity.  A 40 percent rating has been in effect since January 12, 1998, under Diagnostic Code 7121.  The medical evidence prior to July 2002 has not shown the presence of persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration, symptoms required for the next higher rating of 60 percent under Diagnostic Code 7121.  The 40 percent evaluation currently assigned for the disorder recognizes persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration.  38 C.F.R. § 4.110, Code 7121. 

During the time of the July 20, 2002 VA examination, the Veteran complained of popping, catching, and instability of both knees.  Both knees were stable with full range of motion.  The examiner stated that, although there was in his opinion no disability of the knee, there was pain of the right knee with maneuvers of the knee.  As a result, the evaluation for the chondromalacia of the knee was increased to 10 percent, recognized from the Veteran's complaint of pain.  However, it was indicated that a higher evaluation of 20 percent would not be warranted under Code 5257 unless there was evidence of moderate subluxation or lateral instability of the knee, or under Code 5260 for limitation of motion of the knee with flexion limited to 30 degrees, or under Code 5261 for extension limited to 15 degrees.  The medical evidence prior to July 20, 2002, does not show the presence of symptomatology associated with the knee that would warrant the assignment of a compensable rating for any knee impairment.  Thereafter, the combined rating for the Veteran was increased to 60 percent.  

With regard to the TDIU itself, the Board notes that the Veteran also has significant coronary artery disease, but service connection is not in effect for this disorder and it may therefore not be considered when evaluating the assignment of a TDIU.  Accordingly, the Board finds that TDIU was properly awarded from July 20, 2002. 

The Board also finds that a TDIU, based on an extraschedular basis, is not warranted prior to July 20, 2002.  The competent medical, and competent and credible lay, evidence simply does not show that he was unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities prior to that date.  38 C.F.R. §§ 3.321(b), 4.16(b). 

As The governing law and regulations are very specific, and the Board is bound by them.  See 38 U.S.C.A. § 7104(c).  Based on facts shown, there is no legal basis for the assignment of an effective date prior to July 20, 2002, for a grant of TDIU.  The law is dispositive in this matter; therefore, the benefit of the doubt doctrine does not apply.  See Sabonis v. Brown, 6 Vet. App. 426 (1994). 

Effective date prior to July 20 2002, for Dependents' Educational Assistance and Permanent Total Status

Regarding the Veteran's claim for an earlier effective date for Dependents' Educational Assistance (DEA) benefits pursuant to 38 U.S.C.A., Chapter 35, an earlier effective date is not warranted.  The Veteran was awarded eligibility to Dependents' Educational Assistance effective July 20 2002, based on the evidence he had been awarded a TDIU rating, which was determined to be permanent in nature, as of that same date.  

Since the effective date for DEA benefits was directly related to a finding that the Veteran had a total disability permanent in nature, by virtue of his TDIU rating, July 20 2002 thus this is the earliest date in which the Veteran could establish eligibility for Chapter 35-DEA benefits.  Accordingly, an earlier effective date for DEA benefits is denied.  

For purposes of DEA under 38 U.S.C. Chapter 35, the law relevant to the Veteran's current claim provides that basic eligibility exists if the Veteran was discharged from service under conditions other than dishonorable and if he has a permanent and total service-connected disability.  38 U.S.C.A. § 3501; 38 C.F.R. §§ 3.807, 21.3021 (2012). 

As the foregoing analysis concluded that the Veteran did not meet the criteria for a TDIU prior to July 20, 2002, the assignment of an effective date prior to that time for the eligibility for DEA and permanent total status is not warranted.  Since eligibility for DEA under 38 U.S.C. Chapter 35 is predicated on a finding of permanent total disability in this case, the effective date of such eligibility cannot precede July 20, 2002.  

The Board finds that this matter is one in which the law is dispositive and that this issue must be denied on that basis.  See Sabonis v. Brown, 6 Vet. App. 426 (1994). 

As to an earlier effective date for the assignment of a 10 percent rating for the right knee disorder, the Board finds that it was not until after the date of claim , that it was "factually ascertainable" that the Veteran's right knee disorder met the criteria for a 10 percent rating.  As noted, if the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable"; if the increase occurred more than one year prior to the claim, the increase is effective the date of claim; and lastly, if the increase occurred after the date of claim, the effective date is the date of increase.  Harper, 10 Vet. App. at 126-27; VAOPGCPREC 12-98 (1998).  Here the claim was received in 1995; thus the increase occurred after the date of claim and thus the effective date is the date of increase.  

In fact, the Board finds that none of the medical records dated prior to July 2002, show that the Veteran's right knee disorder meets the criteria for a 10 percent rating.  None of the VA treatment records or private records in the file indicate treatment for right knee complaints and there is nothing in the file showing that the Veteran's knee was limited in motion to a compensable degree, was arthritic or was not stable, as required for a 10 percent rating.  As noted at the time of the July 2002 examination, the Veteran complained of popping, catching, and instability of both knees.  The examiner stated that, although there was in his opinion no disability of the knee, there was pain of the right knee with maneuvers of the knee.  As a result, the evaluation for the chondromalacia of the knee was increased to 10 percent, recognized from the Veteran's complaint of pain. X-rays are negative for arthritis.  

Accordingly, the Board finds that the preponderance of the evidence is against the claim for an effective date earlier than July 20, 2002, and the claim is denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

A total disability rating based on unemployability due to service-connected disability (TDIU) is denied.   

An effective date prior to July 20, 2002, for basic eligibility for Dependents' Educational Assistance (DEA), pursuant to 38 U.S.C. Chapter 35 and permanent total status is denied. 

An effective date prior to July 20, 2002 for the evaluation of a 10 percent evaluation for a right knee disorder is denied.  



____________________________________________
F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs