Citation Nr: 18149801 Decision Date: 11/14/18 Archive Date: 11/13/18 DOCKET NO. 16-35 885 DATE: November 14, 2018 ORDER Entitlement to an effective date earlier than September 22, 2015, for the grant of a 100 percent rating for posttraumatic stress disorder (PTSD) is denied. Entitlement to an effective date earlier than September 22, 2015, for the grant of service connection for bilateral hearing loss is denied. Entitlement to an effective date earlier than September 22, 2015, for the grant of service connection for left knee instability is denied. Entitlement to an effective date earlier than September 22, 2015 for the grant of service connection for left knee limitation of flexion is denied. Entitlement to an effective date earlier than September 22, 2015, for the grant of service connection for lumbar strain is denied. Entitlement to an effective date earlier than September 22, 2015, for the grant of service connection for right knee arthritis is denied. Entitlement to an effective date earlier than September 22, 2015, for the grant of service connection for right knee instability is denied. Entitlement to an effective date earlier than September 22, 2015, for the grant of service connection for tinnitus is denied. Entitlement to an effective date earlier than September 22, 2015, for eligibility to Dependents' Educational Assistance under 38 U.S.C. Chapter 35 is denied. FINDINGS OF FACT 1. A June 2012 rating decision assigned a 70 percent rating for PTSD, effective November 30, 2010. The Veteran did not appeal the June 2012 decision. 2. The Veteran submitted an increased rating claim for PTSD that was received by the RO on September 22, 2015. 3. The Veteran submitted a claim for service connection for bilateral hearing loss that was received by the RO on September 22, 2015. 4. A June 2012 rating decision confirmed a 10 percent rating for residuals of anterior cruciate ligament tear of the left knee, effective date of July 27, 2009. The Veteran did not appeal this decision. 5. The Veteran filed a claim for additional compensation for the left knee, which was treated as a service connection claim for left knee instability that was received by the RO on September 22, 2015. 6. The Veteran filed a claim for additional compensation for the left knee, which was treated as a service connection claim for left knee limitation of flexion that was received by the RO on September 22, 2015. 7. The Veteran filed a service connection claim for lumbar strain that was received by the RO on September 22, 2015. 8. The Veteran filed a service connection claim for right knee arthritis that was received by the RO on September 22, 2015. 9. The Veteran filed a service connection claim for right knee instability that was received by the RO on September 22, 2015. 10. The Veteran filed a service connection claim for tinnitus that was received by the RO on September 22, 2015. 11. The Veteran was assigned a 100 percent disability rating for PTSD making him eligible for Dependents' Educational Assistance under 38 U.S.C. Chapter 35, effective September 22, 2015. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to September 22, 2015, for the grant of an increased rating of 100 percent for PTSD have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.400. 2. The criteria for an effective date prior to September 22, 2015, for the grant of service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.400. 3. The criteria for an effective date prior to September 22, 2015, for the grant of service connection for left knee instability have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.400. 4. The criteria for an effective date prior to September 22, 2015, for the grant of service connection for left knee limitation of flexion have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.400. 5. The criteria for an effective date prior to September 22, 2015, for the grant of service connection for lumbar strain have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.400. 6. The criteria for an effective date prior to September 22, 2015, for the grant of service connection for right knee arthritis have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.400. 7. The criteria for an effective date prior to September 22, 2015, for the grant of service connection for right knee instability have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.400. 8. The criteria for an effective date prior to September 22, 2015, for the grant of service connection for tinnitus have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.400. 9. The criteria for an effective date prior to September 22, 2015 for eligibility to Dependents’ Educational Assistance under 38 U.S.C. Chapter 35 have not been met. 38 U.S.C. §§ 3500, 3501, 5110; 38 C.F.R. §§ 3.400, 3.807. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from June 1999 to July 2009. He testified before the undersigned Veterans Law Judge at a Board video conference hearing in January 2017. Effective Date 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); 38 C.F.R. § 3.400. The same is true for an award based on a claim for an increased rating, as VA laws and regulations stipulate that the effective date of such an award shall be the earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a complete claim or intent to file a claim is received within 1 year from such date, otherwise, date of receipt of claim. When medical records indicate an increase in a disability, receipt of such medical records may be used to establish effective date(s) for retroactive benefits based on facts found of an increase in a disability only if a complete claim or intent to file a claim for an increase is received within 1 year of the date of the report of examination, hospitalization, or medical treatment. These provisions only apply when such reports relate to examination or treatment of a disability for which service connection has been previously established. See id.; 38 C.F.R. §3.400(o)(2). 1. Entitlement to an effective date earlier than September 22, 2015 for the grant of a 100 percent rating for posttraumatic stress disorder (PTSD) The Veteran contends that he is entitled to an effective date earlier than September 22, 2015, for the assignment of a 100 percent disability for PTSD, based on evidence prior to that time frame showing that a higher rating was warranted. The question for the Board is whether the Veteran is entitled to an effective date earlier than September 22, 2015 for the grant of an increased rating of 100 percent for PTSD. The Board concludes that the Veteran is not entitled to an effective date earlier than September 22, 2015, for the assignment of the 100 percent disability rating for PTSD. The RO granted an increased rating of 70 percent for the Veteran’s PTSD in a June 2012 rating decision, with an effective date of November 30, 2010. The Veteran did not appeal the RO’s denial. Thus, the June 2012 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The Veteran submitted an increased rating claim for PTSD that was received by the RO on September 22, 2015. He later underwent a VA examination in January 2016. Findings on the examination in January 2016 were used as the basis for the assignment of the 100 percent disability rating for PTSD. There was no relevant medical evidence submitted within one year of the Veteran’s increased rating claim indicating that a 100 percent rating is warranted for PTSD. Based on a careful review of the record, the Board finds that there is no evidence to support the assignment of an effective date earlier than September 22, 2015, for the grant of an increased rating of 100 percent for PTSD. The Board acknowledges the arguments set forth by the Veteran. Under the law, however, 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); 38 C.F.R. § 3.400. As such, the RO assigned the earliest possible effective date for its assignment of an increased rating of 100 percent for PTSD, which based on the procedural history as outlined in detail above was determined to be September 22, 2015. See Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005); Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003). Accordingly, the claim for entitlement to an effective date prior to September 22, 2015, for the grant of an increased rating of 100 percent for PTSD is denied. 2. Entitlement to an effective date earlier than September 22, 2015, for the grant of service connection for bilateral hearing loss The Veteran contends that he is entitled to an effective date earlier than September 22, 2015, for the grant of service connection for bilateral hearing loss. The question for the Board is whether the Veteran is entitled to an effective date earlier than September 22, 2015 for the grant of service connection for bilateral hearing loss. The Board concludes that the Veteran is not entitled to an effective date earlier than September 22, 2015, for the grant of service connection for bilateral hearing loss. The Veteran submitted a service connection claim for hearing loss that was received by the RO on September 22, 2015. He testified at the Board hearing that he had filed a previous compensation claim in 2009. However, the claim he submitted in 2009 does not reflect bilateral hearing loss as a disability claimed. Based on a careful review of the record, the Board finds that there is no evidence to support the assignment of an effective date earlier than September 22, 2015, for the grant of service connection for bilateral hearing loss. The Board acknowledges the arguments set forth by the Veteran. Under the law, however, 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); 38 C.F.R. § 3.400. As such, the RO assigned the earliest possible effective date for its assignment of service connection for bilateral hearing loss, which based on the procedural history as outlined in detail above was determined to be September 22, 2015. See Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005); Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003). Accordingly, the claim for entitlement to an effective date prior to September 22, 2015, for the grant of service connection for bilateral hearing loss is denied. 3. Entitlement to an effective date earlier than September 22, 2015, for the grant of service connection for left knee instability The Veteran contends that he is entitled to an effective date earlier than September 22, 2015, for the grant of service connection for left knee instability. The question for the Board is whether the Veteran is entitled to an effective date earlier than September 22, 2015 for the grant of service connection for left knee instability. The Board concludes that the Veteran is not entitled to an effective date earlier than September 22, 2015, for the grant of service connection for left knee instability. The RO confirmed a 10 percent rating for residuals of anterior cruciate ligament tear of the left knee based on x-ray evidence of limitation of motion with arthritis, in a June 2012 rating decision, with an effective date of July 27, 2009. The Veteran did not appeal the RO’s decision. Thus, the June 2012 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The Veteran submitted a claim for additional compensation pertaining to the left knee that was received by the RO on September 22, 2015. He underwent a VA examination in January 2016, which was used as the basis for assigning a separate rating for instability of the left knee, effective September 22, 2015. There was no relevant medical evidence submitted within one year of the Veteran’s claim indicating that a separate rating for instability of the left knee was warranted. Based on a careful review of the record, the Board finds that there is no evidence to support the assignment of an effective date earlier than September 22, 2015, for the grant of service connection for instability of the left knee. The Board acknowledges the arguments set forth by the Veteran. Under the law, however, 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); 38 C.F.R. § 3.400. As such, the RO assigned the earliest possible effective date for its assignment of service connection for instability of the left knee, which based on the procedural history as outlined in detail above was determined to be September 22, 2015. See Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005); Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003). Accordingly, the claim for entitlement to an effective date prior to September 22, 2015, for the grant of service connection for instability of the left knee is denied. 4. Entitlement to an effective date earlier than September 22, 2015 for the grant of service connection for left knee limitation of flexion The Veteran contends that he is entitled to an effective date earlier than September 22, 2015, for the grant of service connection for left knee limitation of flexion. The question for the Board is whether the Veteran is entitled to an effective date earlier than September 22, 2015 for the grant of service connection for left knee limitation of flexion. The Board concludes that the Veteran is not entitled to an effective date earlier than September 22, 2015, for the grant of service connection for left knee limitation of flexion. The RO confirmed a 10 percent rating for residuals of anterior cruciate ligament tear of the left knee based on x-ray evidence of limitation of motion with arthritis, in a June 2012 rating decision, with an effective date of July 27, 2009. The Veteran did not appeal the RO’s decision. Thus, the June 2012 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The Veteran submitted a claim for additional compensation pertaining to the left knee that was received by the RO on September 22, 2015. He underwent a VA examination in January 2016, which was used as the basis for assigning a separate rating for limitation of flexion of the left knee, effective September 22, 2015. There was no relevant medical evidence submitted within one year of the Veteran’s claim indicating that a separate rating for limitation of flexion of the left knee was warranted. Based on a careful review of the record, the Board finds that there is no evidence to support the assignment of an effective date earlier than September 22, 2015, for the grant of service connection for limitation of flexion of the left knee. The Board acknowledges the arguments set forth by the Veteran. Under the law, however, 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); 38 C.F.R. § 3.400. As such, the RO assigned the earliest possible effective date for its assignment of service connection for limitation of flexion of the left knee, which based on the procedural history as outlined in detail above was determined to be September 22, 2015. See Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005); Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003). Accordingly, the claim for entitlement to an effective date prior to September 22, 2015, for the grant of service connection for limitation of flexion of the left knee is denied. 5. Entitlement to an effective date earlier than September 22, 2015, for the grant of service connection for lumbar strain The Veteran contends that he is entitled to an effective date earlier than September 22, 2015, for the grant of service connection for lumbar strain. The question for the Board is whether the Veteran is entitled to an effective date earlier than September 22, 2015 for the grant of service connection for lumbar strain. The Board concludes that the Veteran is not entitled to an effective date earlier than September 22, 2015, for the grant of service connection for lumbar strain. The Veteran submitted a service connection claim for lower back pain that was received by the RO on September 22, 2015. He testified at the Board hearing that he had filed a previous compensation claim in 2009. However, the claim he submitted in 2009 does not reflect a lumbar spine disability as a disability claimed. Based on a careful review of the record, the Board finds that there is no evidence to support the assignment of an effective date earlier than September 22, 2015, for the grant of service connection for lumbar strain. The Board acknowledges the arguments set forth by the Veteran. Under the law, however, 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); 38 C.F.R. § 3.400. As such, the RO assigned the earliest possible effective date for its assignment of service connection for lumbar strain, which based on the procedural history as outlined in detail above was determined to be September 22, 2015. See Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005); Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003). Accordingly, the claim for entitlement to an effective date prior to September 22, 2015, for the grant of service connection for lumbar strain is denied. 6. Entitlement to an effective date earlier than September 22, 2015, for the grant of service connection for right knee arthritis The Veteran contends that he is entitled to an effective date earlier than September 22, 2015, for the grant of service connection for right knee arthritis. The question for the Board is whether the Veteran is entitled to an effective date earlier than September 22, 2015 for the grant of service connection for right knee arthritis. The Board concludes that the Veteran is not entitled to an effective date earlier than September 22, 2015, for the grant of service connection for right knee arthritis. The Veteran submitted a service connection claim for right knee arthritis that was received by the RO on September 22, 2015. He testified at the Board hearing that he had filed a previous compensation claim in 2009. However, the claim he submitted in 2009 does not reflect the right knee as a disability claimed. Based on a careful review of the record, the Board finds that there is no evidence to support the assignment of an effective date earlier than September 22, 2015, for the grant of service connection for right knee arthritis. The Board acknowledges the arguments set forth by the Veteran. Under the law, however, 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); 38 C.F.R. § 3.400. As such, the RO assigned the earliest possible effective date for its assignment of service connection for right knee arthritis, which based on the procedural history as outlined in detail above was determined to be September 22, 2015. See Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005); Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003). Accordingly, the claim for entitlement to an effective date prior to September 22, 2015, for the grant of service connection for right knee arthritis is denied. 7. Entitlement to an effective date earlier than September 22, 2015, for the grant of service connection for right knee instability The Veteran contends that he is entitled to an effective date earlier than September 22, 2015, for the grant of service connection for right knee instability. The question for the Board is whether the Veteran is entitled to an effective date earlier than September 22, 2015 for the grant of service connection for right knee instability. The Board concludes that the Veteran is not entitled to an effective date earlier than September 22, 2015, for the grant of service connection for right knee instability. The Veteran submitted a service connection claim for right knee instability that was received by the RO on September 22, 2015. He testified at the Board hearing that he had filed a previous compensation claim in 2009. However, the claim he submitted in 2009 does not reflect the right knee as a disability claimed. Based on a careful review of the record, the Board finds that there is no evidence to support the assignment of an effective date earlier than September 22, 2015, for the grant of service connection for right knee instability. The Board acknowledges the arguments set forth by the Veteran. Under the law, however, 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); 38 C.F.R. § 3.400. As such, the RO assigned the earliest possible effective date for its assignment of service connection for right knee instability, which based on the procedural history as outlined in detail above was determined to be September 22, 2015. See Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005); Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003). Accordingly, the claim for entitlement to an effective date prior to September 22, 2015, for the grant of service connection for right knee instability is denied. 8. Entitlement to an effective date earlier than September 22, 2015, for the grant of service connection for tinnitus The Veteran contends that he is entitled to an effective date earlier than September 22, 2015, for the grant of service connection for tinnitus. The question for the Board is whether the Veteran is entitled to an effective date earlier than September 22, 2015 for the grant of service connection for tinnitus. The Board concludes that the Veteran is not entitled to an effective date earlier than September 22, 2015, for the grant of service connection for tinnitus. The Veteran submitted a service connection claim for tinnitus that was received by the RO on September 22, 2015. He testified at the Board hearing that he had filed a previous compensation claim in 2009. However, the claim he submitted in 2009 does not reflect tinnitus as a disability claimed. Based on a careful review of the record, the Board finds that there is no evidence to support the assignment of an effective date earlier than September 22, 2015, for the grant of service connection for tinnitus. The Board acknowledges the arguments set forth by the Veteran. Under the law, however, 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); 38 C.F.R. § 3.400. As such, the RO assigned the earliest possible effective date for its assignment of service connection for tinnitus, which based on the procedural history as outlined in detail above was determined to be September 22, 2015. See Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005); Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003). Accordingly, the claim for entitlement to an effective date prior to September 22, 2015, for the grant of service connection for tinnitus is denied. 9. Entitlement to an effective date earlier than September 22, 2015, for eligibility to Dependents' Educational Assistance under 38 U.S.C. Chapter 35 Regarding the Veteran’s claim for an earlier effective date for Dependents’ Educational Assistance (DEA) benefits pursuant to 38 U.S.C., Chapter 35, an earlier effective date is not warranted. The Veteran was awarded eligibility to Dependents’ Educational Assistance effective September 22, 2015, based upon the RO’s finding that he was totally disabled, as of that date, as a result of his service-connected PTSD. Except as provided in subsections (b) and (c), effective dates relating to awards under Chapter 35 shall, to the extent feasible, correspond to effective dates relating to awards of disability compensation. 38 U.S.C. § 5113. Subsection (b) provides that when determining the effective date of an award under Chapter 35 for an individual described in paragraph (b)(2) of 38 U.S.C. § 5113, based on an original claim, VA may consider the individual’s application as having been filed on the eligibility date of the individual if that eligibility date is more than one year before the date of the initial rating decision. For these purposes, “eligibility date” means the date on which the individual became an eligible person as defined by 38 U.S.C. § 3501(a)(1), and “initial rating decision” means a decision by VA that establishes the Veteran’s total disability as permanent in nature. 38 U.S.C. § 5113(3). In the case of a veteran who is alive, the conditions for basic eligibility for DEA include: (1) the Veteran’s discharge from service under conditions other than dishonorable; and (2) the Veteran has a permanent total service-connected disability. 38 C.F.R. § 3.807(a). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a). Permanence of disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 3.340(b). The term “total disability permanent in nature” for the purpose of DEA benefits means any disability rated total for the purposes of disability compensation which is based on an impairment reasonably certain to continue throughout the life of the disabled person. 38 U.S.C. § 3501(a)(7). In this case, since the effective date for DEA benefits was directly related to a finding that the Veteran had a total disability rating for PTSD, September 22, 2015 is the earliest date at which the Veteran could establish eligibility for Chapter 35 benefits. Accordingly, an earlier effective date for DEA benefits is denied. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Sarah B. Richmond