Citation Nr: 1823716 Decision Date: 04/20/18 Archive Date: 04/26/18 DOCKET NO. 14-34 474 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an effective date earlier than February 14, 2013 for the grant of service connection for instability in the left knee. 2. Entitlement to an effective date earlier than February 14, 2013 for the increase in rating to 10 percent for service-connected left knee ACL tear status post allograft repair with patellofemoral syndrome. ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran served on active duty from July 2007 to March 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. FINDINGS OF FACT 1. In January 2011, the Veteran filed an original claim of service connection for left knee disability. 2. On March 31, 2011, the Veteran was discharged from active duty. 3. In November 2011, the RO denied the Veteran's service connection claim for left knee disability, against which the Veteran filed a notice of disagreement (NOD) in October 2012. 4. In December 2012, the RO granted service connection for left knee ACL tear status post allograft repair, and assigned a 0 percent rating effective April 1, 2011, the day following the Veteran's discharge from active duty. 5. In February 2013, the Veteran expressed disagreement with the assigned noncompensable rating for left knee disability. 6. In an October 2013 rating decision, the RO granted service connection for left knee instability, assigning a 10 percent rating effective February 14, 2013, and granted an increased rating for left knee ACL tear status post allograft repair with patellofemoral syndrome, assigning an effective date of February 14, 2013. 7. In November 2013, the Veteran filed a NOD with the assigned effective date for service connection for left knee instability, and with the assigned effective date for the increase in rating for left knee ACL tear status post allograft repair with patellofemoral syndrome. 8. Medical evidence documents that the Veteran underwent an August 2010 knee surgery to repair an ACL tear, and experienced left knee instability around that time. 9. The earliest post-service medical evidence of patellofemoral syndrome with left knee limitation of motion due to pain is found in a VA compensation examination report dated in September 2013. CONCLUSIONS OF LAW 1. The criteria for an earlier effective date of April 1, 2011, for the award of service connection for left knee instability, have been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.156, 3.400 (2017). 2. The criteria for an effective date earlier than February 14, 2013, for the increase in rating to 10 percent for left knee ACL tear status post allograft repair, have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.156, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 VA has a duty to notify and to assist the Veteran in the development of his claims. The duty to notify has been met. The Veteran has not alleged prejudice with regard to notice. The Federal Circuit Court of Appeals has held that "absent extraordinary circumstances . . . it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). With regard to the duty to assist, the Veteran's medical records, to include service treatment records (STRs) and VA treatment records and reports, have been obtained. Moreover, the Veteran underwent VA examination during the appeal period, the reports of which are adequate to decide the issues below. The Board finds that further action is unnecessary under 38 U.S.C. § 5103A and 38 C.F.R. § 3.159 for the issues decided below. The Veteran will not be prejudiced as a result of the Board's adjudication of the issues. II. Earlier Effective Date The Veteran claims entitlement to earlier effective dates for an award of service connection for left knee instability, and for an increase in disability rating to 10 percent for left knee ACL tear status post allograft repair with patellofemoral syndrome. In both instances, the RO assigned an effective date of February 14, 2013. The applicable law and regulations concerning effective dates state that, except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2017). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In January 2011, prior to his March 31, 2011 discharge from active duty, the Veteran filed an original claim of service connection for left knee disability. In a November 2011 rating decision, the RO denied the claim. In October 2012, the Veteran filed a timely NOD against the decision. During the pendency of the appeal, in a December 2012 rating decision, the RO granted service connection for left knee ACL tear status post allograft repair, and assigned a 0 percent rating effective April 1, 2011, the day following the Veteran's discharge from active duty. Later, in the October 2013 rating decision on appeal, the RO increased the disability rating to 10 percent, effective February 14, 2013. Importantly, in this decision, the RO rated patellofemoral syndrome along with the residuals of ACL tear. In the same decision, the RO separately granted service connection for left knee instability, and assigned a 10 percent rating effective February 14, 2013. In November 2013, the Veteran filed a NOD against the effective dates assigned in the October 2013 rating decision. The Veteran asserts that April 1, 2011 should be the effective date for the increased rating, and for the service connection finding for instability. The RO found, however, that February 14, 2013 was the correct effective date for both claims. According to the RO, the Veteran contacted the RO on that day and requested an increased rating for the knee disability. The RO further found that, although the Veteran filed a NOD against the November 2011 rating decision denying service connection for left knee disability, he did not file a NOD against the December 2012 rating decision which granted his claim. As such, the RO found the date of claim for increased rating the appropriate effective date for both the increase in rating and the service connection finding for instability. The Board will address the two claims separately below. Left knee instability The service connection finding for left knee instability should be effective April 1, 2011, the day following the Veteran's discharge from active duty. See 38 C.F.R. § 3.400. In the Veteran's January 2011 service connection claim for left knee disability, the Veteran claimed service connection for any type of left knee disability. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (in determining the scope of a claim, the Board must consider the Veteran's description of the claim, symptoms described, and the information submitted or developed in support of the claim). Further, the original claim was still pending at the time of the October 2013 rating decision granting service connection for left knee instability. The RO found that the Veteran's January 2011 service connection claim expired once service connection was granted in the December 2012 rating decision. The RO further noted that the Veteran indicated in phone calls to the RO in February and July 2013 that he did not want to appeal the December 2012 rating decision. However, within the one year period following the January 29, 2013 notification of the December 2012 rating decision, the RO submitted into the record new and material evidence pertaining to the left knee disability. The RO included in the claims file VA treatment records noting left knee disability and treatment. And the RO included in the claims file VA compensation examination reports dated in September 2013 and January 2014, which address the left knee disability. Significantly, based on findings noted in the September 2013 VA report, the RO granted service connection for instability and granted an increased rating for residuals of ACL repair based on the diagnosis of left knee patellofemoral syndrome. If new and material evidence is received during an applicable appellate period following a RO decision (one year for a rating decision and 60 days for a statement of the case), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156 (b). New evidence means evidence not previously submitted. Material evidence means existing evidence that by itself or when considered with previous evidence relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of last final decision, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. The provisions of 38 C.F.R. § 3.156(b) apply to rating actions that assign disability evaluations. See Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). Further, section 3.156(b), along with section 3.400 addressing the assignment of effective dates, should be construed as a favorable provision. See Young v. Shinseki, 22 Vet. App. 461 (2009); see also 72 Fed. Reg. 28,778 (May 22, 2007) (explaining that §§ 3.156(b) and 3.400 "provide a claimant-friendly effective date rule for awards based on evidence received while a claim is on appeal or before the appeal period expires"). In this matter, the January 2011 claim for service connection remained in appellate status until the RO granted service connection in December 2012 (with notification on January 29, 2013). The Veteran then had one year in which to appeal the assigned effective date and rating. See Holland v. Gober, 10 Vet. App. 433, 436 (1997) (recognizing the difference between the elements necessary to establish entitlement to service connection and the downstream elements of disability rating and effective date). Within that year, new and material evidence was included in the claims file by the RO. In accordance with 38 C.F.R. § 3.156(b), the Veteran's claim was again adjudicated in October 2013. In that decision, the RO considered the new and material evidence submitted prior to January 29, 2014 (e.g., the September 2013 VA report indicating left knee instability, patellofemoral syndrome, and painful motion), and assigned an increased rating and a separate service connection rating for instability. However, in assigning the effective date, the RO did not rely on the original service connection claim. Inasmuch as the September 2013 VA report was dated within one year of the January 29, 2013 notification of the service connection grant for left knee disability, the RO should have relied on the original service connection claim. Rather, the RO relied on the February 14, 2013 phone conversation between the Veteran and an employee at the RO. The memorandum of that conversation indicates that the Veteran disagreed with the rating assigned in the December 2012 rating decision. But a July 2013 memorandum indicates that the Veteran communicated to the RO by phone that he did not want to appeal the assigned initial rating to the Board, and instead sought a higher rating. While that may be true, the original claim nevertheless remained viable once the new and material evidence was added to the record in the year following the September 29, 2013 notification. See 38 C.F.R. § 3.156(b). In support of its decision regarding the assigned effective date, the RO also stated that the evidence of record prior to February 14, 2013 did not indicate the presence of left knee instability. The RO noted findings in an April 2011 VA compensation examination report, which indicated a normal left knee. The record also contains a private MRI report of the left knee, dated in January 2012, which indicates no instability. The RO thus indicated that, irrespective of which claim was pending at the time of the October 2013 rating decision, an effective date earlier than February 14, 2013 could not be assigned because evidence of instability did not exist prior to that date. The RO indicated that the date of onset of disability (i.e., evidence of instability) was "later" than the date of any particular prior service connection claim. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2017). This is not an accurate assessment of the evidence, however. Although it is true that the April 2011 VA report does not note left knee instability, and that the earliest post-service evidence of instability is found in the September 2013 VA report, the STRs do note left knee instability. The Veteran underwent August 2010 left knee surgery to repair ACL damage. Medical evidence detailed in STRs dated prior to and following the surgery repeatedly notes instability. Although certain documents indicate a stable knee, certain other documents containing lay and medical evidence indicate instability. See Alemany and Gilbert, both supra. As such, the date entitlement arose (i.e., the date of onset of left knee instability) as likely as not predates the March 31, 2011 discharge from service. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As April 1, 2011 is "later" than "the date entitlement arose," an effective date of April 1, 2011 is warranted for this claim. 38 C.F.R. § 3.400. Higher rating for left knee ACL tear status post allograft repair with patellofemoral syndrome An effective date earlier than February 14, 2013 is not warranted for the increase in rating to 10 percent for left knee ACL tear status post allograft repair with patellofemoral syndrome. To review, the Veteran's initial January 2011 claim remained in appellate status at the time of the October 2013 rating decision, which granted the higher rating of 10 percent. However, the evidence dated prior to February 14, 2013 did not approximate the criteria for a compensable rating for left knee ACL tear status post allograft repair with patellofemoral syndrome. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes (DCs). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Knee disabilities are rated under DCs 5256 through 5263 of 38 C.F.R. § 4.71a. Diagnostic Code 5256 addresses ankylosis of the knee. Diagnostic Code 5257 addresses recurrent subluxation or lateral instability. Diagnostic Code 5258 addresses dislocated semilunar cartilage in the knee manifested by frequent episodes of "locking," pain, and effusion into the joint. Diagnostic Code 5259 addresses symptomatic residuals related to removal of semilunar cartilage. Diagnostic Codes 5260 addresses limitation of motion on flexion while DC 5261 addresses limitation of motion on extension. Diagnostic Code 5262 addresses impairment of the tibia and fibula from malunion or nonunion. And Diagnostic Code 5263 addresses genu recurvatum. See 38 C.F.R. § 4.71a. Diagnostic Code 5024 provides that disorders such as patellofemoral syndrome are to be evaluated as degenerative arthritis pursuant to DC 5003. Diagnostic Code 5003 provides that degenerative arthritis is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or group of minor joints affected by limitation of motion. See 38 C.F.R. § 4.71a, DCs 5003, 5024. When assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must consider the extent that a veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when symptoms are most prevalent ("flare-ups") due to the extent of pain (and painful motion), weakness, premature or excess fatigability, and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. In rating disabilities, VA is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). In such cases, the reasonable doubt doctrine dictates that all symptoms be attributed to the service-connected disability. Id. In the December 2012 rating decision granting service connection for left knee ACL tear status post allograft repair, the RO rated the Veteran under DC 5261. Under this provision, a compensable rating (10 percent) is warranted for extension limited to 10 degrees. At the time of the December 2012 decision, the only post-service evidence of record addressing left knee disability - the April 2011 VA examination report and the private January 2012 MRI report - was negative for limitation of motion. In fact, the April 2011 VA report found the Veteran's left knee to be normal. The earliest evidence of record of limitation of motion in the left knee is found in the September 2013 VA report, which the RO relied on in its October 2013 decision to grant a 10 percent rating. In that VA report, the examiner diagnosed the Veteran with patellofemoral syndrome in addition to residuals of the ACL tear. The examiner found no evidence of compensable limitation of motion under DCs 5260 or 5261, but did find evidence of noncompensable limited motion due to pain. Based on this finding, the RO relied on DC 5003 in its assignment of a 10 percent rating. Nevertheless, prior to February 14, 2013, neither the criteria for a compensable rating under DC 5261, nor the criteria for a compensable rating under the other DCs addressing knee disability, had been approximated. No post-service medical evidence dated prior to February 14, 2013 indicated patellofemoral syndrome, or indicated either compensable or noncompensable limitation of motion in the left knee. Thus, the Board finds an effective date prior to February 14, 2013 unwarranted for the increase in rating to 10 percent for left knee ACL tear status post allograft repair with patellofemoral syndrome. This accords with 38 C.F.R. § 3.400 because the date of worsening disability (i.e., the "date entitlement arose") is "later" than the claim considered in the October 2013 rating decision. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2017). ORDER An effective date of April 1, 2011, for service connection for left knee instability, is granted. Entitlement to an effective date earlier than February 14, 2013, for the increase in rating to 10 percent for service-connected left knee ACL tear status post allograft repair with patellofemoral syndrome, is denied. ____________________________________________ BISWAJIT CHATTERJEE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs