Citation Nr: 20045232 Decision Date: 07/08/20 Archive Date: 07/08/20 DOCKET NO. 19-32 362 DATE: July 8, 2020 ORDER Entitlement to an effective date of April 9, 2011, but no earlier, for the award of an increased disability rating of 60 percent for total left knee replacement is granted, subject to the laws and regulations controlling the award of monetary benefits. FINDING OF FACT An increase in the severity of the Veteran’s left knee symptoms post total left knee replacement, warranting an increased disability rating of 60 percent, was factually ascertainable on April 9, 2011, which was within the one-year period prior to his April 9, 2012 increased disability rating claim. CONCLUSION OF LAW The criteria for an effective date of April 9, 2011, but no earlier, for the award of an increased disability rating for total left knee replacement are met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 4.71a, Diagnostic Code (DC) 5055. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1980 to December 1984. This matter comes before the Board of Veterans’ Appeals (Board) from a January 2017 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) that, among other things, granted a 100 percent temporary total disability rating due to total left knee replacement from May 1, 2008, a 30 percent evaluation for total left knee replacement from June 1, 2008, and a 60 percent evaluation for total left knee replacement from September 9, 2014. In a January 2018 notice of disagreement (NOD), the Veteran timely appealed the assigned disability ratings and effective dates. In September 2016, the Veteran testified before a Decision Review Officer at the RO. A transcript of that hearing is of record. In October 2017, the Veteran testified before a Veterans Law Judge (VLJ) during a Travel Board hearing in regard to the issues of a claim of service connection for right knee disability and entitlement to an earlier effective date for the grant of a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. A transcript of that hearing is of record. Under the legacy appeals system, a VLJ who conducts a hearing must participate in making the final determination of the claim involved.  38 U.S.C. § 7107(c) (2012); 38 C.F.R. § 20.707 (2018). Those issues are not before the Board on this appeal and they will be adjudicated in a later decision by the VLJ who conducted the October 2017 hearing. In his October 2019 substantive appeal (VA Form 9), the Veteran limited his appeal specifically to entitlement to an effective date prior to September 9, 2014 for the 60 percent evaluation for his total left knee replacement. As a result, the Veteran’s appeal of the disability ratings assigned for his left knee and of the effective date of the grant of service connection for right lower extremity radiculopathy are not before the Board. Entitlement to an Earlier Effective Date for the 60 percent rating for Total Left Knee Replacement The Veteran underwent a total left knee replacement in May 2007 and was subsequently rated as 100 percent disabled from October 16, 2007, the date of VA’s receipt of the claim, to June 1, 2008. The Veteran contends he is entitled to a disability rating of 60 percent for total left knee replacement from June 1, 2008, the date the Veteran’s temporary 100 percent disability rating for total left knee replacement expired. The Veteran is currently rated 30 percent disabling for total left knee replacement from June 1, 2008, and 60 percent from September 9, 2014, the date VA received a Knee Disability Benefits Questionnaire (DBQ) from the Veteran’s private physician showing an increase in severity in the service-connected total left knee replacement. Generally, 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 later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Specifically as to claims for increase, 38 C.F.R. § 3.400 provides that the effective date of an evaluation and award of compensation based on a claim for increase will be the date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date, otherwise, date of receipt of claim. 38 C.F.R. § 3.400(o). The Court has interpreted the laws and regulations pertaining to the effective date for an increase as follows: if the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was “factually ascertainable.” If the increase occurred more than one year prior to the claim, the award is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o)(1), (2); Harper v. Brown, 10 Vet. App. 125 (1997). See also Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010) (stating that section 5110(b)(2), now section 5110(b)(3), requires that “an increase in a veteran’s service-connected disability must have occurred during the one year prior to the date of the veteran’s claim... to receive the benefit of an earlier effective date”). VA amended its adjudication regulations on March 24, 2015 to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the claim for an increased disability rating for the service-connected total left knee replacement was received before that date, the amendments are not applicable. Under DC 5055, a 100 percent rating is assigned for one year following implantation of a knee prosthesis for a service-connected knee disability, followed thereafter by a 60 percent rating when there are chronic residuals consisting of severe painful motion or weakness. With intermediate degrees of residual weakness, pain, or limitation of motion, a rating is made by analogy to DCs 5256, 5261, and 5262. The minimum rating is 30 percent under DC 5055. 38 C.F.R. § 4.71a. In an October 2008 rating decision, the RO granted a 100 percent temporary disability rating for service-connected total left knee replacement, effective October 16, 2007, the date of claim, and a 30 percent evaluation for total left knee replacement, effective May 1, 2008, one year after the Veteran’s total left knee replacement. The Veteran submitted a timely Notice of Disagreement in October 2009, and a Statement of the Case (SOC) was issued in March 2011. However, the Veteran did not timely perfect his appeal following the issuance of the March 2011 SOC or submit new and material evidence prior to an appellate decision in this matter, and the October 2008 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 3.156(b), 20.1103. As noted above, in a January 2017 rating decision, the RO extended the Veteran’s 100 percent temporary disability rating for total left knee replacement to June 1, 2008, noting the Veteran should have received a 100 percent temporary disability rating for total left knee replacement for 13 months, not one year, after his surgery. However, the RO’s extension of the 100 percent temporary disability rating for the reason indicated did not vitiate the finality of the October 2008 rating decision. There is no evidence of any unadjudicated formal or informal increased disability rating claim for the Veteran’s service-connected total left knee replacement subsequent to the final October 2008 rating decision and prior to April 9, 2012. Therefore, the earliest effective date that the Veteran can receive for his 60 percent evaluation for total left knee replacement is one year prior to his April 9, 2012 disability rating claim. The Board will therefore consider the evidence pertinent to the period beginning on April 9, 2011 which is one year prior to receipt of the Veteran’s April 9, 2012 increased disability rating claim, to determine when an increase in the Veteran’s total left knee replacement was factually ascertainable. A September 2012 statement from the Veteran reported aching knees. During a July 2013 VA examination, the Veteran reported a stiffness and pain in his left knee that fluctuated throughout the day. He indicated it was difficult to engage in activities. Left knee flexion and extension during examination was 0 to 100 degrees with painful motion at 100 degrees flexion. The Veteran experienced less movement than normal, pain on movement, swelling, and interference with sitting, standing, and weight-bearing. His left knee impacted his ability to work in that he needed to avoid squatting, kneeling, climbing, and prolonged walking. For the following reasons, an earlier effective date of April 9, 2011 for the award of a 60 percent disability rating for total left knee replacement is warranted. On April 9, 2012, VA received from the Veteran a claim for an increased disability rating for his service-connected total left knee replacement. In a January 2017 rating decision, the RO granted a 100 percent temporary evaluation, effective May 1, 2008, for the Veteran’s total left knee replacement. A 30 percent evaluation was assigned from June 1, 2008, and a 60 percent evaluation was assigned from September 9, 2014, the date of the Veteran’s knee DBQ from his private physician showing an increase in severity in the disability. The evidence is at least evenly balanced on the question of whether the evidence reflects that an increase in the severity of the Veteran’s total left knee replacement was factually ascertainable at least a year prior to his April 9, 2012 claim. Both the September 2012 statement by the Veteran and the July 2013 VA examination establish that the Veteran had been experiencing chronic residuals of severe painful motion or weakness from his total left knee replacement from April 9, 2011. Specifically, the Veteran reported aching, stiffness, pain, swelling, less movement than normal, and interference with daily activities during the one year prior to filing his increased rating claim. The reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Hence, an effective date of April 9, 2011 is warranted for the award of an increased disability rating of 60 percent for total left knee replacement. Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (all of the facts should be examined in determining the effective date and the effective date for an increased rating, as well as for an initial rating or for staged ratings, is predicated on when the increase in the level of severity can be ascertained).   Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Styer, 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.