Citation Nr: 18153818 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 14-15 750A DATE: November 28, 2018 REMANDED Entitlement to an effective date prior to June 21, 2010 for the award of a 60 percent rating for service-connected left knee status-post total arthroplasty is remanded. Entitlement to a rating in excess of 60 percent for service-connected left knee status-post total arthroplasty on an extraschedular basis is remanded. Entitlement to a rating in excess of 60 percent for service-connected right knee status-post total arthroplasty on an extraschedular basis is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1974 to November 1976 and from March 1977 to April 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In a March 2017 decision, the Board granted an effective date of June 21, 2010 for the award of a 60 percent rating for service-connected left knee status-post total arthropathy. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a June 2018 Order, granting a Joint Motion for Partial Remand, the Court vacated the Board’s March 2017 decision as to the assignment of an effective date of June 21, 2010, but no earlier, for the award of a 60 percent rating for left knee status-post total arthropathy and remanded the matter for further development in compliance with the directives specified in the Joint Motion. The March 2017 Board decision also remanded the matters of entitlement to ratings in excess of 60 percent for service connected left knee status-post total arthropathy and right knee status-post total arthropathy for further development. The Agency of Original Jurisdiction (AOJ) continued issued a supplemental statement of the case (SSOC) as to the claims in December 2017. These matters have also been returned to the Board for further appellate proceedings. 1. Entitlement to an effective date prior to June 21, 2010 for the award of a 60 percent rating for service-connected left knee status-post total arthroplasty is remanded. In the March 2017 decision, the Board granted an earlier effective date of June 21, 2010 for the award of a 60 percent rating for service-connected left knee status-post total arthroplasty. In so doing, the Board determined that the Veteran failed to perfect a timely appeal of an August 2009 statement of the case (SOC), which denied an increased rating for service-connected left knee, status-post total arthroplasty. Significantly, the parties to the June 2018 Joint Motion agreed the Board failed to consider that, subsequent to the August 2009 SOC, the Veteran submitted a timely request for an extension of time to file his VA Form 9. An extension of the 60-day period for filing a substantive appeal may be granted for good cause. A request for such an extension must be made in writing and must be made prior to expiration of the time limit for filing the substantive appeal. 38 C.F.R. § 20.303. To this end, the Board has reviewed the procedural history of the Veteran’s increased rating claim and recognizes that he filed a timely extension request as to the August 2009 SOC in which he requested more time to file his VA Form 9 for four enumerated reasons including family health issues, representation problems, confusion with VA, and difficulty obtaining medical records. As such, the Board finds that the Veteran asserted good cause for his October 2009 extension request. 38 C.F.R. § 20.303. Therefore, as a timely and valid extension request was filed, the increased rating claim has remained pending since that time. Additionally, for the reasons set forth below, the Board finds that the Veteran’s increased rating claim as to his service-connected left knee disability has been pending since September 2002. The Veteran was originally granted service connection for left knee instability in a May 1984 rating decision, a 20 percent rating was assigned from April 3, 1989. That decision was not appealed and the Veteran does not contend otherwise. In September 20, 2002, the Veteran filed a claim of entitlement to an increased rating as to his left knee. In pertinent part, a May 2003 rating decision granted a separate 10 percent rating for traumatic arthritis of the left knee, effective from September 20, 2002, and continued the assigned 20 percent rating for left knee instability. In January 2004, the Veteran asserted entitlement to a higher rating for his left knee and provided private treatment records showing that he underwent a total left knee replacement in October 2003. Accordingly, as the Veteran submitted new and material evidence within one year of the May 2003 rating decision as to the issue of an increased rating for his left knee disabilities, the decision was not final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1100; Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). Therefore, although the left knee claim was subsequently readjudicated in rating decisions dated May 2004, December 2004, May 2006, and November 2007, the matter has remained pending from September 20, 2002, the date of his increased rating claim. Therefore, in this matter, the Board has determined that the Veteran’s claim of entitlement to an increased rating for his service-connected left knee disability has been pending since September 20, 2002. The AOJ has not been afforded the opportunity to consider the matter of entitlement to an earlier effective date for the assignment of a 60 percent rating for service-connected left knee status-post total arthropathy in light of the Board’s findings. To avoid any possibility of prejudice, this must be addressed on remand. Bernard v. Brown, 4 Vet. App. 384 (1993). 2. Entitlement to a rating in excess of 60 percent for service-connected left knee status-post total arthroplasty is remanded. 3. Entitlement to a rating in excess of 60 percent for service-connected right knee status-post total arthroplasty is remanded. The Veteran, through his attorney, asserts that the Veteran’s right and left knee disabilities, status-post total arthoplasty should be referred to the Director of Compensation Services for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b)(1). The Veteran is currently assigned the maximum schedular ratings for service-connected status-post total arthroplasty of the right and left knees pursuant to Diagnostic Code 5055 (knee replacement, residuals of). Review of the claims file demonstrates that the Veteran has asserted experiencing significant functional impairment, including occupational impairment, as a result of his service-connected right and left knee disabilities. See, e.g., the VA examination report dated July 2017. Accordingly, the Veteran’s claim should be referred to the Under Secretary for Benefits or the Director of Compensation Service to determine if extraschedular consideration under 38 C.F.R. § 3.321 is warranted. The matters are REMANDED for the following action: 1. Refer the case to the Under Secretary for Benefits or the Director of Compensation Service for an initial determination as to whether the Veteran is entitled to the assignment of extraschedular ratings for his right and left knee disabilities in accordance with the provisions of 38 C.F.R. § 3.321(b). The rating board should include a full statement of all factors having a bearing on the issue. 2. The AOJ should adjudicate the Veteran’s claims on appeal, including the matter of entitlement to an earlier effective date for the award of a 60 percent rating for service-connected left knee status-post total arthoplasty. If the matters on appeal remain adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. K. CONNER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. K. Buckley, Counsel