Citation Nr: 21006155 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 18-08 033 DATE: February 3, 2021 ORDER Entitlement to an effective date earlier than October 26, 2015, for the award of service connection for a right knee disability is denied. Entitlement to an effective date of July 20, 1968, for the award of service connection for bilateral hearing loss is granted. From October 26, 2015, entitlement to a separate 20 percent rating under Diagnostic Code (DC) 5258 for right knee medial and lateral meniscectomy residuals is granted. From October 26, 2015, entitlement to a separate 10 percent rating, but no higher, under DC 5257 for right knee instability is granted. From October 26, 2015, entitlement to an initial rating in excess of 10 percent under DC 5010-5260 for right knee osteoarthritis is denied. REMANDED Entitlement to an increased initial rating for hearing loss is remanded.   FINDINGS OF FACT 1. The Veteran separated from a period of honorable active service on July 19, 1968. 2. On September 9, 1968, the Veteran filed a claim of entitlement to compensation and sought service connection for a knee injury and a mastoid operation with perforated ear drum. This claim reasonably raised the issue of entitlement to service connection for hearing loss. 3. An April 1969 rating decision determined that the Veteran did not have a chronic knee condition and that the Veteran’s hearing condition was not aggravated by service. 4. In May 1969, the Veteran was mailed notification of the April 1969 rating decision at his last address of record that his claim for compensation was denied. The notification explained that no compensation was payable because a chronic knee condition was not incurred in or aggravated by service, and further explained that although his post-operative mastoidectomy was service-connected, it was less than 10 percent disabling. 5. The Veteran’s entitlement to service connection for hearing loss arose on July 20, 1968. 6. From October 26, 2015, the Veteran’s right knee lateral and medial meniscectomy residuals more closely approximated a semilunar cartilage condition with episodes of joint pain, joint locking, and effusion. 7. From October 26, 2015, the Veteran’s right knee osteoarthritis more closely approximated mild instability, but not moderate or severe instability. 8. From October 26, 2015, the Veteran’s right knee osteoarthritis did not more closely approximate limitation of flexion in excess of 45 degrees or limitation of extension to 5 degrees. CONCLUSIONS OF LAW 1. The April 1969 rating decision is final insofar as it denied entitlement to service connection for a knee injury. 38 U.S.C. §§ 5104, 5107, 7105; 38 C.F.R. §§ 3.102, 3.103, 3.104. 2. The April 1969 rating decision is not final insofar as it denied entitlement to service connection for post-operative mastoidectomy residuals. 38 U.S.C. §§ 5104, 5107, 7105; 38 C.F.R. §§ 3.102, 3.103, 3.104. 3. The criteria for an effective date of July 20, 1968, but no earlier, for the award of entitlement to service connection for hearing loss are met. 38 U.S.C. §§ 1110, 1153, 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.157, 3.303, 3.306. 4. From October 26, 2015, the criteria for a separate 20 percent rating under DC 5258 for right knee medial and lateral meniscectomy residuals are met. 38 U.S.C. §§ 1155, 5017; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5256-5263. 5. From October 26, 2015, the criteria for a separate 10 percent rating under DC 5257 for mild right knee instability are met. 38 U.S.C. §§ 1155, 5017; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5256-5263. 6. From October 26, 2015, entitlement to an initial rating in excess of 10 percent for right knee limitation of motion are not met. 38 U.S.C. §§ 1155, 5017; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5256-5263.   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1966 to July 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from April 2016, November 2017, and January 2018 rating decisions of an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In November 2020, the Veteran testified at a virtual hearing before the undersigned. Effective Dates Generally, the effective date of an award is assigned based on the later of (1) the date that the entitlement arose or (2) the date of claim. Claims that are received within one year of a veteran’s separation from active duty will allow for a service connection award the day after service separation. See 38 C.F.R. § 3.400(b)(2). VA regulations provide that a claimant will be provided notice of any decisions. See 38 U.S.C. § 5104; 38 C.F.R. § 3.103. Once notice of a decision has been provided, under VA’s legacy appeals system (which governs this case) a claimant generally has one year to appeal a decision or to submit new and material evidence. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156. 1. Entitlement to an effective date earlier than October 26, 2015, for the award of service connection for a right knee disability is denied. 2. Entitlement to an effective date of July 20, 1968, for the award of service connection for hearing loss is granted. The Veteran asserts that he is entitled to an effective date of service connection retroactive to his original 1968 claim. He states that he was not provided notice of the decision because it was not sent to his correct address in 1969. See, e.g., Hearing Transcript at 10-12. As discussed below, while an earlier effective date is not warranted on the basis of the Veteran’s address in 1969, an earlier effective date of service connection for hearing loss is warranted due to a deficiency in the 1969 decision notice unrelated to the Veteran’s address. In September 1968, the Veteran claimed compensation due to a knee injury and mastoid operation with perforated ear drum. See September 1968 VA Form 21-526. His claim lists an address in Havre, Montana. In January 1969, the Veteran notified the VA that he had moved to a different address in Havre. See January 1969 Correspondence. An April 1969 rating decision determined that service connection for a knee injury was not warranted due to no evidence of a chronic knee condition. That decision also determined that service connection for postoperative mastoidectomy was not warranted because, although the Veteran had hearing loss and his right ear was operated on while in service, this was considered remedial surgery and it was not shown that his hearing condition was aggravated by service. See April 1969 Rating Decision. On May 8, 1969, the VA mailed notice of a decision to the Havre, Montana address provided by the Veteran in January 1969. See May 1969 Notification Letter. On July 7, 1969, the VA received a postcard postmarked June 21, 1969, indicating that the Veteran had moved from Big Sandy, Montana to North Dakota. See July 1969 Change of Address. The Veteran asserts he did not receive notice of the April 1969 rating decision because he had moved from Montana to North Dakota due to differences with his wife. See Hearing Transcript at 11. He admits that he “probably didn’t” inform VA of his change of address because he moved frequently during that time and often lived in motels. See id. Here, the record shows that the Veteran’s candid admission that he most likely had not notified the VA of correct address as of May 1969 is corroborated by the record. In this regard, the July 1969 change of address notice indicates that the Veteran was living in Big Sandy, Montana prior to his move to North Dakota, while the VA mailed the notice to Havre, Montana, the most recent address provided by the Veteran as of January 1969. Thus, the most likely explanation as to why the Veteran did not receive a copy of the rating decision is that he no longer resided at the most recent address of record provided to VA. It is regrettable that in July 1969 the AOJ did not identify the discrepancy between the address of record and the Veteran’s self-identified prior address of record and then endeavor to inquire of the Veteran as to whether he had received notice of the April 1969 rating decision. Nonetheless, the duty to assist is not a one-way street, and it was the Veteran’s obligation to keep the VA apprised of his current address during the pendency of his claim. As the evidence shows that the decision notice was mailed to the Veteran’s address of record, the Veteran’s failure to actually receive a copy of the 1969 decision notice does not provide a basis for awarding an earlier effective date. However, even if the Veteran did not reside at his address of record, this does not relieve the VA of its obligation to send legally sufficient notice to that address. Indeed, as discussed below, the May 1969 notice was not sufficient with respect to all issues claimed by the Veteran. For a VA decision to become final, written notification to the appellant is required. See Best v. Brown, 10 Vet. App. 322, 325 (1997). Moreover, the law is that the requirement to provide notice of a decision is not satisfied with respect to a claim where a decision notice includes an “explicit denial” of a different claim. See Ruel v. Wilkie, 918 F.3d 939 (Fed. Cir. 2019). Instead, the law requires a decision to state, or otherwise clearly identify in some other manner, the claims being denied. Id. As noted above, the April 1969 rating decision denied entitlement to service connection for a knee condition and postoperative mastoidectomy. However, the May 1969 notification letter was partially in error when describing the resolution of the Veteran’s claim. In this regard, the May 1969 letter explained that the Veteran’s claim for compensation had been disallowed because (1) his postoperative mastoidectomy was “service-connected, but [it is] less than 10% disabling and compensation is not payable” and (2) the chronic knee condition that he claimed was not shown by the evidence of record. See May 1969 Notification Letter. Thus, while the letter accurately notified the Veteran of the decision with respect to his knee claim, the letter did not accurately notify the Veteran of the decision with respect to his mastoidectomy claim. With respect to the Veteran’s claim of entitlement to service connection for mastoidectomy residuals, the rating decision stated that service connection was denied, while the notice letter stated that service connection was granted and assigned a noncompensable rating. While either decision would result in the same level of compensation being paid to the Veteran, this does not mean that these are equivalent decisions. Service connection conveys benefits other than compensation, such as entitlement to medical care. Accordingly, as the AOJ did not provide legally sufficient notice that the claim of entitlement to service connection for postoperative mastoidectomy was denied, the Veteran’s 1968 claim of entitlement to service connection for postoperative mastoidectomy remained pending. Moreover, the 1968 claim that has remained pending is relevant to and encompassed by the current issue before the Board, i.e. entitlement to an earlier effective date of service connection for hearing loss. In this regard, the Board observes that at the time that the claim was filed, mastoiditis was rated pursuant to 38 C.F.R. § 4.84b, DC 6206 (1968), which directed that chronic mastoiditis be rated for impairment of hearing and suppuration. Thus, hearing loss was being claimed in 1968 and is on appeal now. To the extent that the 1968 claim is ambiguous as to whether it encompasses unilateral hearing loss or bilateral hearing loss, the Board observes that the rating schedule then and now contemplates rating hearing loss bilaterally, and thus the Veteran’s claim of hearing loss in one ear reasonably raised the issue of hearing loss in the other ear. The Board resolves any reasonable doubt in this regard in favor of the Veteran. Thus, as the evidence shows that the 1968 claim for service connection for mastoidectomy was not subject to a final denial, the remaining question on appeal is the onset of disability. Here, the evidence shows mastoidectomy in service and presence of hearing loss at separation, and the AOJ subsequently determined that there is a nexus to service. See November 2017 Rating Decision; April 2017 Compensation & Pension Examination Consult. Accordingly, the evidence shows that the criteria for an earlier effective date of service connection for hearing loss are met, and an effective date of July 20, 1968, the date after separation from service, is warranted. The Board acknowledges that the 1969 decision notice advised the Veteran that his claim for compensation was denied. However, as noted above, the decision was erroneous with respect to whether service connection was granted, and as was set forth in Ruel v. Wilkie, 918 F.3d 939 (Fed. Cir. 2019), an explicit denial of one issue is not an explicit denial of another issue. That is likewise the key question here. Thus, in this matter, the Ruel rule rules. With respect to the claim of entitlement to service connection for a knee condition, the May 1969 decision notice clearly and accurately stated that the Veteran’s claim seeking service connection for his chronic knee condition was denied, and the record shows that the other notice requirements were met. Moreover, the Veteran did not file a timely NOD, and new and material evidence was not received by the VA within one year of the denial. Thus, the 1969 denial of service connection for a knee condition is final. Furthermore, the Veteran did not file a new claim prior to October 26, 2015, his current effective date of service connection for a right knee disability, and the evidence does not show any other legal basis for an earlier effective date of service connection. Accordingly, entitlement to an effective date earlier than October 26, 2015 for the award of entitlement to service connection for a right knee disability is denied.   Increased Rating The Veteran is currently in receipt of an initial 10 percent rating pursuant to DC 5010-5260 (osteoarthritis rated by analogy to limitation of flexion) for his service-connected right knee osteoarthritis, status post medial and lateral meniscectomy. The period on appeal is from October 26, 2015, the effective date of service connection. The Veteran asserts that a higher rating for his right knee disability is warranted. He asserts that he has worn a sock or knee brace since his knee was operated on in 1975 and that his knee would swell up after working eight or ten hours and continues to swell. He testified that he has pain and that he has difficulty with stairs and cannot get up by himself if he falls. He states that he requires a cane and braces when walking outside and inside his house he has handrails. See Hearing Transcript at 12-18. 3. From October 26, 2015, entitlement to a separate 20 percent rating under DC 5258 for right knee meniscectomy residuals is granted. The Veteran underwent meniscectomy in 1975. See December 2017 Knee Examination Report; October 2019 Knee Examination Report. The Veteran has current diagnoses of status post medial and lateral meniscectomy and advanced degenerative osteoarthritis. See id. His condition elsewhere noted as “meniscal repair.” See October 2019 Knee Examination Report at 10B. Meniscal (semilunar cartilage) conditions are rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5259. Under Diagnostic Code 5258, a 20 percent rating is warranted for dislocation of semilunar cartilage with frequent episodes of “locking, pain,” and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Under Diagnostic Code 5259, a 10 percent rating is warranted for symptomatic removal of semilunar cartilage. 38 C.F.R. § 4.71a, Diagnostic Code 5259. Here, the evidence shows that the Veteran has knee pain and decreased range of motion due to his meniscectomy residuals. See December 2017 Examination Report. The December 2017 examiner noted meniscal symptoms of joint pain and joint locking. While the October 2019 examiner did not note these symptoms, this is likely due to different examiners describing the same disability at different times, as the evidence has not shown improvement in disability. Moreover, the Veteran competently and credibly reported swelling of the knee after repeated use over time and increased pain during flare-ups, when, “he can’t walk.” See December 2017 Examination Report. Here, after accounting for flare-ups and repeated use over time, the nature, severity, and frequency of the symptoms of Veteran’s status-post medial and lateral meniscectomy more closely approximate the criteria set forth under DC 5258. In this regard, application of DC 5258 is appropriate as the Veteran has a semilunar cartilage condition not specifically listed in the rating schedule (status post medial and lateral meniscectomy), as well as the specific symptoms set forth under DC 5258. Moreover, application of DC 5258 allows a higher rating than DC 5259. The Board acknowledges that the December 2017 examiner was unable to quantify the Veteran’s flare-ups and functional loss after repeated use over time in terms of range of motion. However, the October 2019 examiner was able to provide such an estimate, and the Board will apply the more favorable examination results to the Veteran’s appeal. Moreover, the examiners of record show that the Veteran’s additional functional loss is manifested by increased pain and swelling. Thus, these symptoms are captured by DC 5258, which does not rate based upon limitation of motion. Moreover, as the Veteran’s additional functional loss includes swelling, inclusion of flare-ups and repeated use over time permits a higher rating than otherwise could be assigned under DC 5259. The Board has also considered a rating under DC 5259. Other disability ratings may be simultaneously assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). Here, a rating under DC 5259 would be based on the same symptoms (joint pain and decreased range of motion) and involve the same injury (meniscal condition) and thus a simultaneous rating cannot be awarded. The Board acknowledges that the Veteran is in receipt of a rating under DC 5010-5260. However, that rating contemplates his arthritis, while the rating under DC 5258 contemplates his meniscal condition. Moreover, a rating under DC 5258 is not based on instability or range of motion. Thus, there is no impermissible pyramiding. 4. From October 26, 2015, entitlement to a separate 10 percent rating under DC 5257 for right knee instability is granted. Here, no VA examiner of record noted objective evidence of instability. However, the December 2017 examiner noted that the Veteran used a brace constantly due to his osteoarthritis. The October 2019 examiner noted that the Veteran used a cane constantly due to his meniscectomy. A rating based on instability may be warranted even in the absence of objective testing. See English v. Wilkie, 30 Vet. App. 347 (2018). Under DC 5257, a 10 percent rating is warranted for mild instability. A 20 percent rating is warranted for moderate instability. A maximum schedular 30 percent rating is warranted for severe instability. Here, the Board finds that a 10 percent rating under DC 5257 is warranted. Mild instability is consistent with the Veteran’s requirement for an assistive device and difficulty with stairs and falling without any objective evidence of instability on ligament testing. A higher rating is not warranted, as “moderate” and “severe” equate with average and pronounced, and the Board finds that a “moderate” or “severe” instability rating would necessitate objectively evidence of instability on physical examination. Here there is no objective evidence of instability shown, and thus instability does not more closely approximate moderate or severe instability under DC 5257. The Board acknowledges that the Veteran is in receipt of a separate rating under DC 5010-5260 for limitation of motion. However, instability is in a separate plane of motion and thus this separate award does not represent overlapping symptomatology and impermissible pyramiding. The use of a cane due to meniscectomy residuals is consistent with the Veteran’s 20 percent rating under DC 5258, as that DC encompasses locking, pain, and other symptoms. While different examiners attributed his use of assistive devices to different service-connected right knee conditions, the Board resolves any reasonable doubt in this regard in favor of the Veteran and finds that the separate 10 percent rating, but no higher, is warranted based on the instability arising from arthritis. 5. Entitlement to an initial rating in excess of 10 percent under DC 5010-5260 for right knee osteoarthritis is denied. The Veteran is in receipt of a 10 percent rating under DC 5010-5260. DC 5010 directs that arthritis be rated based on limitation of motion. Under DC 5260, a 10 percent rating is warranted where flexion is limited to 45 degrees. A 20 percent rating is warranted where flexion is limited to 30 degrees. Higher ratings are warranted for more severe impairment. Under DC 5261, a zero percent rating is warranted for extension limited to 5 degrees. A 10 percent rating is warranted for extension limited to 10 degrees. Higher ratings are warranted for greater limitation of extension. The December 2017 examiner noted right knee range of motion from 0-110 and 110-0 degrees but did not opine as to range of motion during flare-ups or after repeated use over time. The October 2019 examiner noted right knee range of motion from 0-85 degrees and 85-0 degrees, and estimated range of motion during a flare-up and after repeated use over time of 0-80 degrees and 80-0 degrees, with pain on flexion. Here, no examiner of record noted any limitation of extension. Moreover, no examiner noted limitation of flexion that more closely approximated 30 degrees, even after repeated use over time or during a flare-up, and his 10 percent rating current contemplates painful flexion. Thus, a rating in excess of 10 percent for arthritis based on limitation of motion is not warranted. Moreover, as discussed above, the additional factors of disability associated with the Veteran’s knee condition are compensated by his rating under DC 5258 and DC 5257. Finally, the evidence does not show that the Veteran has ankylosis, genu recurvatum, or an impairment of the tibia and fibula. Thus, no rating under DC 5256, 5262, or 5263 is warranted. REASONS FOR REMAND 6. Entitlement to an increased rating for hearing loss is remanded. The Veteran asserts that his hearing has worsened since his most recent hearing examination. See Hearing Transcript at 6-7. Thus, an updated examination is required. See Snuffer v. Gober, 10 Vet. App. 400 (1997). Complete VA treatment records should be secured, as should any private records of treatment for hearing loss (to include any relevant records prior to 2015). Moreover, on readjudication, the AOJ should consider application of regulations in effect at the time that the Veteran’s 1968 claim was filed, if those are more favorable to the Veteran. The matter is REMANDED for the following action: 1. Obtain updated VA treatment records, if any. 2. With any necessary assistance from the Veteran, secure any relevant outstanding private treatment records. 3. Schedule the Veteran for a VA examination to assess the current severity of his hearing loss. All findings should be reported in detail, to include any associated functional impact. 4. When re-adjudicating the claim, consider whether the Veteran is entitled to a higher rating based on application of the regulations in effect as of his 1968 date of claim. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.M. Badaczewski, Associate 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.