Citation Nr: 19155652 Decision Date: 07/18/19 Archive Date: 07/18/19 DOCKET NO. 13-28 348 DATE: July 18, 2019 ORDER Eligibility for specially adapted housing is granted. Eligibility for automobile and adaptive equipment is granted. An effective date prior to February 15, 1996, for the award of a 20 percent rating for postoperative residuals of injury to the right knee based on clear and unmistakable error in a July 1999 rating decision is denied. An effective date prior to May 17, 1999, for the award of a separate 30 percent rating for right knee traumatic arthritis based on clear and unmistakable error in a July 1999 rating decision is denied. An effective date prior to April 7, 2007, for the award of service connection for adjustment disorder, lumbar spine degenerative osteoarthritis, right shoulder degenerative joint disease, right elbow degenerative joint disease, cervical spine degenerative osteoarthritis, right wrist degenerative joint disease, left knee degenerative joint disease, and a left knee surgical scar based on clear and unmistakable error in a January 2008 rating decision is denied. FINDINGS OF FACT 1. Resolving all doubt in the Veteran’s favor, he is permanently and totally disabled, and his service-connected disabilities result in loss of use of both lower legs and feet for the purposes of eligibility for specially adapted housing and automobile and adaptive equipment. 2. A final July 1999 rating decision assigned an effective date of February 21, 1996, for the award of a 20 percent rating for postoperative residuals of injury to the right knee, and an effective date of May 17, 1999 for the award of a 30 percent rating for right knee traumatic arthritis. 3. An April 2019 rating decision granted an earlier effective date of February 15, 1996, for the award of a 20 percent rating for postoperative residuals of injury to the right knee based on clear and unmistakable error. 4. With the exception of the clear and unmistakable error found in the April 2019 rating decision, the July 1999 rating decision was consistent with, and reasonably supported by, the evidence then of record, correctly applied existing legal authority, and no undebatable error is shown that would have manifestly changed the outcome with respect to the effective dates assigned therein. 5. A final January 2008 rating decision assigned an effective date of April 4, 2007, for the award of service connection for adjustment disorder, lumbar spine degenerative osteoarthritis, cervical spine degenerative osteoarthritis, right shoulder degenerative joint disease, right elbow degenerative joint disease, right wrist degenerative joint disease, left knee degenerative joint disease, and left knee surgical scar. 6. The January 2008 rating decision was consistent with, and reasonably supported by, the evidence then of record, correctly applied existing legal authority, and no undebatable error is shown that would have manifestly changed the outcome with respect to the effective date assigned therein. CONCLUSIONS OF LAW 1. The criteria for establishing eligibility for specially adapted housing have been met. 38 U.S.C. § 2101; 38 C.F.R. § 3.809. 2. The criteria for establishing eligibility for automobile and adaptive equipment have been met. 38 U.S.C. §§ 3901, 3902; 38 C.F.R. § 3.808. 3. With the exception of the clear and unmistakable error found in the April 2019 rating decision that granted an effective date of February 15, 1996, for the award of a 20 percent rating for postoperative residuals of injury to the right knee, the July 1999 rating decision that assigned an effective date of February 21, 1996, for the award of such rating was not clearly and unmistakably erroneous. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.105, 3.400. 4. The July 1999 rating decision that assigned an effective date of May 17, 1999 for the award of a 30 percent rating for right knee traumatic arthritis was not clearly and unmistakably erroneous. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.105, 3.400. 5. The January 2008 rating decision that assigned an effective date of April 7, 2007 for the award of service connection for adjustment disorder, lumbar spine degenerative osteoarthritis, right shoulder degenerative joint disease, right elbow degenerative joint disease, cervical spine degenerative osteoarthritis, right wrist degenerative joint disease, left knee degenerative joint disease, and a left knee surgical scar was not clearly and unmistakably erroneous. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.105, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1958 to November 1960. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from September 2010 and April 2013 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2017, the Board remanded the claims on appeal, to include the issue of entitlement to special monthly compensation based on the need for aid and attendance, for additional development. In an April 2019 rating decision, SMC based on the need for aid and attendance was granted. Therefore, such issue is no longer before the Board. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). 1. Entitlement to specially adapted housing or a special home adaptation grant. The Veteran contends that he has loss of use in the upper and lower extremities that prevents him from being able to ambulate and requires the constant use of a wheelchair. At the October 2016 Board hearing, the Veteran stated that he had loss of use in his hands and in his lower extremities and feet. In this regard, he reported that he had radiculopathy that caused his feet to be numb and knee disorders that caused his knees to frequently give out, preventing him from being able to walk without falling. He stated that he has been using a wheelchair for 7 years. Specially adapted housing is available to a veteran who is entitled to compensation for permanent and total disability due to: (1) amyotrophic lateral sclerosis rated as 100 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8017; (2) blindness in both eyes, having only light perception, plus the anatomical loss or loss of use of one lower extremity; (3) full thickness or subdermal burns that have resulted in contractures with limitation of motion of two or more extremities or of at least one extremity and the trunk; or (4) the loss or loss of use of both upper extremities such as to preclude use of the arms at or above the elbows. Specially adapted housing is also available to a veteran with a permanent and total disability that precludes locomotion without the aids of braces, crutches, canes, or a wheelchair due to: (5) the loss, or loss of use, of both lower extremities; (6) the loss or loss of use of one lower extremity, together with residuals of organic disease or injury which affect the functions of balance and propulsion; or, (7) the loss or loss of use of one lower extremity together with the loss or loss of use of one upper extremity which affect the functions of balance or propulsion. 38 U.S.C. § 2101(a); 38 C.F.R. § 3.809(a), (b), (d). The term “preclude locomotion” is defined as the necessity for regular and constant use of a wheelchair, braces, crutches, or canes as a normal mode of locomotion although occasional locomotion by other methods may be possible. 38 C.F.R. § 3.809(d). The United States Court of Appeals for Veterans Claims found that a “loss of use” exists when there is “deprivation of the ability to avail oneself” of that extremity, and functional impairment caused by pain, weakness, or incoordination should be taken into account when making that determination. See Jensen v. Shulkin, 29 Vet. App. 66, 78-79 (2017). The Veteran is service-connected for adjustment disorder, lumbar and cervical spine degenerative osteoarthritis, right knee arthritis and postoperative residuals, left knee degenerative joint disease and instability, right shoulder degenerative joint disease, right wrist degenerative joint disease, right elbow degenerative joint disease, right arm limitation of extension, and knee scars. He has had a total disability rating of 100 percent since April 4, 2007. Affording the Veteran the benefit of the doubt, the Board finds that there is probative medical evidence that demonstrates that his service-connected right and left knee disabilities and lumbar spine degenerative osteoarthritis do cause loss of use in the bilateral lower extremities, and specially adapted housing is warranted. In this regard, there is evidence indicating that the Veteran is unable to ambulate independently without the use of assistive devices, such as crutches, and is primarily restricted to a wheelchair for getting around. The Board therefore finds that the Veteran has service-connected disabilities that affect the functions of balance and propulsion so as to prevent independent locomotion. At a September 2017 VA examination, the Veteran reported that his bilateral knee disabilities prevented him from being able to stand and walk. The examiner found that the Veteran required regular use of a wheelchair. In his medical opinion, he found that the Veteran’s service-connected disabilities were less likely as not to result in the loss or loss of use of one or both lower extremities, or to preclude locomotion without the aid or braces, crutches, canes, or a wheelchair. The examiner did not provide any further rationale for this finding. In a separate Aid and Attendance/Housebound examination report, the same examiner noted that the Veteran used a motorized scooter for ambulation and required 2 Canadian crutches for ambulation and using the bathroom. He observed that the Veteran had difficulty standing and walking because both knees will give way, could not stand and walk because of bilateral knee pain and neuropathy, and used ergonomic aids at home to help with showering and transferring in and out of bed. He indicated that the Veteran could not walk without the assistance of another person and required a wheelchair or two canes to ambulate. The Board finds that, although the September 2017 VA examiner found that the Veteran did not have loss of use of his lower extremities, the disability picture he describes is clearly one of a veteran who is unable to get around without the use of assistive devices. Furthermore, the Veteran’s VA treatment records indicate that he is primarily dependent on a wheelchair in order to get around, to include for even short distances and around his home. In April 2017, he reported that, even when using two arm crutches, he frequently fell. In April 2018, it was noted that the Veteran could not ambulate and instead used a rollator walker or power chair to get around his home. He is noted on many occasions by his treating medical professionals to be “wheelchair bound.” Consequently, while the evidence shows that the Veteran has some ability to move his lower extremities, he is deprived of his ability to use these lower extremities in order to perambulate without the use of an assistive device, such as two arm crutches or a wheelchair. The Board notes that, even if the Veteran has been able to walk short distances during some of the period on appeal, the standard of loss of use for the purpose of eligibility for specially adapted housing may still be met if a veteran is occasionally able to move without mechanical aids. See Jensen, 29 Vet. App. at 78. The medical evidence does show that, overall, the Veteran is precluded from locomotion without the use of assistive devices. In reaching such determination, the Board acknowledges that the evidence indicates that the Veteran’s problems with mobility are caused by both service-connected disabilities, such as his bilateral knee disorders, and nonservice-connected disabilities, such as diabetic peripheral neuropathy. Consequently, the Board resolves all doubt in favor of the Veteran and finds that his service-connected disorders, alone, are as likely as not to result in loss of use of his lower extremities. The Board notes that, when entitlement to specially adapted housing is not established, a veteran can qualify for a grant for necessary special home adaptations. However, as the Veteran is granted the greater benefit of eligibility for specially adapted housing herein, the criteria for a grant for special home adaptation will not be discussed at this time. See 38 C.F.R. § 3.809a. In sum, after considering all relevant evidence, and resolving all doubt in favor of the Veteran, the Board finds that the evidence of record shows that he has loss of use of both lower extremities due to service-connected disabilities. Thus, eligibility for specially adapted housing is granted. 2. Entitlement to automobile and adaptive equipment or for adaptive equipment only. The Veteran has also applied for automobile and adaptive equipment or for adaptive equipment only. In a March 2016 application, he reported that he needed a vehicle with hand controls for breaking. The Veteran has also provided credible lay statements describing how he requires a car that can accommodate his wheelchair, which he requires to get around the majority of the time. Financial assistance may be provided to an “eligible person” in acquiring an automobile or other vehicle conveyance and adaptive equipment, or adaptive equipment only. 38 U.S.C. § 3902(a)(b). Eligibility for assistance to purchase a vehicle and adaptive equipment is warranted where one of the following exists as the result of injury or disease incurred or aggravated during active service: (1) loss or permanent loss of use of one or both feet; (2) loss or permanent loss of use of one or both hands; (3) permanent impairment of vision of both eyes, meaning central visual acuity of 20/200 or less in the better eye, with corrective glasses, or central visual acuity of more than 20/200 if there is a field defect in which the peripheral field has contracted to such an extent that the widest diameter of visual field subtends an angular distance no greater than 20 degrees in the better eye; (4) severe burn injury precluding effective operation of an automobile; (5) amyotrophic lateral sclerosis; or, (6) for adaptive equipment only, ankylosis of one or both knees or one or both hips. 38 U.S.C. § 3901; 38 C.F.R. § 3.808. As the Board has found that the Veteran has loss of use of both lower extremities, including both feet, the Board also finds that the criteria for eligibility for automobile and adaptive equipment have been met. Specifically, the evidence shows that his feet are almost completely numb and are significantly weak, and he is unable to stand without assistance or to effectively manipulate his feet. Further, he requires assistive devices at all times, including dual Canadian crutches, and mostly gets around in a wheelchair. Therefore, the Board finds that the Veteran’s service-connected disabilities cause loss of use of the bilateral feet and restricts his ability to use foot pedals in a car. In sum, after considering all relevant evidence, and resolving all doubt in favor of the Veteran, the Board finds that the evidence of record shows that he has loss of use of both feet due to service-connected disabilities. Thus, eligibility for automobile and adaptive equipment is granted. 3. Whether there is clear and unmistakable error in a July 1999 rating decision that granted an effective date of February 21, 1996, for the award of a 20 percent rating for postoperative residuals of injury to the right knee, and an effective date of May 17, 1999, for the award of a separate 30 percent rating for right knee traumatic arthritis. The Veteran contends that there is clear and unmistakable error in the July 1999 rating decision that assigned effective dates of February 21, 1996 for the assignment of a 20 percent rating for postoperative residuals of injury to the right knee and May 17, 1999 for the award of a separate 30 percent rating for right knee traumatic arthritis. In this regard, the Board notes that an April 2019 rating decision granted an earlier effective date of February 15, 1996, for the award of a 20 percent rating for postoperative residuals of injury to the right knee based on clear and unmistakable error. Consequently, the remaining inquiry is whether the July 1999 rating decision contains further clear and unmistakable error that would allow for the assignment of the effective date prior to February 15, 1996, for the assignment of a 20 percent rating for postoperative residuals of injury to the right knee. The Veteran was initially granted service connection for residuals of internal derangement with traumatic arthritis of the right knee, effective November 3, 1960, in a September 1961 rating decision. At such time, he was assigned a 20 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5257, for minimal arthritis and slight instability. In an October 1963 rating decision, the evaluation was decreased to 10 percent, effective January 1964. The Veteran contends that he submitted an unadjudicated claim in February 1983 that has remained pending since such time. Consequently, he states that the July 1999 rating decision was clearly and unmistakably erroneous to the extent that it failed to assign an effective date of such pending unadjudicated claim for the 20 and 30 percent ratings assigned for his right knee disabilities. Specifically, at his October 2016 Board hearing, the Veteran testified that he had submitted a claim on February 17, 1983, and it was never addressed in any rating decision. He stated that he had been having severe problems with his knee, including surgery, and he thought his attorney had submitted a claim and medical records at that time. Further, at a January 2012 RO hearing, the Veteran testified that he believed he should have a 100 percent evaluation dating back to 1982 because this was when his physical condition became so severe that he had to retire and was awarded Social Security benefits. He stated that he believed his attorney had submitted a claim to VA at that time, which was denied. He stated that he gave up on trying to get anything from the VA because of their “total lack of concern” for his disability. He said that he began have problems in his life and with his mental health, and could not continue a claim with VA at that time. A review of the record shows that, on February 17, 1983, the Veteran submitted correspondence to VA stating that he requested a reevaluation of his service-connected disability because he had undergone 7 operations on his right knee. At the time that the Veteran submitted this request, he was solely service-connected for postoperative residuals of injury to the right knee. A letter was sent to the Veteran on February 28, 1983, that stated that he could expedite the processing of his claim by obtaining copies of the 7 operative reports and forwarding them to the VA RO. The letter stated that the evidence should be submitted as soon as possible, but it must be received within one year from the date of the letter. There is no indication that the Veteran submitted any response to this letter, or that any further action was taken on his claim at that time. While a claim is considered abandoned when a claimant does not supply information requested by VA within one year of the request, the Board accepts that the letter sent to the Veteran did not clearly state that the claim would not be adjudicated if the Veteran did not respond with records. See 38 C.F.R. § 3.158. The Board therefore accepts that the February 1983 letter sent by the Veteran was a valid claim for an increased rating for his right knee disability that remained pending even after a year passed and he did not respond. Thereafter, on February 21, 1996, the Veteran submitted another claim for an increased rating for his right knee disability. Specifically, he reported that his right knee had deteriorated to the point that he needed a knee replacement and that he desired a rating of at least 80 percent. In connection with such claim, the Veteran submitted a letter dated February 15, 1996, wherein his physician reported that he suffered from severe osteoarthritis of the right knee and, in the near future, would need to undergo a total knee replacement. Also received were records detailing treatment in the 1960’s, 1970’s, and 1980’s. The Veteran attended a VA joints examination in March 1996 and, in a May 1996 rating decision, the RO continued the 10 percent evaluation for his postoperative residuals of a right knee injury. Consequently, once the May 1996 rating decision was issued, the Veteran’s pending increased rating claim from February 1983 was no longer pending, but was now validly addressed by this rating decision. The Veteran submitted a notice of disagreement in June 1996, stating that he disagreed with the decision and wished to continue the appeal. A statement of the case was issued in June 1996 that also continued the 10 percent evaluation. In November 1996, he submitted a Form 9 substantive appeal. A supplemental statement of the case was issued in January 1997 that continued the 10 percent rating. A new VA examination was conducted in May 1999. On the basis of this examination, a July 1999 supplemental statement of the case and accompanying rating decision were issued that increased the Veteran’s postoperative residuals of injury to the right knee (Diagnostic Code 5257) to 20 percent, effective February 21, 1996, and granted separate service connection for right knee traumatic arthritis (Diagnostic Codes 5010-5261), evaluated as 30 percent disabling, effective May 17, 1999. The Veteran submitted a notice of disagreement in September 1999 stating that he did not agree with the decision that assigned ratings of 20 percent and 30 percent. A July 2000 supplemental statement of the case continued the Veteran’s right knee ratings. In a January 2003 Board decision, the Board denied a rating higher than 30 percent for right knee traumatic arthritis (Diagnostic Codes 5010, 5260, and 5261) and denied a rating higher than 20 percent for right knee lateral instability (Diagnostic Code 5257). A rating decision that is subsumed by a Board decision is not subject to revision or reversal on the basis of clear and unmistakable error. See Manning v. Principi, 16 Vet. App. 534 (2002). In this case, however, the record indicates that the Veteran’s notices of disagreement submitted to VA following the May 1996 and July 1999 rating decisions pertained only to the ratings assigned for his disabilities, and not to the effective dates. The Board therefore accepts that, while the ratings assigned for the Veteran’s right knee disabilities are not challengeable through claims of clear and unmistakable error in the rating decisions, the effective dates assigned were not addressed in the January 2003 Board decision, and therefore these are separate issues that were not appealed by the Veteran. Further, based on the same logic, the July 1999 rating decision is final with regard to the effective dates assigned therein for his right knee disabilities. See 38 U.S.C. § 7105(b), (d); 38 C.F.R. §§ 20.204, 20.302, 20.1103. As discussed in the February 2017 Board decision, because the Veteran’s request for earlier effective dates was submitted in 2010, well after the 1-year period to appeal the effective date assigned in the July 1999 rating decision had passed, such a claim would be an impermissible freestanding effective date claim. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). The claims for earlier effective dates therefore depend entirely on whether the rating decision contained clear and unmistakable error when assigning the effective dates for these issues. Generally, a final and binding agency decision shall not be subject to revision on the same factual basis. 38 C.F.R. § 3.105 allows for the revision of the decision in question on the grounds of clear and unmistakable error. According to 38 C.F.R. § 3.105(a), where the evidence establishes such error, the prior decision will be reversed or amended. To establish that there has been a clear and unmistakable error, (1) either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was clear and unmistakable error must be based on the record and law that existed at the time of the adjudication in question. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 314 (1992). Clear and unmistakable error is “the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error.” Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). The failure to fulfill the duty to assist also cannot constitute clear and unmistakable error. Crippen v. Brown, 9 Vet. App. 412, 424 (1996); Caffrey v. Brown, 6 Vet. App. 377 (1994). After reviewing all of the evidence of record, however, the Board does not find any clear and unmistakable error in the July 1999 rating decision. The Veteran has asserted that his February 1983 claim was still pending at this time, but the Board finds that there was an intervening rating decision issued in May 1996 that continued the Veteran’s 10 percent rating for his right knee disability. The Board therefore does not find that a February 1983 claim was still pending at the time of the July 1999 rating decision. The Board also finds that the July 1999 rating decision that assigned effective dates of February 21, 1996 (which was subsequently revised to February 15, 1996) and May 17, 1999 was reasonably supported by the evidence of record at that time and was consistent with the laws and regulations then in effect. In this regard, the effective date for a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. The July 1999 rating decision, which was accompanied by a supplemental statement of the case that contained explanation for its findings, stated that separate evaluations would be assigned based both on subluxation/instability and limitation of motion. At the May 17, 1999 VA examination, the Veteran had extension limited to 15 degrees, as well as additional limitation of function caused by pain. The decision therefore assigned the Veteran a 20 percent evaluation under 38 C.F.R. § 4.71a Diagnostic Code 5261, plus an additional 10 percent for the functional limitation caused by pain, resulting in a rating of 30 percent for right knee limitation of motion. May 17, 1999 was the earliest date that it could be established by medical evidence that the Veteran had such limitation of motion, and therefore this was the earliest date that entitlement arose. The Board notes that, at the Veteran’s earlier VA examination in March 1996, the Veteran had full range of motion in his right knee. While the examiner noted that there was pain on full flexion, there was no indication that the Veteran had functional loss due to pain. See 38 C.F.R. § 4.59; see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). There is no other medical evidence of record indicating that the Veteran had any functional loss or limited range of motion in his right knee prior to May 17, 1999. As this is the date that entitlement arose, the Board finds that there was no clear and unmistakable error in the July 1999 rating decision that assigned a 30 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5261 for right knee traumatic arthritis, effective May 17, 1999. The July 1999 rating decision also assigned a 20 percent evaluation for right knee injury postoperative residuals, effective February 21, 1996, under 38 C.F.R. § 4.71a, Diagnostic Code 5257. The July 1999 supplemental statement of the case explained that this separate evaluation was assigned due to a finding at the May 17, 1999 VA examination that the Veteran had moderate recurrent subluxation or lateral instability. It also stated that an effective date of February 21, 1996, which was the date of receipt of the increased rating claim, would be assigned because the March 1996 VA examiner found pain on flexion of the knee caused by arthritis. The Board again notes that than earlier effective date of February 15, 1996 was assigned in the April 2019 rating decision based on the fact that an accompanying medical report of such date reflected the report of increased symptomatology. Diagnostic Code 5257 applies to recurrent subluxation or lateral instability of the knee. A 10 percent rating is assigned when such impairment is slight, and a 20 percent rating is assigned when it is moderate. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Board finds that there is clear and unmistakable error in the July 1999 rating decision, which erroneously assigned an effective date of February 21, 1996 for a 20 percent rating based under 38 C.F.R. § 4.71a, Diagnostic Code 5257, which evaluates subluxation and instability. In this regard, the RO appears to have conflated the rating criteria for limitation of motion with the rating criteria for instability, considering reports of painful motion when deciding on the effective date for the evaluation based on instability. Furthermore, the RO indicated that a 20 percent evaluation was due to pain on flexion from arthritis, as was found at the March 1996 VA examination. In this regard, the March 1996 VA examiner did find that the Veteran had pain on full flexion, but he had full range of motion, which should have warranted only a 10 percent rating for arthritis with painful motion under 38 C.F.R. § 4.71a, Diagnostic Code 5003, and which should not have been rated together with the Veteran’s subluxation/instability under Diagnostic Code 5257. The Board therefore finds that the assignment of an effective date of February 21, 1996, which was subsequently revised to February 15, 1996, for the increased 20 percent evaluation for right knee injury postoperative residuals was likely erroneous, and a more appropriate effective date of May 17, 1999 should have been assigned. However, because this error was in the Veteran’s favor, the Board will not revise such finding. The Board otherwise finds no clear and unmistakable error in the July 1999 rating decision’s failure to assign any earlier effective dates for the increased ratings, as there was no medical evidence of record demonstrating that the Veteran met the criteria for these higher evaluations prior to 1999. In regard to the medical records submitted in connection with the Veteran’s February 1996 increased rating claim, the Board notes that such specifically includes the record of his December 1963 surgery, an April 1970 report of right knee arthrotomy, an April 1981 report of excision of the medial plica, and an August 1982 report of surgical arthroscopy for chondromalacia of the patella. He also submitted a February 1996 physician’s letter stating that he was being treated for severe osteoarthritis of the right knee. While these records do demonstrate that the Veteran had continued treatment for his right knee requiring multiple surgical interventions in the years after his separation from service, unfortunately they do not demonstrate that the Veteran met the criteria for a higher schedular rating prior to 1999, nor do they indicate that the Veteran should have been afforded a temporary total evaluation at that time, as the records do not establish that the Veteran required at least one month of convalescence or had severe postoperative residuals from these procedures. See 38 C.F.R. § 4.30. Further, the Board again notes that the VA examination held in March 1996 also showed that the Veteran had full range of motion in his right knee. There were no findings of subluxation or laxity. On the basis of this examination, a May 1996 rating decision continued the 10 percent rating. It was therefore reasonable for the July 1999 rating decision to conclude that the Veteran’s worsening had occurred after March 1996, and that the first demonstrable evidence that entitlement arose was the findings of the May 1999 VA examination. The Board finds that there was no error in the application of the law or misapplication of a fact as it was known to VA that would have resulted in an effective date more favorable to the Veteran. The Board also finds that the February 1983 claim was no longer a pending claim at the time of the July 1999 rating decision, but even if it were, the medical evidence did not support an increase in the Veteran’s evaluation prior to 1999, and would not have allowed for earlier effective dates than those now assigned. In sum, the Board does not find that there was an undebatable error in fact or law in the July 1999 rating decision that would have allowed for earlier effective dates than those assigned. As such, the Board finds that the Veteran failed to establish factual or legal error rising to the level of clear and unmistakable error in the July 1999 rating decision. The criteria have not been met for reversing or revising that prior decision, and effective dates prior to February 15, 1996 for the assignment of a 20 percent rating for postoperative residuals of injury to the right knee and May 17, 1999 for the award of a separate 30 percent rating for right knee traumatic arthritis are not warranted. 4. Whether there is clear and unmistakable error in a January 2008 rating decision that granted an effective date of April 7, 2007, for the award of service connection for adjustment disorder, lumbar spine degenerative osteoarthritis, right shoulder degenerative joint disease, right elbow degenerative joint disease, cervical spine degenerative osteoarthritis, right wrist degenerative joint disease, left knee degenerative joint disease, and a left knee surgical scar. The Veteran contends that earlier effective dates are warranted for the awards of service connection for adjustment disorder, lumbar spine degenerative osteoarthritis, cervical spine degenerative osteoarthritis, right shoulder degenerative joint disease, right elbow degenerative joint disease, right wrist degenerative joint disease, left knee degenerative joint disease, and left knee surgical scar, due to clear and unmistakable error in the January 2008 rating decision. In a January 2008 rating decision, entitlement to service connection for such disabilities was granted as of April 4, 2007, the date of receipt of the Veteran’s original claim for service connection. The Veteran did not submit a notice of disagreement or new and material evidence within one year of the January 2008 decision. Hence, it is final. See 38 U.S.C. § 7105(b), (d); 38 C.F.R. § 20.1103. This decision therefore may not be revisited on the merits unless there is a finding of clear and unmistakable error in the decision. See Rudd, 20 Vet. App. 296. In May 2010, the Veteran submitted a letter stating that he believed that he should be entitled to disability benefits since October 1982, because this was the date that he was found to be disabled by the Social Security Administration. Additionally, in June 2010, he stated that, at the same time, his attorney sent a request to VA for a total disability rating, and he believed that this request to VA had been denied and the decision was appealed. Additionally, at the October 2016 Board hearing, the Veteran asserted that he had filed a claim in February 1983, not just for the right knee, but for all of his additional disabilities that had subsequently become service-connected. The Board does not find, however, that there is any evidence of record indicating that the Veteran submitted a claim for service connection for any of the aforementioned disabilities prior to April 4, 2007. In this regard, the effective date for direct service connection is the day following separation from active service or date entitlement arose if the claim is received within one year after separation from service; otherwise, it will be the date of receipt of claim, or date entitlement arose, whichever is the later. 38 C.F.R. § 3.400(b)(2)(i). The statutory and regulatory provisions in effect at the time that the Veteran submitted his earlier claims required that VA look to all communications from the appellant, which may be interpreted as applications or claims—formal and informal—for benefits. In particular, VA was required to identify and act on informal claims for benefits. 38 U.S.C. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a) (2007); see Servello v. Derwinski, 3 Vet. App. 196 (1992). However, there is no indication that the Veteran submitted any formal or informal claims of entitlement to service connection for a psychiatric disorder, a back disorder, a right shoulder disorder, an elbow or wrist disorder, a left knee disorder/left knee scar, or a left ankle disorder within one year of his separation from service, or at any time prior to April 4, 2007. In regard to the Veteran’s specific contentions, the correspondence received by VA on February 17, 1983, that the Veteran has asserted was intended to encompass a claim for service connection for all of his disabilities does not make any mention of any disabilities other than his right knee. It very clearly states that he was requesting a reevaluation for his service-connected disability because he had undergone 7 operations on his right knee. It makes no mention of other disorders beyond the right knee or of seeking additional service connection for new disabilities separate from his right knee disability. The Veteran also did not raise any claims pertaining to service connection for these disabilities in his subsequent February 1996 claim, or at his November 1996 RO hearing. He also did not raise any new claims at his March 1996 or May 1999 VA examination. Further, while the Veteran submitted a claim of entitlement to a total disability rating based on individual unemployability (TDIU) in November 1999, he indicated only his right knee disability as the basis for his inability to work. In contrast, the very first indication from the Veteran that he was seeking service connection for these disabilities was received on April 4, 2007, when he submitted new claims of entitlement to service connection for scars, a back disability, a left leg disability, depression, a shoulder disability, a neck disability, and elbow disability, and a wrist disability, increased ratings for his right knee disability, and a TDIU. The Board acknowledges that VA must liberally construe all documents filed by a claimant. See EF v. Derwinski, 1 Vet. App. 324, 326 (1991). In this case, however, there are no documents submitted by the Veteran which could constitute claims of entitlement to service connection for a psychiatric disorder, a spine disorder, a right shoulder disorder, an elbow or wrist disorder, a left knee disorder/left knee scar, or a left ankle disorder. The Board acknowledges that the Veteran has asserted that he had psychiatric symptoms and problems with his left knee, lumbar and cervical spine, elbow, wrist, shoulder, and ankle prior to April 2007. While VA medical records may be construed to be an informal claim in certain situation, this provision does not apply to issues where no claim has yet been filed for that disability. See 38 C.F.R. § 3.157 (2007); see also MacPhee v. Nicholson, 459 F.3d 1323, 1327 (2006) (“a medical examination report will only be considered an informal claim for an increase in disability benefits if service connection has already been established for the disability.”). The mere existence of treatment records does not constitute an expression of intent to apply for service connection. See, e.g., KL v. Brown, 5 Vet. App., 205, 208 (1993). Furthermore, VA is not required to “conjure up issues that were not raised by the appellant;” claims must be expressed by the appellant either expressly or impliedly. See Brannon v. West, 12 Vet. App. 32, 35. The Board is bound by applicable regulations regarding when an effective date may be assigned. In the absence of any claims, either formal or informal, of entitlement to service connection for a for a psychiatric disorder, a spine disorder, a right shoulder disorder, an elbow or wrist disorder, a left knee disorder/left knee scar, or a left ankle disorder prior to April 4, 2007, there is no basis under law to assign an earlier effective date. 38 C.F.R. § 3.400(b)(2)(i). In sum, the Board does not find that there was an undebatable error in fact or law in the January 2008 rating decision that would have allowed for an effective date prior to April 7, 2007, for the award of service connection for the aforementioned disabilities. As such, the Board finds that the Veteran failed to establish factual or legal error rising to the level of clear and unmistakable error in such rating decision. The criteria have not been met for reversing or revising that prior decision, and an effective date prior to April 7, 2007, for the award of service connection for adjustment disorder, lumbar spine degenerative osteoarthritis, cervical spine degenerative osteoarthritis, right shoulder degenerative joint disease, right elbow degenerative joint disease, right wrist degenerative joint disease, left knee degenerative joint disease, and left knee surgical scar is not warranted. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mary E. Rude, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.