Citation Nr: 18160851 Decision Date: 12/28/18 Archive Date: 12/27/18 DOCKET NO. 16-44 440 DATE: December 28, 2018 ORDER An effective date prior to November 14, 2013, for the award of service connection for residuals of a left tibia fracture is denied. An initial 10 percent evaluation, but no higher, for the left knee scar associated with the total knee replacement is granted. REMANDED Entitlement to an effective date prior to September 22, 2014, for the award of service connection for the left knee scar associated with the total knee replacement is remanded. Entitlement to service connection for a left ankle disorder is remanded. Entitlement to service connection for a right knee disorder, to include as secondary to service-connected left knee disability, is remanded. Entitlement to an evaluation in excess of 40 percent for left knee replacement is remanded. Entitlement to an evaluation in excess of 10 percent for residuals of a left tibia fracture is remanded. Entitlement to an evaluation in excess of 10 percent for a left hip disability is remanded. Entitlement to a total disability rating due to individual unemployability based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT 1. The earliest effective date for the establishment of service connection for residuals of a left tibia fracture, is November 14, 2013, the date of receipt of the Veteran’s original claim. 2. For the entire period on appeal, the Veteran’s left knee scar associated with the left total knee replacement has been painful. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than November 14, 2013, for residuals of a left tibia fracture are not met. 38 U.S.C. §§ 5101(a), 5103A, 5107, 5110(a); 38 C.F.R. §§ 3.1(p), (r), 3.114(a), 3.151(a), 3.159, 3.400(b)(2), 3.816(c)(2). 2. The criteria for an initial 10 percent disability rating, but no higher, for the scar associated with the left knee replacement, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.10, 4.118, Diagnostic Codes 7801-7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1968 to May 1969. Additional evidence was added to the record following the most recent statement of the case. The evidence was not relevant to the earlier effective date claim and was, in pertinent part, duplicative of evidence previously received regarding the scar associated with the total knee replacement. As such, the Board may resolve those appeals now without prejudice to the Veteran. However, the new evidence is relevant to the remaining appeals and they are remanded below. The issue of entitlement to TDIU was raised in the Veteran’s April 2018 submission. As the Veteran indicated that he was unemployable due to the service-connected disabilities for which he is presently seeking increased ratings on appeal herein, the TDIU claim is part and parcel of the increased rating claims on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or as part of a claim for increased compensation). Therefore, the Board has added the issue above. As discussed below, the Board has added the issue of entitlement to service connection for a left ankle disorder pursuant to Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). The Board observes that the Veteran’s attorney also raised arguments challenging the effective dates for the Veteran’s left knee total knee replacement rating and associated left knee scar rating. See both September 2016 Substantive Appeal Form 9’s. With respect to the effective date for the left knee scar, because the September 2016 expression of disagreement was raised within one year of the January 2016 rating decision which granted service connection for the scar, the statement is effectively a notice of disagreement with the assigned effective date for the scar. The April 2016 notice of disagreement only addressed the amount of the assigned rating, not the effective date and to date no statement of the case has been issued regarding the effective date of service connection for the scar. Thus, the Board is herein adding the issue of entitlement to an earlier effective date for the scar for issuance of a statement of the case. See Manlincon, supra. Regarding the statement as to the effective date for the left total knee replacement rating, the October 2016 statement was submitted after the one-year period following the March 2014 rating decision at issue. Moreover, it is unclear as to the nature of the disagreement as the March 2014 rating decision did not grant a higher rating but rather continued the 40 percent rating previously assigned. The Veteran is not able to bring a free-standing claim for an earlier effective date for the rating for the total knee replacement. See Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006). However, the Veteran is free to bring a claim alleging clear and unmistakable error (CUE) in the March 2014 rating decision if he believes there was error in the decision, including in the determination of the effective date for service connection of the total knee replacement. The Board acknowledges the Veteran’s attorney’s assertion that the Veteran has an outstanding claim for an increased left knee disability rating from either the date of the original claim for service connection in May 1963, or alternatively, from the appeal of June 1986 rating decision that was perfected in October 1986. See May 2018 brief. The left knee claim at issue, however, is not a claim for a higher rating for the left knee prior to the total knee replacement. It is specifically an appeal in response to the amount of the rating assigned rating following the end of the temporary 100 percent rating for a total knee replacement. The left knee condition, or associated disability rating, prior to the total knee replacement is not at issue in the present case. The Board does not have jurisdiction over any claim for increased rating dated prior to the claim associated with the total knee replacement. Further, with respect to the increased rating appeal perfected in October 1986, in May 1987, the AOJ increased the Veteran’s rating and dismissed the appeal, issuing the Veteran his appellate rights along with notice of the determination. The Veteran did not appeal the May 1987 decision to dismiss the appeal. The Veteran’s attorney asserts that the AOJ did not have the authority to dismiss the appeal and that the increased rating claim is still open. To date, the appeal has not been certified to the Board. The Board does not have jurisdiction over the appeal at this time as the Veteran did not appeal the May 1987 determination. The Veteran is free to file a claim asserting clear and unmistakable error (CUE) in the May 1987 decision to dismiss the appeal. 1. An effective date prior to November 14, 2013 for service connection for residuals of a left tibia fracture In general, except as otherwise provided, the effective date of an evaluation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. A “claim” is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication indicating intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant’s effective date of benefits must be received in one of three specified formats. The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. § 3.157. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1 (p), 3.151, 3.155). The amendments apply only to claims filed on or after March 24, 2015. Because the Veteran’s claim to for service connection for residuals of a tibia fracture was submitted prior to that date, the former regulations apply, as provided below. A specific claim in the form prescribed by VA must be filed for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The term “claim” or “application” means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication or action indicating an intent to apply for one or more benefits under laws administered by VA from a claimant may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Here, the Veteran filed a formal claim for service connection for residuals of a left tibia fracture in November 2013. In support of the claim, he submitted VA treatment records indicating treatment for the left tibia fracture. Although the treatment records are dated prior to November 2013, the records were not pre-dated by an adjudication of a claim for service connection as discussed in 38 C.F.R. § 3.157, and, as such, that regulation does not afford a basis for finding that VA treatment dated prior to November 2013, constitutes a claim of entitlement to service connection for the Veteran’s left tibia fracture residuals. 38 C.F.R. § 3.157; Crawford v. Brown, 5 Vet. App. 33 (1993). While the Veteran believes that the effective date for the award of service connection for left tibia fracture residuals should be earlier than assigned by the AOJ, the provisions of the law governing effective date of awards of benefits provide the date is either the date of receipt of a claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.400(b)(2)(i), 3.816(c)(2). Here, the latter of either when entitlement arose (i.e., when first diagnosed), or the date of claim, is the date of the November 2013 claim. In this case, the AOJ assigned an effective date of November 14, 2013, the date of receipt of the Veteran's original claim for service connection, which is the earliest date allowable under the applicable criteria discussed above. 38 C.F.R. §§ 3.400(b)(2)(ii), 3.816(c)(2). Consequently, the Board concludes that the claim for an earlier effective date must be denied. 2. Entitlement to a compensable rating for a left knee scar associated with the Veteran’s total knee replacement. The Veteran was assigned a noncompensable rating for a scar associated with his total knee replacement. The present appeal arises from the Veteran’s disagreement with the amount of the assigned rating. For the reasons explained below, the Board finds that he is entitled to a 10 percent rating for the scar. As DC 7805 provides that scars may be evaluated under DCs 7800, 7801, 7802, and 7804. The Board finds that the Veteran is entitled to a 10 percent initial rating for painful scar under DC 7804. In this regard, the Veteran reported experiencing constant burning, itching, and numbness, as well as pain and swelling, in the scar on his knee. See Veteran’s statements dated in January 2016 and April 2016. A rating greater than 10 percent for the painful scarring is not warranted, however, as the scar does not occupy an area of at least 12 square (sq.) inches and there is no indication that the Veteran has three or four scars that are unstable or painful. In this regard, the Veteran consistently described one painful scar. Indeed, the only scar for which he is currently service-connected, and from which this appeal arises, is the scar associated with his total knee replacement. The Board acknowledges that the May 2018 VA examination report describes two additional scars on the left knee related to a knee surgery in 1968. Those scars are not at issue here. A higher rating is not warranted under DC 7800 as the scar is not of the head, face, or neck. A higher rating is not warranted under DC 7801 as the scar is not at least 12 sq. inches (77 sq. cm). In this regard, the January 2016 VA examiner measured the scar at 16 cm. The Board acknowledges the Veteran’s April 2016 statement that the examiner’s scar measurements are not consistent with the Veteran’s own measurements. In a January 2016 statement, the Veteran reported that the scar was 15 inches long. The May 2018 VA examination report, although more favorable than the January 2016 VA examination report inasmuch as the scar measured longer than it did in January 2016, was not substantially different than the prior examination findings. In May 2018, the scar measured 20 cm by 0.3 cm, which still does not meet the threshold of 12 sq. inches, or 77 sq. cm, for the higher rating. The Board finds the VA examiners’ measurements to be more credible than the Veteran’s measurements as the VA examiners are trained to be able to measure scars and have equipment to do so and the Veteran’s method of measurement is unclear. VA treatment records do not support a finding of a left knee scar that is at least 12 sq. inches. The remaining diagnostic codes pertinent to scars do not provide for ratings greater than 10 percent. See 38 C.F.R. § 4.118, DC 7802. In summary, the Board finds that an initial 10 percent rating, but no higher, is warranted for the Veteran’s left knee surgical scar. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to an earlier effective date for the left knee surgical scar. A remand is necessary to provide the Veteran with a statement of the case. In a January 2016 rating decision, the AOJ granted service connection for a scar associated with the left total knee replacement. The Veteran submitted a timely notice of disagreement expressing disagreement with the assigned effective date for service connection, in September 2016. To date, a statement of the case has not been issued regarding the effective date for the left knee scar. As the Veteran timely filed a notice of disagreement as to the assigned effective date for the left knee scar, he is entitled to a statement of the case. See 38 C.F.R. § 19.26. Thus, remand for issuance of a statement of the case on this issue is needed. See Manlincon, supra. The issue will be returned to the Board after issuance of the statement of the case only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). 2. Entitlement to service connection for a left ankle disorder. Regarding the claim for service connection for a left ankle disorder, a remand is necessary to provide the Veteran with a statement of the case. In a March 2014 rating decision, the AOJ denied service connection for a left ankle disorder. The Veteran submitted a timely notice of disagreement in April 2014. To date, a statement of the case has not been issued regarding the claimed left ankle disorder. The Board acknowledges that when the AOJ granted service connection for residuals of the Veteran’s left tibia fracture, it discussed the left ankle symptoms. However, as noted by the Veteran’s attorney in her May 2018 brief, the AOJ did not clearly grant service connection for the Veteran’s claimed left ankle disorder. As the Veteran still desires service connection for the left ankle, timely filed a notice of disagreement as to the denial of the same, he is entitled to a statement of the case. See 38 C.F.R. § 19.26. Thus, remand for issuance of a statement of the case on this issue is needed. See Manlincon, supra. The issue will be returned to the Board after issuance of the statement of the case only if perfected by the filing of a timely substantive appeal. See Smallwood, supra. 3. Entitlement to service connection for a right knee disorder, to include as secondary to service-connected left knee disability. Regarding the claim for the right knee disorder, the Veteran asserts that his right knee disorder was caused or aggravated by his service-connected left knee disability. He was provided with a VA examination in March 2014. Unfortunately, the examination report is inadequate. In this regard, the examiner opined that the Veteran’s right knee condition was most likely age-related but did not explain the basis for the opinion. Additionally, the examiner did not address whether the right knee disability was aggravated by the left knee disability even if the right knee disability was not caused by the left knee disability. For these reasons, another VA opinion is required. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 4. Entitlement to higher ratings for left knee replacement, residuals of a left tibia fracture, and a left hip disability. With respect to the claims for higher ratings for left knee replacement, residuals of a left tibia fracture, and a left hip disability, the Board notes that appellants are entitled to a review of claims denied by VA. 38 U.S.C. § 7104(a). This review is performed by the Board and must be based on the entire record and upon consideration of all evidence and material of record. Id. Simply put, appellants are entitled to a second look at all evidence and decisions made by VA. There are limited exceptions to this general principle. For example, appellants can waive review of evidence by the AOJ and allow the Board to issue a decision based in part on evidence that has not been reviewed by the AOJ. See 38 C.F.R. § 20.1304. This provision, however, applies only to evidence that has been submitted by the appellant or his or her representative. It does not apply to evidence added to the file by VA. In this case, the AOJ conducted additional development of these claims since the issuance of the last statement of the case. Specifically, the Veteran was provided with VA examinations in May 2018 relevant to these claims and additional VA treatment records were associated with the file. Thus, remand is required for these claims so that this new evidence can be reviewed in the first instance by the AOJ. 5. Entitlement to a TDIU. As discussed above, the Veteran has raised the issue of entitlement to a TDIU as part and parcel of his claims for increased ratings. As these claims are being remanded, and the outcome of the appeals may affect the Veteran’s entitlement to a TDIU, the claims are intertwined. Thus, the claim for TDIU is deferred until the increased rating claims are resolved. See Parker v. Brown, 7 Vet. App. 116 (1994) and Harris v. Derwinski, 1 Vet. App. 180, 183 (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a veteran's claim for the second issue). On remand, the Board also finds that any outstanding VA treatment records should also be obtained. See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (where the Veteran “sufficiently identifies” other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information); Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain any and all VA treatment records not already associated with the claims file from the Augusta, Columbus and Dayton VA Medical Centers, or any other VA medical facility that may have treated the Veteran and associate those documents with the claims file. 2. Furnish to the Veteran and his representative a statement of the case with regard to the claims of entitlement to an effective date prior to September 22, 2014, for the award of service connection for the left knee scar associated with the total knee replacement, and entitlement to service connection for a left ankle disorder. The issues should be returned to the Board only if a timely substantive appeal is received. 3. Seek a VA addendum opinion regarding whether the claimed right knee disorder is related to the service-connected left knee disability. The content of the entire electronic claims file, to include a complete copy of the REMAND, must be made available to the individual designated to issue the opinion and the examiner should discuss the Veteran’s documented medical history and assertions. The Board leaves it to the discretion of the examiner to determine whether the Veteran needs to be reexamined. The examiner must opine whether the right knee disorder at least as likely as not is (a) caused by; or, (b) aggravated (i.e., chronically worsened) by the Veteran’s service-connected left knee disability, to include any abnormal gait or weightbearing as a result of that disability. The examiner is reminded that he or she must address both prongs (a) and (b) above. In addressing the above, the examiner should consider any of the Veteran’s lay statements regarding symptomatology during service and any continuity of symptomatology since discharge and/or since onset. The examiner should also consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. 4. Following any additional indicated development, the AOJ should review the claims file and readjudicate the Veteran’s claims for service connection for a right knee disorder, increased evaluations for the Veteran’s left knee, left tibia, and left hip disabilities, and entitlement to TDIU. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Donna D. Ebaugh, Counsel