Citation Nr: 21074750 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 17-13 293 DATE: December 16, 2021 ORDER Entitlement to an effective date earlier than March 27, 2014 for the award of service connection for right knee injury with bullet fragments is denied. REMANDED Entitlement to a rating higher than 10 percent for service-connected right knee disability is remanded. FINDINGS OF FACT 1. On March 27, 2015, the Veteran filed an application for service connection for a bullet wound in his right knee. 2. In a June 2015 rating decision, the RO awarded service connection for status-post right knee injury with bullet fragments, tibial plateau, rated as 10 percent disabling and effective from March 27, 2014, one year prior to the date of claim. 5. The claims file includes no statement or communication from the Veteran, or other document, received by VA prior to March 27, 2014, that constitutes a claim for service connection for a right knee injury. CONCLUSION OF LAW The criteria for an effective date earlier than March 27, 2014, for service connection for right knee injury have not been met. 38 U.S.C. §§ 5103, 5103A, 5107(b), 5110; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty with the U.S Marine Corps from July 1981 to November 1981 and from February 1982 to April 1986. He testified at a Board hearing in November 2021 before the undersigned Veterans Law Judge. 1. Entitlement to an effective date earlier than March 27, 2014 for the award of service connection for right knee injury with bullet fragments. Unless specifically provided otherwise, the effective date of an award of disability compensation is set in accordance with the facts found but cannot be earlier than the date of receipt of the claim for the compensation that was granted. 38 U.S.C. § 5110(a). If the claim for compensation was received within one year of separation from service, the effective date is the day following separation from service. See 38 U.S.C. § 5110(b)(1); see also 38 C.F.R. § 3.400 (b)(2)(i) (the effective date for a claim for disability compensation is the date of receipt of claim or the date entitlement arose, whichever is later, unless filed within a year of separation). The Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012 (Honoring America's Veterans Act), Public Law 112-154, Section 506, 126 Stat. 1165 was signed into law on August 6, 2012. Section 506 of the Act amended 38 U.S.C. § 5110 to allow up to a one-year retroactive effective date for awards of disability compensation based on fully developed original claims for compensation received from August 6, 2013 through August 5, 2015. Under the Act, an effective date of up to one year prior to submission of the claim may be assigned when evidence demonstrates that the disability existed for one year prior to submission of the claim. The Veteran asserts that he is entitled to an effective date prior to March 27, 2014, for the award of service connection for right knee injury (bullet wound). For the following reasons, the currently assigned effective date of March 27, 2014 is the earliest effective date assignable for service connection for right knee injury as a matter of law. In this case, the Veteran filed a claim for bullet wound in his right knee on March 27, 2015. In June 2015, the RO granted the Veteran service connection for his claim, effective March 27, 2014, one year prior to the date VA received his claim. In his October 2015 NOD, the Veteran contended that he should be granted an earlier effective date. The Board must consider whether any evidence of record prior to March 27, 2014, could serve as a formal or informal claim in order to entitle the Veteran to an earlier effective date for his disabilities. In this regard, any communication or action, indicating an 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. The Board notes that VA amended its adjudication regulations on March 24, 2015, 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, however, are only effective for claims and appeals filed on or after March 24, 2015. Here, there is no document submitted prior to March 27, 2015, that indicates an intent to pursue a claim for a right knee injury. Moreover, the Veteran has not asserted that he ever filed a service connection claim prior to March 2015. However, as noted above PL 112-154, Section 506 applies to claims filed from August 6, 2013 through August 5, 2015. As the Veteran filed a fully completed claim on March 27, 2015, he was eligible for a one-year retroactive effective date. As such, the RO assigned a March 27, 2014 effective date for the award of service connection for a right knee injury. Even assuming that entitlement arose prior to the date of claim, the law and regulations mandate that the proper effective date would be the date of claim. As there is no claim for entitlement to service connection, either formal or informal, that was received by VA at any time prior to the March 27, 2015 date of claim, the proper effective date for the grant of service connection for MDD is March 27, 2014. Although the Board is sympathetic to the Veteran's argument that an effective date earlier than March 27, 2014, should be awarded for the grant of service connection for a right knee injury, the Board is bound by the laws and regulations that apply to veterans' claims. 38 U.S.C. § 7104(c); 38 C.F.R. §§ 19.5, 20.101(a). Those laws and regulations reflect that an effective date earlier than March 27, 2014, is not warranted for the grant of service connection for a right knee injury. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to a rating higher than 10 percent for service-connected right knee disability is remanded. The Veteran's right knee disability stems from a gunshot wound during service. His last VA examination was conducted in June 2015. Since that time, he has testified at a Board hearing and reported that his symptoms have worsened, and he felt there was still fragments in his knee. As such, a new VA examination is necessary to determine the severity of his current symptoms. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right knee disability/residuals of a bullet wound. The examiner should provide a full description of the disability, to include all diagnoses related to the bullet wound residuals and report all signs and symptoms necessary for evaluating his disability 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. The examiner must also 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 at all 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, a deficiency in the record, or the examiner. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Price, Esq. 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.