Citation Nr: A21020198 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 191016-39215 DATE: December 17, 2021 ORDER Entitlement to an effective date prior to June 5, 2019 for the grant of service connection for left knee meniscal and anterior cruciate ligament tears is denied. Entitlement to an effective date prior to June 5, 2019 for the grant of service connection for left knee strain with osteoarthritis is denied. REMANDED Entitlement to an initial rating greater than 20 percent for left knee meniscal and anterior cruciate ligament tears is remanded. Entitlement to an initial rating greater than 10 percent for left knee strain with osteoarthritis is remanded. Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. An October 2016 rating decision denied service connection for a left knee disorder and notice of that rating decision was provided to the Veteran that same month. 2. The Veteran filed a VA Form 21-0958, Notice of Disagreement, in August 2017, but did not identify the rating decision on appeal or the specific issues of disagreement; therefore, that Notice of Disagreement was incomplete. The Veteran was notified that his August 2017 Notice of Disagreement was incomplete by an August 2017 letter from the Regional Office. 3. The Veteran filed another VA Form 21-0958, Notice of Disagreement, in September 2017, but did not identify the issue of entitlement to service connection for a left knee disorder as a specific issue that he wished to appeal. 4. The October 2016 rating decision is final as to entitlement to service connection for a left knee disorder. 5. The Veteran filed a Supplemental Claim seeking entitlement to service connection for a left knee disorder on June 5, 2019. 6. The evidence of record does not show that a claim to reopen the claim for entitlement to service connection for a left knee disorder was received subsequent to the October 2016 final rating decision and the June 5, 2019 Supplemental Claim. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date earlier than June 5, 2019 for the award of service connection for left knee meniscal and anterior cruciate ligament tears have not been met. 38 U.S.C. §§ 5110, 5107; 38 C.F.R. §§ 3.102, 3.400. 2. The criteria for entitlement to an effective date earlier than June 5, 2019 for the award of service connection for a left knee strain with osteoarthritis have not been met. 38 U.S.C. §§ 5110, 5107; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1976 to October 1979. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. In an October 2019 Notice of Disagreement to a September 2019 rating decision, the Veteran selected the AMA Hearing Lane. In February 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge, and had 90 days thereafter to submit additional evidence in support of his claims pursuant to the AMA Hearing Lane election. As such, the Board will consider the evidence of record as of the September 2019 rating decision, as well as the evidence received at the hearing and within the 90-day period following the hearing. With regard to the Veteran's claim for entitlement to service connection for bilateral hearing loss, the Board notes that an October 2016 final rating decision denied service connection on the merits in the first instance. However, the September 2019 rating decision on appeal reconsidered this issue on the merits, finding that new and relevant evidence had been received. The finding that new and relevant evidence had been received pertinent to the claim is a favorable finding that is binding on the Board. The Board will therefore address the merits of this issue without consideration of whether new and relevant evidence has been received to reconsider the claim. Entitlement to an effective date prior to June 5, 2019 for the grant of service connection for left knee meniscal and anterior cruciate ligament tears and entitlement to an effective date prior to June 5, 2019 for the grant of service connection for left knee strain with osteoarthritis The Veteran contends that an effective date earlier than June 5, 2019 is warranted for the grant of service connection for left knee meniscal and anterior cruciate ligament tears and left knee strain with osteoarthritis. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Additionally, as applicable for increased rating claims, the effective date is the earliest date which it is factually ascertainable, based on all evidence of record, that an increase in disability had occurred if a complete claim or intent to file a claim is received within one year from such date, otherwise, date of receipt of claim. 38 C.F.R. § 3.400(o)(2). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. The amendments also, inter alia, eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155, 3.157. The amended regulations apply to the current claims, as they were initiated after March 24, 2015. On July 19, 2016, the Veteran filed a formal claim seeking entitlement to service connection for a left knee disability. In an October 2016 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for a left knee disorder. Notice of that rating decision was sent to the Veteran in October 2016. In August 2017, the Veteran filed a VA Form 21-0958, Notice of Disagreement, noting his intent to appeal "each and every issue in the decision." However, the August 2017 Notice of Disagreement did not identify the rating decision that the Veteran sought to appeal or any specific issue of disagreement. Accordingly, in an August 2017 letter, the AOJ advised the Veteran that his Notice of Disagreement was incomplete because he failed to "identify the specific nature of disagreement, to include the decision letter date, specific issue/condition of disagreement, and area of disagreement." The letter notified the Veteran that he must submit a complete Notice of Disagreement within one year of the date of the rating decision or within 60 days of the August 2017 letter to permit the AOJ to begin processing his appeal. Thereafter, in September 2017, the Veteran submitted a new VA Form 21-0958, Notice of Disagreement, which identified the October 2016 rating decision and the specific issues of the effective date assigned for tinnitus and service connection for a breathing condition. The September 2017 Notice of Disagreement did not indicate that the Veteran sought to appeal entitlement to service connection for a left knee disorder. Pursuant to 38 C.F.R. § 20.201(a)(4), if the AOJ "gave notice that adjudicative determinations were made on several issues at the same time, the specific determinations with which the claimant disagrees must be identified to the extent a form provided . . . requires." Further, "[i]ssues not identified on the form will not be considered appealed." Because the Veteran's August 2017 Notice of Disagreement was incomplete and did not identify the rating decision or any issues that he wished to appeal, and because the September 2017 Notice of Disagreement did not identify entitlement to service connection for a left knee disorder as an issue that he wished to appeal, neither the Veteran's August 2017 filing nor his September 2017 filing can be considered to be a valid notice of disagreement to the October 2016 rating decision's denial of entitlement to service connection for a left knee disorder. Accordingly, because the Veteran did not file a complete and timely notice of disagreement to the October 2016 rating decision regarding the issue of entitlement to service connection for a left knee disorder, nor did he submit new and material evidence pertinent to the claim within one year of the October 2016 rating decision, the October 2016 rating decision which denied service connection for a left knee disorder is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. On June 5, 2019, the Veteran filed a Supplemental Claim seeking service connection for a left knee disorder. In a September 2019 rating decision, the AOJ granted service connection for left knee meniscal and anterior cruciate ligament tears and left knee strain with osteoarthritis, both effective June 5, 2019. After thorough consideration of the evidence of record, the Board concludes that an effective date prior to June 5, 2019 is not warranted for the Veteran's left knee disorders. 38 C.F.R. § 3.400(r). The Veteran's Supplemental Claim for entitlement to service connection for a left knee disorder was received by the AOJ on June 5, 2019. Although the Veteran filed a previous claim for entitlement to service connection for a left knee disorder on July 19, 2016, that claim was denied in a final rating decision issued in October 2016. Accordingly, the date of claim for the current appeal is June 5, 2019. The record does not contain any communications from the Veteran following the final October 2016 rating decision earlier than June 5, 2019 indicating an intent to file a claim for service connection for a left knee disorder. Therefore, the June 5, 2019 Supplemental Claim represents the earliest claim for service connection for a left knee disorder following the final October 2016 rating decision. The applicable regulations in this case are clear that the effective date of an original award of service connection is the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). In this case, the earliest date that may be assigned is the date of claim. The currently assigned effective date of June 5, 2019 is the date of claim and there is no legal basis for an earlier effective date. The claims must be denied. REASONS FOR REMAND 1. Entitlement to an initial rating greater than 20 percent for left knee meniscal and anterior cruciate ligament tears and entitlement to an initial rating greater than 10 percent for left knee strain with osteoarthritis are remanded. In Correia v. McDonald, 28 Vet. App. 158, 168-70 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. 28 Vet. App. 158. The final sentence of 38 C.F.R. § 4.59 provides that "[t]he joints involved should be tested for pain on both active and passive range of motion, in weight-bearing and nonweight-bearing and, if possible, with the range of motion of the opposite undamaged joint." The Court found that, to be adequate, a VA examination of the joints must include the results of the range of motion testing described in the final sentence of 38 C.F.R. § 4.59. The Veteran last underwent a VA examination to assess the severity of his service-connected left knee disorders in September 2019. The September 2019 VA examination provided one set of range of motion findings, and one range of motion finding following repetitive use testing. However, the VA examination did not provide range of motion testing conducted in active motion, passive motion, weight-bearing, and nonweight-bearing. Additionally, the examination reported that there was pain on range of motion of the left knee, but did not state the point at which pain began. The September 2019 VA examination of the Veteran's left knee does not comply with Correia. This qualifies as a duty to assist error under the AMA. As such, a remand is necessary to afford the Veteran another VA examination for his service-connected left knee disabilities. 2. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran was afforded a VA examination addressing the etiology of his bilateral hearing loss in September 2016. The VA examiner opined that the Veteran's bilateral hearing loss was not etiologically related to his active duty service because the Veteran had normal hearing at service discharge. However, the absence of in-service evidence of hearing loss is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The September 2016 VA examination of record failed to address the Veteran's lay reports of in-service hazardous noise exposure and his contention that his hearing loss is related to in-service acoustic trauma. Further, the opinion was based solely on the absence of documented hearing loss in the service treatment records. Accordingly, the September 2016 VA opinion is inadequate, and the AOJ's failure to obtain an adequate opinion prior to adjudication constitutes a pre-decisional duty to assist error. Thus, remand for a new VA examination is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriate physician to determine the current severity of his service-connected left knee disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. Range of motion should be reported in degrees, noting by comparison the normal range of motion. The examiner should also test and report the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If there is pain on range of motion, the examiner must state at which point pain began. 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. To the extent possible, the examiner should identify any symptoms and functional impairments due the joint disabilities alone and discuss the effect of the Veteran's disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment 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). 2. Provide the Veteran with a new VA audiological examination, conducted by an appropriate clinician, to determine the existence and etiology of his bilateral hearing loss. The Veteran's claims file must be made available to and reviewed by the examiner. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be accomplished. After review of the service and post-service medical evidence of record, and the Veteran's lay statements, the examiner must provide an opinion as to whether it at least as likely as not (i.e. 50 percent probability or more) that the Veteran's bilateral hearing loss is etiologically related to his period of active military service, to include his military noise exposure. The examiner must consider and address the Veteran's statements of in-service acoustic trauma as well as the post-service medical and lay evidence of symptomatology since service discharge. The examiner is advised that the Veteran is competent to report observable symptomatology. In rendering the requested opinion and rationale, the examiner must note that the fact that the service treatment records do not document hearing loss is not fatal to the Veteran's claim and cannot be the only basis by which to reject a possible nexus to service. The opinion must be supported by complete rationale. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Katz, 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.