Citation Nr: 1802997	
Decision Date: 01/16/18    Archive Date: 01/29/18

DOCKET NO.  11-25 277	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to an effective date earlier than August 21, 2009 for an increased evaluation of right knee, residuals of medial meniscectomy, status post total arthroplasty.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

The Veteran and his Spouse


ATTORNEY FOR THE BOARD

S. Ferguson, Associate Counsel
INTRODUCTION

The Veteran served on active duty from February 1969 to February 1971, with subsequent periods of active duty from January to March 1991, April to July 2000, October 2001 to December 2004, and September 2005 to August 2009.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.

The Veteran testified in a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in October 2017.  A transcript of the hearing is of record.


FINDINGS OF FACT

1.  The Veteran filed his claim for an increased evaluation in excess of 10 percent for right knee, residuals of medial meniscectomy, status post total arthroplasty, on July 27, 2009.

2.  The Veteran was discharged from active duty on August 20, 2009.


CONCLUSION OF LAW

The criteria for an effective date prior to August 21, 2009, for an increased evaluation for right knee, residuals of medial meniscectomy, status post total arthroplasty, have not been met.  38 U.S.C. §§ 5101, 5110 (2012); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2017).





REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  VCAA Notice 

As VCAA notice is not generally applicable to claims for earlier effective dates once a benefit has been awarded, there is no need to discuss VA's duty to notify the Veteran, where, as here, he has raised no indication of any prejudice from defective VCAA notice.  See 38 C.F.R. § 3.159(b)(3); cf. Goodwin v. Peake, 22 Vet. App. 128, 136 (2008).  VA has also fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claim.  See 38 U.S.C. § 5103A(a)(1); 38 C.F.R. § 3.159(c).  In pertinent part, available service treatment records, VA treatment records, private treatment records, and lay statements have been associated with the record.

II.  Earlier Effective Date

Specific to claims for increased disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if a claim is received by VA within one year after that date.  Otherwise the effective date will be the date of receipt of claim or date entitlement arose, whichever is later.  38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(o)(2).

A specific claim in the form prescribed by the Secretary must be filed for benefits to be paid to any individual under the laws administered by VA.  38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a).  VA amended its regulations on March 24, 2015, to require that all claims governed by VA's regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises.  See 79 Fed. Reg. 57660 (Sept. 25, 2014).  The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015.  As the claim in this case was filed prior to that date, the amendments are not applicable in this instance, and the regulations in effect prior to March 24, 2015, will be applied. 

At the time of the March 2010 rating decision granting an increased rating of 30 percent for the Veteran's service-connected right knee, residuals of medial meniscectomy, status post total arthroplasty, VA regulations defined "claim" as 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) (2009).  Additionally, any communication or action from a claimant, his representative, a Member of Congress, or some person acting as next of friend who was not sui juris, which indicated an intent to apply for one or more benefits under laws administered by VA, could be considered an informal claim by VA.  See 38 C.F.R. § 3.155(a) (2009).  While no set form was required for informal claims, it was required that an informal claim identify the benefit sought.  Id.  

At his October 2017 Board hearing, the Veteran testified that he did not file a formal claim or otherwise report his total knee replacement to VA prior to July 2009.  He testified that his medical care related to his right knee was being provided through the Army during the period when he was not on active duty between December 2004 and September 2005.  He further testified that he was not advised to file for his disabilities with VA until going before the Army's medical board in 2009.  Although the evidence of record confirms that the Veteran underwent a total knee replacement operation in July 2004 and was subsequently discharged from active duty December 2004, there is no indication that he made a claim for VA benefits relating to his right knee disability, either formally or informally, prior to July 2009.  Accordingly, the effective date of August 21, 2009, i.e., the first day after his discharge from active duty subsequent to filing his claim, is proper.

The Board acknowledges that the Veteran had a total knee replacement in July 2004.  However, to the extent that the Veteran asserts that equity warrants the assignment of an earlier effective date extending to the date of the original claim for an increased rating, matters of equitable relief are only within the discretion of the Secretary of VA.  The Board does not have the authority to award equitable relief.  38 U.S.C. § 503; Darrow v. Derwinski, 2 Vet. App. 303 (1992) (holding that equitable relief is only available if "benefits administered by the Department [under § 511(a) and § 512(a)] have not been provided by reason of administrative error on the part of the Federal Government or any of its employees...").

In summary, for the reasons set forth above, the Board concludes that the preponderance of the evidence is against a finding that entitlement to an effective date earlier than August 21, 2009 is warranted for a rating in excess of 10 percent for a service-connected right knee disability.  Therefore, the claim must be denied. See 38 U.S.C. § 5107(b).


ORDER

Entitlement to an effective date earlier than August 21, 2009 for an increased evaluation of right knee, residuals of medial meniscectomy, status post total arthroplasty is denied.



____________________________________________
M. H. Hawley
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs