Citation Nr: A21016247 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 200518-85419 DATE: October 1, 2021 ORDER Entitlement to an effective date earlier than October 25, 2019, for a grant of service connection for right knee limitation of flexion is denied. Entitlement to an effective date of February 26, 2018, for a grant of service connection for right knee meniscal tear is granted. Entitlement to an effective date earlier than December 6, 2016, for a grant of service connection for right knee strain with shin splints (quiescent), patellofemoral pain syndrome, chondromalacia patellae, effusions, and popliteal cysts is denied. Entitlement to an effective date earlier than November 22, 2019, for a grant of service connection for arthroscopic scars, right knee status-post meniscectomy, is denied. Entitlement to an effective date earlier than October 25, 2019, for a grant of service connection for right knee instability is denied. FINDINGS OF FACT 1. Prior to October 25, 2019, there is no evidence that the Veteran's right strain was manifest by limitation of flexion of the right knee. 2. A February 26, 2018 MRI revealed a torn right meniscus. 3. The effective date of December 6, 2016, for a grant of service connection for right knee strain with shin splints (quiescent), patellofemoral pain syndrome, chondromalacia patellae, effusions, and popliteal cysts is the date after the Veteran's separation from active duty; it is not legally possible to assign an earlier effective date. 4. The effective date of November 22, 2019, for a grant of service connection for arthroscopic scars, right knee, is the date the Veteran underwent a right knee meniscectomy; because the Veteran's scars did not exist prior to this date, there is no basis to assign an earlier effective date. 5. The first objective evidence of right knee instability was during a December 2019 VA examination; accordingly, there is no basis to assign an effective date earlier than October 25, 2019, for a grant of service connection for right knee instability. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date earlier than October 25, 2019, for a grant of service connection for right knee limitation of flexion have not been met. 38 U.S.C. § 5110, 5121; 38 C.F.R. § 3.400, 3.1000. 2. The criteria for entitlement to an effective date of February 26, 2018, for a grant of service connection for right knee meniscal tear have been met. 38 U.S.C. § 5110, 5121; 38 C.F.R. § 3.400, 3.1000. 3. The criteria for entitlement to an effective date earlier than December 6, 2016, for a grant of entitlement to service connection for right knee strain with shin splints (quiescent), patellofemoral pain syndrome, chondromalacia patellae, effusions, and popliteal cysts have not been met. 38 U.S.C. § 5110, 5121; 38 C.F.R. § 3.400, 3.1000. 4. The criteria for entitlement to an effective date earlier than November 22, 2019, for a grant of service connection for arthroscopic scars, right knee status-post meniscectomy, have not been met. 38 U.S.C. § 5110, 5121; 38 C.F.R. § 3.400, 3.1000. 5. The criteria for entitlement to an effective date earlier than October 25, 2019, for a grant of service connection for right knee instability have not been met. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 2012 to December 2016. In January 2020, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a December 2019 decision. In May 2020, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior December 2019 decision. In the May 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the December 2019 decision. 38 C.F.R. § 20.301. Earlier Effective Dates In general, the effective date of an award of disability compensation shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Otherwise, the effective date of 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. Id. Effective March 24, 2015, VA amended its rules as to what constitutes a claim for benefits; such that now regulations require that claims be made on specific claims forms prescribed by the Secretary and available online or at the local Regional Office (RO). This provision effectively removed informal claims from VA's processes. Generally, a specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151, 3.160. Prior to March 24, 2015, VA defined a "claim" as "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) (2014); 79 Fed. Reg. 57,696 (Sept. 25, 2014) (effective March24, 2015) (eliminating the informal claims). An informal claim was defined as "[a]ny communication or action indicating an intent to apply for one or more benefits." 38 C.F.R. § 3.155(a) (2014). Thus, the essential elements for a claim, whether formal or informal, were "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing" for the relevant time period for this appeal. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). Procedural History Due to the complexity of this earlier effective date claim, the Board finds it necessary to outline the procedural posture of the claim. The Veteran originally submitted a claim for entitlement to service connection for a right "knee condition" in November 2017. This was within one year of his separation from service on December 5, 2016. In a June 2018 VA rating decision, the Veteran was awarded, inter alia, entitlement to service connection for right knee ligamentous strain and assigned a rating of 10 percent, effective December 6, 2016, which is the day after he separated from service. The Veteran was notified that if he disagreed with the decision that he must submit a VA Form 21-0958, Notice of Disagreement (NOD), one year from the date of the notice, specifically June 20, 2019. Within a year of the award, in March 2019, instead of an NOD, the Veteran submitted a Supplemental Claim, wherein the Veteran requested an increase of his right knee, specifying the June 2018 VA Decision Notice. See March 2019 VA Form 20-0995, Decision Review Request: Supplemental Claim. In response to this request, VA in a May 2019 rating decision, informed the Veteran that his rating was continued at 10 percent. He was provided his appeal rights and informed that he had one year to appeal this decision. The Veteran did not appeal this decision. Subsequently, the Veteran submitted another Supplemental Claim in October 2019, wherein he requested that his rating should be increased. See October 2019 VA Form 20-0995, Decision Review Request: Supplemental Claim. In response to the October 2019 Supplemental Claim, VA in a December 2019 rating decision, inter alia, granted the Veteran (1) entitlement to an increased rating to 30 percent for right knee strain with shin splints (quiescent), effective October 25, 2019; (2) entitlement to right knee instability at 10 percent, effective October 25, 2019; (3) entitlement to right knee meniscal tear at 10 percent, effective October 25, 2019; (4) entitlement to right knee strain limited flexion with shin splints, at zero percent, effective October 25, 2019; and (5) entitlement to arthroscopic scars of the right knee status post meniscectomy at zero percent, effective November 22, 2019. He was once again provided his appeal rights. In January 2020, the Veteran submitted a request for Higher-Level Review, specifying that he wanted VA to review the assigned effective dates of the five (5) issues outlined above. See January 2020 VA Form 20-0996, Decision Review Request: Higher-Level Review. Thereafter, in May 2020, VA denied the Veteran's claims for earlier effective dates, as well as denied increased ratings for each identified disability. See (1-5 above). Finally, in May 2020, the Veteran submitted a notice of disagreement (NOD) requesting Direct Review by a Veterans Law Judge. See May 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement). The Veteran specified that he wanted the effective dates reviewed of the five (5) issues outlined above. 1. Entitlement to an effective date earlier than October 25, 2019 for a grant of right knee limitation of flexion is denied. The Veteran seeks entitlement to an effective date earlier than October 25, 2019, for a grant of right knee limitation of flexion. It is unclear exactly why the Veteran believes an earlier effective date should be assigned for this disability, but it appears that the Veteran believes the effective date should be December 6, 2016, the effective date of the grant of service connection for right knee strain, which is the date following his separation from service. A December 2019 rating decision granted entitlement to service connection for limitation of flexion of the right knee, effective October 25, 2019, the date of the Veteran's supplemental claim. To determine the effective date of an original claim or increased rating, it is the date of claim or the date entitlement arose. As to the date entitlement arose, the Veteran had full range of motion of the right knee when evaluated at February 2018 and April 2019 VA examinations. An October 2019 treatment note from Pacific Central Coast Health Centers also shows that the Veteran has full knee range of motion of the right knee. However, at a December 2019 VA examination, the Veteran was only able to flex to 80 degrees. Logically, an effective date cannot be assigned before evidence of a disability actually exists. Because there is no objective evidence of limitation of flexion of the right knee prior to the December 2019 VA examination report, an effective date earlier than October 25, 2019 cannot be assigned for a grant for right knee instability. Essentially, the date entitlement arose is later than the date of claim. Given the aforementioned, the claim is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to an effective date earlier of February 26, 2018 for a grant of service connection for right knee meniscal tear is granted. The Veteran seeks entitlement to an effective date earlier than October 25, 2019, for a grant of right knee meniscal tear. It appears that the Veteran believes the effective date should be December 6, 2016, the effective date of the grant of service connection for right knee strain. To determine the effective date of the grant of a right knee meniscal tear, it is the date of claim or the date entitlement arose, whichever is later. Here, a review of the evidence of record is required. A March 2018 addendum to the February 2018 VA examination report documents that a February 26, 2018 MRI reveals a complex tear of the right medical meniscus. The December 2019 VA examiner clarified that this tear is a progression of the Veteran's service-connected right knee strain. The question then becomes whether this date was the date that the Veteran's meniscus tear was first shown is later than the date of the Veteran's claim. The Veteran's original claim for a right knee disability was received by VA in November 2017, which is within one year after his separation from service. A June 2018 rating decision granted service connection for right knee ligamentous strain, effective December 6, 2016, the day after the Veteran's release from active duty. In March 2019, the Veteran submitted a Decision Review Request: Supplemental Claim, requesting a higher rating for his right knee strain and noting the MRI of his knee. A May 2019 rating decision denied the Veteran's claim. In October 2019, the Veteran again submitted a Decision Review Request: Supplemental Claim, requesting a higher rating for his right knee strain. In December 2019, the RO issued the rating decision that is currently on appeal, which granted service connection for a right meniscus tear from October 25, 2019, the date of the Veteran's supplemental claim. Since it appears that the Veteran has continuously appealed his claim since the original rating decision, an effective date could potentially be assigned from as early as December 6, 2016. However, there is no evidence of a meniscal tear in December 2016. It appears that the earliest evidence establishing a right knee meniscal tear is the February 26, 2018 MRI. Accordingly, the Board finds that the appropriate effective date is the date entitlement arose (the date an MRI revealed that the Veteran had a right meniscal tear) since this is later than the date of the Veteran's claim. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Entitlement to an effective date of February 26, 2018, for a grant of service connection for right knee meniscal tear is granted. 3. Entitlement to an effective date earlier than December 6, 2016 for a grant of service connection for right knee strain with shin splints (quiescent), patellofemoral pain syndrome, chondromalacia patellae, effusions, and popliteal cysts is denied. The Veteran is seeking entitlement to an earlier effective date for the grant for a right knee sprain with shin splints, patellofemoral pain syndrome, chondromalacia patellae, effusions, and popliteal cysts. Unfortunately, it is not clear to the Board why the Veteran believes he is entitled to an earlier effective date for this disability or what that date should be since his current effective date is the day following the date of his release from active duty. It is simply not legally possible to assign an effective date earlier than this since prior to this date the Veteran was an active-duty member of the military. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The Board notes that the December 2019 decision that the Veteran requested review of increased the rating for right knee strain from 10 percent to 30 percent, effective October 25, 2019. It is possible that despite the Veteran's characterization of his appeal as a request for an earlier effective date, what he actually wants is a higher rating prior to October 25, 2019, although he has offered no argument in support of a higher rating. Given that this is a paternalistic system and where VA has the duty to liberally construe the Veteran's submissions, the Board will assess whether the Veteran is entitled to a higher rating prior to October 25, 2019. Disabilities of the knee and leg are rated under Diagnostic Codes 5256 to 5263. See 38 C.F.R. § 4.71a. Under Diagnostic Code 5256, ankylosis of the knee in a favorable angle in full extension, or in slight flexion between 0 and 10 degrees warrants a 30 percent rating. Ankylosis of the knee in flexion between 10 and 20 degrees warrants a 40 percent rating. Ankylosis of the knee in flexion between 20 and 45 degrees warrants a 50 percent rating. Extremely unfavorable ankylosis of the knee, in flexion at an angle of 45 degrees or more warrants a 60 rating. 38 C.F.R. § 4.71a, Diagnostic Code 5256. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 28th edition, p. 86. Under Diagnostic Code 5257, which rates impairment based on recurrent subluxation or lateral instability of the knee, a 10 percent rating will be assigned with evidence of slight recurrent subluxation or lateral instability; 20 percent rating will be assigned with evidence of moderate recurrent subluxation or lateral instability; and a 30 percent rating will be assigned with evidence of severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The words "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6. Under Diagnostic Code 5258, dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint will be rated as 20 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Under Diagnostic Code 5259, removal of semilunar cartilage that is symptomatic will be assigned a 10 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5259. Under Diagnostic Code 5260, a 10 percent rating will be assigned for limitation of flexion of the knee to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the knee to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the knee to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, a 10 percent rating is assigned for extension limited to 10 degrees; a 20 percent disability rating is assigned for extension limited to 15 degrees; a 30 percent disability rating is assigned for extension limited to 20 degrees; a 40 percent disability rating is assigned for extension limited to 30 degrees; and a 50 percent disability rating is assigned for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Full range of motion of the knee is from 0 degrees to 140 degrees in extension and flexion. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5262, malunion of the tibia and fibula with moderate knee or ankle disability will be assigned a 20 percent disability rating, malunion of the tibia and fibula with marked knee or ankle disability will be assigned a 30 percent disability rating, and nonunion of the tibia and fibula with loose motion, requiring a brace, will be assigned a 40 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5262. Under Diagnostic Code 5263, a 10 percent disability rating is assigned for genu recurvatum (acquired or traumatic) with weakness and insecurity in weightbearing objectively demonstrated. 38 C.F.R. § 4.71a, Diagnostic Code 5263. The record reflects that the Veteran had full range of motion of the right knee from 0 degrees extension to 140 degrees flexion when evaluated at the February 2018 and April 2019 VA examinations, with no additional limitation of motion following repetitive testing. These examinations were also negative for any joint instability, effusion, subluxation, or locking. An October 2019 treatment note from Pacific Central Coast Health Centers notes that the Veteran has full knee range of motion, stable ligaments, and no effusion. Thus, prior to October 2019, there is no evidence to support a higher disability rating under any diagnostic code. The Veteran did not have compensable limitation of flexion or extension of the right knee and there was no objective evidence of right knee instability, locking, or effusion. The Veteran also did not have ankylosis, a dislocated or removed meniscus, impairment of the tibia or fibula, or genu recurvatum. In conclusion, the Board can find no basis either to assign an effective date earlier than December 6, 2016 for a grant of service connection for right knee strain or to award a rating in excess of 10 percent for right knee strain prior to October 25, 2019. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the claim is denied. 4. Entitlement to an effective date earlier than November 22, 2019, for a grant of service connection for arthroscopic scars, right knee status-post meniscectomy, is denied. The Veteran seeks an effective date earlier than November 22, 2019, for a grant of arthroscopic scars on the right knee. Like the Veteran's other claims, it is unclear exactly why the Veteran believes an earlier effective date should be assigned for this disability, but it appears that the Veteran believes the effective date should be December 6, 2016, the effective date of the grant of service connection for right knee strain. A December 2019 rating decision granted entitlement to service connection for right knee arthroscopic scars, effective October 25, 2019, the date of the Veteran's supplemental claim. To determine the effective date of an original claim, it is the date of claim or the date entitlement arose. Given such, to assess the date entitlement arose, a review of the evidence of record is required. Medical records from French Hospital Medical Center show that on November 22, 2019, the Veteran underwent a right knee arthroscopy with partial medial meniscectomy to repair a torn medial meniscus. Following this surgery, a December 2019 VA examination report noted two scars on the right knee. Logically, an effective date cannot be assigned before a disability actually exists. Because the Veteran's right knee arthroscopy scars did not exist prior to the Veteran's November 22, 2019 arthroscopy, an effective date earlier than November 22, 2019 cannot be assigned for a grant for arthroscopic scars, right knee status-post meniscectomy. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the claim is denied. 5. Entitlement to an effective date earlier than October 25, 2019, for a grant of service connection for right knee instability is denied. The Veteran seeks entitlement to an effective date earlier than October 25, 2019, for a grant of service connection for right knee instability. It is unclear exactly why the Veteran believes an earlier effective date should be assigned for this disability, but it appears that the Veteran believes the effective date should be December 6, 2016, the effective date of the grant of service connection for right knee strain. A December 2019 rating decision granted entitlement to service connection for right knee instability, effective October 25, 2019, the date of the Veteran's supplemental claim. A December 2019 VA examination report noted mild medial instability of the right knee. Prior to that finding, VA examinations in February 2018, and April 2019 did not find any right knee instability. Private medical records from Pacific Central Coast Health Center, as well as VA outpatient treatment records, were also silent for any findings of right knee instability. As the Board has previously noted, an effective date cannot be assigned earlier than there is evidence of a disability. As the first evidence of right knee instability is the December 2019 VA examination report, the Board finds no basis to assign an effective date earlier than October 25, 2019. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the claim is denied. (continued on the next page) YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.D. Anderson, 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.