Citation Nr: 1324113 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 04-31 975A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for a right knee disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A.E.H. Gibson, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1967 to March 1970. In October 2012, the Board determined there was new and material evidence and, therefore, reopened his claim for service connection for a right knee disorder. But rather than immediately readjudicating this claim on its underlying merits, the Board instead then proceeded to REMAND this claim to the RO via the Appeals Management Center (AMC) for further development and consideration. The additional development especially included obtaining all outstanding treatment records, whether from VA or elsewhere (privately, etc.), and having him undergo another VA compensation examination for a supplemental medical nexus opinion regarding the etiology of his right knee disorder, but particularly insofar as whether his military service caused it or, if pre-existing, aggravated it. Since completing this additional development, the AMC has issued a decision in June 2013 granting this claim for service connection for a right knee disorder. The AMC assigned separate ratings for this disorder, also "staged" the ratings, meaning assigned different ratings for different periods of time. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Specifically, the AMC assigned an initial 10 percent rating for osteoarthritis from April 2, 2003 to November 20, 2003, then a 100 percent rating from November 20, 2003 to January 30, 2005, since the Veteran had to have knee replacement surgery because of the osteoarthritis, also an additional 0 percent (noncompensable) rating for the surgical scar as of November 20, 2003, then a lesser 30 percent rating for the knee replacement and osteoarthritis as of February 1, 2005. Inexplicably, the AMC has returned this claim to the Board for further appellate consideration, even though it was granted on remand and, by all indications, the Veteran has not separately appealed either these ratings or effective dates. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) thereafter must be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and effective date). Thus, this appeal must be dismissed. The Veteran's representative more recently submitted a brief, however, raising additional claims of entitlement to service connection for a back disorder, left knee disorder, bleeding ulcer, gastritis, gastroesophageal reflux disease (GERD) with esophagitis, diabetic arthropathy, erectile dysfunction (ED), generalized anxiety disorder, alcohol abuse, and headaches. But since the local regional office (RO) has not had opportunity to initially considered these other claims as the Agency of Original Jurisdiction (AOJ), the Board is referring them to the RO for appropriate development and consideration since the Board does not have authority to consider them in the first instance, so at this time. See Godfrey v. Brown, 7 Vet. App. 398 (1995) (the Board generally does not have jurisdiction over a claim not yet adjudicated by the RO). FINDINGS OF FACT 1. In a June 2013 decision, on remand, the AMC granted the Veteran's claim for service connection for a right knee disorder. 2. The record does not reflect that the Veteran has since in response filed an NOD as concerning either the initial ratings or effective dates assigned for this now service-connected disability. CONCLUSION OF LAW As the Veteran's claim for service connection for a right knee disorder was granted in full on remand, and he has not since separately appealed the "downstream" issues of the initial ratings and effective dates assigned, the Board no longer has jurisdiction over the claim, requiring its dismissal. 38 U.S.C.A. § 7105 (West 2002); Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a complete or substantially complete application for benefits, VA has an obligation to notify the claimant of the information and evidence needed to substantiate the claim, including apprising him of his and VA's respective responsibilities in obtaining this supporting evidence, as well as a duty to assist him in fully developing the claim by making reasonable efforts to obtain all potentially relevant evidence and having him undergo a VA examination for a medical opinion when needed to fairly decide the claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this particular case at hand, however, the benefit sought on appeal has been granted. Thus, there is no remaining case or controversy for the Board to decide. Therefore, no discussion is required as concerning whether there was compliance with these duty-to-notify-and-assist obligations. Indeed, since the requested benefit was allowed, even if for the sake of argument there was not this required notice and assistance, this would be inconsequential and therefore ultimately, at most, amount to nonprejudicial, i.e., harmless error since the Veteran is receiving the requested benefit, regardless. 38 C.F.R. § 20.1102 (2012). See also Shinseki v. Sanders, 556 U.S. 396, 407, 410 (2009) (clarifying that VCAA notice and assistance errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on an individual case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran has this burden of proof of not only establishing error but also, above and beyond that, of showing how it is unduly prejudicial, meaning outcome determinative of his claim). The Board remanded the Veteran's claim of entitlement to service connection for a right knee disorder in October 2012 for additional development that especially included obtaining all outstanding VA and private treatment records and providing another VA compensation examination for a supplemental medical nexus opinion regarding the etiology of his right knee disorder, but particularly insofar as whether his military service caused it or, if pre-existing, aggravated it. Since completing this additional development, the AMC has issued a decision in June 2013 granting this claim for service connection for a right knee disorder. The AMC assigned separate ratings for this disorder, also "staged" the ratings, meaning assigned different ratings for different periods of time. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Specifically, the AMC assigned an initial 10 percent rating for osteoarthritis from April 2, 2003 to November 20, 2003, then a 100 percent rating from November 20, 2003 to January 30, 2005, since the Veteran had to have knee replacement surgery because of the osteoarthritis, also an additional 0 percent (noncompensable) rating for the surgical scar as of November 20, 2003, then a lesser 30 percent rating for the knee replacement and osteoarthritis as of February 1, 2005. The Veteran has not since, in response, separately appealed either these initial ratings or effective dates, although he has one year from the date he was provided notification of that decision to do so by filing another NOD as specifically concerning these "downstream" issues. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.201. Consequently, unless and until he does there is no remaining case or controversy for the Board to adjudicate in this matter, requiring the immediate dismissal of this appeal. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); and Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). Simply put, the benefit initially sought on appeal already has been granted in full. The Veteran's representative has filed a statement asserting that the Veteran's back and left knee disorders should be service connected secondary to his recently service-connected right knee disability. See 38 C.F.R. § 3.310(a) and (b) (permitting the granting of service connection for additional disability that is proximately due to, the result of, or aggravated by a service-connected disability). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). The representative argues that these additional conditions should be considered part and parcel of the right knee disability, which, in effect, they will be if ever determined to be secondary to this service-connected disability. See again 38 C.F.R. § 3.310. But these amount to entirely new claims, even if derivative of a claim already before the Board. The effective date for a secondarily service-connected condition is not identical to that of the original condition; the effective date could arise no earlier than the date on which the claimant applied for benefits for the condition at issue. See Ellington v. Nicholson, 541 F.3d 1364 (Fed. Cir. 2008). The effective date assigned for a secondarily service-connected condition does not have to be the same as the effective date for the underlying condition simply because 38 C.F.R. § 3.310 states that a "secondary condition shall be considered a part of the original condition." See Ross v. Peake, 21 Vet. App. 528 (2008). The issue of entitlement to service connection for the back and left knee disorders is not encapsulated by the issue of entitlement to service connection to the right knee disability, in other words, they are not the same claim, rather, these additional claims are merely derivative of the initial claim. 38 U.S.C.A. § 7104(a). And the Board's jurisdiction is limited to deciding questions in appeals of matters that are subject to decision by the Secretary, and which have been the subject of a decision by the AOJ. See Bernard v. Brown, 4 Vet. App. 384, 391 (1993). So as the RO, as the AOJ, has not had opportunity in the first instance to consider these additional claims, the Board does not presently have jurisdiction over them. The representative's statement further asserts that the Veteran's bleeding ulcer, gastritis, GERD with esophagitis, diabetic arthropathy, ED, generalized anxiety disorder, alcohol abuse, and headaches should also be service connected. But as the AOJ, the RO also has not had opportunity to initially adjudicate these claims in the first instance, either, so the Board does not presently have jurisdiction over them. Accordingly, the Board is referring these claims to the RO for appropriate development and consideration. See Godfrey v. Brown, 7 Vet. App. 398 (1995) (The Board generally does not have jurisdiction over claims not yet adjudicated by the RO). Lastly, the Board's April 2011 and October 2012 remands also referred still additional claims of entitlement to service connection for a right shoulder disorder and a total disability rating based on individual unemployability (TDIU). A June 2013 AMC memorandum directed the RO to proceed with development of these claims, so this apparently already has begun. ORDER The claim of entitlement to service connection for a right knee disorder is dismissed. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs