Citation Nr: 18148891 Decision Date: 11/09/18 Archive Date: 11/08/18 DOCKET NO. 16-25 159 DATE: November 9, 2018 ORDER An effective date of May 26, 2011, for the grant of service connection for osteoarthritis of the right knee, is granted. An effective date of May 26, 2011, for the grant of service connection for osteoarthritis of the left knee, is granted. An effective date earlier than November 16, 2014, for the grant of additional benefits for a dependent child, is denied.   FINDINGS OF FACT 1. The Veteran filed an original claim of service connection for a bilateral knee condition on May 26, 2011, by which time it is now factually ascertainable that service connection for the disability in both knees had arisen. 2. The Veteran’s dependent child was born in August 2014, but notice of the child’s birth was not received within one year. There was no relevant rating action that included an effective date for disabilities resulting in compensation at 30 percent or more prior to the award of a TDIU, effective November 16, 2014. CONCLUSIONS OF LAW 1. The criteria for an effective date of May 26, 2011, for the grant of service connection for osteoarthritis of the right knee have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 2. The criteria for an effective date of May 26, 2011, for the grant of service connection for osteoarthritis of the left knee have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 3. The criteria for an effective date earlier than November 16, 2014, for the grant of additional benefit for a dependent child have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.4, 3.57, 3.209, 3.401. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1984 to August 2006. This matter is on appeal from a September 2015 rating decision (knee effective date issues) and a June 2016 decision (dependency effective date issue). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. An effective date prior to August 13, 2015, for the grant of service connection for osteoarthritis of the right knee. 2. An effective date prior to August 13, 2015, for the grant of service connection for osteoarthritis of the left knee. As issues 1-2 are related, the Board will discuss them together. Specifically, in his May 2016 VA Form 9, the Veteran contended that an earlier effective date is warranted for these disabilities because they were granted secondary to diabetes, and diabetes has been service-connected since May 2011. He pointed to x-rays from April 2011, which showed a diagnosis of osteoarthritis in the knees. A. Applicable Law Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. The effective date of an award based on an original claim or a claim reopened after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400; Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). When service connection is awarded on a direct basis, the effective date may not be earlier than the day following separation from active service or date entitlement arose if claim is received within 1 year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2). An original condition and the secondary condition do not receive identical effective dates. Ellington v. Peake, 541 F.3d 1364, 1369 (Fed. Cir. 2008). If a claim of service connection remains open and pending, and it is eventually determined that the claimed disorder is secondary to a disability determined of service origin, then the effective date for both disabilities [the primary and secondary disabilities] may be assigned “as early as the date of the open claim, depending on when each disability manifested and when law or regulation otherwise authorized benefits.” DeLisio v. Shinseki, 25 Vet. App. 45, 54 (2011). “[E]ntitlement to benefits for a disability or disease does not arise with a medical diagnosis of the condition, but with the manifestation of the condition and the filing of a claim for benefits for the condition.” Id., at 56; Swain v. McDonald, 27 Vet. App. 219, 224 (2015). Instead of assigning an effective date mechanically on the date of a Veteran was diagnosed, “all of the facts should be examined to determine the date that [the Veteran’s disease] first manifested.” DeLisio, 25 Vet. App. at 58. The Board must determine when a service-connected disability manifested itself under the all of the “facts found,” including the medical opinions in question, and assign an effective date based on that evidence. See McGrath v. Gober, 14 Vet. App. 28, 35-36 (2000). The effective date of a service connection claim is not necessarily the date the diagnosis is made or submitted to the VA. Rather, a medical opinion can diagnose the presence of the condition and identify an earlier onset date based on preexisting symptoms. Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014). B. Discussion The threshold question for the Board concerns the date the Veteran filed a claim of service connection for the bilateral knee disabilities. The Board finds that the Veteran filed an original claim of service connection for these disabilities on May 26, 2011. The claims remained pending until the RO granted service connection in the September 2015 rating decision after the Board had remanded the claims in July 2015. This date of claim is not necessarily clear from the September 2015 rating decision. However, a May 2016 statement of the case (SOC) also noted that claim was received on May 26, 2011. Instead of the date of claim, the RO assigned the effective date based on when entitlement arose, which was determined to be August 13, 2015—the date of a VA examination report diagnosing arthritis in both knees in which the examiner also provided a medical opinion linking the knee disabilities to the Veteran’s service-connected diabetes mellitus. There is no indication of an earlier claim pertaining to the knees. There are earlier service claims dating back to July 2006, but the pertain to other conditions. Thus, May 26, 2011, is the date of claim at issue here. Because this was over 1 year after service, this is the earliest possible date for the grant of service connection. Having identified the date of claim, the next question concerns when entitlement to service connection arose. Ultimately, the claim was granted based on the August 2015 VA examiner’s opinion that the Veteran’s disability was at least as likely as not secondary to his service-connected diabetes. The VA examiner cited a July 2011 VA x-ray, which showed no evidence of osseous changes whereas an August 2015 VA x-ray showed mild degenerative arthritis in both knees. The VA examiner reasoned that the Veteran should already have had advanced arthritic changes in 2011 if the disability was due to high impact activities during service. According to the VA examiner, the Veteran diagnosis was of recent onset only and, hence, due to his “long-standing metabolic condition” of diabetes. The VA examiner cited a negative VA x-ray in July 2011. However, the VA examiner did not cite a private (non-VA) x-ray conducted in April 2011, which did show degenerative osseous changes in the knees. Although the private x-ray showed advanced arthritic changes, the x-rays still shows degenerative changes in the knees. This was done prior to the May 2011 claim. Thus, entitlement arose by the date of the claim as it is factually ascertainable that the Veteran had the knee conditions at that time. The date when a medical examination is conducted or when a medical opinion is authored is not necessarily the date when entitlement arises as these dates can be arbitrary dates based on scheduling and so forth. See McGrath, 14 Vet. App. at 35-36. Here, the effective date does not turn on when the August 2015 VA examiner provided a link between the Veteran’s knee conditions and diabetes, but when the Veteran’s knee conditions manifested as they were thereafter linked on a secondary basis. In summary, the Board finds, after resolving all reasonable doubt in the Veteran’s favor, that an effective date of May 26, 2011, is warranted for the award of service connection for his right and left knee osteoarthritis. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, this earlier effective date is warranted. The preponderance of the evidence is against an even earlier date as there is no earlier claim. 3. An effective date earlier than November 16, 2014, for the grant of additional benefit for a dependent child. The Veteran is currently in receipt of an additional compensation award for his dependent child born on August [redacted], 2014. The current effective date is November 16, 2014. The Veteran contends in his September 2016 VA Form 9 that he could not file the information for this child any earlier because he did not receive the Certificate of Report of Birth Abroad from the U.S. State Department until November 2014. Thus, he seeks on appeal an effective date approximately 2.5 months earlier. A. Applicable Law An additional amount of compensation may be payable for a spouse, child, and/or dependent parent where a veteran is entitled to compensation based on disability evaluated as 30 per centum or more disabling. 38 C.F.R. § 3.4(b)(2). Awards of pension or compensation payable to or for a veteran will be effective as for additional compensation for a dependent based on the latest of the following dates: (1) Date of claim. This term means the following, listed in their order of applicability: (i) Date of veteran’s marriage, or birth of his or her child, or, adoption of a child, if the evidence of the event is received within 1 year of the event; otherwise, (ii) Date notice is received of the dependent's existence, if evidence is received within 1 year of the Department of Veterans Affairs request. (2) Date dependency arises. (3) Effective date of the qualifying disability rating provided evidence of dependency is received within 1 year of notification of such rating action. 38 C.F.R. § 3.401(b). See also 38 U.S.C. § 5110(f). Evidence of a dependent child’s birth is established based on a public record of birth; a copy of a church record of baptism; official report from the service department as to birth which occurred while the veteran was in service; Affidavit or a certified statement of the physician or midwife in attendance at birth; or other evidence as identified in 38 C.F.R. § 3.209. B. Discussion The dependent at issue here was born abroad on August [redacted], 2014. The child is the Veteran’s dependent. More than one year later, on November 3, 2015, the Veteran filed a VA Form 686c, Declaration of Status of Dependents. In that form the Veteran first identified the dependent at issue here. With that form, he included satisfactory evidence of the child’s birth pursuant to § 3.209, and the birth certificate was submitted in January 2016. Notice and sufficient evidence of the child’s birth was not received within one year of the birth in August 2014. See 38 C.F.R. § 3.401(b)(1)(i). Thus, this provision may not serve to establish an effective date earlier back to the date of birth. In in substantive appeal, the Veteran stated he did not receive the birth certificate for a birth abroad until November 2014, and that is why he did not submit the application earlier. The birth certificate is dated in September 2015, so perhaps the Veteran meant November 2015 when he submitted the dependency application. Although certain information is not required if it is not available or does not yet exist, this does not toll the 1 year requirement to notify VA of the existence of the dependent, which did not occur here. Although a 30 percent rating has been in effect for many years and the Veteran has submitted other dependency applications, the 30 percent or higher rating action is not limited to the first ration action in this regard. See Sharp v. Shinseki, 23 Vet. App. 267, 276 (2009). Thus, the Board can look to see if the information regarding the dependent was nonetheless received within one year of a rating action awarding benefits to this level. In this regard, several rating decisions were issued in 2013 and through April 2014, which would all have been issued too early regardless of whether the 30 percent threshold was met. A rating decision was issued in July 2015, but it did not award additional benefits, so did not give rise to entitlement to additional dependents benefits. An August 2015 rating decision granted a total disability rating based on individual unemployability due to service-connected disability (TDIU) effective from November 16, 2014. This decision did give rise to entitlement to additional dependents benefits; thus, an eligible rating action for which an earlier date for dependency may be warranted. See Sharp, 23 Vet. App. 276. The current dependency effective date was assigned based on § 3.401(b)(3), as that was the effective date of a TDIU rating assigned followed by evidence of the dependency received within 1 year of that rating action. This is so, as the Veteran provided notice of the child within one year of this decision and the effective date for a TDIU was set as November 16, 2014. Therefore, this is the earliest assignable effective date given the procedural history, when evidence was submitted and the holding in Sharp. The Board herein above grants an earlier effective date for the grant of service connection for right and left knee osteoarthritis that does earlier than the August 2014 date of birth. Although an earlier effective date is granted, this constitutes a combined 20 percent rating for the knees. Thus, the 30 percent or greater threshold is not met. In sum, the preponderance of the evidence is against an earlier effective date for additional benefits for a dependent child. Thus, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, an effective date earlier than November 16, 2014, is not warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Bosely, Counsel