Citation Nr: 1334401 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 09-36 917 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an effective date earlier than July 29, 2009, for the grant of service connection and assignment of a 20 percent disability rating for instability, status post right knee surgery. 2. Entitlement to an effective date earlier than July 29, 2009, for the grant of service connection and assignment of a 10 percent disability rating for degenerative joint disease, status post right knee surgery. 3. Entitlement to an effective date earlier than July 29, 2009, for the grant of service connection and assignment of a 20 percent disability rating for subluxation, status post left knee surgery. 4. Entitlement to an effective date earlier than July 29, 2009, for the grant of service connection and assignment of a 10 percent disability rating for degenerative joint disease, status post left knee surgery. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. C. Graham, Counsel INTRODUCTION The Veteran (appellant) served on active duty from June 1978 to February 2001. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In that decision, the RO granted service connection for left and right knee disabilities, specifically: a 0 percent rating for a well-healed scar of the left knee effective March 1, 2001; a 0 percent rating for a well-healed scar of the right knee, effective March 1, 2001; a 20 percent rating for instability of the right knee effective July 29, 2009; a 20 percent rating for subluxation of the left knee, effective July 29, 2009; a 10 percent rating for degenerative joint disease of the right knee effective July 29, 2009; and a 10 percent rating for degenerative joint disease of the left knee, effective July 29, 2009. The Veteran then perfected a timely appeal of the effective dates assigned for instability of the right knee, subluxation of the left knee, and degenerative joint disease of both knees. It is clear from the Veteran's testimony and communications with VA that he is seeking an earlier effective date of March 1, 2001, for the service-connected disabilities with respect to the knees with an effective date of July 29, 2009, and further, that he is not seeking increased (or higher initial) ratings for any aspect of his bilateral knee disability. See July 12, 2010 report of contact "[t]he Veteran stated that he is not claiming an increase"; see also September 2011 hearing transcript at 6 where the Veteran responded "[r]ight" to the statement "what you're trying to do is get back to '01." For these reasons, and given that the scars of the left and right knee have already been assigned the earliest possible effective date of March 1, 2001, the Board will not address entitlement to earlier effective dates with respect to the scars herein. During his appeal, the Veteran also raised a claim of clear and unmistakable error (CUE) in the February 2003 rating decision that originally denied service connection for bilateral knee disability. However, in light of the Board's finding that the February 2003 rating decision remained pending (and therefore nonfinal) until the service connection claim for bilateral knee disability was granted in the October 2009 rating decision, the CUE issue is moot and the Board will not address it further below. See May v. Nicholson, 19 Vet.App. 310, 320 (2005) (A request for revision on the basis of CUE cannot lie as to a prior decision that is still open to direct review). The Board notes that the issues on appeal have been characterized as entitlement to earlier effective dates for degenerative joint disease of each knee, to include based on clear and unmistakable error, including in the Board's prior remands in this case dated in February 2012 and March 2013. The Board has recharacterized the issues as listed on the title page for clarity. In September 2011, the Veteran appeared before the undersigned Veteran's Law Judge and gave testimony in support of his claim. A complete transcript is of record. The Board notes that the Veteran was previously represented in this appeal by The American Legion, including when this matter was previously remanded by the Board in February 2012. However, the Veteran submitted written statements in January and February 2013, and more recently in August 2013 expressing his desire to revoke his power of attorney with the American Legion. Thus, the Veteran is no longer represented by The American Legion in this case. The issues of entitlement to an effective date earlier than July 29, 2009, for the assignment of a 20 percent disability rating for subluxation, status post left knee surgery and entitlement to an effective date earlier than July 29, 2009, for the assignment of a 10 percent disability rating for degenerative joint disease, status post left knee surgery are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran separated from the active military service in February 2001. 2. In March 2001, within one year of his military separation, the Veteran first raised a claim of entitlement to service connection for bilateral knee disability. 3. In a February 2003 rating decision, the RO denied the Veteran's claims of entitlement to service connection for left and right knee disabilities. The Veteran was notified by letter dated February 27, 2003. 4. On February 27, 2004, the Veteran filed a Notice of Disagreement (NOD) with the February 2003 rating decision with respect to the left and right knee claims. 5. The RO never issued a Statement of the Case (SOC) in response to the February 2004 NOD, and the claim was never later denied by an appellate adjudication. 6. The February 2004 NOD remained pending until the service connection claim for bilateral knee disability was granted in the October 2009 rating decision. 7. Throughout the appeal, the right knee has been manifested by degenerative changes (arthritis) with pain, locking, and swelling, as well as moderate instability. CONCLUSIONS OF LAW 1. Resolving all doubt in the Veteran's favor, the criteria for an earlier effective date of March 1, 2001, for the grant of service connection for instability of the right knee and assignment of a 20 percent rating have been met. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2013). 2. Resolving all doubt in the Veteran's favor, the criteria for an earlier effective date of March 1, 2001, for the grant of service connection for degenerative joint disease of the right knee and assignment of a 10 percent rating have been met. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). This law redefined the obligations of VA with respect to the duty to assist, and imposed on VA certain notification requirements. Without deciding whether the notice and development requirements of VCAA have been satisfied in the present case, it is the Board's conclusion that the VCAA does not preclude the Board from adjudicating the Veteran's claims with respect to the right knee. This is so because the Board is taking action favorable to the Veteran by granting the full benefit sought with respect to the right knee claims on appeal. Thus, a decision at this point poses no risk of prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Analysis An October 2009 rating decision granted service connection for granted service connection for right knee disabilities, to include a 20 percent rating for instability of the right knee effective July 29, 2009, and a 10 percent rating for degenerative joint disease of the right knee effective July 29, 2009. The Veteran contends that he is entitled to earlier effective date for these awards. The effective date of an evaluation and award of compensation on an original claim for compensation will be the day following separation from the active duty service or the date entitlement arose, if the claim is received within one year after separation from the military service. Otherwise, the effective date will be 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(b)(2). In the present case, the Veteran separated from the active military service in February 2001. In March 2001, within one year of his military discharge, the Veteran first raised a claim of entitlement to service connection for bilateral knee disability. A February 2003 rating decision denied the service connection claim with respect to the bilateral knees, as well as other claims. The Veteran was notified of this rating decision in a letter dated that same month, February 27, 2003. On February 27, 2004, the Veteran submitted a written statement in response to the February 2003 rating decision. In his written response, the Veteran advised VA that he "totally disagree[d] with the decision." With respect to the knee claims (issues numbered 6 and 7 in the February 2003 rating decision), he stated, "[l]ooking at # 6 and 7, [p]ost knee surgery, left and right knee" he noted his history of bilateral knee injury and bilateral knee surgery in service and reported that he took daily medication for daily pain and arthritis in his knees. He requested "a complete re-evaluation as soon as possible." In response, the RO sent the Veteran a letter dated December 29, 2004, indicating that he had not specified which issues he was appealing, so he was requested to specify the issues he was appealing in order to initiate further appellate proceedings. The Veteran did not respond, and no further action was taken by the RO in connection with the February 2003 rating decision. As an initial matter, the Board notes that the February 27, 2004 written statement is timely filed as any submission postmarked prior to the expiration of the applicable time limit will be accepted as having been timely filed. Id. 38 C.F.R. § 20.305(a) (2013). In the event that the postmark is not of record, as here, the postmark date will be presumed to be five days prior to the date of receipt of the document by VA. Id. The filing of an NOD initiates VA appellate review and entitles a claimant to a SOC. 38 U.S.C.A. § 7105(a) (West 2002); Palmer v. Nicholson, 21 Vet. App. 434, 438 (2007). The failure to issue a SOC after receipt of a valid NOD prevents the underlying rating decision from becoming final. See Palmer, 21 Vet. App. at 438. Thus, the initial issue in this case is whether the February 2004 statement from the Veteran constitutes a valid NOD in response to the February 2003 rating decision with respect to the bilateral knee claims. The February 2004 statement from the Veteran clearly expressed dissatisfaction or disagreement with the RO's denial of entitlement to service connection for bilateral knee disability. This statement is liberally construed by the Board in a light most favorable to the Veteran and is, therefore, deemed to be his timely notice of disagreement (NOD) in response to the February 2003 rating decision. In response to the timely and valid February 2004 NOD, the RO did not issue a SOC; instead, the RO issued the December 2004 letter described above. The pending claims doctrine provides that a claim remains pending in the adjudication process - even for years - if VA fails to act on it. Norris v. West, 12 Vet. App. 413, 422 (1999). If after a valid NOD is filed, VA fails to issue a SOC, then the claim remains pending. Myers v. Principi, 16 Vet. App. 228, 235-236 (2002). However, most recently the Court ruled that "[w]here an appellant places a claim for one disability into appellate status by virtue of an NOD, that claim is resolved by a later appellate adjudication of a subsequent claim where both claims stem from the same underlying disorder and the claimed disabilities are identical or substantially similar." Jones v. Shinseki, 23 Vet. App. 122, 126 (2009). The RO never issued a SOC in response to the timely February 2004 NOD, and the February 2004 NOD was never denied by a later appellate adjudication (such as a Board decision). Thus, the March 2001 claim for service connection for bilateral knee disability remained pending until the claim was finally granted by the RO in the October 2009 decision. Since the March 2001 service connection claim for the bilateral knees remained pending, the Board finds that the Veteran finds that March 7, 2001 is the date of claim with respect to the left and right knee claims currently on appeal. Further, the Board finds that the Veteran is entitled to an earlier effective date of March 1, 2001, the day following his discharge from the active military service, for the grant of service connection for arthritis of the right knee and right knee instability. The Veteran's active military service ended in February 2001, and the Veteran filed a service connection claim on March 7, 2001, within one year of his military discharge. Therefore, since the March 7, 2001, claim was pending until the October 2009 rating decision, the Veteran is entitled to an earlier effective date of March 1, 2001, for the grant of service connection for right knee arthritis and right knee instability. An effective date earlier than March 1, 2001, is not possible under the regulations, since the Veteran did not separate from the active military service until February 28, 2001. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2). Further, the Board finds that the effective date of the 20 percent rating assigned for instability and the 10 percent rating assigned for degenerative joint disease should also be March 1, 2001. Historically, the Veteran injured his knee playing football in service in August 1983 and sustained "a forced hyperflexion injury of the right knee against resistance" which caused "a complete infrapatellar tendon rupture." See STRs of hospitalization for left knee dated August to October 1983. He underwent surgical repair, was placed in a long leg cast, and was placed on convalescent leave for one month. Subsequent STRs show complaints of pain and locking. A STR dated approximately 10 years later, in April 1993, noted that the Veteran had a "chronically unstable knee" with very lax cruciate ligaments. Crepitus, tenderness, and degenerative changes was also noted. A March 1, 2001 effective date is warranted for the 10 percent rating for degenerative joint disease because the Veteran's STRs clearly show that he was diagnosed by X-ray with degenerative changes (arthritis) of the right knee in service. See December 1994 radiology report and April 13, 1993 STR. The X-rays taken in connection with the 2009 VA examination reveal similar findings of degenerative changes in the right knee. The Board is aware that X-rays taken in connection with the 2002 VA examination gave an impression of "no . . . significant degenerative change," and he was found to have full range of motion on physical examination. However, at that time he reported monthly flare-ups lasting for a week at a time with pain, locking and swelling. Even if the Veteran's limitation of extension and/or flexion was not compensable under Diagnostic Code 5260 or 5261 in 2002, read together, Diagnostic Code 5003 and 38 C.F.R. § 4.59 provide that symptoms such as pain, locking and swelling due to degenerative arthritis, which is established by X-ray, is deemed to be limitation of motion and warrants the minimum rating for a joint, even if there is no actual limitation of motion. Lichtenfels v. Derwinski; 1 Vet. App. 484, 488 (1991); see also VAOPGCPREC 9-98 (August 14, 1998). Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board concludes that a separate 10 percent evaluation is warranted for right knee arthritis from March 1, 2001. Likewise, the STRs, noted above, show that the Veteran had chronic instability in the right knee and very lax ligaments. VA physical examination in 2009 revealed similar findings in the ligaments of the right knee and assessed moderate instability. The Board is aware that the 2002 VA examiner noted normal Drawer's and McMurray's tests; however, the Veteran reported locking. Resolving all doubt in the Veteran's favor, the Board finds that a separate 20 percent rating for moderate instability is warranted for the right knee from March 1, 2001. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2). The benefit-of-the-doubt rule has been considered in making this decision. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Subject to the laws and regulations governing payment of monetary benefits, an earlier effective date of March 1, 2001, for the grant of service connection for instability of the right knee and assignment of a 20 percent rating is granted. Subject to the laws and regulations governing payment of monetary benefits, an earlier effective date of March 1, 2001, for the grant of service connection for degenerative joint disease of the right knee and assignment of a 10 percent rating is granted. REMAND Given the Board's finding, above, that March 7, 2001 is the date of claim with respect to the left knee claims currently on appeal, the RO should readjudicate whether earlier effective dates are warranted for the 10 percent rating for arthritis and the 20 percent rating for instability of the left knee and consider all evidence generated during the claim period. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask him to identify all VA and non-VA medical treatment rendered for his left knee since March 2001. The letter should request sufficient information to identify the health care providers, and if necessary, signed authorizations, to enable VA to obtain any additional evidence. If the Veteran adequately identifies the health care providers and provides the completed authorizations, the RO should request legible copies of all pertinent clinical records that have not been previously obtained, and incorporate them into the Veteran's claims file. 2. After performing any additional development that is necessary, the RO/AMC should re-adjudicate the left knee issues on appeal. The RO/AMC must adjudicate the earlier effective date claims for left knee degenerative joint disease and subluxation as being filed in March 2001, with consideration of all relevant evidence for such a claim period. If any benefit sought on appeal is not granted in full, the appellant and his representative, if any, should be provided a supplemental statement of the case and afforded an opportunity to respond before the case is returned to the Board. 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). ______________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs