Citation Nr: 18152731 Decision Date: 11/26/18 Archive Date: 11/23/18 DOCKET NO. 17-49 323 DATE: November 26, 2018 ORDER The claim of service connection for a left knee disorder is granted. The claim of entitlement to an effective date prior to December 3, 2015, for the grant of an increased rating of 10 percent for right ankle sprain is denied. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran’s left knee disorder (strain, meniscal tear, patellofemoral pain syndrome, and degenerative arthritis) was caused by his left ankle sprain. 2. Following an October 2013 rating decision, which granted service connection for right ankle sprain, no unadjudicated claim, either formal or informal, was reasonably raised prior to the current December 3, 2015, claim for an increased rating. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, his left knee disorder is the result of his service-connected left ankle disability. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2018). 2. The criteria for an effective date earlier than December 3, 2015, for the grant of a 10 percent rating for right ankle sprain have not been met. 38 U.S.C. §§ 5110, 7105 (2012); 38 C.F.R. §§ 3.102, 3.151, 3.156, 3.400, 20.1103 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1988 to December 1992. The Board notes that additional VA treatment records were uploaded into the electronic record after the September 2017 statement of the case (SOC) without consideration by the agency of original jurisdiction (AOJ). See 38 C.F.R. § 20.1304 (2018). An automatic waiver of Regional Office (RO) consideration applies for the evidence submitted by the Veteran because the Veteran’s substantive appeal was received after February 2, 2013, and the Veteran has not requested the Board to remand the case for RO consideration of the evidence. See 38 U.S.C. § 7105 (2012). With respect to the VA treatment records, associated with the record by VA, the additional evidence is not pertinent to the claims adjudicated herein (any relevant information is cumulative). Thus, there is no need to remand for consideration in the first instance. Service Connection – In General Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2018). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2018). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C. § 1112 (2012); 38 C.F.R. § 3.304 (2018). See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2018). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2018). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.§ 5107 (2012); 38 C.F.R. § 3.102 (2018); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The claim of service connection for a left knee disorder. The Veteran claims that his current left knee disorder resulted due to his service-connected left ankle sprain. He asserts that he injured his left knee as a result of giving away as a result of his left ankle condition. The record reflects that the Veteran was seen at VA in September 2014 after twisting of his left knee after stepping off of a step ladder. At that time, he reported that he a history of left knee issues. Testing showed that he had a left knee meniscal tear and arthritis. A VA examiner opined in January 2015 that the Veteran’s left knee disorder was not associated with his service-connected left ankle condition. The rationale was the lack of evidence of serious or chronic pathology of the left knee. Subsequently dated records include a September 2017 VA examination report wherein it was again opined that current left knee problems were unrelated to the left ankle disorder. The rationale given was that the left knee disorder was more likely due to falls and knee injuries that occurred later as evidenced in the record. A private physician reported in January 2018 that the Veteran had a long-standing history of bilateral ankle issues which triggered his knees to give way. A VA examiner opined in favor of the Veteran’s claim for a right knee disorder based on ankle conditions in 2018, and upon rating decision in October 2018, service connection on a secondary basis was granted for that condition. Based on a review of the record, the Board finds that service connection for the left knee disorder (strain, meniscal tear, patellofemoral syndrome, arthritis) is warranted. At the outset, the Board notes that the left knee disorder did not occur during service. Rather, the evidence shows that it is likely as not that this condition occurred as a result of his left ankle condition which caused giving away of the knee. As noted above, there are conflicting opinions of record. Standing alone, the opinion by the private physician that supports the Veteran’s claim would not be enough to result in a favorable determination (as her opinion appears to be primarily based on the Veteran’s recitation of events). However, the Board’s review of the VA opinions of record finds that they are inadequate in that no consideration was given to the fact that the Veteran related that he had a long history of left knee problems at the time of the 2014 injury. Moreover, VA recently granted service connection for right knee problems as secondary to his right ankle condition based on similar circumstances. Further, the Veteran has always maintained since he filed his claim that his ankles have caused his knee problems Thus, the Board finds the evidence regarding the claim of service connection for a left knee disorder is in at least relative equipoise and as such, reasonable doubt is resolved in the Veteran’s favor. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2018). Service connection for a left knee disorder is warranted, secondary to service-connected left ankle sprain. The claim of entitlement to an effective date prior to December 3, 2015, for the grant of an increased rating of 10 percent for right ankle sprain Earlier Effective Dates – In General The provisions of 38 U.S.C. § 5110(a) (2012) state that, unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. The effective date of an award of disability compensation to a Veteran shall be the day following the date of discharge or release if application therefor is received within one year from such date of discharge or release. 38 U.S.C. § 5110(b)(1) (2012). The provisions of 38 C.F.R. § 3.400 (2018) stipulate that, except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity 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. In the case of direct service connection, the effective date of an award is the day following separation from active service or date entitlement arose if a claim is received within 1 year after separation from service; otherwise, the date of receipt of claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2) (2009). With regard to the Veteran’s earlier effective date claim for the grant of the 10 percent rating for his right ankle sprain, the effective date for a claim for increase shall be the later of either the date of receipt of claim, or the date entitlement arose. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2018). An effective date for a claim for increase may also be granted prior to the date of claim if it is factually ascertainable that an increase in disability had occurred within one year from the date of claim. 38 U.S.C. § 5110(b)(2) (2012); 38 C.F.R. §§ 3.400 (o)(1) and (2) (2018). As with any claim, when there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2018). In this case, the Veteran was initially granted service connection for a right ankle disorder in an October 2013 rating decision. A noncompensable rating was assigned, effective from October 25, 2012, the date of the Veteran’s claim. As the Veteran did not file a timely appeal or submit new and material evidence within one year, that decision became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156(b), 20.1103 (2018). On December 3, 2015, VA received the Veteran’s claim for increased rating for the service-connected right ankle disability, and this claim was adjudicated by the RO in March 2016, at which time a 10 percent rating was assigned, effective December 3, 2015. The Board acknowledges that in limited circumstances, such as the presence of clear and unmistakable error, the finality of a VA adjudication may be attacked. See 38 C.F.R. § 3.105(e) (2018). In the present case, however, the Veteran has not alleged clear and unmistakable error or otherwise called into question the finality of the rating decision; thus, an effective date for a 10 percent rating based on the December 3, 2015, claim, is precluded due to finality of the October 2013 rating decision. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2018). (Continued on the next page)   Therefore, there is no legal basis for assignment of a compensable rating effective any earlier than December 3, 2015, the date of the Veteran’s most recent claim for increased rating for the right ankle sprain. In reaching this conclusion, the Board considered whether an increase in the Veteran’s shoulder disability was factually ascertainable up to one year prior to the December 3, 2015, claim; however, in this case, the evidence regarding the right ankle, to include lay statements, does not demonstrate a worsening of symptomatology within one year prior to the receipt of the Veteran’s December 3, 2015, claim for increase. Accordingly, an earlier effective date for the grant of the 10 percent rating for the right ankle sprain disability prior to December 3, 2015, is not warranted. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Hal Smith