Citation Nr: 1333472 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 10-27 276 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an earlier effective date than March 16, 2009, for a 10 percent rating for degenerative joint disease of the right knee. 2. Entitlement to an earlier effective date than March 16, 2009, for a 10 percent rating for degenerative joint disease of the left knee. 3. Entitlement to an earlier effective date than March 16, 2009, for a 10 percent rating for degenerative joint disease of the right ankle. 4. Entitlement to an earlier effective date than March 16, 2009, for a 10 percent rating for status-post trauma with degenerative joint disease of the left ankle. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from July 1993 to May 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, in which the RO assigned separate 10 percent ratings for the Veteran's service-connected degenerative joint disease of the right knee, degenerative joint disease of the left knee, degenerative joint disease of the right ankle, and status-post trauma with degenerative joint disease of the left ankle, each effective March 16, 2009. A Travel Board hearing was held at the RO in June 2013 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. The Board notes that this appeal involves claims filed under the Benefits Delivery at Discharge (BDD) program. FINDINGS OF FACT 1. The record evidence demonstrates that the Veteran's original claims of service connection for disabilities of the knees and ankles were date-stamped as received by VA on March 6, 2008. 2. On VA examination dated on April 21, 2008, while he still was on active service, the Veteran reported that his bilateral knee and bilateral ankle problems had existed since 1994. 3. The Veteran was discharged from active service on May 31, 2008. 3. In a rating decision dated on July 26, 2008, and issued to the Veteran and his service representative on July 30, 2008, the RO granted, in pertinent part, service connection for multiple arthritic joint conditions (left knee degenerative joint disease, right knee degenerative joint disease, left ankle degenerative joint disease, and right ankle degenerative joint disease), assigning a single 10 percent rating effective June 1, 2008. 4. In statements on a VA Form 21-4138 dated on March 12, 2009, and date-stamped as received by the RO on March 16, 2009, the Veteran requested separate compensable ratings for his service-connected degenerative joint disease of the right knee, degenerative joint disease of the left knee, degenerative joint disease of the right ankle, and status-post trauma with degenerative joint disease of the left ankle. 5. In a rating decision dated on June 8, 2009, and issued to the Veteran and his service representative on June 12, 2009, the RO assigned separate 10 percent ratings for the Veteran's service-connected degenerative joint disease of the right knee, degenerative joint disease of the left knee, degenerative joint disease of the right ankle, and status-post trauma with degenerative joint disease of the left ankle, each effective March 16, 2009. 6. In statements on a VA Form 21-4138 dated on July 30, 2009, and date-stamped as received by the RO on August 4, 2009, the Veteran requested an earlier effective date than March 16, 2009, for each of the 10 percent ratings for service-connected degenerative joint disease of the right knee, degenerative joint disease of the left knee, degenerative joint disease of the right ankle, and status-post trauma with degenerative joint disease of the left ankle. CONCLUSIONS OF LAW 1. The criteria for an effective date of June 1, 2008, for a 10 percent rating for degenerative joint disease of the right knee have been met. 38 U.S.C.A. §§ 5101(a), 5110, 5111 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.1, 3.4(b)(1), 3.31, 3.105(a), 3.151(a), 3.400 (2013). 2. The criteria for an effective date of June 1, 2008, for a 10 percent rating for degenerative joint disease of the left knee have been met. 38 U.S.C.A. §§ 5101(a), 5110, 5111 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.1, 3.4(b)(1), 3.31, 3.105(a), 3.151(a), 3.400 (2013). 3. The criteria for an effective date of June 1, 2008, for a 10 percent rating for degenerative joint disease of the right ankle have been met. 38 U.S.C.A. §§ 5101(a), 5110, 5111 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.1, 3.4(b)(1), 3.31, 3.105(a), 3.151(a), 3.400 (2013). 4. The criteria for an effective date of June 1, 2008, for a 10 percent rating for status-post trauma with degenerative joint disease of the left ankle have been met. 38 U.S.C.A. §§ 5101(a), 5110, 5111 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.1, 3.4(b)(1), 3.31, 3.105(a), 3.151(a), 3.400 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. Given the favorable disposition of the action here with respect to the Veteran's earlier effective date claims, which is not prejudicial to him, the Board need not assess VA's compliance with the VCAA with respect to these claims. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Earlier Effective Date Claims The Veteran contends that he is entitled to an earlier effective date than March 6, 2009, for the separate 10 percent ratings assigned for his service-connected degenerative joint disease of the right knee, degenerative joint disease of the left knee, degenerative joint disease of the right ankle, and status-post trauma with degenerative joint disease of the left ankle. He specifically contends that, because he has experienced the same level of disability in his knees and ankles during and after active service, and because his service connection claims were received by VA within 1 year of his separation from service, he is entitled to an effective date of June 1, 2008, the day after the date of his discharge from active service. In general, except as otherwise provided, the effective date of an evaluation an award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. A "claim" is 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); Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a). 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). Upon receipt of an informal claim, if a formal claim has not been filed, the RO will forward an application form to the claimant for execution. If the RO receives a complete application from the claimant within one year from the date it was sent, the RO will consider it filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (2013). A report of examination or hospitalization which meets the requirements of this section will be accepted as an informal claim for benefits under an existing law or for benefits under a liberalizing law or VA issue, if the report relates to a disability which may establish entitlement. 38 C.F.R. § 3.157. Once a formal claim for compensation has been allowed, receipt of a report of examination by VA or evidence from a private physician will be accepted as an informal claim for benefits. In the case of examination by VA, the date of examination will be accepted as the date of receipt of a claim. The provisions of the preceding sentence apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established, or when a claim specifying the benefit sought is received within one year from the date of such examination. In the case of evidence from a private physician, the date of receipt of such evidence by VA will be accepted as the date of the claim. Id. For an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within 1 year from such date; otherwise, the effective date is the date of receipt of claim. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(o)(2). See Hazan v. Gober, 10 Vet. App. 511 (1997); Servello v. Derwinski, 3 Vet. App. 196 (1992). In VAOPGCPREC 12-98, VA's General Counsel noted that 38 C.F.R. § 3.400(o)(2) was added to permit payment of increased disability compensation retroactively to the date the evidence establishes the increase in the degree of disability had occurred. VA's General Counsel said this section was intended to be applied in those instances where the date of increased disablement can be factually ascertained with a degree of certainty. It was noted that this section was not intended to cover situations where disability worsened gradually and imperceptibly over an extended period of time. With respect to the Veteran's earlier effective date claim for service-connected degenerative joint disease of the right knee, the Board notes that Diagnostic Code (DC) 5003-5260 (degenerative arthritis-limitation of leg flexion) provides a 10 percent rating under DC 5003 for degenerative arthritis based on limitation of motion in a particular joint. DC 5003 also states in part that when the limitation of motion in a particular joint is noncompensable under the appropriate DC (in this case, DC 5260), a 10 percent rating is warranted for limitation of motion objectively confirmed by swelling, muscle spasm, or satisfactory evidence of painful motion. DC 5260 provides a 10 percent rating for limitation of leg flexion to 45 degrees. See 38 C.F.R. § 4.71a, DC 5003-5260 (2013). With respect to the Veteran's earlier effective date claim for degenerative joint disease of the left knee, the Board notes that DC 5003-5261 (degenerative arthritis-limitation of leg extension) provides a 10 percent rating under DC 5003 for degenerative arthritis based on limitation of motion in a particular joint. DC 5003 also states in part that when the limitation of motion in a particular joint is noncompensable under the appropriate DC (in this case, DC 5261), a 10 percent rating is warranted for limitation of motion objectively confirmed by swelling, muscle spasm, or satisfactory evidence of painful motion. DC 5261 provides a 10 percent rating for limitation of leg extension to 10 degrees. See 38 C.F.R. § 4.71a, DC 5003-5261 (2013). With respect to the Veteran's earlier effective date claims for degenerative joint disease of the right ankle and for status-post trauma with degenerative joint disease of the left ankle, the Board notes that DC 5003-5271 (degenerative arthritis-limited motion of the ankle) provides a 10 percent rating under DC 5003 for degenerative arthritis based on limitation of motion in a particular joint. DC 5003 also states in part that when the limitation of motion in a particular joint is noncompensable under the appropriate DC (in this case, DC 5271), a 10 percent rating is warranted for limitation of motion objectively confirmed by swelling, muscle spasm, or satisfactory evidence of painful motion. DC 5271 provides a 10 percent rating for moderate limitation of motion of the ankle. See 38 C.F.R. § 4.71a, DC 5003-5261 (2013). The Board also notes that normal dorsiflexion of the ankle is from 0 to 20 degrees and normal plantar flexion of the ankle is from 0 to 45 degrees. See 38 C.F.R. § 4.71, Plate II (2013). Analysis The Board finds that the evidence supports assigning an earlier effective date of June 1, 2008, for the separate 10 percent ratings for the Veteran's service-connected degenerative joint disease of the right knee, degenerative joint disease of the left knee, degenerative joint disease of the right ankle, and for status-post trauma with degenerative joint disease of the left ankle. The Veteran has contended that, because he has experienced the same level of disability in his knees and ankles during and after active service, and because his service connection claims were received by VA within 1 year of his separation from service, he is entitled to an effective date of June 1, 2008, the day after the date of his discharge from active service. Having reviewed the record evidence, the Board agrees. As the RO has noted, the Veteran's voluminous service treatment records show that he experienced multiple injuries to his bilateral knees and bilateral ankles during active service. And, as noted above, the Veteran filed his original service connection claims for bilateral knee and bilateral ankle disabilities (as part of the BDD program) on a VA Form 21-526 that was date-stamped as received by VA on March 12, 2008. The Veteran specifically contended on this form that he had incurred disabilities of the bilateral knees and bilateral ankles during active service. It is undisputed that the Veteran was discharged honorably from active service on May 31, 2008. Because receipt of VA compensation is not permitted while a Veteran is on active service, the earliest possible date that could be assigned for the disability ratings at issue in this appeal is June 1, 2008, the day after the date of the Veteran's discharge from active service. On VA examination in April 2008, prior to his discharge from active service in May 2008, the Veteran's complaints included residuals of a tear of the anterior cruciate ligament (ACL) and medial collateral ligament (MCL) of the right knee and bilateral ankle bone spurs. The VA examiner noted that he had reviewed certain of the Veteran's service treatment records. The Veteran reported that he had injured his bilateral knees and bilateral ankles in 1994 while on active service. He experienced right knee weakness, swelling, and constant pain, and bilateral ankle weakness, swelling, giving way, and constant pain. He denied any right knee stiffness, heat, redness, giving way, lack of endurance, locking, fatigability, or dislocation. He rated his right knee pain as 7/10 and his bilateral ankle pain as 8/10 (with 10/10 being the worst pain). He also denied any bilateral ankle stiffness, heat, redness, lack of endurance, locking, fatigability, or dislocation. Physical examination in April 2008 showed posture and gait within normal limits. Physical examination of the knees showed no locking pain, genu recurvatum, or crepitus in either knee. Range of motion testing of the knees showed right knee flexion to 131 degrees, left knee flexion to 120 degrees, and full extension (to 0 degrees) in both knees. There was no additional limitation of motion in either of the knees due to any of the DeLuca factors. All bilateral knee ligaments were normal on stability testing. Physical examination of the ankles showed no deformity. Range of motion testing of the ankles showed right ankle dorsiflexion to 14 degrees, left ankle dorsiflexion to 15 degrees, and plantar flexion to 20 degrees in both ankles. There was no additional limitation of motion in either of the ankles due to any of the DeLuca factors. X-rays of the right knee showed "early degenerative change with some spurring laterally." X-rays of the right ankle showed "some degenerative changes and spurring." X-rays of the left ankle showed "some degenerative changes and spurring [and]...some calcification around the interosseous ligament." X-rays of the left knee showed "early degenerative changes present." The VA examiner stated that there were decreased range of motion on physical examination of the bilateral knees and degenerative changes in the bilateral knees on x-rays. This examiner also stated that there were decreased range of motion on physical examination of the bilateral ankles and degenerative changes of the bilateral ankles on x-rays. The diagnoses included degenerative disease of the bilateral knees and degenerative joint disease of the bilateral ankles. The Veteran's DD Form 214 shows that he was discharged from active service on May 31, 2008. As noted above, in a rating decision dated on July 26, 2008, and issued to the Veteran and his service representative on July 30, 2008, the RO granted, in pertinent part, service connection for multiple arthritic joint conditions (left knee degenerative joint disease, right knee degenerative joint disease, left ankle degenerative joint disease, and right ankle degenerative joint disease), assigning a single 10 percent rating effective June 1, 2008. The RO concluded that this was the appropriate effective date for a single 10 percent rating for the Veteran's service-connected multiple arthritic joint conditions because it was the day after his date of discharge from service and the earliest effective date allowed by law. As also noted above, in statements on a VA Form 21-4138 dated on March 12, 2009, and date-stamped as received by the RO on March 16, 2009, the Veteran requested separate compensable ratings for his service-connected degenerative joint disease of the right knee, degenerative joint disease of the left knee, degenerative joint disease of the right ankle, and status-post trauma with degenerative joint disease of the left ankle. On VA examination in May 2009, the Veteran's complaints included bilateral knee "popping sensation, stiffness, and occasional swelling," pain on "climbing and descending" stairs, and an inability to squat or kneel, and bilateral ankle pain, stiffness, and occasional swelling. The Veteran reported injuring his right knee and both ankles during service. He denied any specific in-service left knee injury. His bilateral knee pain was recurrent daily pain which he rated as 4-5/10 on a pain scale (with 10/10 being the worst pain) "with restricted activity associated with walking on uneven ground and standing for an extended period of time, which causes increased pain." He also reported flare-ups of bilateral knee pain with activity which he rated as 9-10/10 that lasted "a short duration" and occurred throughout the day. He denied any bilateral knee weakness, locking, or deformity. He rated his right ankle pain as 4-5/10 with flare-ups to 7/10 and his left ankle pain as 5/10 with flare-ups to 9-10/10. His bilateral knee and bilateral ankle pain lasted all day. He limped when he experienced severe left ankle pain. Physical examination in May 2009 showed he was "ambulatory with a normal gait" and no limp. Physical examination of the right knee showed no gross swelling or deformity, tenderness along the medial and lateral aspect of the joint space, some palpable tenderness over the patella, pain with range of motion testing "with gravity and against resistance with some popping sensation," and a stable knee joint. Range of motion testing of the right knee showed flexion to 118 degrees, full extension, and limitation of motion due to mild pain on repetitive testing with no other DeLuca factors present. Physical examination of the left knee showed no gross swelling or deformity, tenderness along the medial and lateral aspect of the joint space, and some pain associated with range of motion testing. Range of motion testing of the left knee showed flexion to 130 degrees, full extension, and limitation of motion due to mild pain on repetitive testing with no other DeLuca factors present. Physical examination of the right ankle showed no gross deformity, swelling, or tenderness, mild pain along the lateral aspect of the ankle joint, a stable ankle joint, pain associated with range of motion "with gravity and against resistance," and pain on repetitive range of motion testing with no other DeLuca factors present. Range of motion testing of the right ankle showed dorsiflexion to 5 degrees and plantar flexion to 40 degrees. Physical examination of the left ankle showed no gross swelling or deformity, mild tenderness over the medial and lateral aspect of the joint space, "some pain associated with range of motion with gravity and against resistance," and mild to moderate pain on repetitive range of motion testing with no other DeLuca factors present. Range of motion testing of the left ankle showed dorsiflexion to 6 degrees and plantar flexion to 36 degrees. X-rays of the right ankle showed minimal degenerative spurring on the malleoli and a plantar spur. X-rays of the knees showed mild degenerative change in the left patellofemoral compartment but were otherwise negative. The diagnoses were right knee degenerative joint disease with stability, left knee degenerative joint disease with stability, right ankle degenerative joint disease with stability, and left ankle degenerative joint disease with stability. As noted above, in a rating decision dated on June 8, 2009, and issued to the Veteran and his service representative on June 12, 2009, the RO assigned separate 10 percent ratings for the Veteran's service-connected degenerative joint disease of the right knee, degenerative joint disease of the left knee, degenerative joint disease of the right ankle, and status-post trauma with degenerative joint disease of the left ankle, each effective March 16, 2009. The RO concluded that separate 10 percent ratings effective March 16, 2009, were warranted for each of these disabilities because the record evidence now showed that they were separately compensable under the appropriate DC. The RO also concluded that March 16, 2009, was the appropriate effective date for each of these disability ratings because that was the date that the Veteran filed his claims for separate compensable ratings for each of these disabilities. As also noted above, in statements on a VA Form 21-4138 dated on July 30, 2009, and date-stamped as received by the RO on August 4, 2009, the Veteran requested an earlier effective date than March 16, 2009, for the separate 10 percent ratings for service-connected degenerative joint disease of the right knee, degenerative joint disease of the left knee, degenerative joint disease of the right ankle, and status-post trauma with degenerative joint disease of the left ankle. He asserted, "There was no change in my condition, it was merely a change in the wording on how we asked to be evaluated. I aver that I should have been evaluated at the higher level when I was originally awarded" service connection. In statements on his June 2010 VA Form 9 (substantive appeal), the Veteran contended, "In my original VA decision, all disabilities were grouped and rated as one disability. This was changed only when I made the request to have them rated separately. I cannot understand medically how the severity of my condition was compensable at only 10% as a group and within eight months later, at my request the disabilities were rated separately by joint. This is where I believe the error was made." The Veteran testified at his June 2013 Board hearing that he had experienced constant bilateral knee and bilateral ankle pain since service. See Board hearing transcript dated June 5, 2013, at pp. 3-4. The Board acknowledges the Veteran's lay assertions and hearing testimony that he is entitled to an effective date earlier than March 16, 2009, for the separate 10 percent ratings assigned for his service-connected degenerative joint disease of the right knee, degenerative joint disease of the left knee, degenerative joint disease of the right ankle, and status-post trauma with degenerative joint disease of the left ankle. The record evidence supports these assertions. It demonstrates that each of these service-connected disabilities was compensably disabling as of the day after the date of the Veteran's discharge from active service. Because the Veteran was discharged honorably from active service on May 31, 2008, the appropriate effective date for each of the 10 percent ratings at issue in this appeal is June 1, 2008. The Veteran's March 2009 request for separate compensable ratings for each of his service-connected orthopedic disabilities was received by VA within 1 year of the VA examination conducted as part of the BDD program in April 2008, prior to his separation from service in May 2008. The Veteran's earlier effective date claims, contained on his August 2009 notice of disagreement, also were received within 1 year of the June 2009 rating decision which granted service connection for degenerative joint disease of the right knee, degenerative joint disease of the left knee, degenerative joint disease of the right ankle, and for status-post trauma with degenerative joint disease of the left ankle and assigned separate 10 percent ratings for each of these disabilities effective March 16, 2009. See 38 C.F.R. §§ 3.155, 3.157. In summary, the Board finds that the record evidence suggests that the Veteran has experienced the same level of disability due to his service-connected degenerative joint disease of the right knee, degenerative joint disease of the left knee, degenerative joint disease of the right ankle, and status-post trauma with degenerative joint disease of the left ankle since the day after the date of his separation from service. Thus, the Board finds that the criteria for an effective date of June 1, 2008, for 10 percent ratings for service-connected degenerative joint disease of the right knee, degenerative joint disease of the left knee, degenerative joint disease of the right ankle, and status-post trauma with degenerative joint disease of the left ankle have been met. See 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). ORDER Entitlement to an effective date of June 1, 2008, for a 10 percent rating for degenerative joint disease of the right knee is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an effective date of June 1, 2008, for a 10 percent rating for degenerative joint disease of the left knee is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an effective date of June 1, 2008, for a 10 percent rating for degenerative joint disease of the right ankle is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an effective date of June 1, 2008, for a 10 percent rating for status-post trauma with degenerative joint disease of the left ankle is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs