Citation Nr: 1312929 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 10-40 592A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an effective date prior to March 30, 2005, for the award of entitlement to service connection for instability and subluxation of the left knee. 2. Entitlement to an effective date prior to March 30, 2005, for the award of entitlement to service connection for instability and subluxation of the right knee. 3. Entitlement to an effective date prior to September 3, 2009, for the award of a 20 percent disability rating for patellofemoral syndrome of the left knee. 4. Entitlement to a total disability rating due to unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran performed active duty for training (ACDUTRA) from June to October 1988. This matter comes to the Board of Veterans Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In an August 2010 decision, the Board denied an evaluation in excess of 10 percent for right knee patellofemoral syndrome, awarded a 20 percent evaluation for left knee patellofemoral syndrome, and awarded separate 20 percent evaluations for right and left knee instability and subluxation. In a September 2010 rating decision, the RO implemented the Board's August 2010 decision, assigning effective dates to the disabilities and ratings assigned. It is from this rating decision that the Veteran perfected this appeal. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues decided herein. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO. FINDINGS OF FACT 1. On July 1, 1997, VA's General Counsel issued an opinion stating that a veteran that demonstrated both instability and arthritis of the knee may be entitled to separate disability ratings under Diagnostic Codes 5003 and 5257. 2. The Veteran filed an informal claim for an increased rating for each of her knees that was received by the RO on January 16, 2002. 3. Evidence of record dated beginning in July 1996 shows that the Veteran experienced subluxation of her knees. Evidence dated in 2005 shows that subluxation was still present and had been chronic. 4. In its August 2010 decision, the Board assigned a 20 percent rating for the Veteran's left knee patellofemoral syndrome and did not assign a staged rating. CONCLUSIONS OF LAW 1. The criteria for an effective date of January 16, 2001, for service connection for instability and subluxation of the left knee are met. 38 U.S.C.A. §§ 5103, 5103A, 5107, and 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.155, 3.159, 3.400 (2012). 2. The criteria for an effective date of January 16, 2001, for service connection for instability and subluxation of the right knee are met. 38 U.S.C.A. §§ 5103, 5103A, 5107, and 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.155, 3.159, 3.400 (2012). 3. The criteria for an effective date of January 16, 2002, for the assignment of a 20 percent disability rating for patellofemoral syndrome of the left knee are met. 38 U.S.C.A. §§ 5103, 5103A, 5107, and 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.155, 3.159, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, VA must inform the claimant of any information and 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. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In an August 2009 letter, the RO notified the Veteran of the evidence needed to substantiate the claim for an earlier effective date. This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that she would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate her claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to her claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records (STRs) and all of the identified post-service private and VA treatment records. The determination in this case turns on when the Veteran filed her claim for increased ratings for her knees and on the earliest effective date allowed by law. There is no indication or suggestion from the Veteran that any claim she believes was filed is not associated with the claims file. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claims for earlier effective dates are thus ready to be considered on the merits. II. Analysis Laws and Regulations The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012) and 38 C.F.R. § 3.400 (2012). Congress has provided that, unless specifically provided otherwise, the effective date of an award based on an original claim for 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). The implementing regulation clarifies this to mean that the effective date of an evaluation and an award of compensation based on an original claim will be the day following service or date entitlement arose if the claim for service connection is received within one year after separation from service; otherwise, the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400(b)(2)(i). Under 38 U.S.C.A. § 5101(a), a specific claim must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. See also 38 C.F.R. § 3.151(a). A claim is defined as "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). An informal claim is any communication indicating an intent to apply for one or more benefits, and must identify the benefit sought. 38 C.F.R. § 3.155(a). Upon receipt of an informal claim, if a formal claim has not been filed, an application shall be sent to the claimant for execution. If that completed application is received within one year of the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. Earlier Effective Dates for Grant of Right and Left Knee Instability 38 U.S.C.A. § 5110(g) (West 2002) indicates that where compensation is awarded or increased pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the Act or administrative issue. In no event shall such award or increase be retroactive for more than one year from the date of application therefor or the date of administrative determination of entitlement, whichever is earlier. If a claim is reviewed within one year of the effective date of a liberalizing law, benefits may be authorized from the date of the law; if a claim is reviewed at the request of the claimant more than one year after the effective date of the law or VA issue, benefits may be authorized for a period of one year prior to the date of receipt of the request. 38 C.F.R. § 3.114(a) (2012). On July 1, 1997, VA's General Counsel held that a Veteran who has limitation of motion and instability of the knee may be evaluated separately under Diagnostic Codes 5003 and 5257 provided additional disability is shown. VAOPGCPREC 23-97 (July 1, 1997). In this case, in an October 1999 rating decision, in response to a claim of entitlement to service connection for knee disorders, the RO granted service connection for patellofemoral syndrome of each knee and assigned a 10 percent disability rating. The Veteran was notified of the decision that same month and did not initiate an appeal. The decision became final. The next correspondence received from the Veteran that addressed her knee disabilities in any way is the informal claim that was received January 16, 2002. While the Veteran's attorney alleged in her notice of disagreement that she was entitled to an effective date the same as the filing of her original claim, he does not provide a reason why this is the case. The Veteran filed her original claim in August 1999, which led to the October 1999 rating decision discussed above. Neither the Veteran nor her attorney has contended that she initiated an appeal of the October 1999 rating decision or that this decision never became final. That decision became final one year after notification. 38 C.F.R. § 20.1103. The next correspondence received from the Veteran regarding her knees is dated January 16, 2002, and the Veteran has not alleged that she filed a claim for an increase any earlier than that date. The RO assigned the March 30, 2005 date for the awards of service connection for instability and subluxation of the right and left knees based upon a written statement provided by the Veteran's VA physician that contains that date and indicates that the Veteran had continued to have chronic subluxation and lateral instability of each knee. That record certainly shows that the Veteran demonstrated those characteristics. However, the Board finds that a review of the record shows that patella subluxation was noted in a July 1996 private treatment record that also indicated that the Veteran complained of pain in her knees and was diagnosed as having patellofemoral syndrome in her knees. Furthermore, in the March 2005 written statement, the Veteran's VA physician indicated that the subluxation and instability was continuing, insinuating that it had been present prior to that date. As such, the Board finds that the Veteran met all of the eligibility criteria for separate ratings for subluxation and patellofemoral syndrome with painful motion at the time that the applicable General Counsel Opinion was issued on July 1, 1997. The evidence dated since then suggests that subluxation and patellofemoral syndrome manifested by painful and/or limited motion has existed since that time. Because the Veteran demonstrated periarticular pathology productive of painful motion and subluxation of both knees at the time of the July 1, 1997 General Counsel Opinion, and the evidence of record supports a finding that it has been present since then, under 38 U.S.C.A. § 5110(g), the Veteran is entitled to an effective date one year prior to her date of claim. As such, an effective date of January 16, 2001 is assigned. The Veteran's attorney has alleged that she is entitled to an effective date in August 1999, when she filed her original claim for service connection. Neither the Veteran nor his attorney explains why this date is warranted or alleges that the October 1999 did not become final or that the Veteran appealed this decision. As such, the Board finds that the effective date of January 16, 2001 is the earliest effective date assignable for the issues on appeal. Assignment of an effective date other than January 16, 2001 is not warranted. In this instance, the law precludes the assignment of an effective date more than one year prior to the date of receipt of the claim. 38 U.S.C.A. § 5110(g). The Veteran has not disputed that the date of her claim is January 16, 2002. As such, the earliest possible effective date of her award of evaluations for instability and subluxation of the right and left knees January 16, 2001. Earlier Effective Date for 20 Percent Rating for Left Knee In the August 2010 decision, the Board granted an increase to a 20 percent rating for the Veteran's service-connected left knee patellofemoral syndrome. The Board did not grant this award as a staged rating or otherwise imply that a staged rating was warranted. As explained in more detail above, the date of the Veteran's claim is January 16, 2002. Neither the Veteran nor her attorney has alleged that any other date is the date she filed her current claim. When the RO implemented the Board's August 2010 decision in a September 2010 rating decision, it assigned the 20 percent rating effective September 3, 2009, creating a staged rating for the Veteran's left knee patellofemoral syndrome. As indicated above, since the Board did not assign this date or otherwise find that a staged rating was warranted, this effective date was in error. The correct effective date for the implementation of the 20 percent rating for left knee patellofemoral syndrome is January 16, 2002, the date of the Veteran's claim. There is no legal entitlement to an effective date prior to January 16, 2002 for the award of the 20 percent evaluation for left knee patellofemoral syndrome, and neither the Veteran nor her attorney has alleged that an earlier date is warranted or that a claim was filed prior to that date. As directed by the Board's August 2010 decision, a 20 percent disability rating is assigned for left knee patellofemoral syndrome, effective January 16, 2002. ORDER An effective date of January 16, 2001, for the award of entitlement to service connection for instability and subluxation of the left knee, is granted. An effective date of January 16, 2001, for the award of entitlement to service connection for instability and subluxation of the right knee, is granted. An effective date of January 16, 2002, for the award of a 20 percent rating for left knee patellofemoral syndrome is granted. REMAND A review of the virtual claims file reveals that the Veteran underwent VA examination in December 2012, which included examination of her knees. In a January 2013 rating decision, the RO proposed to reduce the ratings assigned to her right and left knee disabilities. As these claims are still pending, final adjudication of the issue of entitlement to a TDIU, which is inextricably intertwined, may not occur until the outcome of this proposed reduction is known. As such, remand of this issue is necessary at this time. Accordingly, the case is REMANDED for the following action: Following final adjudication of the proposed reduction of the ratings assigned to the Veteran's knee disabilities, readjudicate the claim of entitlement to a TDIU. 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. 2012). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs