Citation Nr: 1454585	
Decision Date: 12/11/14    Archive Date: 12/17/14

DOCKET NO.  12-19 586	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUES

1.  Entitlement to an effective date earlier than August 28, 2012 for the grant of service connection for a left medial meniscal tear, status post arthroscopy.

2.  Entitlement to service connection for a left-sided facial disability, to include trigeminal neuralgia.

3.  Entitlement to an initial rating higher than 20 percent for a left medial meniscal tear, status post arthroscopy.

4.  Entitlement to a rating in excess of 20 percent for a right medial meniscal tear, status post arthroscopy (except for a period when a temporary total rating was in effect).


REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs

ATTORNEY FOR THE BOARD

B. Elwood, Counsel


INTRODUCTION

The Veteran served on active duty from February 1983 to January 1987.

These matters come before the Board of Veterans' Appeals (Board) from April 2009 and September 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Offices (RO) in San Diego, California and Huntington, West Virginia, respectively.  In the April 2009 decision, the RO denied entitlement to service connection for severe facial pain, left eye area.  In the September 2013 decision, the RO granted service connection for a left medial meniscal tear, status post arthroscopy, and assigned an initial 20 percent disability rating, effective from August 28, 2012.  The RO also granted a temporary total (100 percent) rating for the Veteran's service-connected right knee disability due to surgery requiring convalescence, effective from August 24, 2012 through August 31, 2013.  A 20 percent rating was awarded for the right knee disability, effective from September 1, 2013.  The RO in Los Angeles, California currently has jurisdiction over the Veteran's claims.

As the Veteran was granted the full benefit sought for the service-connected right knee disability during the claim period prior to September 1, 2013, his claim for an increased rating for this disability during that period will not be addressed by the Board.  See AB v. Brown, 6 Vet. App. 35, 38 (1993).

This appeal was processed using the Veteran's Benefits Management System (VBMS) and the Virtual VA claims processing system.  Accordingly, any future consideration of this Veteran's case should take into consideration the existence of these electronic records.

The issues of entitlement to service connection for a left-sided facial disability, entitlement to a higher initial rating for the service-connected left knee disability, and entitlement to an increased rating for the service-connected right knee disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The Veteran's claim of service connection for a left knee disability was initially denied in a September 1992 rating decision as there was no evidence that he incurred any left knee injury in service; the Veteran did not appeal that determination and new and material evidence was not received within a year of its issuance.

2.  The claim of service connection for a left knee disability was again denied in a November 2002 rating decision on the basis that new and material evidence had not been submitted; the Veteran disagreed with this decision and a statement of the case was issued in October 2003, but the Veteran did not file a substantive appeal.

3.  A petition to reopen the claim of service connection for a left knee disability was received on August 28, 2012, and there is no evidence of any unadjudicated formal or informal petition to reopen the claim of service connection for a left knee disability subsequent to the November 2002 decision and prior to August 28, 2012.


CONCLUSION OF LAW

The criteria for an effective date earlier than August 28, 2012 for the grant of service connection for a left medial meniscal tear, status post arthroscopy have not been met.  38 U.S.C.A. §§ 5101(a), 5110(a), 7105(a), (b)(2), (d)(3) (West 2002); 38 C.F.R. §§ 3.104, 3.151(a), 3.155(a), 3.156(a)-(b), 3.400, 19.32, 20.200, 20.302, 20.1103 (2014).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2014); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014).

The appeal for an earlier effective date for the grant of service connection for a left medial meniscal tear, status post arthroscopy arises from the Veteran's disagreement with the effective date assigned after the grant of service connection.  The courts have held, and VA's General Counsel has agreed, that where an underlying claim of service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003).

The United States Court of Appeals for Veterans Claims (Court) has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105.  Goodwin v. Peake, 22 Vet. App. 128 (2008).

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4).

VA obtained the Veteran's service treatment records and all of the identified relevant post-service VA treatment records.  The Veteran has not reported, and the evidence does not otherwise indicate, that he has received any relevant post-service private medical treatment for his service-connected left knee disability.  In addition, the Veteran was afforded VA examinations to assess his service-connected left knee disability.  

As explained in the remand below, it appears that there may be Social Security Administration (SSA) records that have not been obtained.  However, such records are not relevant to the effective date issue on appeal because the effective date turns on when the Veteran filed a claim.  There is no indication or allegation that any SSA records could show that the Veteran filed an earlier claim for benefits with VA.  Thus, VA has no further duty to attempt to obtain any such records in regard to the effective date issue.

There is no other reported relevant evidence that remains outstanding.  Further assistance is unlikely to assist the Veteran in substantiating entitlement to an earlier effective date.

Analysis

Generally, the effective date of an evaluation and 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 specific claim in the form prescribed by VA must be filed in order for benefits to be paid to any individual under the laws administered by VA.  See 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a).

When determining the effective date of an award of compensation benefits, the Board is required to review all the communications in the file, after the last final disallowance of the claim, which could be interpreted to be a formal or informal claim for benefits.  See, e.g., Servello v. Derwinski, 3 Vet. App. 196, 198-99 (1992); Lalonde v. West, 12 Vet. App. 377, 380-381 (1999).  Any communication or action that demonstrates an intent to apply for an identified benefit may be considered an informal claim.  See 38 C.F.R. § 3.155(a).
Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim.  Such an informal claim must identify the benefit sought.  Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. Id.

The current effective date of service connection for a left medial meniscal tear, status post arthroscopy is August 28, 2012, the date the Veteran's most recent petition to reopen a claim of service connection for a left knee disability was received.  The RO initially denied the Veteran's claim of service connection for a left knee disability in a September 1992 rating decision as there was no evidence that he incurred any left knee injury in service.  Specifically, the September 1992 decision explained that the Veteran's service treatment records were negative for any treatment for or diagnosis/findings of a left knee condition during service.  The Veteran was notified of the RO's September 1992 decision, he did not appeal that decision, and new and material evidence was not received within one year of its issuance.  Thus, the September 1992 decision became final.  See 38 U.S.C.A. § 7105(d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103.

The Veteran attempted to reopen his claim of service connection for a left knee disability in December 2001.  This petition was denied by the RO in a November 2002 rating decision on the basis that new and material evidence had not been submitted.  The Veteran submitted a timely notice of disagreement with this decision and a statement of the case was issued in October 2003.  Appellate review is initiated by a notice of disagreement and completed by a substantive appeal filed after a statement of the case has been furnished to an appellant.  38 U.S.C.A. § 7105(a); 38 C.F.R. § 20.200.  A substantive appeal must be filed within 60 days from the date of mailing of a statement of the case, or within the remainder of the one year period from the date of mailing of the notification of the determination being appealed, whichever period ends later.  38 U.S.C.A. § 7105(b)(2); 38 C.F.R. § 20.302(b).

In the absence of a properly perfected appeal, the RO may close the appeal and the decision becomes final.  38 U.S.C.A. § 7105(d)(3); Roy v. Brown, 5 Vet. App. 554, 556 (1993); 38 C.F.R. § 19.32.  The RO did so in this case, as evidenced by the fact that it did not certify to the Board the issue of whether new and material evidence had been submitted to reopen the claim of service connection for a left knee disability following the October 2003 statement of the case.

As neither the Veteran nor his representative submitted any document that could be construed as a timely substantive appeal pertaining to the petition to reopen the claim of service connection for a left knee disability following the October 2003 statement of the case, the RO closed the appeal.  The RO did not certify the issue to the Board at that time and no further action was taken by VA to suggest that this issue was on appeal.  Thus, the November 2002 decision also became final.  See 38 U.S.C.A. § 7105(d)(3); Fenderson v. West, 12 Vet. App. 119, 128-31 (1999) (discussing the necessity of filing a substantive appeal which comports with governing regulations); 38 C.F.R. §§ 3.104, 20.302, 20.1103.

The Veteran again submitted a petition to reopen the claim of service connection for a left knee disability and this petition was received by VA on August 28, 2012.  The claim of service connection for a left knee disability was granted in the September 2013 rating decision, from which the current appeal originates.

In sum, the Veteran never submitted a petition to reopen the claim of service connection for a left knee disability subsequent to the November 2002 decision and prior to August 28, 2012, nor is there any prior communication in the record that could be considered an informal claim for VA compensation for the same.  Thus, August 28, 2012 is the earliest possible effective date.  See 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.  Therefore, the Board finds that there is simply no basis upon which to justify granting an effective date earlier than August 28, 2012 and the appeal for an earlier effective date for the grant of 

service connection for a left medial meniscal tear, status post arthroscopy must be denied.


ORDER

Entitlement to an effective date earlier than August 28, 2012 for the grant of service connection for a left medial meniscal tear, status post arthroscopy is denied.


REMAND

Disabilities evaluated on the basis of limitation of motion require VA to apply the provisions of 38 C.F.R. §§ 4.40, 4.45 (2014), pertaining to functional impairment. The United States Court of Appeals for Veterans Claims has instructed that in applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare ups.  Such inquiry is not to be limited to muscles or nerves.  These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare ups, or pain.  The examiner should also determine the point, if any, at which such factors cause functional impairment. Mitchell v. Shinseki, 25 Vet. App. 32, 43-4 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R § 4.59 (2014).

The Veteran was afforded a VA examination in July 2014 to determine the current severity of his service-connected right and left knee disabilities.  The ranges of motion of the knees were reported and it was noted that there was pain at 35 degrees of extension for both knees.  However, the Veteran was able to perform extension to 0 degrees bilaterally.  Also, he reported flare ups of knee pain and the examiner noted that there was functional loss and/or functional impairment of the knees and lower legs in terms of less movement than normal, weakened movement, pain on movement, disturbance of locomotion, and interference with sitting, standing, and weight-bearing.  The Veteran was unable to perform repetitive-use testing due to pain, but the examiner indicated that there was additional limitation in the range of motion of the knees and lower legs following repetitive-use testing.  The examiner concluded that there was "an additional 5 degrees loss in [range of motion] in all planes, due to pain during flare ups."  However, the examiner did not specify at what point, if any, pain not occurring during flare ups, weakened movement, or any other factors caused functional impairment.  Thus, clarification is required (especially in light of the fact that pain began at 35 degrees of knee extension bilaterally and the Veteran was unable to perform repetitive-use testing due to pain).  See Mitchell, 25 Vet. App. at 43-4; 38 C.F.R. §§ 4.40, 4.45, 4.59.

VA regulations provide that where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.  38 C.F.R. § 4.2 (2014); see 38 C.F.R. § 19.9 (2014).  Where the Board makes a decision based on an examination report that does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination."  Goss v. Brown, 9 Vet. App 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993).

Moreover, the VCAA requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d).  The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody.  38 C.F.R. § 3.159(c)(4).

A letter from the SSA and an "Authorization for Source to Release Information to the Social Security Administration" form which are included among the Veteran's paperless records appear to indicate that he applied for SSA disability benefits for an unspecified disability.  The Court has held that where there has been a determination with regard to SSA benefits, the records concerning that decision must be obtained, if relevant.  Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992); cf. Golz v. Shinseki, 590 F.3d 1317, 1321 (2010) (there is no duty to get SSA records when there is no evidence that they are relevant).  The medical records related to the SSA's disability determination have not yet been associated with the claims file and may be relevant.

Additionally, VA treatment records (including an October 2012 VA primary care outpatient treatment note) reveal that the Veteran has received treatment for trigeminal neuralgia at UCLA.  When VA becomes aware of private treatment records it will specifically notify the Veteran of the records and of the need to provide a release for VA to obtain the records.  If the Veteran does not provide the release, VA must ask the Veteran to obtain the records.  38 C.F.R. § 3.159(e)(2). These steps have not yet been taken with regard to any relevant treatment records from UCLA.  Thus, a remand is also necessary to attempt to obtain any relevant private treatment records.

Also, following a June 2012 statement of the case, additional relevant VA treatment records pertaining to treatment for trigeminal neuralgia have been associated with the Veteran's paperless records.  As pertinent evidence was received subsequent to the June 2012 statement of the case and as this evidence was not considered by the AOJ, the Board is required to remand the issue of entitlement to service connection for a left-sided facial disability for issuance of the necessary supplemental statement of the case.  See 38 C.F.R. § 20.1304 (2014) (providing that the Board cannot consider evidence in the first instance unless the appellant waives initial consideration by the AOJ).

Accordingly, the case is REMANDED for the following action:

1.  Contact the SSA and obtain a copy of that agency's decision concerning the Veteran's claim for disability benefits, including any medical records relied upon to make the decision.

All efforts to obtain these records must be documented in the file.  Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 

2.  Ask the Veteran to complete an authorization for VA to obtain all records of his treatment for a left-sided facial disability (including trigeminal neuralgia) and a knee disability from UCLA.  All efforts to obtain these records must be documented in the file.

If the Veteran fails to furnish any necessary releases for private treatment records, he shall be asked to obtain the records and submit them to VA.

If any putative records are unavailable, the Veteran shall be notified of the identity of the records that are unavailable, the efforts VA has undertaken to obtain such records, and any additional action that may be taken concerning his claims.  All such notification must be documented in the file.

3.  After all efforts have been exhausted to obtain and associate with the file any additional treatment records and any records from the SSA, schedule the Veteran for a VA examination to evaluate the current severity of his service-connected right and left knee disabilities.  All indicated tests and studies shall be conducted.

All relevant evidence contained in VBMS and the Virtual VA system, including a copy of this remand and any records obtained pursuant to this remand, must be sent to the examiner for review.

The ranges of right and left knee flexion and extension shall be reported in degrees.  With respect to both knee flexion and extension, the examiner shall also specify whether and to what extent there is any additional loss of knee motion (stated in degrees) due to any weakened movement, excess fatigability, incoordination, flare ups, and/or pain.  In this regard, some speculation/conjecture on the examiner's part may be necessary.

The examiner shall report if there is any ankylosis of either knee and, if so, the angle at which the knee is held.

The examiner shall also report whether there is any subluxation or instability of either knee, and if present, provide an opinion as to its severity (i.e., slight, moderate, or severe).

The examiner must provide reasons for any opinion given.

4.  If a benefit on appeal remains denied, the AOJ shall issue a supplemental statement of the case that considers all additional relevant evidence (including the VA treatment records and all additional evidence relevant to the claim of service connection for a left-sided facial disability received since the June 2012 statement of the case and all additional evidence relevant to the higher initial rating and increased rating issues received since a July 2014 supplemental statement of the case).  After the Veteran is given an opportunity to respond, the case shall be returned to the Board.

No action is required of the Veteran until he is notified by the AOJ; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claims.  38 C.F.R. § 3.655 (2014).  The Veteran has the right to submit additional evidence and argument on the 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 2014).




______________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs