Citation Nr: 21062640 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 17-32 485 DATE: October 8, 2021 ORDER The appeal for entitlement to a rating higher than 60 percent for status post total right knee replacement is dismissed. Entitlement to an earlier effective date of May 8, 2013 for the grant of service connection for osteoarthritis of the left knee is granted. REMANDED Entitlement to an initial rating higher than 10 percent for osteoarthritis of the left knee is remanded. FINDINGS OF FACT 1. In June 2020, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, through his authorized representative, that a withdrawal of the appeal for entitlement to an increased rating for the Veteran's right knee disability is requested. 2. An informal claim was received on May 8, 2013 and a completed formal application for entitlement to service connection for a left knee disability was received within one year. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for entitlement to an increased rating for a right knee disability by the Veteran's authorized representative have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for entitlement to an earlier effective date of May 8, 2013 for the grant of service connection for osteoarthritis of the left knee have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.156, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1981 to February 1984 and October 1986 to July 1989. This matter comes before the Board of Veterans' Appeals (BVA or Board) from November 2014 and August 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Board remanded the issue of entitlement to an increased rating for the Veteran's right knee disability for additional development. The Board notes that in a June 2020 statement, the Veteran's attorney argued that the Veteran's total disability rating based on individual unemployability (TDIU) claim is part and parcel of his claim for an increased rating of the right knee, which was received on May 8, 2013. The attorney indicated that the Veteran desires a TDIU, prior to the effective date of January 21, 2016. Importantly, the Veteran was granted entitlement to a TDIU, effective May 8, 2013, in a September 2017 rating decision; however, as noted in a June 2020 letter, the rating decision was not enacted. In June 2020, the Veteran and his representative were notified of the grant of TDIU benefits, effective May 8, 2013. As such, the Veteran has been granted entitlement to a TDIU as of the date of his increased rating claim for the right knee, which is the entire period on appeal as it relates to this legacy appeal. Withdrawal 1. Entitlement to a rating higher than 60 percent for status post total right knee replacement. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the Veteran or by his or her authorized representative. Id. A written withdrawal must be in writing and include (1) the name of the Veteran, (2) the applicable VA file number, and (3) a statement that the appeal is withdrawn. If the appeal involves multiple issues, the withdrawal must specify that the appeal is withdrawn in its entirety or list the issue(s) withdrawn from the appeal. 38 C.F.R. § 19.55 (b)(1). In the present case, the Veteran, through his representative, has withdrawn this appeal and, hence, there remain no allegations of errors of fact or law for appellate consideration pertaining to this issue. See June 2020 written statement. The June 2020 written statement contained the name of the Veteran, the applicable VA file number, and a statement that the Veteran would like to withdraw his appeal for the issue of entitlement to an increased rating for the right knee, stating, "As we have presented in our arguments previously, we are not appealing the rating for the Veteran's right knee above 60 percent." Id. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. Earlier Effective Date 2. Entitlement to an effective date earlier than May 2, 2014 for the grant of service connection for osteoarthritis of the left knee. Service connection for osteoarthritis of the left knee was granted in an August 2017 rating decision, effective May 2, 2014. A notice of disagreement with the rating and effective date assigned was received in August 2018. The Veteran seeks an earlier effective date for the grant of service connection. 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 on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a); 38 C.F.R. §§ 3.400, 3.400(b)(2). The Court has held that when a claim is reopened, the effective date cannot be earlier than the date of the claim to reopen. Juarez v. Peake, 21 Vet. App. 537, 539-40 (2008) (citing Bingham v. Nicholson, 421 F.3d 1346 (Fed. Cir. 2005); Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005); Flash v. Brown, 8 Vet. App. 332, 340 (1995)). A claim for entitlement to service connection for a left knee disability was received in January 2006 and denied in a May 2006 rating decision. The Veteran was notified of the denial in a June 2006 letter, but he did not appeal or submit new and material evidence within one year. The Veteran reported an intent to file a claim in May 2013 and an application was received in May 2014. In an August 2017 rating decision, service connection was granted for the Veteran's left knee, effective May 2014. The Court held in Sears v. Principi, 16 Vet. App. 244, 248 (2002) that, "[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim." 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. Flash v. Brown, 8 Vet. App. 332, 340 (1995). The Board notes that while the Veteran has disagreed with the effective date assigned for the grant of service connection, he has not filed a motion for revision on the basis of CUE with regard to the May 2006 rating decision. This decision is final and the date of the claim for service connection necessarily must be after the date of the last final decision in May 2006. See 38 C.F.R. §§ 3.105, 3.400. Prior to March 24, 2015, VA recognized formal and informal claims. In this regard, any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155. Effective March 24, 2015, a change in regulation requires claims be filed on standard forms, eliminating constructive receipt of claims and informal claims. Instead of informal claims, the new regulation provides that a claimant may request an application for benefits, upon receipt of which, the Secretary shall notify the claimant of the information necessary to complete the application form or form prescribed by the Secretary. 38 C.F.R. § 3.155 (a). The regulation also allows a claimant to submit an intent to file a claim, and VA may recognize the receipt date of the intent to file a claim as the date of claim so long as VA receives the successfully completed claim form within a year. 38 C.F.R. § 3.155 (b). There are three ways in which a claimant may submit an intent to file a claim: (i) saved electronic application when an application otherwise meeting the requirements of paragraph (b) is electronically initiated and saved in a claims submission tool with a VA web-based electronic claims application system, (ii) written intent, signed and dated on the intent to file a claim form prescribed by the Secretary, and (iii) oral intent communicated to designated VA personnel, recorded in writing, and documented in the claimant's records. Id. Here, the Veteran submitted an informal claim in May 2013, orally informing a VA employee that he wished to apply for compensation, wanted to preserve his effective date, and was in the process of assembling a claim package for submission, which was then recorded in writing and documented in his claims file. See May 8, 2013 Report of General Information. The RO then notified the Veteran in a December 2013 letter that his request for benefits on May 8, 2013 was received and considered an informal claim. The Veteran was notified that he must submit a VA Form 21-526EZ and that if it was received within one year of the letter, he may be able to be paid from the date they received his informal claim. See December 2013 notification letter. A VA Form 21-526EZ was then received in May 2014, applying for service connection for a left knee disability, a lumbar spine disability, kidney disability, heart attack, hypertension, and an increased rating for the right knee. Importantly, service connection was granted for a lumbar spine disability with bilateral radiculopathy in an April 2017 rating decision and assigned effective dates of the informal claim received on May 8, 2013. As noted, the RO notified the Veteran in December 2013 that he must submit a VA Form 21-526EZ within one year to preserve his informal claim effective date. His VA Form 21-526EZ applying for service connection for the left knee was received in May 2014, five months after the notice letter. Therefore, a completed application form, appropriate to the benefit sought, was received within one year of receipt of the intent to file a claim, and an earlier effective date of May 8, 2013 is warranted for the grant of service connection for osteoarthritis of the left knee. REASONS FOR REMAND 3. Entitlement to an initial rating higher than 10 percent for osteoarthritis of the left knee. As a result of this Board decision, service connection for osteoarthritis of the left knee is in effect since May 8, 2013. The Veteran seeks entitlement to an initial rating higher than 10 percent for his left knee osteoarthritis. The most recent VA examination for the knee was conducted in April 2019; however, the examination focused on the right knee, rather than the left, and while it discussed flareups and the functional impact of the right knee, the examination report failed to discuss flare-ups or the functional impact of the Veteran's left knee disability. Prior to this, the most recent VA examination that included information about the left knee was conducted in August 2017, more than 4 years ago. On remand, the Veteran should be afforded a new VA examination in order to assess the current severity of his left knee. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated treatment records. 2. Afford the Veteran a VA examination for his left knee disability. The examiner should identify and completely describe all current symptomatology. The examiner should provide a detailed review of the Veteran's current complaints, as well as findings as to the nature, extent, and severity of symptoms caused by the Veteran's disability. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail, including ranges of motion of the left knee and the degree at which pain begins (e.g., 0 to 130 degrees with pain at 115 degrees) pursuant to DeLuca. *Pursuant to Correia v. McDonald, the examination should record the results of range of motion testing for pain in BOTH knees on BOTH active and passive motion AND in weight-bearing and nonweight-bearing. If the knees cannot be tested on "weight-bearing," then the examiner must specifically indicate that such testing cannot be done. *In regard to flare-ups (pursuant to Sharp v. Shulkin), if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran's functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Andersen, 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.