Citation Nr: 21070529 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 17-11 159 DATE: November 24, 2021 ORDER New and material evidence having been submitted, the claim of entitlement to service connection for bilateral hearing loss is reopened. The claim for an effective date prior to March 15, 2010 for service connection for right knee chondromalacia is dismissed. The claim for an effective date prior to March 15, 2010 for service connection for left knee chondromalacia is dismissed. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to a rating greater than 10 percent for right knee chondromalacia, for the periods prior to May 6, 2015 and from July 1, 2015, is remanded. Entitlement to a rating greater than 10 percent for left knee chondromalacia is remanded. Entitlement to a rating greater than 10 percent for lateral and medial meniscal tear of the right knee with posterior instability (right knee instability), for the periods prior to May 6, 2015 and from July 1, 2015, is remanded. Entitlement to an effective date earlier than December 5, 2012 for the assignment of a 10 percent rating for right knee instability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) for the period prior to December 5, 2012 is remanded. FINDINGS OF FACT 1. In an April 2011 rating decision, the AOJ denied the Veteran's claim for service connection for bilateral hearing loss. The Veteran did not appeal or submit new and material evidence within a year of the decision. Thus, the April 2011 rating decision became final. 2. At the time of the April 2011 rating decision, the record did not contain evidence showing the existence of a hearing loss disability for VA compensation purposes. Since that decision, the Veteran was provided a new VA audiological examination in October 2016. This evidence is new and material and raises a reasonable possibility of substantiating the claim. 3. The appeal for an earlier effective date for service connection for right knee chondromalacia is a freestanding earlier effective date claim. The Veteran has not contended that the April 2011 rating decision that initially granted service connection and assigned an effective date for right knee chondromalacia was the product of clear and unmistakable error (CUE). 4. The appeal for an earlier effective date for service connection for left knee chondromalacia is a freestanding earlier effective date claim. The Veteran has not contended that the April 2011 rating decision that initially granted service connection and assigned an effective date for left knee chondromalacia was the product of CUE. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302. 2. The Board does not have jurisdiction over the freestanding claim for an earlier effective date for service connection for right knee chondromalacia. 38 U.S.C. § 7105; Rudd v. Nicholson, 20 Vet. App. 296 (2006). 3. The Board does not have jurisdiction over the freestanding claim for an earlier effective date for service connection for left knee chondromalacia. 38 U.S.C. § 7105; Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 2000 to July 2000, January 2003 to January 2004, June 2006 to February 2007, and from June 2007 to June 2008. He appealed a January 2014 rating decision by the Agency of Original Jurisdiction (AOJ). A January 2017 rating decision granted service connection for tinnitus. That claim has been granted in full and is no longer on appeal. The Board notes that the Veteran did not appear for his September 2021 Board hearing. Accordingly, he was marked as a "no-show" and his hearing request is considered withdrawn. 38 C.F.R. § 20.704 (d). In an October 2017 rating decision, the AOJ granted TDIU from December 5, 2012. The Veteran is seeking an effective date earlier than December 5, 2012 for the assignment of a separate rating for right knee instability. When a veteran appeals for a higher disability rating and it is coupled with evidence of unemployability, the issue of entitlement to TDIU is raised for the entire appeal period. See Harper v. Wilkie, 30 Vet. App. 356, 361 (2018). The Board is remanding the Veteran's knee claims for private treatment records, which may support an earlier effective date for right knee instability. Consequently, the appeal period for TDIU may extend back prior to December 5, 2012. Thus, because the claim for an earlier effective date for right knee instability is being remanded, entitlement to TDIU for the period prior to December 5, 2012 is also remanded. Since certification of this appeal to the Board, new VA treatment records have been added to the record. Generally, the Board may not consider additional evidence previously unreviewed by the AOJ. With respect to the issues decided below, the newly added records do not pertain to those matters. Thus, a waiver by the Veteran is unnecessary. See 38 C.F.R. § 20.1305(c). Earlier Effective Dates Right and Left Knee Chondromalacia In an April 2011 rating decision, the AOJ granted service connection for right and left knee chondromalacia, effective March 15, 2010. The Veteran did not file an appeal within the applicable time contesting the effective date. 38 U.S.C. § 7105 (c). On December 5, 2012, the Veteran filed an increased rating claim for the right knee. In a January 2014 rating decision, the AOJ continued the 10 percent ratings for right and left knee chondromalacia. In a May 2014 notice of disagreement (NOD), the Veteran appealed the AOJ's decision and indicated he was entitled to increased ratings and earlier effective dates for right and left knee chondromalacia. Neither the Veteran nor his representative has alleged CUE in the April 2011 rating decision that assigned an effective date for the grant of service connection for bilateral chondromalacia. In sum, the Veteran did not contest the effective date of the grant of service connection for right and left chondromalacia in a timely manner. The Board therefore cannot adjudicate these earlier effective date claims as they represent freestanding claims, which are not permitted. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS FOR REMAND There are outstanding records. VA treatment records added to the claims file in October 2021, which pertain to the period from October 2019 to October 2021, note that the Veteran received VA care for his claimed disabilities through 2018. However, the most recent VA treatments records added to the file prior to October 2021 were received in October 2017. Thus, the AOJ should obtain outstanding VA treatment records, to include from October 2017 to present. Additionally, a September 2014 VA orthopedic note stated that the Veteran had obtained an outside MRI for his knee disabilities. However, the MRI and other documentation from this private provider are not of record. Accordingly, any relevant outstanding private treatment records should be obtained on remand. The Veteran was afforded knee examinations in December 2013 and October 2016, neither of which complied with the requirements of Correia v. McDonald, 28 Vet. App. 158, 168 (2016) or Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). Specifically, neither examination report contained passive range of motion measurements, and although the examiners noted that the Veteran reported flare-ups of his knees, they did not estimate the Veteran's functional loss due to flares or explain why they could not do so. As such, remand for a compliant examination is necessary. The matters are REMANDED for the following actions: 1. Obtain any relevant VA and/or private treatment records that have not already been received and associate the same with the claims file, to include VA treatment records from October 2017 to present, and from the provider responsible for the outside knee MRI referenced in the September 2014 VA orthopedic note. 2. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right and left knee disabilities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Additionally, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. After the above has been completed, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Pelican, Luke H. 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.