Citation Nr: 1754894	
Decision Date: 11/30/17    Archive Date: 12/07/17

DOCKET NO.  16-35 466	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUE

Entitlement to an effective date earlier than December 21, 1999 for the grant of service connection for degenerative joint disease of the left knee, status post arthroscopy.  


REPRESENTATION

Appellant represented by:	New York State Division of Veterans' Affairs


ATTORNEY FOR THE BOARD

Sarah Richmond, Counsel



INTRODUCTION

The Veteran had active military service from September 1958 to September 1961 and January 1991 to July 1991.

This matter comes to the Board of Veterans' Appeals (Board) from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which granted service connection for degenerative joint disease of the left knee assigning a 10 percent rating, effective December 21, 1999.  The Veteran appealed the effective date for the grant of service connection.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C. § 7107(a)(2) (2012).


FINDINGS OF FACT

1.  A July 2012 Board decision found that an August 1991 rating decision that denied service connection for a left leg disability was final, and reopened service connection for a left leg disability finding that new and material evidence had been received.  The Veteran did not appeal the Board's decision, nor assert that there was clear and unmistakable error in the decision.

2.  The Veteran's petition to reopen a service connection claim for a left leg disability was received on December 21, 1999.


CONCLUSIONS OF LAW

1.  The Board's July 2012 Board decision, insofar as it found that an August 1991 rating decision was final and reopened the claim for service connection for a left leg disability based on the receipt of new and material evidence, is final.  38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2017).

2.  The criteria for an effective date earlier than December 21, 1999, for the grant of service connection for degenerative joint disease of the left knee are not met.  38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. § 3.400 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Veterans Claims Assistance Act of 2000 (VCAA)

The requirements of 38 U.S.C. § 5103 and 5103A (2012) have been met. By correspondence dated in January 2010, VA notified the Veteran of the information and evidence needed to substantiate and complete the claim.  The letter also notified the Veteran as to how VA assigns disability ratings and effective dates.  

VA has also satisfied the duty to assist.  The Veteran's service treatment records and VA treatment records pertaining to his claim for disability benefits have been obtained and associated with the claims file.  VA also has provided him a VA examination in September 2014 addressing his claim.  The examination report obtained contains sufficient information to decide the issue addressed in this decision and further examination is not necessary.  See Massey v. Brown, 7 Vet. App. 204 (1994).  
  
In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication.  See 38 C.F.R. § 3.159.

II.  Effective Date for Service Connection 

Except as otherwise provided, 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 allowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 C.F.R. § 3.400.  An exception to the rule for service connection claims is the effective date can be the day after separation from service if the claim is received within one year of such separation.  See 38 C.F.R. § 3.400(b)(2).

Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form.  The amendments implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant's effective date of benefits must be received in one of three specified formats.  The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. §  3.157. See 79 Fed.  Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1 (p), 3.151, 3.155).  The amendments apply only to claims filed on or after March 24, 2015.  Because the Veteran's claim was received by VA prior to that date, the former regulations apply.

The Veteran's petition to reopen a service connection claim for a left leg disability was received on December 21, 1999.  While the Veteran's claim was initially denied in August 2003, the claim was appealed, and remanded by the Board in October 2009 and July 2012 for additional development.  The July 2012 Board decision noted that a previous August 1991 rating decision that denied service connection for a left leg disorder was final. The Board reopened the claim in the July 2012 decision, finding that new and material evidence had been received, and remanded the matter on the merits.  The Veteran did not appeal the Board's July 2012 decision, insofar as it found that the August 1991 rating decision denying service connection for a left leg disorder was final.  Thus, the July 2012 Board decision as it pertains to that matter is final, as well.  38 U.S.C. § 7104; 38 C.F.R. § 20.1100.

Pursuant to the Board's July 2012 remand, the Veteran underwent a VA examination in September 2014, which found that the Veteran's pre-existing left knee disability was aggravated by his military service.  On the basis of the VA examination, the RO granted service connection for left knee degenerative joint disease in October 2014, assigning an effective date of December 21, 1999.  

Based on a careful review of the record, the Board finds that there is no evidence to support the assignment of an effective date earlier than December 21, 1999 for the grant of service connection for a left knee disability.  The date of his petition to reopen service connection for a left leg disability is the date that entitlement to benefits begins (unless entitlement arose later than the date of the claim).  In this case there is no evidence that the Veteran filed a petition to reopen service connection for a left knee disability prior to December 21, 1999.  The Veteran asserts that he should be given an effective date back to 1986, when he originally filed his claim.  See, e.g., August 24, 2017 statement.  As noted, however, the RO denied this claim in August 1991; and the Board has found that this decision is final.  When the Board affirms a decision of an RO, the RO determination "is subsumed by the final appellate decision" pursuant to 38 C.F.R. § 20.1104.  The effect of subsuming is that, as a matter of law, no claim of clear and unmistakable error can exist with respect to that RO decision.  See 38 C.F.R. § 20.1104; Dittrich v. West, 163 F.3d 1349 (Fed. Cir. 1998); Donovan v. West, 158 F. 3d 1377 (Fed. Cir. 1998); Chisem v. Gober, 10 Vet. App. 526, 528 (1997).  Thus, to the extent that the Veteran is asserting any error in the August 1991 rating decision, the RO decision is subsumed by the Board's decision in July 2012 that the 1991 rating decision is final.

Accordingly, the claim for entitlement to an effective date prior to December 21, 1999 for service connection for a left knee disability is denied.


ORDER

Entitlement to an effective date earlier than December 21, 1999 for the grant of service connection for degenerative joint disease of the left knee, status post arthroscopy, is denied.




S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs