Citation Nr: 1328436 Decision Date: 09/05/13 Archive Date: 09/17/13 DOCKET NO. 10-44 012 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to an effective date earlier than March 4, 2008 for an award of service connection for degenerative joint disease of the right knee. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from August 1952 to August 1956. This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. In a decision of March 2012, the Board denied entitlement to an increased rating for the Veteran's service-connected right knee disability. At that same time, the Board remanded for additional development the issue of entitlement to an effective date prior to March 4, 2008, for an award of service connection for a right knee disability, as well as the issue of entitlement to a total disability rating based upon individual unemployability. In November 2012 correspondence the Veteran indicated that he wished to withdraw from consideration the issue of entitlement to a total disability rating based upon individual unemployability, an issue of which the Board had taken jurisdiction under the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, that issue is no longer before the Board. Finally, good or sufficient cause having been shown, the Veteran's appeal has been advanced on the Board's docket under the provisions of 38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. § 20.900(c) (2012). FINDINGS OF FACT 1. In an unappealed January 1957 rating decision, VA denied entitlement to service connection for a right knee disorder, specifically, the residuals of osteochondritis of the right knee. 2. In an unappealed August 2002 rating decision, VA again denied entitlement to service connection for the residuals of osteochondritis of the right knee. 3. In an unappealed October 2006 rating decision, VA again denied entitlement to service connection for the residuals of osteochondritis of the right knee. 4. On March 4, 2008, there was received the Veteran's claim to reopen the issue of entitlement to service connection for a right knee disability. 5. In a rating decision of March 2012, VA determined that there was no clear and unmistakable error in a January 30, 1957 rating decision which denied entitlement to service connection for a right knee disability, specifically, the residuals of osteochondritis of the right knee. 6. Entitlement to service connection for degenerative joint disease of the right knee arose no earlier than February 17, 2010, the date of a Board decision which found a nexus between the Veteran's right knee disability and his active military service, and ultimately led to the assignment of an effective date of March 4, 2008, that is, prior to February 17, 2010, for the award of service connection for degenerative joint disease of the right knee. CONCLUSION OF LAW Entitlement to an effective date prior to March 4, 2008 for an award of service connection for right knee degenerative joint disease is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5110, 7105 (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 and Veterans Regulation No. 2(a), pt. II, par. III; Department of Veterans Affairs Regulations 1008 and 1009, effective January 25, 1936 to December 31, 1957. REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Concerning the Veteran's claim of entitlement to an earlier effective date, inasmuch as service connection, an initial rating, and an initial effective date have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claim. Currently, there is no evidence that additional pertinent records have yet to be requested, or that a VA examination is in order. Moreover, there is currently no error or issue which precludes the Board from addressing the merits of the Veteran's appeal. Finally, the Board has reviewed all the evidence in the Veteran's claims file, which includes his multiple contentions, including those offered during the course of a March 2011 RO hearing, as well as both VA and private treatment records and examination reports, and other pertinent documents. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claim, and what the evidence in the claims file shows, or fails to show, with respect to that claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Earlier Effective Date As regards the issue of entitlement to an effective date earlier than March 4, 2008 for an award of service connection for degenerative joint disease of the right knee, the law provides that service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303. The effective date of an award of service connection based on an original claim, a claim reopened after final disallowance, or a claim for increase is the date of receipt of claim, or the date entitlement arose, whichever is later. The effective date of an evaluation or award of compensation is generally the day following separation from service, or the date entitlement arose, if the claim is received within one year after separation from service; otherwise, the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. In the case at hand, in a January 1957 rating decision VA denied entitlement to service connection for a right knee disability, specifically, the residuals of osteochondritis of the right knee. The Veteran failed to appeal that denial of benefits, with the result that the January 1957 rating decision became final. Veterans Regulation No. 2(a), pt. II, par. III; Department of Veterans Affairs Regulations 1008 and 1009, effective January 25, 1936 to December 31, 1957. In a subsequent rating decisions of August 2002 and October 2006, VA denied entitlement to service connection for the residuals of osteochondritis of the right knee. On each occasion the Veteran failed to perfect a timely appeal to the denial of benefits. Accordingly, these determinations are also final. 38 U.S.C.A. § 7105. On March 4, 2008, the Veteran's claim to reopen the issue of entitlement to service connection for a right knee disability was received. In February 2010, the Board granted entitlement to service connection for right knee degenerative joint disease. In a rating decision of March 2010, the RO effectuated the Board's February 2010 decision, granting service connection for right knee degenerative joint disease knee, effective from March 4, 2008 the date of the Veteran's claim to reopen. In a March 2012 rating decision the RO found no clear and unmistakable error in a January 30, 1957 rating decision which denied entitlement to service connection for a right knee disability. The Veteran failed to appeal that determination, and it is now final. 38 U.S.C.A. § 7105. The Veteran has argued that the aforementioned January 30, 1957 rating decision was clearly and unmistakably erroneous, and that he is therefore entitled to an earlier, more "reasonable" date for the award of service connection for a right knee disability. However, as noted above, all prior rating decisions denying entitlement to service connection for right knee pathology are final. Moreover, the January 1957 rating decision which denied entitlement to service connection for a right knee disability has been determined not to be clearly and unmistakably erroneous. Not until March 4, 2008 did VA receive the Veteran's claim to reopen this issue. It was the March 4, 2008 claim which ultimately led to the award of service connection for degenerative joint disease of the right knee. As noted above, the effective date of an award of service connection based on a claim reopened after final disallowance (as in this case) is the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. In the case at hand, "entitlement arose" no earlier than February 17, 2010, the date of the Board decision which awarded service connection for degenerative joint disease of the right knee. Prior to that date the evidence did not raise a reasonable doubt as to the etiology of the appellant's right knee disorder. The fact that the Hartford RO chose to assign an effective date of March 4, 2008 for the award of service connection for degenerative joint disease of the right knee, apparently based on the date of receipt of the Veteran's claim to reopen, does nothing to alter the fact that, under any set of circumstances, entitlement to service connection did not arise prior to February 2010. The Board has taken into consideration the Veteran's statements offered during the course of a March 2011 RO hearing. Those statements, however, in and of themselves, do not present evidence showing a reasonable doubt upon which to grant the benefit sought in light of the evidence as a whole. Based on a review of the entire evidence of record, entitlement to an effective date earlier than March 4, 2008 for the award of service connection for degenerative joint disease of the right knee is not warranted. In reaching this determination, the Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an effective date prior to March 4, 2008 for the award of service connection for degenerative joint disease of the right knee is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs