Citation Nr: 18140549 Decision Date: 10/03/18 Archive Date: 10/03/18 DOCKET NO. 18-26 146 DATE: October 3, 2018 ORDER Service connection for a disorder of the bilateral knees is granted. REMANDED Entitlement to an initial compensable rating for migraines prior to January 23, 2017, is remanded. Entitlement to an effective date prior to January 23, 2017, for the grant of a 50 percent rating for migraines is remanded. Entitlement to an effective date prior to January 23, 2017, for the grant of entitlement to total disability based on individual unemployability (TDIU) is remanded. FINDING OF FACT The competent and probative evidence is at least in equipoise as to whether a bilateral knee disorder had its onset in or is otherwise related to the Veteran’s period of active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a disorder of the bilateral knees have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1, 1975, to March 14, 1978. These matters come before the Board of Veterans’ Appeals (Board) on appeal from December 2016, February 2017, and August 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran had a second period of service from March 15, 1978, to August 15, 1983. During that period of service, the Veteran was discharged under other than honorable conditions. A May 2013 administrative decision determined that the period of service from March 15, 1978, to August 15, 1983, is dishonorable for VA purposes; the Veteran did not appeal that decision and the issue is not currently before the Board. The Board notes that it appears from the virtual file that the most recent rating decision codesheet in August 2017 indicates that the Veteran’s first period of service is dishonorable for VA purposes and the second period of service is honorable for VA purposes. The Board requests that the RO take appropriate action to remedy this error. A December 2016 rating decision granted service connection for migraines and assigned a noncompensable rating effective October 17, 2013. A February 2017 rating decision increased the rating for migraines to the maximum 50 percent under Diagnostic Code 8100, effective January 23, 2017. An April 2017 notice of disagreement (NOD) was received within the appeal period of both the December 2016 and February 2017 rating decisions, in which the Veteran appealed both the initial rating and the effective date of the increased rating. However, a March 2018 statement of the case (SOC) only adjudicated entitlement to an earlier effective date for the 50 percent rating for migraines. Accordingly, the Board is remanding the issue of entitlement to an increased initial rating for migraines for issuance of an SOC under Manlincon v. West, 12 Vet. App. 238, 240 (1999). The Board acknowledges that a February 2017 rating decision reopened and denied the claim of entitlement to service connection for a bilateral knee disorder. However, the Board notes that the February 2017 rating decision was a reconsideration of a December 2016 rating decision, which was a reconsideration of a July 2013 rating decision denying the bilateral knee claim. Accordingly, the Board has not characterized the claim of service connection for the knees as a petition to reopen based on new and material evidence. The Board recognizes that in August 2018 VA received a request from the Veteran’s attorney representative for an extension of 90 days in which to submit new evidence. However, the Board has decided to issue a decision prior to the expiration of the 90-day period for the following reasons. First, the grant of service connection is a full grant of the benefits sought. Second, the issues of entitlement to earlier effective dates for an increased rating for migraines and TDIU are inextricably intertwined with the issue of entitlement to an initial compensable rating for migraines. As the Board is remanding the increased rating claim for issuance of an SOC, waiting the full 90 days to issue a decision would result in no benefit to the Veteran, as the Board would still have to remand for an SOC in compliance with Manlincon, regardless of the evidence received. The Board’s current decision results in no prejudice to the Veteran, who will still have the opportunity to submit new evidence while the case is on remand to the Agency of Original Jurisdiction (AOJ), and the Board is not denying entitlement to any requested benefits prior to the expiration of the 90-day period. Service Connection Entitlement to service connection for a disorder of the bilateral knees After review of the record, the Board finds that the criteria for service connection for a bilateral knee disorder have been met. The record contains a competent diagnosis of degenerative joint disease of the bilateral knees. 08/05/2015, C&P Exam. Accordingly, the Board finds competent evidence of a current disability. Service medical records indicate treatment for knee pain in March 1976, which is during the period of active duty. 09/11/2014, STR-Medical. In August 2015, the Veteran reported the onset of knee pain as occurring in 1976. The VA examiner opined that it is more likely than not that the Veteran’s bilateral knee disorder is related to his period of active service, noting that there is evidence of knee pain in a March 1976 treatment note. 08/05/2015, C&P Exam. In light of the foregoing, the Board finds that the weight of the competent and probative evidence is at least in equipoise as to whether the Veteran’s current bilateral knee disorder had its onset during or is otherwise related to his period of active service. REASONS FOR REMAND 1. Entitlement to an initial compensable rating for migraines prior to January 23, 2017, is remanded. As previously noted, in an April 2017 NOD, the Veteran expressed disagreement with the initial noncompensable rating for migraines. The AOJ has not issued an SOC regarding the increased rating claim. As such, the Board has no discretion, and the issue must be remanded for such a purpose. Manlincon v. West, 12 Vet. App. 238, 240 (1999); 38 C.F.R. § 19.9(c).   2. Entitlement to an effective date prior to January 23, 2017, for the grant of a 50 percent rating for migraines is remanded. 3. Entitlement to an effective date prior to January 23, 2017, for the grant of entitlement to TDIU is remanded. The Board finds that the claims for earlier effective dates for the grant of a 50 percent rating for migraines and entitlement to TDIU are inextricably intertwined with the increased rating issue on appeal, and will defer consideration of those matters. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (stating that two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following action: Send the Veteran and his representative a statement of the case that addresses the issue of entitlement to an initial compensable rating for migraines prior to January 23, 2017. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. (CONTINUED ON THE NEXT PAGE)   The claims of entitlement to earlier effective dates for a 50 percent rating for migraines and TDIU should be returned to the Board after the Veteran files a Form 9 substantive appeal to the increased rating claim for migraines, or the period to appeal the increased rating claim has expired (60 days from the issuance of the SOC), whichever occurs first. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Gelber, Associate Counsel