Citation Nr: 1333904	
Decision Date: 10/25/13    Archive Date: 11/06/13

DOCKET NO.  04-43 829	)	DATE
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to an effective date prior to December 18, 2002, for the award of a 20 percent rating for service-connected right knee anterior cruciate ligament deficiency, now rated as 30 percent disabling prior to April 19, 2010.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

C. Fields, Counsel



INTRODUCTION

The Veteran had active service from July 1990 to August 1991.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA), Regional Office (RO), in St. Petersburg, Florida.  The Board previously addressed this issue in an October 2012 Board decision, after remanding for further development in May 2008 and May 2010.  As discussed below, a vacatur is necessary as to this issue alone; and the remainder of the October 2012 decision continues in full effect.

The issue of an earlier effective date is recharacterized as stated on the first page of this decision and decided herein.  No further development is necessary.


FINDINGS OF FACT

1.  On October 5, 2012, the Board issued a decision, which, in part, adjudicated the issue of entitlement to an effective date prior to December 18, 2002, for the RO's award of a 20 percent disability rating for the right knee, awarding an earlier effective date of June 21, 2001; and which the Board finds amounts to a denial of due process for the implementation of the higher rating.

2.  In a January 1992 rating decision (with notice to the Veteran in April 1992), the RO granted service connection for right knee anterior cruciate ligament deficiency and assigned a 10 percent disability rating, effective from August 27, 1991.  The Veteran did not appeal, and no new and material evidence was received within one year. 

3.  The next communication showing an intent to seek a disability rating in excess of 10 percent for the service-connected right knee anterior cruciate ligament deficiency was received on June 21, 2001.  

4.  For the period beginning June 21, 2001, the evidence of record demonstrates that the Veteran's disability due to right knee anterior cruciate ligament deficiency more closely approximated severe instability, warranting a 30 percent disability rating.  

5.  No medical records prior to June 21, 2001, constituted an informal claim for increased rating for the right knee anterior cruciate ligament deficiency; and it was not first factually ascertainable that such disability was manifested by severe instability so as to warrant a 30 percent rating within one year prior to that date.


CONCLUSIONS OF LAW

1.  The criteria for vacating the October 5, 2012, Board decision to the extent that it awarded an effective date of June 21, 2001, for the assignment of a 20 percent disability rating for right knee anterior cruciate ligament deficiency, have been met. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.904 (2013).

2.  The criteria for an effective date of June 21, 2001, and no earlier, for the assignment of a 30 percent disability rating for service-connected right knee anterior cruciate ligament deficiency have been met.  38 U.S.C.A. §§ 5101, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.151, 3.155, 3.157, 3.400(o) (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Vacatur

In an April 2007 rating decision, the RO increased the disability rating for the Veteran's right knee anterior cruciate ligament deficiency from 10 percent to 20 percent, effective as of December 18, 2002.  The Veteran filed a notice of disagreement concerning the effective date assigned for the 20 percent disability rating. 

The Veteran had also appealed the denial of a disability rating in excess of 10 
percent in a September 2003 rating decision.  In a June 2011 rating decision, the RO increased the assigned disability rating for right knee anterior cruciate ligament deficiency from 20 to 30 percent disabling, effective as of April 19, 2010.  Cf. AB v. Brown, 6 Vet. App. 35, 39 (1993) (even if a rating is increased during the pendency of an appeal, a Veteran is presumed to be seeking the highest possible rating, unless he expressly indicates otherwise).

In October 2012, the Board adjudicated several issues on appeal.  As pertinent to this decision, the Board adjudicated the issue of entitlement to an increased disability rating for the service-connected right knee disability, awarding 30 percent for severe instability for the period prior to April 19, 2010, and denying a higher disability rating for any period on appeal.  The Board also adjudicated the issue of entitlement to an effective date prior to December 18, 2002, for the RO's award of a 20 percent disability rating for the right knee, awarding an earlier effective date of June 21, 2001.  

Nevertheless, as the Board granted a 30 percent disability rating for right knee anterior cruciate ligament deficiency, the question of the effective date for a 20 percent rating for such disability became moot.  In other words, the findings and conclusions in the October 2012 Board decision with respect to the issue of entitlement to an effective date prior to December 18, 2002, for the award of a 20 percent rating for service-connected right knee anterior cruciate ligament deficiency were inconsistent with the concurrent grant of a rating of 30 percent for such disability for the period prior to April 19, 2010.

This resulted in a denial of due process for the implementation of the higher rating.  The Board may vacate an appellate decision at any time, including on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence.  38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.904 (2013).  Accordingly, the October 2012 Board decision is hereby VACATED with respect to the issue of entitlement to an effective date prior to December 18, 2002, for the award of a 20 percent rating for service-connected right knee anterior cruciate ligament deficiency.  The remainder of the October 2012 Board decision continues in full effect.
VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  Proper notice must inform the claimant of any information and evidence not in the record that is necessary to substantiate the claim, that VA will seek to provide, and that the claimant is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002).  These notice requirements apply to all elements of a claim, including the degree and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Proper notice must be provided prior to the initial unfavorable decision.  Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004).

The effective date is a downstream element of the grant of a claim for service connection (with an initial rating) or for an increased rating.  In such cases, the claim has been more than substantiated; it has been proven.  Therefore, the intended purpose of the VCAA notice has been fulfilled and no additional notice is required as to such issues.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  

The Veteran has been provided adequate notice, including as to the degree of disability and effective date.  The timing defect for any such notices was cured by the subsequent readjudication of the claim for an earlier effective date, to include in a July 2011 supplemental statement of the case.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005).  Additionally, there is no argument of any prejudice due to any possible notice defects as to the downstream element of effective date.  

VA's duty to assist includes assisting the claimant in the procurement of relevant records and obtaining a medical examination or opinion, when necessary.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  Here, VA made efforts to obtain all relevant, identified records.  Additionally, the Veteran underwent a VA examination for his right knee in April 2010, after he was released from prison.  There is no argument or indication that any pertinent records remain outstanding, or that the examination was inadequate.  This examination also constituted substantial compliance with the prior remand directives to afford the Veteran an examination.  

The prior remand directives were substantially complied with, and a further remand would serve no useful purpose, as it would unnecessarily impose additional burdens on VA with no benefit to the Veteran.  See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  VA has satisfied its duties to inform and assist the Veteran at every stage, at least insofar as any errors were not harmful to the essential fairness of the proceedings.  Therefore, he will not be prejudiced by a decision.

Analysis

Generally, the effective date for the grant of service connection and a disability 
rating will be the day following separation from active service or the date entitlement arose, if the claim is received within one year after discharge from service.  Otherwise, for an award based on an original claim, a claim reopened after a final disallowance, or a claim for an increased rating, the effective date 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.   

For a claim for increased rating, if the increase is factually ascertainable within one year prior to the receipt of the claim, the rating will be effective as of the date of increase; however, if the increase occurred more than one year prior to receipt of the claim, the increase will be effective on the date of claim.  Further, if the increase occurred after the date of claim, the effective date will be the date of increase.  38 U.S.C.A. § 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(1),(2); VAOPGCPREC 12- 98 (1998).

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).  Generally, an application for VA compensation must generally be a specific claim in the form prescribed by the VA Secretary, i.e., VA Form 21-526.  See 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a).  However, any communication or action received from the claimant or certain specified individuals on the claimant's behalf which indicates an intent to apply for a VA benefit, and identifies the benefit sought, may be considered an informal claim.  38 C.F.R. § 3.155(a).

Here, in an April 2007 rating decision, the RO increased the rating assigned for right knee anterior cruciate ligament deficiency from 10 percent to 20 percent, effective as of December 18, 2002.  This was the date on which the RO determined that the Veteran submitted an informal request for an increased rating.  The Veteran appealed from the denial of a higher rating and from the effective date assigned.  

As discussed above, the Board previously found in the October 2012 Board decision that a rating of 30 percent for the right knee disability is appropriate for the period prior to April 19, 2010, and denied a higher rating at any point on appeal, to include from that point forward.  Those determinations remain in full effect.

The Board has considered all prior communications and evidence concerning the Veteran's right knee to determine the proper effective date for the 30 percent rating.  

In a January 1992 rating decision, the RO granted service connection and initial 10 percent rating for right knee anterior cruciate ligament deficiency, effective as of August 27, 1991, the date following separation from service.  The Veteran was notified of his appellate rights in April 1992; he did not appeal, and no new and material evidence was received within one year.  As such, the rating decision became final.  38 U.S.C.A. § 7105(c) (West 1991 & 2002); 38 C.F.R. §§ 3.104, 3.156, 19.129, 19.192 (1991) [38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2013)].

After the January 1992 rating decision, no communication or evidence was received that may be construed as a claim for an increased rating for the right knee disability until June 21, 2001.  On that date, VA received a statement from the Veteran in which he stated: "I currently receive 10% for a knee injury.  I am seeking an increase in my disability from 10% to 100%."  The Veteran submitted two similar statements in July 2001.  When read liberally, the Board construes the statement received on June 21, 2001, as an informal claim for increased rating for right knee disability.  See 38 C.F.R. § 3.155(a).  As discussed below, the evidence reflects that the Veteran's right knee has been of similar severity since that time, warranting a 30 percent rating as determined in the October 2012 Board decision.

The Board will now turn to whether an effective date earlier than June 21, 2001, is warranted.  The Board notes that information contained in treatment records may constitute an informal claim for an increased rating where service connection has already been established.  38 C.F.R. § 3.157(a)&(b); MacPhee v. Nicholson, 459 F.3d 1323 (Fed. Cir. 2006).  As pertinent to this case, the date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of claim.  38 C.F.R. § 3.157(b)(1). 

In this regard, a July 1999 VA urgent treatment record showed that the Veteran presented for treatment for injuries sustained from a fall and injury to his right knee.  He reported a history of chronic knee pain.  Physical examination revealed an abnormal gait and positive findings of weakness and instability.  A diagnosis of old internal knee derangement was provided.  X-rays of the right knee revealed evidence of mild loss of articular cartilage in the medial compartment, but no other abnormalities.  The severity of the Veteran's instability in his right knee was not characterized by the treating VA medical professional, and the record does not demonstrate that he sought follow-up VA treatment for injuries sustained from the fall so as to indicate a permanent worsening of the right knee disability.  

As such, the Board finds that this VA treatment record does not demonstrate an increase from moderate to severe instability in the Veteran's right knee to warrant a 30 percent disability.  See 38 C.F.R. § 4.71a, Diagnostic Code 5257 (providing for a 20 percent rating for moderate lateral instability or recurrent subluxation, and a maximum 30 percent rating for severe instability or subluxation).  Accordingly, this treatment record does not constitute an informal claim for increased rating for the right knee disability under 38 C.F.R. § 3.157(b).  

Further, the evidence does not demonstrate a factually ascertainable increase in the severity of the Veteran's right knee disability to 30 percent within the year prior to receipt of his informal claim in June 21, 2001, so as to warrant an earlier effective date.  See 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(1),(2).

In sum, as noted above, the January 1992 decision awarding an initial 10 percent rating became final.  Thereafter, on June 21, 2001, the Veteran submitted a claim for an increased rating for the service-connected right knee anterior cruciate ligament deficiency.  The earlier 1999 VA treatment record was not a claim for increase because it did not show any permanent increase in his disability.  

The RO awarded a rating of 20 percent based on a December 2002 claim, which the RO then increased to 30 percent effective in April 2010.  In the October 2012 Board decision, the Board found that a rating of 30 percent, but no higher, was warranted for the period prior to April 19, 2010.  This determination remains in full effect.  The lay and medical evidence also demonstrates severe instability of the right knee, so as to warrant a 30 percent rating, for the period beginning June 21, 2001.  

Briefly, after the July 1999 VA treatment summarized above, the Veteran was incarcerated from 2001 to 2009, and no VA examination was provided during this time.  However, as noted in the October 2012 Board decision, the RO's attempts to provide a VA examination did not satisfy the list of alternative means for obtaining an examination of an incarcerated claimant under the circumstances of the Veteran's case.  See Bolton v. Brown, 8 Vet. App. 185 (1995).   

Treatment records from the State of Florida Department of Corrections starting in 2001 demonstrated continued treatment for chronic right knee pain and injuries associated with twisting and sprain his right knee.  A May 2001 record showed that the Veteran ambulated with a steady gait, but with difficulty.  In August 2001, he reported that his knee was bothering him and requested Motrin for pain relief.  On physical examination, both knees were within normal limits without swelling. 

In a December 2009 VA treatment session, the Veteran reported a history of chronic right knee instability, stating that the knee moved from side to side when climbing stairs too quickly.  He stated that this had been present since 1991, although he denied any falls since 1999.  After physical examination and x-rays, a diagnosis of right knee arthralgia/instability was recorded.  

As noted in the October 2012 Board decision, the findings in the April 2010 VA examination report demonstrated severe instability in the Veteran's right knee due to his service-connected anterior cruciate ligament deficiency.  It was noted at that time that the Veteran had a long-standing history of chronic instability dating back to his period of service.  Given these findings, the Board previously found that the Veteran's right knee disability warranted a 30 percent disability rating for symptoms of severe instability under Diagnostic Code  5257.  In particular, the Board resolved doubt in the Veteran's favor to award an increased rating for the entire appeal period, despite the fact that there have been symptoms of lower severity at times.  

There is no indication that the Veteran's disability due to right knee anterior cruciate ligament deficiency was of a lower degree of severity from June 21, 2001, through December 28, 2002.  As such, the reasoning for an award of a 30 percent rating also applies to this period.  As discussed above, the July 1999 treatment record does not constitute an informal claim for increase, and an increase in such disability was not factually ascertainable within the one year prior to receipt of the informal claim in June 21, 2001.  See 38 C.F.R. §§ 3.157(b), 3.400(o)(2).  

For the foregoing reasons, the appropriate effective date for the grant of a 30 percent rating for the service-connected right knee anterior cruciate ligament deficiency is June 21, 2001.  The benefit-of-the-doubt doctrine has been employed; however, as the preponderance of the evidence is against an even earlier effective date, the claim must be denied in this respect.  38 U.S.C.A. § 5107.


ORDER

The Board's October 5, 2012, decision, to the extent that it awarded an effective date of June 21, 2001, for the assignment of a 20 percent disability rating for right knee anterior cruciate ligament deficiency, is vacated.

An effective date of June 21, 2001, and no earlier, for the assignment of a 30 percent rating for right knee anterior cruciate ligament deficiency, is granted, subject to the applicable criteria governing the payment of monetary benefits.



	                        ____________________________________________
	DEMETRIOS G. ORFANOUDIS
	Acting Veterans Law Judge, Board of Veterans' Appeals