Citation Nr: 21001155 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 13-21 574A DATE: January 7, 2021 ORDER Entitlement to an effective date earlier than December 24, 2009, for the grant of service connection for left knee internal derangement status post meniscectomy and ACL replacement with hamstring grafting, chondromalacia, and degenerative joint disease is denied. Entitlement to an effective date earlier than June 28, 2010, for the grant of service connection for right knee chondromalacia is denied. FINDINGS OF FACT 1. The Veteran filed a claim for service connection for a left knee disorder on December 24, 2009. No earlier record constitutes a formal or informal claim for this benefit. 2. The Veteran filed a claim for service connection for a right knee disorder on June 28, 2010. No earlier record constitutes a formal or informal claim for this benefit. 3. The agency of original jurisdiction (AOJ) granted service connection for the left knee and right knee disabilities based on incurrence during the Veteran’s period of active duty service from January 2004 to July 2008; he did not have continuous active service for Department of Veterans Affairs (VA) purposes thereafter. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than December 24, 2009, for the grant of service connection for the left knee disability have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for an effective date earlier than June 28, 2010, for the grant of service connection for the right knee disability have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2004 to July 2008. He had subsequent service in the Florida Army National Guard from July 2008 to July 2009, which included two periods of active duty for training (ACDUTRA) from April 2009 to May 2009. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision by VA. A hearing was held before a Veterans Law Judge in August 2016. A transcript of the hearing is of record. In a November 2020 letter, the Board notified the Veteran that the Veterans Law Judge who conducted the hearing was no longer available to participate in his appeal and offered him the opportunity for a hearing before a different Veterans Law Judge that would decide his case. The Board informed the Veteran that, if he did not respond within 30 days from the date of the letter, it would assume he did not want a new hearing. The Veteran did not respond to that letter, and he has not otherwise requested a new hearing. Based on the foregoing, there is no outstanding hearing request. The undersigned Veterans Law Judge has, however, considered the transcript from that hearing in making this decision. In January 2018 and May 2020 decisions, the Board decided other issues on appeal and remanded the above claims for further development, determining that the left knee earlier effective date claim remained in appellate status in the later decision. The requested development was completed, and the case has since been returned to the Board for appellate review. Initially, the Veteran’s representative suggested that VA has not met its duty to assist as to obtaining VA examinations or medical opinions in connection with the right knee earlier effective date claim because the examination provided in response to the Board’s 2018 remand was not adequate. See April 2020 representative written statement. Nevertheless, the June 2018 VA examination report findings address the current severity of the knee disabilities and are not relevant to the outcome of the earlier effective date claims. The increased evaluation claims for the knee disabilities were separately addressed in the Board’s 2020 decision. Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist with regard to the issue decided herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Unless specifically provided otherwise, 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. 38 U.S.C. § 5110(a). The effective date for an award of service connection is 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, the effective date is the later of the date of receipt of the claim or the date entitlement to service connection arose. Separation from service means separation under conditions other than dishonorable from continuous active service which extended from the date the disability was incurred or aggravated. 38 C.F.R. § 3.400(b)(2). The term “active military, naval, or air service” includes active duty, any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 U.S.C. § 101(24); 38 C.F.R. §§ 3.6(a)-(d). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. The amendments implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant’s effective date of benefits must be received in one of three specified formats. The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. § 3.157. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (codified at 38 C.F.R. §§ 3.1(p), 3.151, 3.155). The amendments apply only to claims filed on or after March 24, 2015. Under the former regulations prior to March 24, 2015, a specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The term “claim” or “application” means a formal or informal communication in writing 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 may be considered an informal claim. Such informal claim must identify the benefit sought. 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. 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). A “pending claim” is defined as an application, formal or informal, which has not been finally adjudicated. 38 C.F.R. § 3.160(c). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that effective dates earlier than December 24, 2009, for the grant of service connection for the left knee disability and June 28, 2010, for the grant of service connection for the right knee disability are not warranted. Regarding the left knee date of claim, the Veteran filed a service connection claim on December 24, 2009. The AOJ denied the claim, reconsidered it, and ultimately granted it based on incurrence during the Veteran’s period of active duty service from January 2004 to July 2008 in the rating decision on appeal effective from July 8, 2011, the date of a reconsideration request. See June 2010 and July 2011 reconsideration requests; February 2010, September 2010, and April 2013 rating decisions. During the course of the appeal, the AOJ granted earlier effective dates based on its own determinations of clear and unmistakable error in the earlier assignments of the effective date; the current effective date is based on the December 2009 claim. See June 2014 and September 2020 rating decisions. Regarding the right knee date of claim, the Veteran filed a service connection claim on June 28, 2010. The AOJ denied the claim, reconsidered it, and ultimately granted it based on incurrence during the Veteran’s period of active duty service from January 2004 to July 2008 in the rating decision on appeal effective from the date of the June 2010 claim. See July 2011 reconsideration request; September 2010 and April 2013 rating decisions. The record does not contain any earlier communication indicating an intent to file a claim for service connection for a left knee disorder or a right knee disorder than the December 2009 and June 2010 claims above, and the Veteran has not contended otherwise. Indeed, his representative expressed concern that the left knee submissions from his prior representative were considered reconsideration requests, rather than notices of disagreement, affecting his continuous prosecution of the claim; however, the AOJ has now granted an effective date based on the original claim date for the disability. See August 2016 Bd. Hrg. Tr. The claims were also not received within one year after separation from service as defined in 38 C.F.R. § 3.400(b)(2) above, given the period of service in which the Veteran claimed that the disabilities were incurred, which is the same period of service upon which the AOJ granted service connection on a direct incurrence basis. In this regard, the Veteran has routinely contended that his knee problems began during his initial active duty period from January 2004 to July 2008. See, e.g., December 2009 and June 2010 claims; September 2012 and March 2013 VA examination reports; August 2016 Bd. Hrg. Tr.; October 2016 representative written statement. The AOJ confirmed that the Veteran served in the National Guard for the year thereafter, with two periods of ACDUTRA from April 2009 to May 2009, in response to the Board’s remands. See April 2018 and September 2020 VA information reports; September 2020 Defense Finance and Accounting Service (DFAS) negative response; September 2020 Department of Defense response; service records received in March 2018 and May 2020 (including May 2009 orders revoking earlier orders to active duty for operational support and July 2009 discharge orders). In other words, he did not have continuous active service for VA purposes after the active duty period which ended July 2008. This means no claims for VA compensation were received within one year of that date. The Board acknowledges the contention of the Veteran’s representative that if the AOJ had provided the Veteran with a VA examination in processing his initial left knee claim, the examiner would have likely evaluated both knees – which would have resulted in consideration of service connection for the right knee earlier than the June 2010 claim without the Veteran having to make a formal claim. See August 2016 Bd. Hrg. Tr. Even if such a report was available, the intent to file a claim must be clear; “statements expressing a wish or desire to obtain [VA benefits] recorded in medical reports by VA physicians” do not constitute an informal claim. King v. Shinseki, 23 Vet. App. 464, 469 (2010); see also, e.g., Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate a claim for benefits, “the claimant must submit a written document identifying the benefit and expressing some intent to seek it”) and Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995); MacPhee v. Nicholson, 459 F.3d 1323 (Fed. Cir. 2006). The Board also notes that a formal claim had not yet been adjudicated for the right knee disability, and as such, an examination report could not serve as an informal claim for the benefit under 38 C.F.R. § 3.157. Regarding the dates of entitlement, even assuming that the evidence shows that the Veteran met the requirements for service connection for the left knee disability prior to December 2009 and the right knee disability prior to June 2010, the effective date for an award based on an original claim (i.e., the first claim filed for that benefit) cannot be earlier than the date of VA’s receipt of the claim. Based on the foregoing, the Board concludes that a formal or informal claim for service connection for a left knee disorder was not received prior to the claim submitted on December 24, 2009, and a formal or informal claim for service connection for a right knee disorder was not received prior to the claim submitted on June 28, 2010, the effective dates currently assigned. As the weight of the evidence is against the Veteran’s claims, the benefit-of-the-doubt rule does not apply, and the claims are denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Postek, 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.