Citation Nr: 21071068 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 18-39 187 DATE: November 29, 2021 ORDER Entitlement to an effective date prior to March 27, 2017, for the grant of service connection for right knee sprain manifested by painful limitation of flexion is denied. Entitlement to an effective date of May 9, 2016, for the grant of service connection for left knee sprain manifested by painful limitation of flexion is granted. Entitlement to an effective date of May 9, 2016, for the grant of service connection for left knee instability is granted. Entitlement to an effective date of May 9, 2016, for the grant of service connection for left knee semilunar cartilage is granted. FINDINGS OF FACT 1. The Veteran's initial claim for service connection for a right knee disability was received in March 2015 and denied in October 2015; however, the Veteran initiated but did not perfect an appeal for his claim, thus the October 2015 decision is final. 2. Subsequently, the Veteran submitted another formal claim for a right knee disability on March 27, 2017, and prior to this date there is no unadjudicated formal or informal claim of service connection for a right knee disability. 3. The Veteran first submitted a formal claim for service connection for a left knee disability on March 27, 2017; prior to this however, the Veteran showed intent to file a claim and the Agency of Original Jurisdiction (AOJ) notified him that an effective date of May 9, 2016 would be awarded if he filed a formal claim by May 9, 2017. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date earlier than March 27, 2017, for the grant of service connection for right knee sprain manifested by painful limitation of flexion are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for entitlement to an effective date of May 9, 2016, for the grant of service connection for left knee sprain manifested by painful limitation of flexion are met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 3. The criteria for entitlement to an effective date of May 9, 2016, for the grant of service connection for left knee instability are met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 4. The criteria for entitlement to an effective date of May 9, 2016, for the grant of service connection for left knee semilunar cartilage are 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 in the United States Army from December 1988 to November 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for left knee and right knee sprains and assigned 10 percent ratings, effective March 27, 2017. The Veteran timely appealed the June 2017 rating decision to the Board, seeking increased ratings for his bilateral knee disability. In a September 2020 decision, the Board, in relevant part, denied ratings in excess of 10 percent for left knee and right knee sprains manifested by painful limitation of flexion. The Board also granted a separate 10 percent rating for left knee instability and a separate 20 percent rating for left knee semilunar cartilage, also effective March 27, 2017. The Veteran timely appealed the September 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2021 Order, pursuant to a Joint Motion for Partial Remand (JMPR) submitted by counsel for the Veteran and VA, the Court vacated the September 2020 Board decision as to the issues of entitlement to earlier effective dates for the issues listed above and remanded this matter to the Board for action consistent with the JMPR. The Court noted that the favorable findings of awarding separate 10 and 20 percent ratings for left knee instability and semilunar cartilage should not be disturbed. The Veteran's counsel also indicated that the Veteran was not challenging the disability ratings as currently assigned. Lastly, it was noted that the Court did not have jurisdiction over the service connection claim for sleep apnea, increased rating claim for posttraumatic stress disorder (PTSD), or total disability rating based on individual unemployability (TDIU). Earlier Effective Dates 1. Entitlement to an effective date prior to March 27, 2017, for the grant of service connection for right knee sprain manifested by painful limitation of flexion is denied. 2. Entitlement to an effective date of May 9, 2016, for the grant of service connection for left knee sprain manifested by painful limitation of flexion is granted. 3. Entitlement to an effective date of May 9, 2016, for the grant of service connection for left knee instability is granted. 4. Entitlement to an effective date of May 9, 2016, for the grant of service connection for left knee semilunar cartilage is granted. I. Applicable Law The Veteran seeks an effective date prior to March 27, 2017, for the award of service connection for his bilateral knee disabilities. Service connection for the Veteran's right knee and left knee sprain manifested by painful limitation of flexion was awarded in a June 2017 rating decision with an effective date of March 27, 2017, the date the VA received his formal claims. In general, 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. 38 C.F.R. § 3.400(b)(2). The Board notes that on March 24, 2015, VA amended its regulations 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. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments are effective for claims filed on or after March 24, 2015. As the claim in this case was filed after this date, the amendments are applicable in this instance and will be applied to any filings after March 24, 2015. Under the old regulations, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a veteran or his representative, 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. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (as in effect prior to March 24, 2015). Appellate review is initiated by the filing of a Notice of Disagreement (NOD) and completed by the filing of a VA Form 9 after a Statement of the Case (SOC) has been issued. A VA Form 9 must be filed within 60 days from the date that the RO mails the SOC to the appellant, or within the remainder of the one-year period from the date of mailing of the rating decision being appealed, whichever period ends later. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202. An extension of the 60-day period for filing a VA Form 9 may be granted for good cause, but such extension request must be made prior to the expiration of the time limit for filing a substantive appeal. See 38 C.F.R. § 20.303. Equitable tolling is to be applied to a time limit when circumstances preclude a timely filing despite the exercise of due diligence, to include reliance on the incorrect statement of a VA official. See Bove v. Shinseki, 25 Vet. App. 136, 140 (2011). Equitable tolling also applies when a claimant shows: (1) an extraordinary circumstance; (2) that caused an inability to file during the requested tolling period; and, (3) diligence during the requested tolling period. Checo v. Shinseki, 748 F.3d 1373, 1378 (Fed. Cir. 2014). If shown, the "clock stops" and the requested period is not counted against the time-period for filing. Bove, 25 Vet. App. at 140. Equitable tolling is not appropriate where the failure to file on time was due to general negligence or procrastination. Id. Principles of equitable tolling do not extend to "garden variety claim[s] of excusable neglect." See Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990). II. Background and Analysis Initially, the Veteran filed a formal claim for a right knee disability only on March 26, 2015. See March 2015 VA Form 21-526. Subsequently in May 2015, the Veteran submitted what can be construed as an informal claim for a left knee disability. See May 2015 Correspondence. In an October 2015 rating decision, the RO denied the service connection claim for a right knee (notably a left knee claim was not adjudicated as no formal claim was submitted which is required after March 24, 2015, as noted above). In December 2015, the Veteran submitted a formal TDIU claim and claimed "bad knees" as one of the disabilities preventing him to work. See December 2015 VA Form 21-8940. In a January 2016 notification letter, acknowledged receipt of the TDIU claim and informed him that if he was attempting to file a claim for service connection for a left knee, he should do so on a standardized VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits. See January 2016 Correspondence. In February 2016, VA received another document that could be construed as an informal claim for service connection for the left knee which was dated in February 2015. See February 2016 Correspondence. In February 2016, the Veteran initiated a timely appeal of the October 2015 rating decision which denied service connection for his right knee. See February 2016 Notice of Disagreement (NOD). In a May 9, 2016 notification letter, the RO acknowledged the Veteran's proper appeal of his right knee claim and then referenced the January 2016 notification letter emphasizing that if he wished to file a claim for his left knee, he should complete a formal claim on VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits. See May 2016 Notification Letter. On March 3, 2017, the RO issued a Statement of the Case (SOC) for the service connection claim for a right knee disability. Subsequently, the Veteran did not perfect his appeal by submitting a VA Form 9 within 60 days of the mailing date of the SOC, or by October 26, 2016 within the remainder of the one-year period from the date of mailing the October 2015 decision, thus, the October 2015 decision became final. On March 3, 2017, the RO acknowledged the Veteran's February 2016 attempt to file a claim for his left knee and reminded him of the May 2016 letter instructing him for the second time to complete a VA Form 21-526. The RO notified the Veteran that to date they still had not received said formal application and stated that the Veteran had until May 9, 2017, to submit the claim in order to be entitled to the May 9, 2016 effective date (the date of the most recent notification letter). See March 2017 Deferred Rating Decision. Thereafter, the Veteran filed formal claims for right and left knee disabilities on March 27, 2017. See March 2017 VA Form 21-526EZ. In a June 2017 rating decision, the RO granted service connection for both knees and assigned 10 percent ratings, effective March 27, 2017, the date of both formal claims. Subsequently, the Veteran filed a NOD for increased ratings in May 2018. The RO issued a SOC in June 2018 and the Veteran filed a timely VA Form 9 in August 2018. In this case, regarding the right knee, following the October 2015 denial, the Veteran initially filed a NOD, but did not file a timely VA Form 9 to a March 2017 SOC. In this regard, the Veteran nor his attorney has asserted otherwise such that an equitable tolling would be applicable. Notably, the Veteran's argument has consistently been that he initially appealed the right knee claim in the October 2015 decision, not any assertions regarding his failure to submit a timely VA Form 9 in order to substantiate his appeal following the March 2017 SOC. See June 2021 JMPR and September 2021 Appellate Brief. Based on this evidence, the October 2015 decision became final. Thereafter, the Veteran submitted a new claim for service connection for his right knee on March 27, 2017. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that an effective date earlier than March 27, 2017 is not warranted for the grant of service connection for right knee sprain manifested by painful limitation of flexion. Specifically, the Veteran submitted a formal claim on March 27, 2017, for a right knee disability. The RO has determined, and the Board concedes March 27, 2017, as the original date of claim for service connection. In this regard, no unadjudicated informal (before March 24, 2015) or formal claims were filed prior to March 27, 2017. Thus, for reasons outlined above, the formal date of claim for a right knee disability is March 27, 2017. The date of receipt of the claim having been established, and assuming that disability manifested prior to the date of claim, there is no mechanism by which to assign an earlier effective date unless a prior claim was filed. Therefore, the Board has also reviewed whether there is any evidence of intent to file a claim for benefits after the final October 2015 rating decision and prior to March 27, 2017, and a review of the record fails to any evidence of an intent to file a claim, a formal claim, or informal written communication (prior to March 24, 2015) indicative of the Veteran's desire to seek service connection for his right knee disability and neither the Veteran nor his attorney assert otherwise. Based on a review of the foregoing evidence, and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claim for entitlement to an earlier effective date for a right knee sprain manifested by painful limitation of flexion prior to March 27, 2017 and his appeal as to this issue is denied. On the other hand, the Board finds that an effective date of May 9, 2016, for the award of service connection for left knee sprain manifested by painful limitation of flexion, left knee instability, and left knee semilunar cartilage is warranted. Although the Veteran did not formally file an intent to file or an application for benefits for his left knee until March 27, 2017, as is required by VA law for claims filed post-March 24, 2015, the RO informed the Veteran that an effective date of May 9, 2016 would be awarded if he filed the proper documentation prior to May 9, 2017, or within a year of the most recent notification informing him to file a formal claim, and the Board will honor this statement since the Veteran submitted his claim prior to this date. Thus, the Board concedes May 9, 2016 as the original date of claim for service connection for the left knee and assuming that disability manifested prior to the date of claim, there is no mechanism by which to assign an earlier date than this unless a prior claim was filed and as outlined above there is no evidence of a formal intent to file a claim, a formal claim, or informal written communication (prior to March 24, 2015) indicative of the Veteran's desire to seek service connection for his left knee disability. Notably, the Veteran's attorney has not asserted his desire for a specific effective date. Thus, for reasons outlined above, entitlement to an earlier effective date of May 9, 2016, is granted for the award of service connection for left knee sprain manifested by painful limitation of flexion, left knee instability, and left knee semilunar cartilage. The Board acknowledges the concerns outlined by the parties to the JMPR in the June 2021 JMPR and the Veteran's counsel additional argument in the September 2021 Appellate Brief regarding the prior assessment of earlier effective dates for his bilateral knee disabilities. However, given the Board's thorough review of the legal procedure and applicable law which reveals the earliest possible effective dates as detailed above, the parties' concerns need not be further addressed herein. Finally, the parties have identified no other deficiencies in the Board's analysis of these issues. Therefore, the Board need not address increased ratings in excess of the ratings as currently assigned. Specifically, in the JMPR the Veteran's counsel stated he was not challenging the previous denials of increased ratings for the Veteran's bilateral knees and there was no further mention of increased ratings in the JMPR. See June 2021 JMPR at 2. Subsequently, in a September 2021 Appellate Brief, the Veteran's counsel offered argument pertaining to both earlier effective dates and increased ratings. The Court has stated that advancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court, and that such a practice hinders the decision-making process and raises the undesirable specter of piecemeal litigation. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) ("Court will [not] review BVA decisions in a piecemeal fashion"); see also Fugere v. Derwinski, 1 Vet. App. 103, 105 (1990), aff'd, 972 F.2d 331 (Fed. Cir. 1992) ("[a]dvancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court"). The Board is therefore confident that if the Court had any additional concerns regarding the Board's findings in the analysis of the Veteran's claims, such concerns would have surfaced in the JMPR or the accompanying Court Order. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Asante, Ruby 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.