Citation Nr: 1804786	
Decision Date: 01/25/18    Archive Date: 02/05/18

DOCKET NO.  13-41 147	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUE

Entitlement to an earlier effective date than August 3, 2010, for service connection for chronic left knee strain with degenerative changes status post total knee replacement.


REPRESENTATION

Appellant represented by:	Colorado Division of Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

E. Vample, Associate Counsel
INTRODUCTION

The Veteran served in the Army from February 1970 and August 1973 and from October 1973 to May 1990. 

This matter comes before the Board of Veteran's Appeals (Board) on appeal of an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. 

The Veteran testified at an August 2017 videoconference hearing before the undersigned Veterans Law Judge.  A hearing transcript of record.

The issue of clear and unmistakable error (CUE) for an earlier effective date for the chronic left knee strain with degenerative changes status post total knee replacement has been raised by the record.  It has been raised in a March 2012 Veteran statement and through his representative during his August 2017 hearing, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2017).


FINDINGS OF FACT

1. A December 1990 rating decision for service connection for left knee strain became final as new and material evidence or a Notice of Disagreement was not received within one year of notice of the decision.

2. The RO granted service connection for a chronic left knee strain with degenerative disc changes status post knee replacement effective from August 3, 2010.





CONCLUSION OF LAW

The criteria for an effective date prior to August 3, 2010, for the grant of service connection for chronic left knee strain with degenerative changes status post total knee replacement have not been met. 38 U.S.C. § § 5110, 5107 (2012); 38 CFR § 3.400 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Notice and Assistance

VA has a duty to notify and assist claimants in substantiating claims for VA benefits.  See e.g. 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). Here, the duty to notify was satisfied by a way of a letter sent October 2011.

VA also has a duty to assist a claimant in the development of a claim.  This duty includes assisting the claimant in the procurement relevant treatment records and providing an examination when necessary.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159.  The Board finds that all necessary development has been accomplished and all available evidence pertaining to the matter decided herein has been obtained.  The RO has obtained the Veteran's VA treatment records, private treatment records, service treatment records, VA examination reports, hearing testimony, and statements from the Veteran and his representative.  Neither the Veteran nor his representative has notified VA of any outstanding evidence, and the Board is aware of none.  Hence, the Board is satisfied that the duty-to-assist was met.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c).

Earlier Effective Date 

The Veteran has been granted an effective date for chronic left knee strain with degenerative changes status post total knee replacement of August 3, 2010.  He contends he is entitled to an earlier effective date. 

In general, the effective date for the grant of service connection based upon an original claim or a claim reopened after final disallowance is either the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise it will be the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 U.S.C.A. § 5110(b)(1) (West 2014); 38 C.F.R. § 3.400(b) (2017).

For effective date purposes, a claim is a formal or informal written communication identifying and requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit.  38 C.F.R. § 3.1(p) (2014).  Any communication or action, indicating an 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. 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 after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim.  38 C.F.R. § 3.155 (2014); Norris v. West, 12 Vet. App. 413, 421 (1999).

After a careful review of the evidence of record, the Board finds that the request for an earlier effective date prior to August 3, 2010, should be denied.

As an initial matter, service connection for a chronic left knee strain was denied in a December 1990 rating decision; the Veteran did not appeal this denial of service connection, and new and material evidence was not received within one year of notice of that decision.  Therefore, the December 1990 decision became final.  38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(a). 

Next, the Veteran submitted a claim seeking to reopen this previously denied claim on August 2, 2010, which was received by the RO on the next day.  According to the August 2010 rating decision, this was the date applied when assigning an effective date.  As there is no evidence to the contrary, the Board agrees that this is the date of the Veteran's formal claim.

The date of receipt of the claim having been established, the Board has also reviewed whether there is any evidence of an intent to file a claim for benefits prior to August 3, 2010.  In this regard, a review of the record fails to show that the RO received claim or informal written communication indicative of the Veteran's desire to seek service connection for a left knee disorder.  Indeed, during the Veteran's hearing, he confirmed that he did not submit medical evidence between the previous denial and the filing of his new claim.  

In sum, the earliest possible effective date for a grant of service connection for chronic left knee strain with degenerative changes status post total knee replacement is August 3, 2010.  

As a final matter, as was discussed at the hearing, the Veteran has also asserted that there was CUE in the December 1990 rating decision.  As was noted above, this issue is being referred to the RO for adjudication.  Nothing in the present decision impacts that particular claim.


ORDER

Entitlement to an earlier effective date than August 3, 2010, for service connection for chronic left knee strain with degenerative changes status post total knee replacement is denied.




____________________________________________
B.T. KNOPE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs