Citation Nr: 18159746 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 14-37 806 DATE: December 20, 2018 ORDER Entitlement to an effective date prior to April 30, 2013 for the grant of service connection for right knee osteoarthritis, status post total knee replacement, is denied. REMANDED Entitlement to an initial rating greater than 30 percent for service-connected right knee osteoarthritis, status post total knee replacement, is remanded. FINDING OF FACT The first evidence of record indicating that the Veteran filed a claim for service connection for a right knee condition was received by Veterans Affairs on April 30, 2013.   CONCLUSION OF LAW The criteria for an effective date prior to April 30, 2013 for the grant of service connection for right knee osteoarthritis, status post total knee replacement, have not been met. 38 U.S.C. §§ 1155, 5110 (2012); 38 C.F.R. §§ 3.400, 4.130, Diagnostic Code 8100, 7319 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1964 through December 1964. In a November 2014 rating decision, the Regional Office (RO) granted entitlement to service connection for right upper extremity radiculopathy, left upper extremity radiculopathy, cervical strain with degenerative disc disease, lumbar spine strain with degenerative disc disease, left knee instability, left knee limitation of extension, right hip strain with degenerative changes, Dependents’ Educational Assistance, right lower extremity radiculopathy, left lower extremity radiculopathy, right ankle degenerative arthritis, and right hip strain with degenerative changes. The Veteran submitted a timely notice of disagreement disagreeing with the assigned effective dates in November 2015, and he submitted a VA Form 9 in April 2016. In April 2018, the Veteran returned a signed notice opting to have his claims adjudicated under the Rapid Appeals Modernization Program (RAMP). The Veteran was informed in a July 2018 notification letter that appellate processing for his claims had been discontinued and would be adjudicated pursuant to the RAMP program. Accordingly, the Board does not have jurisdiction over these issues. The Veteran did not specify which issues he wanted processed through RAMP when he opted into the RAMP program in April 2018. However, the issues of entitlement to an initial rating greater than 30 percent for service-connected right knee osteoarthritis, status post total knee replacement, and entitlement to an effective date prior to April 30, 2013 for the grant of service connection for right knee osteoarthritis, status post total knee replacement were not in a qualifying appeal stage when he submitted his election and are therefore not eligible for the RAMP program. The RAMP program applies only to claims not yet active before the Board, as these claims are. The opt-in form clearly states it will apply to “eligible issues,” and these issues are not eligible as they were in appellate status prior to receipt of his opt-in form. The Veteran was properly advised in a July 2018 notification letter that his claims for entitlement to an initial rating greater than 30 percent for service-connected right knee osteoarthritis, status post total knee replacement, and entitlement to an effective date prior to April 30, 2013 for the grant of service connection for right knee osteoarthritis, status post total knee replacement, were not eligible to be processed under RAMP because the claims had been activated by the Board. The Statement of the Case addressing these two issues was provided to the Veteran in March 2014. There has been a significant amount of evidence added to the claims file since then. However, none of it is relevant to the effective date question, so the RO was not required to issue a Supplemental Statement of the Case. Finally, the Veteran did not submit a VA Form 9 to appeal these claims, but the RO accepted statements dated in September 2014 as sufficient to perfect his appeal. He did not request a hearing at that time. Although he later submitted a VA Form 9 in 2016 to perfect his appeal on the claims that are now in the RAMP program, that hearing request did not apply retroactively to his 2014 appeal, which is being decided at this time. 1. Entitlement to an effective date prior to April 30, 2013 for the grant of service connection for right knee osteoarthritis, status post total knee replacement The Veteran was granted an effective date of April 30, 2013 for service connection for right knee osteoarthritis, status post total knee replacement. He argues in his January 2014 notice of disagreement that he should be entitled to an earlier effective date. The effective date of an award of compensation based on an original claim is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. VA must look to all communications from the veteran that may be interpreted as applications or claims, both formal and informal, for benefits. See 38 U.S.C. § 5102, 38 C.F.R. §§ 3.1(p), 3.155(a). All such possible claims should be generously construed. Harris v. Shinseki, 704 F.3d 946, 948 (Fed. Cir. 2013 (regarding pro se applicants). However, an informal claim must identify the benefit sought and evidence an intent to apply for the benefit. See 38 C.F.R. §§ 3.1(p), 3.155(a). The Board finds that an earlier effective date for service connection for right knee osteoarthritis, status post total knee replacement is not warranted. On April 30, 2013, the RO received a statement from the Veteran asserting “due to this accident, I walked improperly for many years. I firmly believe this condition contributed greatly to the deterioration of my right knee that had to be replaced.” The RO interpreted this statement as an informal claim for service connection for a right knee disability as secondary to his service-connected right foot disability. See January 2014 VA examination (noting the Veteran claimed his service-connected right foot hammer toes proximately caused his right knee condition) and January 2014 rating decision (noting the Veteran’s claim for benefits was received on April 30, 2013). On May 3, 2013, the RO received the Veteran’s additional claim for altered gait, secondary to his service-connected hammer toes right foot. However, it is clear from the RO’s actions that it accepted the April 30, 2013 statement as an informal claim for benefits, and characterized the claim as entitlement to service connection for right knee osteoarthritis, status post total knee replacement (also claimed as altered gait). There are no communications prior to the Veteran’s April 30, 2013 statement that the Board could construe as either a formal or informal service connection claim for right knee osteoarthritis, status post total knee replacement. The Veteran filed his initial claim for benefits for “left foot crushed pain/walking improperly” in on December 15, 2011. The Veteran asserts that because his right knee disability is service connected as secondary to his service-connected right foot disability, his effective date should be December 15, 2011. Although the RO characterized the Veteran’s April 30, 2013 claim as entitlement to service connection for right knee osteoarthritis, status post total knee replacement (also claimed as altered gait), based on a combined interpretation of the Veteran’s April 30, 2012 statement and his May 2, 2013 informal claim for benefits, it does not follow that the December 15, 2011 claim noting the Veteran walked improperly constitutes a claim for service connection for a knee disability. Merely stating that he walked incorrectly does not constitute an informal claim for service connection for a right knee disability, as it does not identify the benefit sought. 38 C.F.R. §§ 3.1(p), 3.155(a). There is no indication in the December 15, 2011 claim that the Veteran was claiming any condition other than his foot injury. Neither the RO nor the Board could reasonably interpret a claim for service connection for a right knee disability from a claim for entitlement to service connection for a foot injury with an altered gait as a claim without more. The Board notes that VA treatment records reflect the Veteran was treated for right knee pain and osteoarthritis prior to April 30, 2013. However, medical evidence reflecting treatment and diagnosis of a condition does not constitute, by itself, an informal claim for service connection under 38 C.F.R. § 3.155(a), “because the mere presence of the medical evidence does not establish an intent on the part of the veteran to seek” service connection for that condition. See MacPhee v. Nicholson, 459 F.3d 1323, 1326 (Fed. Cir. 2006). The Veteran asserted in a September 2014 statement that he believed his effective date should be retroactive to 1964, when he was injured, because he was not informed how to file a claim at the time. While the Board sympathizes with the Veteran’s assertion that he did not know how to file a claim, Congress and VA have established the laws and regulations governing the assignment of effective dates, which clearly set forth the provisions for when an effective date for the grant of service connection may be. The Board is bound by the laws and regulations applicable to the benefit sought. See 38 C.F.R. § 19.5. In the present case, those laws and regulations prohibit the assignment of an effective date earlier than April 30, 2013. A veteran can be awarded benefits back to date of discharge from service when that claim is received within one year of separation; there are no other legal provisions for retroactively awarding service connection. Additionally, the Board notes the Veteran’s February 2014 statement asserting that an initial payment date of May 1, 2013 was randomly assigned. However, as the Board has thoroughly discussed above, the claims file contains no communication that either the RO or the Board could interpret as a claim for entitlement to service connection for a right knee disability prior to April 30, 2013. Accordingly, the Veteran was notified in a January 2014 notification letter that a decision had been made on his April 30, 2013 claim and his benefits would be paid on the first day of the month following his effective date, in this case, May 1, 2013. As the Veteran’s claim for benefits was received April 30, 2013, a payment date of May 1, 2013 is neither random nor arbitrary. In summary, there is nothing in the record that could be construed as a claim for benefits, either formal or informal, prior to April 30, 2013 that would warrant an earlier effective date for service connection for right knee osteoarthritis, status post total knee replacement. The claim must be denied. REASONS FOR REMAND 1. Entitlement to an initial rating greater than 30 percent for service-connected right knee osteoarthritis, status post total knee replacement is remanded. In its November 2018 appellate brief, the Veteran’s representative asked that the Veteran’s right knee osteoarthritis, status post total knee replacement, be reevaluated. As the Veteran’s knee was last evaluated in a 2014 VA examination, over four years ago, he should be afforded a new examination to determine the current severity of his service-connected right knee osteoarthritis, status post total knee replacement. The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from April 2018 to the present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his right knee osteoarthritis, status post total knee replacement. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Parsons, Associate Counsel