Citation Nr: 18161262 Decision Date: 12/31/18 Archive Date: 12/31/18 DOCKET NO. 14-18 290 DATE: December 31, 2018 ORDER An effective date prior to October 1, 2001 for the grant of service connection for a right knee disability is denied. An effective date prior to October 1, 2001 for the grant of service connection for a left knee disability is denied. An effective date prior to March 3, 2014 for the grant of service connection for a right wrist disability is denied. A rating of 10 percent, but no more, for a left knee disability is granted. A rating of 10 percent, but no more, for a right knee disability is granted. A compensable rating for a right hernia is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for a right wrist disability is remanded. FINDINGS OF FACT 1. In a November 2001 rating decision, service connection for a right knee disorder, was granted, effective October 1, 2010. The Veteran did not disagree with the assigned effective date within one year of the rating decision, and this decision is final. 2. In a November 2001 rating decision, service connection for a left knee disorder, was granted, effective October 1, 2010. The Veteran did not disagree with the assigned effective date within one year of the rating decision, and this decision is final. 3. The Veteran’s initial application to reopen a previously denied claim of service connection for a right wrist disorder was received at the Regional Office (RO) on March 3, 2014. There are no communications prior to this date reflecting the intent to file an application to reopen the previously denied claim, and/or a new claim for a right wrist disorder. 4. Throughout the period on appeal, the Veteran’s bilateral knee disability was characterized by pain and degenerative changes; limitation of flexion to 30 degrees, limitation of extension to 15 degrees, a combination of limitation of flexion and limitation of extension, favorable ankylosis of the knee at full extension or in slight flexion between 0 and 10 degrees, and instability that is “mild” in nature has not been shown. 5. The Veteran’s right inguinal hernia has not been shown to have required surgical intervention; or, been manifested by recurrence of an inguinal hernia, readily reducible and well supported by truss or belt. CONCLUSIONS OF LAW 1. There is no legal basis to submit a free-standing claim seeking an effective date prior to October 1, 2001 for the grant of service connection for a right knee disability. 38 U.S.C. §§ 7105, 5109A; 38 C.F.R. § 20.101; Rudd v. Nicholson, 20 Vet. App. 296 (2006). 2. There is no legal basis to submit a free-standing claim seeking an effective date prior to October 1, 2001 for the grant of service connection for a left knee disability. 38 U.S.C. §§ 7105, 5109A; 38 C.F.R. § 20.101; Rudd v. Nicholson, 20 Vet. App. 296 (2006). 3. The criteria for an effective date prior to March 3, 2014 for the grant of service connection for a right wrist disability have not been met. 38 U.S.C. § 5108, 5110, 7104; 38 C.F.R. §§ 3.156, 3.400. 4. The criteria for a rating of 10 percent, but no more, for a left knee disability have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code (DC) 5260. 5. The criteria for a rating of 10 percent, but no more, for a right knee disability have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, DC 5260. 6. The criteria for a compensable rating for a right inguinal hernia have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 4.1, 4.7, 4.114, DC 7338. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1981 to September 2001. As a preliminary matter, the Board notes that in November 2001, the Regional Office (RO) granted service connection for a right inguinal hernia, effective October 1, 2001. Further, in March 2014, the Veteran filed another service connection claim for a right inguinal hernia that was again granted by the RO in December 2015, and assigned an effective date of October 1, 2001. Moreover, the RO also addressed the issue of whether the Veteran was entitled to a compensable rating for a right hernia disorder in the December 2015 statement of the case (to which the Veteran filed a timely notice of disagreement). Therefore, given that the Veteran was already service-connected for his right hernia disorder at the time he filed his March 2014 claim, in conjunction with that fact that the RO adjudicated the issue of entitlement to an increased rating, the Board will construe (as reflected herein) the Veteran’s claim as one for entitlement to a compensable rating for a right inguinal hernia. The Board also finds that to the extent the Veteran disagreed with the assigned effective date for the grant of service connection for his right inguinal hernia, this issue is not before the Board. Specifically, given that the Board is treating his March 2014 service connection claim as an increased rating claim, the date of his originally assigned rating is not on appeal. Thus, the Veteran’s disagreement with the effective date is construed to be a new and separate free-standing earlier effective claim - which is not currently before the Board. In any event, the Board notes that in the absence of clearly and unmistakable error (which has not been alleged), the Veteran is precluded from seeking an earlier effective date for service connection. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). Lastly, in July and August 2017, the Board observes that the Veteran withdrew his request for a Board hearing. Earlier Effective Dates The Veteran asserts that he is entitled to an effective date prior to October 1, 2001 for service connection of his bilateral knee disability, and prior to March 3, 2014 for service connection of his right wrist disability, respectively. In general, the effective date for the grant of service connection based upon an original claim or a claim reopened after final disallowance is either the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise it will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b). For effective date purposes, a claim is a formal or informal written communication identifying and 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 the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris, may be considered an informal claim. 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. If received within one year after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155; Norris v. West, 12 Vet. App. 413, 421 (1999). The Court has held that a claim for an earlier effective date is a downstream element of a grant of service connection and that adjudication of a free-standing claim for an earlier effective date violated the rule of finality. See Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006). As the Veteran cannot make a free-standing claim for an earlier effective date without making an assertion of clear and unmistakable error (CUE) in the prior decision, any free-standing claim for an earlier effective date for the assigned ratings is not a valid claim. See Id. (holding that a freestanding claim for an earlier effective date is a nullity). 1. Entitlement to an effective date prior to March 3, 2014, for the grant of service connection for a for a right wrist disability In this case, the Veteran was denied service connection for a right wrist disorder by the RO in a November 2001 rating decision. He did not appeal this decision, nor did he submit any new and material evidence within a year of receiving the decision. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. As such, the denial is final. Next, the Board finds that the RO first received an application to reopen the previously denied claim on March 3, 2014, which indicated that the Veteran wanted to file a claim for a “right wrist” disorder. In arriving at this conclusion, the Board notes that the file contains a “statement in support of claim” that was dated March 7, 2012. However, there is no indication that this was actually received by the RO prior to March 3, 2014. Instead, the Veteran’s service connection claim for a right wrist disorder that was received on March 3, 2014 was the earliest application for benefits for which the Board could discern a receipt date by the RO. Therefore, the Board finds that, for effective date purposes, this is the date of receipt for the Veteran’s claim of entitlement to service connection for a right wrist disability. The date of receipt of the claim having been established, the Board has also reviewed whether there is any evidence of an intent to file a claim for benefits prior to March 3, 2014. In this regard, a review of the record fails to show that the RO received any claim or informal written communication (other than those already discussed) indicative of the Veteran’s desire to seek service connection for a right wrist disorder. Therefore, the Board concludes that the effective date of the Veteran’s service-connected right wrist disability is no earlier than March 4, 2014, and an effective date prior to this is not warranted. 2. Entitlement to an effective date prior to October 1, 2001, for the grant of service connection for a right knee disability 3. Entitlement to an effective date prior to October 1, 2001, for the grant of service connection for a left knee disability With respect to a bilateral knee disorder, the Veteran was granted service connection for a bilateral knee disorder in a November 2001 rating decision. He did not file a notice of disagreement with that initial rating and/or the assigned effective date. Therefore, the grant of service connection and the assigned initial rating for a bilateral knee disorder became final. See 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.400 (a), 20.202. In September 2013, the Veteran filed an increased rating claim for his bilateral disorder. In a subsequent February 2015 notice of disagreement, the Veteran disagreed with both the evaluation and the effective date of the initial grant of service connection. Here, the Board finds that the Veteran’s February 2015 earlier effective date claim in his notice of disagreement was a free-standing earlier effective date claim. Therefore, given that the Veteran has not made a claim of CUE, but rather, has simply indicated that he is entitled to an earlier effective date, the Board finds that the Veteran’s claim is a free-standing claim earlier effective date that violates the rule of finality. Rudd, 20 Vet. App. 296. Further, per the Court’s opinion in Rudd, the claim must be dismissed. However, the Veteran is not precluded from seeking an earlier effective date based on CUE in that rating. The Board would also point out that, in any event, VA regulations prohibit an effective date of service connection prior to a veteran’s release from active duty. Here, the effective date for his bilateral knee disability, October 1, 2001, is the day after he left active duty, according to his DD-214. Therefore, there would have not been a basis for an earlier effective date even if the Board could consider the appeal on the merits. Increased Ratings The Veteran is seeking increased ratings for his service-connected bilateral knee and right inguinal hernia disabilities. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. Regarding knee claims, a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257 or 5258/5259. See VAOPGCPREC 23-97. For example, when a knee disorder was already rated under DC 5257 (addressing lateral instability), a separate rating may be warranted if the Veteran’s knee also shows limitation of motion which at least meets the criteria for a zero-percent rating under DC 5260 (flexion limited to 60 degrees or less) or 5261 (extension limited to 5 degrees or more). Moreover, a separate rating could also be warranted under 38 C.F.R. § 4.59, based on X-ray findings of arthritis with painful motion. See VAOPGCPREC 9-98; see also Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997). In addition, the General Counsel has also held that separate ratings may be granted based on limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee joint. VAOPGCPREC 09-04. In the case of an initial rating, the entire evidentiary record from the time of a veteran’s claim for service connection to the present is of importance in determining the proper evaluation of disability. Fenderson v. West, 12 Vet. App. 119 (1999). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 4. Entitlement to a compensable rating for a left knee disability 5. Entitlement to a compensable rating for a right knee disability The Veteran’s bilateral knee disability has been assigned separate initial noncompensable ratings for each knee, respectively, under 38 C.F.R. § 4.71a, DC 5260. As a preliminary matter, the Board assigns separate 10 percent ratings under DC 5260 for each knee. Specifically, the Board finds that the medical evidence, in conjunction with the Veteran’s statements, indicate that his knees were painful and caused limitation of motion that otherwise was noncompensable. Therefore, the evidence is at least in equipoise that the Veteran meets the criteria for the assignment of a 10 percent rating for each knee. See 38 C.F.R. § 4.59; DeLuca v. Brown, 8 Vet. App. 206 -07 (1995). In order to warrant an increased rating based solely on limitation of motion or traumatic arthritis, the evidence must show: • Limitation of flexion to 30 degrees (20 percent under DC 5260); • Limitation of extension to 15 degrees (20 percent under DC 5261); • Limitation of flexion to 45 degrees and limitation of extension to 10 degrees (two separate 10 percent ratings under DCs 5260 and 5261, respectively); • Favorable ankylosis of the knee at full extension or in slight flexion between 0 and 10 degrees (30 percent under DC 5256); or, • X-ray evidence of arthritis with the involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations (20 percent under DC 5003) See 38 C.F.R. § 4.71a. In this case, separate ratings in excess of 10 percent for a bilateral knee disability is not warranted for any period on appeal. Specifically, in a May 2014 VA examination, the Veteran reported constant 8/10 knee pain with episodic swelling and increased pain with prolonged walking and climbing stairs. He also reported using a knee brace for pain and denied flare-ups. On examination, the Veteran’s bilateral knee range of motion was flexion to 140 or more degrees and extension to 0 degrees with no pain on motion or repetitive testing. There was no evidence of ankylosis or incapacitating episodes due to arthritis. Further, the Veteran’s VA treatment records, including from May 2014, June 2017, and August 2017, do not report any additional limitation of motion that would warrant a higher rating. The Board also considered whether a higher disability evaluation is warranted on the basis of functional loss due to fatigability, incoordination, pain on movement, pain on weight-bearing, flare-ups, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59; see Sharp v. Shinseki, 29 Vet. App. 26 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016); DeLuca v. Brown, 8 Vet. App. 206 -07 (1995). In this case, the Veteran has complained that he is limited in performing activities of daily living due to pain, fatigue, and weakness. However, he specifically denied flare-ups. Therefore, while the Veteran experiences the aforementioned symptoms, overall, it does not appear that these symptoms result in additional and significant functional loss, and his complaints are adequately contemplated in the ratings he currently receives. See Mitchell v. Shinseki, 25 Vet. App. 32, 37-43 (2011) (pain must affect some aspect of the normal working movements of the body such as strength, speed, coordination or endurance). Of note, the May 2014 VA examiner did not find any evidence of additional loss of motion or functioning after repetitive testing, flare-ups, and/or weight bearing that would warrant a higher rating. Next, the Board considers whether separate compensable ratings are warranted for the Veteran’s bilateral knee disability based on instability or cartilage symptoms. In order to warrant a compensable rating based on knee instability or cartilage symptoms, the evidence must show: • Dislocation of the semilunar cartilage with frequent episodes of “locking,” pain and effusion in the joint (20 percent under DC 5258); • Recurrent subluxation or lateral instability (under DC 5257; 10 percent for “slight” symptoms); • Symptomatic symptoms due to the removal of the semilunar cartilage (10 percent under 5258); or, • Genu recurvatum (acquired, traumatic, with weakness and insecurity in weight bearing objectively demonstrated) (10 percent under 5263). See 38 C.F.R. § 4.71a. Based on the evidence, the Board determines that separate compensable ratings are not warranted based on instability or cartilage symptoms. Specifically, during a VA examination in May 2014, the examiner determined that while the Veteran had bilateral knee tenderness with evidence of “mild” mucinous ACL degeneration in both knees and some cartilage loss, there were no signs of edema, instability, abnormal movement, effusion, redness, heat, deformity, malalignment, locking, dislocation, and subluxation. There was also no evidence of genu recurvatum. Additionally, there is no evidence of instability symptoms and injury to the cartilage in either knee in the private and VA treatment records that would warrant a compensable rating. Of note, while the Veteran had occasional complaints of “popping,” the May 2014, June 2017, and August 2017 VA treatment records do not indicate that he had any instability, locking episodes, dislocation, and/or subluxation. Therefore, based on the evidence of record, the Board determines that separate compensable ratings based upon instability or cartilage symptoms is not warranted. 6. Entitlement to a compensable rating for a right inguinal hernia The Veteran’s service-connected right inguinal hernia has been assigned a noncompensable rating under 38 C.F.R. § 4.114, DC 7338. In order to warrant a compensable rating, the evidence must demonstrate a postoperative recurrent inguinal hernia, readily reducible, and well supported by truss or belt (10 percent), or a small inguinal hernia, postoperative recurrent, or unoperated irremediable, not well supported by truss, or not readily reducible (30 percent). See Id. In this case, the Board determines that a compensable rating is not warranted for any period on appeal. Specifically, in a March 2014 VA examination, the Veteran reported that he had a bulge in his right groin in 1985 that was never surgically repaired. Further, he stated that his hernia resolved and denied any current symptoms pertaining to a hernia. On examination, the examiner did not find any evidence of a hernia, including pain or a bulge. Additionally, the Board notes that the Veteran asserts that his examination was inadequate because it was conducted in the morning and that his hernia is only exposed after physical exertion. Nevertheless, even if the Veteran has a hernia that only appears after physical activity, a compensable rating is still not for application because the hernia was not treated operatively and is remediable. See 38 C.F.R. § 4.114, DC 7338. In any event, the Board has reviewed the examination report and finds that the examiner reviewed the Veteran’s past medical history, recorded his current complaints and history, conducted appropriate evaluations and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. Therefore, the VA examination report is adequate for the purpose of rendering a decision on appeal. 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303 (2007). Moreover, the Veteran’s treatment records do not reflect symptoms of a right hernia. As a result, a compensable rating is not warranted. In considering the appropriate disability rating, the Board has also considered the statements from the Veteran that his bilateral knee and hernia disorders are worse than the ratings he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his bilateral knee and right hernia disabilities according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). On the other hand, such competent evidence concerning the nature and extent of the Veteran’s knee and hernia disabilities have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. Specifically, while the Veteran reported that he had pain, limitation of motion, fatigue, and weakness, these symptoms were discussed and addressed by the VA examiners and treating medical providers. The Board also finds that consideration for an extraschedular evaluation, a component of a claim for an increased rating, is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). In considering whether an extraschedular rating may be warranted, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran’s level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. See Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the evidence does not indicate that the Veteran’s disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the Board has reviewed all of his relevant symptoms related to the issues on appeal, including limitations with activities of daily living, and concludes that there are no symptoms that were not able to be addressed by the applicable diagnostic codes. See Mittleider v. West, 11 Vet. App. 181 (1998). As such, the Veteran’s symptoms are not which are so unusual that they are outside the schedular criteria. Finally, the Board acknowledges the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), that a total rating based on individual unemployability due to service-connected disability (TDIU) claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. In this regard, the Veteran does not allege, and the evidence does not indicate, that he has been unable to work due to his service-connected knee and hernia disabilities. Therefore, a TDIU claim is not raised by the record. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). REASONS FOR REMAND Entitlement to an initial rating in excess of 10 percent for a right wrist disability is remanded. The Board observes that the Veteran was provided with VA examinations for his right wrist disability in July and October 2016 that were not considered by the RO since his most recent December 2015 statement of the case (SOC). Moreover, the Board also notes that new VA treatment records have been obtained since December 2015. As this evidence was not considered by the RO, and the Veteran did not waive initial RO consideration of this evidence, a remand is required in order for the RO to consider the evidence and for the issuance of an appropriate supplemental statement of the case (SSOC). See 38 C.F.R. § 20.1304(c). The matter is REMANDED for the following action: The RO should undertake any other development deemed necessary in order to adjudicate the Veteran’s increased rating claim for a right wrist disability. Following any additional indicated development, the RO should review the claims file and re-adjudicate the Veteran’s claim on appeal. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a SSOC and given the opportunity to respond thereto before the case is returned to the Board. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Meyer, Associate Counsel