Citation Nr: 21010299 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 17-65 659 DATE: February 24, 2021 ORDER Entitlement to an initial evaluation higher than 20 percent for left knee osteoarthritis and meniscal tear (left knee disorder) is dismissed. Entitlement to a temporary total evaluation for the left knee disorder is dismissed. Entitlement to service connection for bilateral hearing loss is dismissed. Entitlement to an effective date prior to October 22, 2015 for the grant of service connection for the left knee disorder is denied. REMANDED Entitlement to service connection for a right knee disorder, to include as secondary to the service-connected left knee disorder is remanded. Entitlement to service connection for a left shoulder disorder is remanded. Entitlement to service connection for a back disorder, to include as secondary to the service-connected left knee disorder, is remanded. FINDINGS OF FACT 1. In an August 2020 statement in support of claim, the Veteran’s representative stated the Veteran desired to withdraw the claim of entitlement to an initial evaluation higher than 20 percent for the left knee disorder. 2. In an August 2020 statement in support of claim, the Veteran’s representative stated the Veteran desired to withdraw the claim of entitlement to a temporary total evaluation for the left knee disorder. 3. In an August 2020 statement in support of claim, the Veteran’s representative stated the Veteran desired to withdraw the claim of entitlement to service connection for bilateral hearing loss. 4. The earliest claim for service connection for the left knee disorder was received by VA on October 22, 2015. CONCLUSIONS OF LAW 1. The criteria for dismissal of the claim of entitlement to an initial evaluation higher than 20 percent for the left knee disorder have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205 § 19.55. 2. The criteria for dismissal of the claim of entitlement to a temporary total evaluation for the left knee disorder have been met. 38 U.S.C. § 7105; 38 C.F.R. § § 19.55. 3. The criteria for dismissal of the claim of entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for an effective date prior to October 22, 2015 for the grant of service connection for the left knee disorder are not met. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. REFERRED The issues of entitlement to service connection for a right shoulder disorder and to a temporary total disability rating for the right knee were raised in a December 17, 2015 supplemental claim (VA 21-526b) and are referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the U.S. Navy from April 1982 to April 1986. The Veteran had subsequent service in the Naval Reserves, including periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2020 the Veteran testified at a hearing before the undersigned Veterans Law Judge and a transcript of the proceeding is of record. Withdrawal of a Substantive Appeal 1. Entitlement to an initial evaluation higher than 20 percent for the left knee disorder is dismissed. 2. Entitlement to temporary total evaluation for the left knee disorder is dismissed. 3. Entitlement to service connection for bilateral hearing loss is dismissed. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In an August 2020 statement in support of claim, the Veteran’s representative reported the Veteran desired to withdraw the claim of entitlement to an increased evaluation for the service-connected left knee disorder, to include a temporary total disability rating, and the claim of entitlement to service connection for bilateral hearing loss. The written withdrawal included all necessary information to identify the Veteran and the issues being withdrawn. 38 C.F.R. §§ 19.55(b)(1). Because the Veteran has requested to withdraw those issues, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal as to those issues and they are dismissed. Effective Dates 4. Entitlement to an effective date prior to October 22, 2015 for the grant of service connection for the left knee disorder is denied. Generally, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400. Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant’s application. 38 U.S.C. § 5110(a). If a claim is filed within one year after separation from service, service connection will be effective as of the day after separation. 38 C.F.R. § 3.400(b)(2). Prior to March 24, 2015, a claim was “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). An informal claim is “[a]ny communication or action indicating intent to apply for one or more benefits.” 38 C.F.R. § 3.155(a). VA must look to all communications from a claimant that may be interpreted as applications or claims - formal and informal - for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). The essential elements for any claim, whether formal or informal, are: (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits). For claims or appeals filed on or after March 24, 2015, as is the case here, a claim for benefits must be submitted on a standardized form. Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660, 57,686 (Sept. 25, 2014) (eff. Mar. 24, 2015). With regard to the date of entitlement, the term date entitlement arose is the date when the claimant met the requirements for the benefits sought, on a facts found basis. 38 U.S.C. § 5110(a); McGrath v. Gober, 14 Vet. App. 28, 35 (2000). These facts found include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation. See generally 38 C.F.R. § 3.400. For instance, if a claimant filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008). However, the date entitlement arose is not the date that the RO receives the evidence, but the date to which that evidence refers. McGrath, 14 Vet. App. at 35. In this case, VA received the Veteran’s intent to file a claim on October 22, 2015. Then, the Veteran’s claim was received on October 26, 2015. No claim was of record prior to October 22, 2015. At the hearing, the Veteran reported he may have filed earlier, but wasn’t sure it had made it to VA. Thus, the earliest date of claim is October 22, 2015. Regardless of whether the date of entitlement preceded the date of claim, the date of claim is later in time and therefore the proper effective date. In sum, the criteria for entitlement to an effective date prior to October 22, 2015 are not met and the claim is denied. REASONS FOR REMAND For all issues, remand is necessary to verify all periods of ACDUTRA and INACDUTRA, and to undertake additional efforts to ensure the Veteran’s complete service treatment records (STRs) and service personnel records (SPRs) are of record. The record indicates the Veteran had service in the Reserves through 2006, and he alleges a left shoulder injury occurred during a period of active duty for training. The record does not currently reflect the dates of the Veteran’s periods of ACDUTRA and INACDUTRA, thus remand is necessary for verification of each training period. Also, the Veteran’s STRs and SPRs currently located in the claims file appear incomplete. In January 2016 correspondence, VA informed the Veteran they were unable to locate his complete STRs, and they concluded the records did not exist or were not located at the NPRC. The request form only noted the dates of service from April 1982 to April 1986. Then, VA requested outstanding medical records from the Office of the Judge Advocate General and attempted to verify all periods of ACDUTRA. See March 2016 third party correspondence. The JAG provided a negative reply for records in April 2016, stating all records should be at the NPRC. It is unclear if VA has exhausted all efforts to obtain the outstanding STRs and SPRs for the Veteran’s reserve service (generally 1986 to 2006). Thus, remand is required. All issues are also remanded to obtain any outstanding private treatment records. The record indicates the Veteran receives regular orthopedic care from private providers. On remand, VA should undertake reasonable efforts to obtain any outstanding private treatment records. VA should also ensure any outstanding VA treatment records are identified and obtained. 1. Entitlement to service connection for a right knee disorder, to include as secondary to the service-connected left knee disorder is remanded. 2. Entitlement to service connection for a back disorder, to include as secondary to the service-connected left knee disorder is remanded. These issues are also remanded for a medical opinion that addresses all theories of entitlement and contains an adequate rationale. The Veteran has asserted that the service-connected left knee disorder caused or aggravated his right knee and low back disorders. See August 2020 hearing testimony. In June 2016 correspondence, the Veteran described repetitive actions in service, such as lifting heavy objects, using large tools and heavy equipment, and running 5 miles a day on concrete. He stated those activities had taken a toll on his body, which raises a theory of direct service connection. An April 2016 VA examination report documents a long history of significant left knee problems since 1985 that required surgery in 1985, 1994, and 2016. A December 2017 VA examination report documents the Veteran’s report that the right knee pain also began in 1985 and worsened over time, leading to two surgeries in 2015. At the 2017 exam, the Veteran also reported that his back pain began in 1985 and got worse over time. The 2017 examiner indicated they were unable to determine whether the left knee aggravated the right knee or back or whether the right knee or back aggravated the left knee. The examiner stated, “given that the causal direction cannot be substantiated, it is not reasonable to state the right knee and lower back were solely permanently aggravated by the left knee.” Thus, the examiner opined the back and right knee disorders were not permanently aggravated by the left knee disorder. The conclusion that it is impossible to discern the causal direction requires clarification that considers the evidence tending to indicate the left knee symptoms were severe prior to the onset of any severe right knee or back symptoms. Further, “permanent worsening” of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation. The 2017 examiner did not provide an opinion on whether a right knee condition was directly related to service. On remand, VA should obtain an opinion that addresses whether any right knee disorder is related to the Veteran’s period of service. The examiner should address the lay testimony of any in-service injury and heavy manual labor. The 2017 examiner also opined that a low back disorder was not directly related to service because there was no evidence of back problems in service. The examiner cited to a March 2005 health questionnaire noting the Veteran denied back pain. Remand is necessary to obtain an addendum opinion that considers the lay testimony of heavy manual labor in service and considers whether a back condition was caused or aggravated by any injury occurring after March 2005. There is currently a positive medical opinion from a private provider dated June 2020, in which the provider opined that the Veteran’s left knee condition aggravated the right knee and low back; however, allowing the claim on a theory of aggravation is not a full grant of the benefit. Thus, the Board finds a remand is most appropriate here. 3. Entitlement to service connection for a left shoulder disorder is remanded. This issue is remanded to obtain a VA examination and opinion. VA’s duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The Veteran asserts he injured the left shoulder twice during his period of service, first in 1986 and again in 2005. In April 2016, the Veteran wrote that he injured his left shoulder in March 1986 when he slipped on a ladder and tore his rotator cuff. He said the doctor put him on light duty until he got out of service one month later. In July 2016 correspondence, a fellow service member wrote that he recalled the Veteran injuring his left shoulder in March 1986. STRs dated April, May, and June 2005 document the Veteran tore his left rotator cuff in April 2005. An April 2011 private treatment record documents the Veteran had a history of a left rotator cuff tear that had progressively worsened over time. The findings included massive rotator cuff tear, AC arthritis, impingement, and biceps tendon subluxation and tearing. Because there is evidence of currently diagnosed disabilities, an in-service event, and an indication that the current disabilities may be associated with the in-service event, remand for a VA examination is required. The matters are REMANDED for the following action: 1. Verify all periods of ACDUTRA and INACDUTRA from 1986 through 2006 in a memorandum for the claims file. If such information is not available, or the search for any such information otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Obtain any outstanding service treatment records and service personnel records, to include any from the Reserve service from 1986 through 2006. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 3. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 4. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 5. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the right knee disorder from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. (a.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the right knee disorder had onset in, or is otherwise related to, active military service, to include any period of ACDUTRA. (b.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that a right knee disorder is related to an injury sustained during a period of INACDUTRA. (c.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that arthritis of the joint manifested within one year of separation from service. (d.) The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the right knee disorder is caused or aggravated by the service-connected left knee disorder. Permanent aggravation does not need to be shown. (e.) The examiner must address 1) the Veteran’s assertions of heavy manual labor in service and of right knee pain since service; 2) the evidence indicating the onset of more severe left knee symptoms prior to the onset of significant right knee symptoms; 3) June 2020 correspondence from the Veteran’s medical provider explaining the Veteran’s right knee was aggravated by the overcompensation over the years due to the left knee disorder. 6. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the claimed back disorder from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. (a.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that a back disorder had onset in, or is otherwise related to, active military service, to include any period of ACDUTRA. (b.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that a back disorder is related to an injury sustained during a period of INACDUTRA. (c.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that arthritis of the joint manifested within one year of separation from service. (d.) The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that a back disorder is caused or aggravated by the service-connected left knee disorder. Permanent aggravation does not need to be shown. (e.) The examiner must address 1) the Veteran’s assertions of heavy manual labor in service and of back pain since service; 2) the evidence indicating the onset of more severe left knee symptoms prior to the onset of significant back symptoms; 3) June 2020 correspondence from the Veteran’s medical provider explaining the Veteran’s right knee was aggravated by the overcompensation over the years due to the left knee disorder. 7. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his left shoulder disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. (a.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the left shoulder disorder had onset in, or is otherwise related to, active military service. (b.) The examiner must specifically address the 1) Veteran’s assertions of in-service left shoulder injuries in 1986, a month prior to separation, and in 2005, during a training period; 2) April, May, and June 2005 STRs reporting a left rotator cuff injury; and 3) April 2011 private records noting progressively worse left shoulder pain since a rotator cuff injury with current findings of massive rotator cuff tear, AC arthritis, impingement, and biceps tendon subluxation and tearing. 8. Ensure compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Smith, 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.