Citation Nr: 18144661 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 16-41 672 DATE: October 25, 2018 ORDER An effective date of January 23, 2008, but not earlier, for the grant of service connection for a right knee disability as secondary to service-connected left knee disability is granted. FINDINGS OF FACT 1. The Veteran filed his original claim for service connection for a right knee disability secondary to his service-connected left knee disability on January 23, 2008. 2. The Veteran’s January 23, 2008 claim for a right knee disability remained pending and there is no prior unadjudicated claims. 3. Resolving all doubt in the Veteran’s favor, he had a current diagnosis of a right knee disability for VA purposes from the time of his original claim on January 23, 2008. CONCLUSION OF LAW The criteria for an effective date of January 23, 2008, but not earlier, for the grant of service connection for a right knee disability secondary to service-connected left knee disability have been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.1(p), 3.102, 3.151, 3.155, 3.159, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1992 to November 1994 and from July 1996 to November 1996. In June 2015, the Board remanded the claim for the RO to issue a statement of the case (SOC). Thereafter, in July 2017, the Board again remanded the claim, to afford the Veteran a Board hearing per his request. In October 2018, the Veteran testified in front of the undersigned Veterans Law Judge. This decision is being made under the “one-touch” program. A transcript of the hearing will be associated with the claims file. Earlier Effective Date The issue is whether an effective date earlier than October 23, 2013, for the award of service connection for a right knee disability is warranted. Generally, the effective date of an award of service connection is the date the claim was received or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2017). The same is true for an award based on a claim reopened after final adjudication, as VA laws and regulations stipulate that the effective date of such an award shall be fixed in accordance with the facts found, but shall not be earlier than the date the claim was received, or the date entitlement arose, whichever is later. See Id.; 38 C.F.R. § 3.400(r). The effective date for a grant of service connection following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. A formal claim is one that has been filed in the form prescribed by VA. See 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). An informal claim may be any communication or action, indicating intent to apply for one or more benefits under VA law. See Thomas v. Principi, 16 Vet. App. 197 (2002); see also 38 C.F.R. §§ 3.1(p), 3.155(a) (2017). An informal claim must be written, see Rodriguez v. West, 189 F. 3d. 1351 (Fed. Cir. 1999), and it must identify the benefit being sought. Brannon v. West, 12 Vet. App. 32, 34-5 (1998). Discussion Upon a careful and thorough review of the Veteran’s file, the Board finds that an earlier effective date is warranted. The Veteran’s original service connection claim for a right knee disability was received by VA on January 23, 2008. The Veteran indicated that his left knee developed compensatory damage due to his left knee disability. Thereafter, in a September 2008 rating decision, the RO denied service connection for a right knee disability, indicating that the Veteran failed to report to the scheduled VA examination, and that there was no evidence of a link to service. The decision further noted that secondary service connection was also denied, because there was not an established link between a diagnosed right knee condition and the service-connected left knee condition. The Veteran filed a timely notice of disagreement (NOD) on October 3, 2008, in which he specified that he disagreed with the September 2008 rating decision that denied service connection for a right knee condition. He also submitted a November 2008 statement in support of claim, in which he noted that he disagreed with the RO’s denial of his claim for a right knee disability. Thereafter, in March 2009, the Veteran underwent a VA general medical examination, at which time the examiner discussed his service-connected left knee disability, and mentioned that he developed pain in his right knee, for which he underwent a MRI in 2007. At the same time, during a VA examination for traumatic brain injury, it was noted that the Veteran had bilateral knee pain, and during a VA mental health examination, it was noted that the Veteran’s symptoms intensified by the frustration over his back and knee pain with decreased mobility. In addition, during a VA audiology examination, the Veteran reported imbalance, which he attributed to a cerebellar abnormality as well as problems with his knees. During examination for his spine, it was noted that there was tightness just behind the knee, bilaterally. Also in March 2009, the Veteran additionally underwent a VA examination for his knees, at which time he reported pain, burning sensation in the medial knee, and swelling, but denied locking or a history of injury. He further reported flare-ups described as increased pain with weight-bearing activities. The examiner indicated that the Veteran’s knee disabilities impacted his ability to work and had an effect on his routine daily activities. Range of motion of the right knee was normal with no evidence of pain, to include after repetitive use testing. There was objective evidence of quad weakness, bilaterally. The examiner concluded that there was evidence of right knee pain despite the orthopedic examination of the right knee being essentially unremarkable. The examiner opined that the Veteran’s right knee pain was secondary to his service-connected left knee ACL tear. Despite the Veteran’s submission of a timely NOD (and a SOC was not issued,) the RO treated his November 2008 statement in support of claim as a petition to reopen. Thus, in a May 2009 rating decision, the RO reopened the claim, but continued to deny the claim, finding that pain alone was not a disability, and citing to the Court case of Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). Subsequently, the RO issued a SOC in May 2010, and the Veteran timely perfected his appeal in June 2010. The RO issued a supplemental statement of the case (SSOC) in September 2012. On October 23, 2013, the Veteran underwent an additional VA examination for his knees, at which time, x-rays revealed minor degenerative joint disease of the right knee. Based on this diagnosis, in a February 2014 rating decision, the RO granted service connection for a right knee disability, and assigned an effective date of October 23, 2013, the date a right knee disability was clinically diagnosed. The Veteran timely appealed this decision in April 2014. As aforementioned, the Board remanded the claim for the RO to issue a SOC and later for a hearing, which was held in October 2018. The Board notes that in April 2018, the Federal Circuit Court issued a precedential decision, holding that pain alone, even without an underlying pathology or diagnosis, can constitute a disability under VA law where such pain results in functional impairment. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a “disability” under 38 U.S.C. § 1110 refers to functional impairment of earning capacity; pain need not be diagnosed as connected to a current underlying condition to function as an impairment.). In essence, this decision overturned the holding in Sanchez-Benitez, which found that pain alone was not a disability. As discussed in greater detail above, already at the time of the Veteran’s claim there was medical and lay evidence of right knee pain, which was noted to impact the Veteran’s ability to work as well as his routine daily activities and mobility. Based on the foregoing, the Board finds that the Veteran had current right knee disability since the beginning of his claim. Furthermore, as noted above, the Veteran’s January 2008 claim remained pending. The weight of the evidence, specifically the procedural history discussed above, as well as the medical and lay evidence at the time of the original claim, supports the Veteran’s assertion that he is entitled to an earlier effective date for the grant of service connection for a right knee disability. (Continued on the next page)   The Veteran does not assert and the record does not support an effective date earlier than that of his original claim, namely, January 23, 2008. Therefore, an effective date of January 23, 2008, but not earlier, is warranted. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel