Citation Nr: 21008142 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 17-24 247 DATE: February 11, 2021 ORDER The claim of entitlement to an effective date earlier than April 3, 2014, for the award of a 100 percent rating for right total knee replacement is granted. The claim of entitlement to an effective date earlier than April 3, 2014, for the award of an increased disability rating for left total knee replacement is granted. REMANDED The claim of entitlement to a higher disability rating for right total knee replacement residuals from May 1, 2014, is remanded. The claim of entitlement to a higher disability rating for left total knee replacement residuals from March 1, 2014, is remanded. The claim of entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. A claim for an increased rating for service-connected right knee arthritis was received on September 5, 2013; it is factually ascertainable that the increase in severity warranting a higher rating occurred during the one-year period prior to that date. 2. A claim for an increased rating for service-connected left knee arthritis was received on September 5, 2013; it is factually ascertainable that the increase in severity warranting a higher rating occurred during the one-year period prior to that date. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date of March 26, 2013, for the grant of a 100 percent rating for right total knee replacement have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for entitlement to an effective date of January 29, 2013, for the grant of a 100 percent rating for left total knee replacement have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Air Force from March 1982 to April 1985 and from April 2004 to February 2010. In September 2020, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. A claim for TDIU has been reasonably raised by the record. The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a TDIU due to a service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record. Effective Date The general rule with respect to the effective date of an award of increased compensation is that the effective date of the award “shall not be earlier than the date of receipt of the application thereof.” 38 U.S.C. § 5110 (a). This statutory provision is implemented by regulation that provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (o)(1). An exception to that rule applies, however, under circumstances where the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. If an increase in disability occurred within one year prior to the claim, the increase is effective as of the date the increase was “factually ascertainable.” 38 U.S.C. § 5110 (b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400 (o)(1)(2); VAOPGCPREC 12-98 (1998). If the increase occurred more than one year prior to date of receipt of the claim, the increase is effective the date of receipt of the claim. If the increase occurred after the date of receipt of the claim, the effective date is the date of increase. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(1)(2). Effective March 24, 2015, a specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under laws administered by VA. 38 U.S.C. § 5101 (a); 38 C.F.R. § 3.151 (a). Prior to March 24, 2015, a “claim” was defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1 (p); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication or action indicating an intent to apply for one or more benefits under laws administered by VA from a claimant may be considered an informal claim. Such an informal claim must identify the benefits 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. 38 C.F.R. § 3.155 (a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as a claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). 1. Entitlement to an effective date earlier than April 3, 2014, for the award of a 100 percent rating for right total knee replacement. Please see discussion in paragraph 2. 2. Entitlement to an effective date earlier than April 3, 2014, for the award of a 30 percent rating for left total knee replacement is granted. In a January 2012 rating decision, the RO granted service connection for the bilateral knee degenerative arthritis and assigned a 20 percent disability for each knee, effective March 1, 2010. The Veteran did not appeal the decision. The Veteran’s electronic claims file includes a VA Form 21-526b with a date stamp of April 3, 2014, and the date signed listed as September 09, 2013. The claim was for an increased rating for his bilateral knee disorder. In the August 2014 rating decision on appeal, the RO increased the ratings for the Veteran’s degenerative arthritis of the bilateral knees by granting service connection for bilateral total knee replacements. A 100 percent rating was assigned for the right total knee replacement and a 30 percent was assigned for the left total knee replacement, both effective April 3, 2014, the date listed on the VA Form-21-526b as the receipt date. The Veteran contends that he submitted a claim for entitlement to an increased rating for his bilateral knee disorder prior to April 3, 2014. In September 2020, the Veteran submitted September 5, 2013, and September 9, 2013, screenshots of an email exchange between him and a VA Veterans Service Representative, T.B. The emails showed that the Veteran requested help with filing a claim for increased ratings for his bilateral knee degenerative arthritis. The VA Veterans Representative emailed the Veteran a VA Form 21-526b to complete and the Veteran returned the completed form on September 9, 2013. There is no indication that T.B. added the completed VA Form 21-526b to the Veteran’s claims file or that he started the process of adjudicating the claim. The Board notes that there is a presumption of regularity in the law to the effect that the presumption of regularity supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties. Clear evidence to the contrary is required to rebut the presumption of regularity. Ashley v. Derwinski, 2 Vet. App. 307 (1992), (quoting United States v. Chemical Foundation, 272 U.S. 1, 14-15 (1926)). While the Ashley case dealt with regularity in procedures at the Board, in Mindenhall v. Brown, 7 Vet. App. 271 (1994), the presumption of regularity was applied to procedures at the AOJ level, such as in the instant case. The Board finds that if a claim had been filed in September 2013, it can be presumed that the employee who received it would have acted to process the claim and associate it with the claims file. As no such claim was processed and associated with the claims file, the Board presumes that no such claim was filed. Thus, the Board finds that the presumption of regularity has attached, and the Veteran must show by clear evidence that the presumption of regularity has been rebutted. It is clear from these cases that a statement of a claimant, standing alone, is not sufficient to rebut the presumption of regularity in AOJ operations. See Jones v. West, 12 Vet, App. 98, 100 (1998); Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992). However, the Board finds that the September 2013 email exchange is clear evidence that overcomes the presumption of regularity. Specifically, the September 2013 email exchange shows that the Veteran filed an informal claim for benefits on September 5, 2013, and with the help of T.B., submitted a formal claim on September 9, 2013. The September 2013 email exchange provides clear evidence that the VA received the Veteran’s September 2013 claim for increased ratings for his bilateral knee disorders. Such evidence supports the Veteran’s contentions that the RO did not properly discharge its duties and that the Veteran’s claim was filed prior to April 3, 2014. Accordingly, September 5, 2013, is the appropriate “date of claim”. As noted above, an effective date for an increase in compensation can only predate the date of claim if there is a “factually ascertainable” increase in the condition in the year prior to the date of claim. If an increase in disability occurred within one year prior to date of receipt of the claim, the increase is effective as of the date the increase was factually ascertainable. If the increase occurred more than one year prior to date of receipt of the claim, the increase is effective the date of receipt of the claim. If the increase occurred after the date of receipt of the claim, the effective date is the date of increase. 38 U.S.C. § 5110 (b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400 (o)(1)(2); VAOPGCPREC12-98 (1998). The Board concludes that increases in the Veteran’s bilateral knee disorders were factually ascertainable during the one-year period prior to September 5, 2013. A review of the medical records between September 2012 and September 2013 reveal that the Veteran underwent left total knee replacement on January 29, 2013, and right total knee replacement on March 26, 2013. Thus, the medical evidence shows that the increases were factually ascertainable on the dates of the knee surgeries, which are within the one-year period prior to September 5, 2013. As such, entitlement to an effective date of January 29, 2013, for the left knee total knee replacement, and an effective date of March 26, 2013, for the right total knee replacement are granted. The Veterans total knee replacement residuals are rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5055 for prosthetic replacement of the knee. Under Diagnostic Code 5055 a total (100) percent rating is warranted for the first year following implantation of a knee replacement (prosthesis). Id. Following the one year convalescence period, a 60 percent rating is the maximum rating for chronic residuals consisting of severe painful motion or weakness and 30 percent rating is the minimum rating for intermediate degrees of residual weakness, pain or limitation under the appropriate diagnostic code for less severe residuals. Id. In light of the earlier effective dates granted herein, the Board finds that the Veteran is entitled to a 100 percent disability rating for his right total knee replacement for the period from March 26, 2013, to May 1, 2014. He is also entitled to a 100 percent disability rating for his left knee total replacement for the period from January 29, 2013, to March 1, 2014. As a result, this is a full grant of benefits sought on appeal for the periods from January 29, 2013, to March 1, 2014 and from March 26, 2013, to May 1, 2014. REASONS FOR REMAND 1. The claim of entitlement to a higher disability rating for right total knee replacement residuals from May 1, 2014, is remanded. Please see discussion in paragraph 2. 2. The claim of entitlement to a higher disability rating for left total knee replacement March 1, 2014, is remanded. In Correia v. McDonald, 28 Vet. App. 158 (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. The final sentence provides that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.” The Court found that, to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of 38 C.F.R. § 4.59. It does not appear that the August 2015 VA examiner conducted Correia compliant testing. Additionally, the evidence indicates that the Veteran’s bilateral knee disorder worsened since the August 2015 VA examination. At the September 2020 Board hearing, the Veteran reported flare-ups and left knee instability, manifestations that were not noted on the most recent VA examination. A new VA examination is necessary when there is evidence that a service-connected disability has worsened since the last examination. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Green v. Derwinski, 1 Vet. App. 121 (1991). Based on the above, a remand is required in order to obtain an orthopedic examination addressing the bilateral knee disorder. 3. The claim of entitlement to a TDIU is remanded. The Veteran most recently completed a VA Form 21-8940 in June 2015. At that time, the Veteran remained employed as a senior aircraft maintenance technician while he was on leave due to his knee disorder. However, he was told that he was unable to return to work if he still required restrictions. At the September 2020 hearing, he reported that he left that job in 2015 and that he had three jobs since then. He started his current job in January 2020. Therefore, a remand is required to obtain an updated VA Form 21-8940. The matters are REMANDED for the following action: 1. The RO must contact the Veteran and ask him to provide a complete history of his education and occupational experience, to include a completed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. 2. The RO or the AMC should undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claims. If the RO or AMC deems the records do not exist or that any additional attempts to obtain these records would be futile, the record should be annotated to reflect such and the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). 3. Then, the RO or the AMC should afford the Veteran a VA examination by an examiner with sufficient expertise to fully assess the severity of the Veteran’s service-connected bilateral knee disorder. All pertinent evidence of record should be made available to and reviewed by the examiner. All necessary studies should be performed. The RO or the AMC should ensure that the examiner provides all information required for rating purposes, to specifically include the results of range of motion testing for pain on both active and passive motion, as well as on weight-bearing and nonweight-bearing. The examiner is also requested to review the August 2015 VA examination containing range of motion findings pertinent to the Veteran’s knees conducted during the course of the appeal. If the examiner is unable to do so, he or she should explain why. In addition, the examiner must determine the extent of any additional limitation of joint motion (in degrees) due to weakened movement, excess fatigability, incoordination, or pain during flare-ups and/or with repeated use. In doing so, the examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, and then provide an assessment of the functional loss during flares, if possible in degrees of motion lost. (Continued on the next page)   If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case he or she should clearly explain why that is so. Furthermore, if any opinion cannot be offered without resorting to mere speculation, the examiner should clearly explain why this is the case and identify any additional evidence that may allow for a more definitive opinion. 4. Then, the RO or the AMC should readjudicate the issues on appeal. If the benefit sought on appeal is not granted to the Veteran’s satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. McKinley, 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.