Citation Nr: 18145334 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 16-31 485 DATE: October 26, 2018 ORDER Whether a notice of disagreement (NOD) received December 16, 2011 was timely filed as to a March 2010 rating decision assigning an effective date of May 18, 2009 for the grant of service connection for residuals of left medial meniscectomy with painful range of motion (left knee flexion) and the grant of an increased rating of 20 percent for status post left medial meniscectomy and partial tear of the anterior cruciate ligament with a left knee scar (left knee impairment), having been rendered moot, is dismissed. Entitlement to an effective date prior to May 18, 2009 for the grant of service connection for left knee flexion is denied. Entitlement to an effective date prior to May 18, 2009 for the grant of an increased rating to 20 percent for left knee impairment is denied. REMANDED Whether the reduction of the rating for left knee impairment from 10 percent to noncompensable, effective September 1, 1975, was proper is remanded. FINDINGS OF FACT 1. Correspondence received by VA on December 16, 2011 was interpreted as disagreement to the effective date assigned in a March 2010 rating decision granting service connection for left knee flexion and an increased rating of 20 percent for left knee impairment, both effective May 18, 2009. 2. In May 2010, the Veteran filed an NOD for a March 2010 rating decision assigning an effective date of May 18, 2009 for the grant of service connection for left knee flexion and the grant of an increased rating to 20 percent for left knee impairment. 3. An April 1976 administrative decision denied increasing the Veteran’s rating for his left knee impairment. The Veteran filed a timely NOD to that decision, but did not file a substantive appeal after an October 1976 statement of the case (SOC) was issued. Therefore, the April 1976 administrative decision became final. The Veteran did not submit any correspondence requesting service connection for an additional left knee disability prior to May 18, 2009, nor was any correspondence received requesting an increased rating for his service-connected left knee impairment from the time the April 1976 administrative decision became final until May 18, 2009. 4. It is not factually ascertainable that the Veteran’s service-connected left knee impairment worsened in the year prior to May 18, 2009. CONCLUSIONS OF LAW 1. There are no remaining questions of fact or law to be decided for the issue of whether an NOD received on December 16, 2011 was timely filed as to a March 2010 rating decision assigning an effective date of May 18, 2009 for the grant of service connection for left knee flexion and the grant of an increased rating to 20 percent for left knee impairment. 38 U.S.C. § 7104 (2012). 2. The criteria for entitlement to an effective date prior to May 18, 2009 for the grant of service for left knee flexion have not been met. 38 U.S.C. §§ 5101, 5110 (2012); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2017). 3. The criteria for entitlement to an effective date prior to May 18, 2009 for the grant of an increased rating to 20 percent for left knee impairment 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 CONCLUSIONS The Veteran served on active duty from October 1965 to October 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2010 rating decision and January 2012 administrative decision by the Department of Veterans Affairs (VA). The issues of entitlement to an effective date prior to May 18, 2009 for the grant of service connection for left knee flexion and the grant of an increased rating of 20 percent for left knee impairment have a complex procedural history that requires clarification. In March 2010, the Agency of Original Jurisdiction (AOJ) granted service connection for left knee flexion and granted an increased rating for left knee impairment. The Board finds that the Veteran filed a timely NOD to the March 2010 rating decision, see May 2010 correspondence (discussing a desire to “appeal” and referencing retroactive payment for his left knee disability), that was filed prior to and is separate from the December 2011 NOD on appeal for timeliness. A subsequent SOC adjudicated these issues—although the AOJ mistakenly said the issues were on appeal from a January 2013 NOD—and the Veteran filed a timely substantive appeal. See June 2016 SOC; June 2016 substantive appeal. Thus, both issues are currently before the Board. In a January 2013 rating decision, the AOJ adjudicated entitlement to an earlier effective date for the grant of service connection for left knee impairment, although its discussion related to entitlement to an earlier effective date for the grant of an increased rating for left knee impairment. The Veteran’s January 2013 NOD (and subsequent correspondence) does not contest October 30, 1969, the date of the grant of service connection, but rather contests the lack of payment for the period from 1975 to 2009. Thus, the Board finds that the Veteran did not submit an NOD as to the issue of entitlement to an effective date prior to October 30, 1969 for the grant of service connection for left knee impairment, and remand pursuant to Manlincon v. West, 12 Vet. App. 238 (1999), is not appropriate. Timeliness of NOD On December 16, 2011, VA received correspondence from the Veteran stating that his original rating for his left knee disability should have never been reduced in 1975 and that he is entitled to retroactive payment for the period from 1975 to 2009. See December 2011 correspondence. The AOJ interpreted his correspondence as disagreement with the effective date assigned in a March 2010 rating decision granting service connection for left knee flexion and granting an increased rating of 20 percent for left knee impairment, both effective May 18, 2009, and determined that the December 2011 correspondence was not considered a timely NOD for the March 2010 rating decision. See January 2012 VA correspondence. As discussed above, the Board has determined that an NOD disagreeing with the effective date assigned for the grant of service connection for left knee impairment and the grant of an increased rating of 20 percent for the Veteran’s left knee impairment was filed within a year of the March 2010 rating decision. See May 2010 correspondence. Indeed, those issues are currently before the Board. (Additionally, the issue about the propriety of the reduction for the Veteran’s left knee impairment on September 1, 1975 is also before the Board and is discussed in the Remand section below.) Because the Board has determined that a timely NOD was filed for the March 2010 rating decision as to all issues discussed in the December 16, 2011 NOD, there are no remaining questions of fact or law to be decided as to the timeliness of the December 16, 2011 NOD and the issue is dismissed as moot. Effective Date Entitlement to an effective date prior to May 18, 2009 for the grant of service for left knee flexion and the grant of an increased rating to 20 percent for left knee impairment. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. A claim is 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) (2014). The essential elements for any claim, whether formal or informal, are: (1) intent to apply for benefits; (2) identification of the benefits sought; and (3) communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). VA regulations allow for the assignment of an increased rating up to one year prior to receipt of a formal claim for increase when it is factually ascertainable that an increase in disability had occurred. 38 C.F.R. § 3.400(o)(2). An April 1976 administrative decision denied increasing the Veteran’s rating for his left knee impairment. See April 1976 VA correspondence. The Veteran filed a timely NOD to that decision, see May 1976 NOD, but did not file a substantive appeal after an October 1976 SOC was issued. Therefore, the April 1976 administrative decision became final. The Veteran did not submit any correspondence to VA after the October 1976 SOC until May 18, 2009. The Veteran’s May 18, 2009 correspondence was considered a request for an increased rating for his service-connected left knee impairment, the adjudication of which resulted in the AOJ also granting service connection for left knee flexion, effective May 18, 2009. Prior to May 18, 2009, the record is completely devoid of any communication from the Veteran showing a desire or intent to file a claim for service connection for an additional left knee disability other than his service-connected left knee impairment, or any other disability for that matter. The record simply is completely silent as to any communication from the Veteran after the October 1976 SOC and prior to May 18, 2009. The Veteran has stated that the grant of service connection for left knee flexion and grant of an increased rating for left knee impairment should go back to the date that the rating for his service-connected left knee impairment was reduced, on September 1, 1975, because the reduction was without cause. See, e.g., May 2010 NOD. There are little, if any, relevant medical records from the year prior to May 18, 2009. Such records do not describe the severity of the Veteran’s service-connected left knee impairment. To establish an effective date earlier than May 18, 2009 for the grant of service connection for left knee flexion, the Veteran would need to show both that (1) such disability first manifested prior to May 18, 2009 and (2) that the Veteran had a prior claim of service connection for an additional left knee disability or a request for an increased rating for the Veteran’s service-connected left knee impairment that remained pending, such that an earlier date of claim would be preserved. See 38 U.S.C. § 3.400. Because the April 1975 administrative decision became final, there was no claim for an increased rating for left knee impairment that remained pending prior to when VA received the Veteran’s correspondence on May 18, 2009. Additionally, the Veteran never filed a claim for an additional left knee disability at any time prior to May 18, 2009. Consequently, regardless of when the Veteran’s left knee flexion first manifested, there is simply no basis for awarding an effective date prior to May 18, 2009 for the grant of service connection for left knee flexion, and the issue must be denied. Similarly, for the grant of an increased rating to 20 percent for left knee impairment, the Veteran would need to show that he had a prior request for an increased rating that remained pending, such that an earlier date of claim would be preserved. See 38 U.S.C. § 3.400. Because the April 1975 administrative decision became final, there was no claim for an increased rating for left knee impairment that remained pending. The medical evidence of record does not reflect any indication that the Veteran’s left knee impairment worsened in the year prior to May 18, 2009; thus, it is not factually ascertainable his disability worsened during that time. Because there was no claim that remained pending, and because it is not factually ascertainable that the Veteran’s disability worsened in the year prior to the date the claim was received, an effective date prior to May 18, 2009 is not warranted. REASONS FOR REMAND Whether the reduction of the rating for left knee impairment from 10 percent to noncompensable, effective September 1, 1975, was proper is remanded. In an June 1975 administrative decision, the AOJ reduced the rating for the Veteran’s service-connected left knee impairment from 10 percent to noncompensable, effective September 1, 1975. (Under the regulations of that time, a separate proposal of reduction was not required. See 38 C.F.R. 3.105(e) (1975)). In January 1976, the Veteran filed a timely NOD. See January 1976 correspondence (stating that the Veteran did not “believe [his] compensation should have ever been dis-continued”). While an SOC was eventually issued in a separate appeal, it merely adjudicated whether the Veteran was entitled to a compensable rating for his left knee impairment, and did not adjudicate the propriety of the reduction in 1975. See October 1976 SOC. Thus, remand for the issuance of an SOC pursuant to Manlincon v. West, 12 Vet. App. 238, 240-41 (1999) is necessary. CONTINUED ON NEXT PAGE The matter is REMANDED for the following action: Send the Veteran and his representative an SOC that addresses whether the reduction of the rating for his service-connected left knee impairment from 10 percent to noncompensable, effective September 1, 1975, was proper. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issues should be returned to the Board for further appellate consideration as appropriate. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Sandler, Associate Counsel