Citation Nr: 18161063 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 16-40 983A DATE: December 28, 2018 ORDER Entitlement to an earlier effective date of February 26, 2008 for service connection for right knee injury, medial meniscus tear, is granted. REMANDED Entitlement to an initial increased disability rating for right knee tendonitis, status post medial meniscus tear, in excess of 10 percent before February 21, 2015, in excess of 20 percent before May 7, 2015, and in excess of 10 percent from August 1, 2015 is remanded. FINDING OF FACT 1. The Veteran filed an application for service connection for right knee injury on February 26, 2008. 2. A rating decision of August 2008 denied service connection for right knee injury without considering any service treatment records; the Veteran did not perfect a timely appeal of this decision. 3. A December 2012 rating decision granted the Veteran’s claim of entitlement to service connection for right knee tendonitis, status post medial meniscus tear, based in part on review of service treatment records which included evidence of an in-service right knee injury. 4. In August 2014, the Veteran’s service treatment records were added to her claims file, including records of an August 2003 in-service right knee injury and follow up treatment. CONCLUSION OF LAW The criteria for entitlement to an effective date of February 26, 2008 for service connection for right knee injury, medial meniscus tear have been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.156(c), 3.400 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the Army from July 2003 to May 2006. Board Hearing Not Requested The Board accepted a notice of disagreement form filed in April 2016 in place of a standard VA Form 9 appeal form. This notice of disagreement form did not include a request for a Board hearing or a waiver of the right to a hearing. VA contacted the Veteran’s representative by electronic mail in August 2018 asking if the Veteran wished to have a hearing. The representative responded with a written argument in support of the Veteran’s claim and did not request a hearing. The Board finds that the Veteran has not requested a hearing. Issues on Appeal A rating decision of December 2012 granted service connection for a right knee disability and denied service connection for hearing loss, acquired psychiatric disorder, and sleep disturbance. Each of these issues, as well as the effective date of the grant of service connection for right knee disability, was addressed in a Notice of Disagreement filed in January 2013 and in a subsequent Statement of the case issued in August 2016. However, the Veteran’s second Notice of Disagreement, accepted in place of a standard VA form 9, only addressed the issues of effective date and increased rating for a right knee disability. Because the Veteran did not perfect an appeal for the issues of service connection for hearing loss, acquired psychiatric disorder, or sleep disturbance, these issues are not on appeal. 38 C.F.R. § 20.202 (2017). 1. Entitlement to an effective date for service connection for right knee injury, medial meniscus tear, before June 18, 2012 The Veteran contends that she is entitled to an earlier effective date for service connection for her right knee disability. For the reasons discussed below, the Board agrees with the Veteran that an effective date of February 26, 2008 is warranted. The assignment of an effective date for an award of service connection is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim or a claim reopened after final adjudication of compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2017). However, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156 (c)(1) (2017). In cases that fall under 38 C.F.R. § 3.156 (c)(1), an award that is based all or in part on the records identified by paragraph (c)(1) (e.g., service department records) is effective on the date entitlement arose or on the date VA received the previously decided claim, whichever is later. 38 C.F.R. § 3.156 (c)(3). The Veteran submitted her original claim for service connection for a right knee injury on February 26, 2008. In August 2008, after determining that the Veteran’s service records were unavailable, a VA regional office (RO) denied service connection for a right knee injury citing lack of evidence of an in-service injury. In June 2012 the Veteran submitted a new application for service connection for a right knee injury. The RO issued a rating decision in December 2012 granting service connection for a right knee injury effective June 18, 2012 (the date VA received the new application service connection for a right knee injury). In the decision, the RO cited service treatment records showing an in-service right knee injury and subsequent treatment. These service treatment records, not considered in the original August 2008 rating decision, have now been added to the claims file. After a review of all the evidence, the Board agrees with the Veteran and finds that an earlier effective date is warranted. As previously noted, 38 C.F.R. § 3.156(c) states that “at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim…” Here, the Veteran was denied service connection without review of any service treatment records, and service treatment records showing a relevant in-service injury were later associated with the claims file. As such, the provisions of 38 C.F.R. § 3.156(c) are applicable. Section 156(c)(3) states that “[a]n award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later…” In this case, entitlement arose the day the Veteran left service in May 2006, while her first claim was not received until February 26, 2008. Under 38 C.F.R. § 156(c)(3) February 26, 2008, the later of the two dates, is the proper effective date for service connection for her right knee injury. REASONS FOR REMAND 1. Entitlement to an initial increased disability rating for the right knee, is remanded. While the record contains contemporaneous VA examinations regarding the Veteran’s right knee disability, the examinations do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examinations do not contain passive range of motion measurements. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination of the current severity of her right knee disability. 2. Readjudicate the Veteran’s claim. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Zimmerman, Associate Counsel