Citation Nr: 20005909 Decision Date: 01/23/20 Archive Date: 01/23/20 DOCKET NO. 16-44 184 DATE: January 23, 2020 ORDER Entitlement to an effective date earlier than July 1, 2009 for the award of service connection for right knee strain with meniscus tear and osteoarthritis is denied. Entitlement to a temporary total evaluation for hemorrhoids based on a need for convalescence from March 1, 1985 to November 1, 1985 is denied. REMANDED Entitlement to a rating in excess of 30 percent prior to September 4, 2013 for right knee strain with meniscus tear and osteoarthritis is remanded. Entitlement to a rating in excess of 40 percent after September 4, 2013 for right knee strain with meniscus tear and osteoarthritis is remanded. Entitlement to service connection for restrictive lung disease is remanded.   FINDINGS OF FACT 1. Service connection for right knee strain with meniscus tear and osteoarthritis was denied in a July 2007 Board decision and the Board decision is final. 2. On July 1, 2009, the RO received a written communication requesting to reopen the previously denied claim for service connection for right knee disability. 3. Post-operative convalescence following hemorrhoid surgery was not required beyond March 1, 1985. CONCLUSIONS OF LAW 1. The criteria for an effective date for the grant of service connection for right knee strain with meniscus tear and osteoarthritis prior to July 1, 2009 have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). 2. The criteria for an extension of a temporary total evaluation based on convalescence beyond March 1, 1985 have not been met. 38 C.F.R. § 4.30 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1973 to October 1976. The Veteran appeared at a Board hearing in April 2019; a transcript is of record. With respect to the Board hearing, the undersigned VLJ clarified the issues on appeal, identified potential evidentiary deficits, and clarified the type of evidence that would support the Veteran’s claim. These actions complied with any duties owed during a hearing. 38 C.F.R. § 3.103. The issue of the effective date for service connection for the broken ribs has been raised by the record and the undersigned accepted testimony at the Board hearing. The AOJ is invited to take any action deemed appropriate. The parties are informed of the obligation to file appropriate forms with the AOJ. 1. Effective date for service connection for the right knee The Board denied a claim for service connection for residuals of a right knee injury on 17 July 2007. The Veteran made a motion for reconsideration regarding service connection for the right knee. The Veteran and his attorney continued to submit documents and argument to the Board for purposes of reconsideration. The Veteran and his representative also submitted documents regarding the claim for hemorrhoids as well as additional service and VA treatment records during the time period immediately after the Board decision. An undated notice letter in response to the motion for reconsideration, signed by the then Deputy Vice Chairman, found no obvious error of fact or law in the July 2007 Board decision. The prior Board decision is final. See 38 U.S.C. § 7104; 38 C.F.R. § 20.1100 Regarding a decision prior to the last Board decision, in order for the Veteran to be awarded an effective date based on an earlier claim, he has to show clear and unmistakable error (CUE) in the prior denial of the claim, as a collateral attack. Flash v. Brown, 8 Vet. App. 332, 340 (1995). During the Board hearing, the Veteran’s representative, when asked, did not report CUE with any prior denial. Instead, the representative stated there was failure in the duty to assist causing premature adjudication. A failure in the duty to assist does not establish clear and unmistakable error. See Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002). Turning to an effective date between the last Board decision and the current effective date, the Veteran submitted a statement in support of claim and additional evidence to support service connection for residuals of right knee injury. These documents have receipt date listed as July 1, 2009, for the claim itself, or later. This is the current effective date for the grant of service connection. The general rule regarding effective dates is found at 38 U.S.C. § 5110(a): Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. At the time relevant here, a claim was a formal or informal written communication requesting a determination of entitlement or evidencing belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p). The record contains an application to reopen the claim for a right knee injury, received in July 2009, according to the date stamped on the document by the RO. The record does not contain a formal or informal claim to reopen between the Board decision and July 2009, the current effective date of service connection. To the extent that the Veteran is asserting an earlier formal or informal claim to reopen, between the final Board decision and July 1, 2009, the record does not support such a finding. The provisions of 38 U.S.C. § 5110(a) require that the effective date shall not be earlier than the date of receipt of the application to reopen a claim after final adjudication, which in this case was July 1, 2009. There is no evidence to support an earlier date. As the preponderance of the evidence is against the claim for an earlier effective date for the grant of service connection, the benefit-of-the-doubt doctrine cannot be applied. 38 U.S.C. § 5107(b). 2. Extension of temporary total rating In the relevant part of 38 C.F.R. § 4.30, a temporary total rating (100 percent) for convalescence will be assigned from the date of hospital admission and continue for 1, 2, or 3 months from the first day of the month following hospital discharge when treatment of a service connected disability results in: (1) surgery necessitating at least one month of convalescence; or (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body case, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited). 38 C.F.R. § 4.30(a). In Felden v. West, 11 Vet. App. 427, 430(1998), the Court, citing Dorland’s Illustrated Medical Dictionary 374 (28th ed. 1994), defined convalescence as the stage of recovery following an attack of disease, a surgical operation, or an injury. The Court also defined recovery as the act of regaining or returning toward a normal or healthy state. Id. citing Webster’s Medical Desk Dictionary 606 (1986). In other words, the purpose of a temporary total evaluation pursuant to 38 C.F.R. § 4.30 is to aid a veteran during the immediate post-surgical period when he or she may have incompletely healed wounds or may be wheelchair-bound, or when there may be similar circumstances indicative of transient incapacitation associated with recuperation from the immediate effects of an operation. According to a June 1985 treatment record from Dr. A.S., the Veteran had a colonoscopy on the transverse colon, rectal polypectomy, and rectosigmoid polypectomy. The billing sent to the Veteran’s insurance company note that the Veteran was not hospitalized after January 18, 1985. According to the Veteran’s doctor (A.S.), the only treatment after that date is an in-office visit in June 1985. A January 1985 operative report indicates the Veteran reacted well and was sent to his room in a satisfactory condition. An April 1985 record notes that the VA received billing for outpatient services from November to January 1985. The Veteran also submitted a document entitled declaration in disagreement with supplemental statement of the case dated in March 2010 reporting convalescence period was from November 1, 1984 to February 28, 1985. At his Board hearing and in other statements, the Veteran indicated that he was required to see the doctor after every bowel movement to have stitches reattached. His reports are lay observable, and he is competent to make such reports. However, these statements are not supported by the medical records and other statements provided by the Veteran, which report he did not require convalescence after February 1985 and had one in-office visit in June 1985. Therefore, the Veteran’s statements are not considered credible and are given less weight than the medical evidence. While the Board acknowledges that the Veteran’s hemorrhoids resulted in functional impairment during this period, this was accounted for by his schedular evaluation. There is no indication that any additional convalescence occurred after March 1, 1985. The Board concludes that the preponderance of the evidence is against the claim, and that the extension of a temporary total evaluation beyond the current date, based on the need for convalescence following surgery on the service-connected disability, is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied REASONS FOR REMAND At the Board hearing, the representative stated there were outstanding Social Security Administration and private treatment records. These should be obtained. Regarding the claim for service connection for a respiratory disability, the Veteran has contended that his service-connected rip residuals, broken ribs with chest injury, caused a respiratory disability, specifically restrictive lung disease. Given the current lack of medical records and that the Veteran is service connected for rip residuals, an examination is necessary to address this issue. Further, at the hearing, the issue of service connection for a respiratory disability was not addressed. The matters are REMANDED for the following action: 1. Obtain the Veteran’s federal records from the Social Security Administration. 2. Ask the Veteran to complete a VA Form 21-4142 for any private treatment records and associate them with the file. 3. Schedule an examination regarding a respiratory disability. The examiner is asked to provide an opinion regarding whether a respiratory disability is at least as likely as not (50 percent or greater likelihood) due to service or proximately due to, the result of, or aggravated by the service-connected rip disability. Rationale for all opinions offered should be provided. 4. If the claim for service connection for a respiratory disability is not granted, afford the Veteran an opportunity for an additional Board hearing. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Yoffe, Associate 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.