Citation Nr: 21014957 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 19-22 604 DATE: March 16, 2021 ORDER From October 1, 2009 to December 12, 2010, but no earlier, entitlement to a 10 percent rating, but no higher, for service-connected right knee instability is granted. FINDING OF FACT The October 1, 2009 VA treatment documenting the Veteran’s subjective reports of right knee instability constituted an informal claim seeking a separate compensable rating for right knee instability. There is no evidence of record showing a formal or informal claim was received prior to this date. The evidence shows no worse than slight instability in the right knee between October 1, 2009 and December 12, 2010. CONCLUSION OF LAW From October 1, 2009 to December 12, 2010, but no earlier, the criteria for entitlement to a 10 percent rating, but no higher, for service-connected right knee instability have been met. 38 U.S.C. §§ 5110, 1155; 38 C.F.R. §§ 3.400, 4.71a, Diagnostic Code 5257 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1986 to February 1998, from December 2005 to November 2006, and from May 2007 to January 2009. He also had additional service of an unverified nature in the United States Naval Reserves. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In the July 2019 VA form 9, Substantive Appeal, the Veteran declined an optional Board hearing. The undersigned Veterans Law Judge has been assigned to adjudicate this matter pursuant to 38 C.F.R. § 20.106(a) (formerly 19.3(a)). Procedural History In a May 2009 rating decision, the RO awarded the Veteran entitlement to service connection for a right knee disability, and assigned an initial 10 percent rating under Diagnostic Code 5259, 38 C.F.R. § 4.71a, effective January 15, 2009. On December 13, 2010, the Veteran filed an informal claim, in pertinent part, seeking a higher disability rating for his service-connected right knee disability. In an April 2011 rating decision, the RO continued the Veteran’s 10 percent rating for the right knee under Diagnostic Code 5259, and awarded a separate 10 percent rating under Diagnostic Code 5260-5010, effective December 13, 2010. On August 1, 2011, the Veteran filed a notice of disagreement seeking a higher disability rating for his service-connected right knee disability, to include a separate rating for instability under Diagnostic Code 5257. In a November 2013 rating decision, the RO awarded a separate 10 percent rating for instability in the Veteran’s right knee under Diagnostic Code 5257, effective August 1, 2011. This was considered a partial grant of the benefits sought on appeal, and in December 2013, the Veteran filed a Substantive Appeal seeking the Board’s review of the proper ratings assigned for his service-connected right knee disability. In June 2015, the Board issued a decision denying ratings in excess of 10 percent for right knee degenerative disc disease under Diagnostic Code 5260-5010 and right knee residuals of meniscectomy under Diagnostic Code 5259, respectively. The Board granted a higher 20 percent rating for the Veteran’s right knee instability, and left it to the RO to assign an initial effective date. The Veteran appealed the June 2015 Board decision to the United States Court of Appeals for Veterans Claims (CAVC), but the appeal was dismissed due to the Veteran’s failure to comply with CAVC’s procedural rules. In a September 2015 rating decision, the RO assigned an initial effective date of August 1, 2011 for the Veteran’s higher 20 percent rating under Diagnostic Code 5257 for right knee instability. In November 2016, the Veteran filed a notice of disagreement seeking a rating in excess of 20 percent for right knee instability post June 24, 2015 (the date of the Board decision) and an effective date earlier than August 1, 2011 for the award of the 20 percent rating for the Veteran’s right knee instability. Regarding the higher rating since June 24, 2015, the Veteran argued that the Board decision’s Order granted a 20 percent rating for right knee instability, but did not include the language “but no higher,” thus implying the issue of a higher rating under Diagnostic Code 5257 was not precluded. The Veteran further argued that since the matter was not appealed to the CAVC, it remained on appeal. The Board has fully reviewed the June 24, 2015 Board decision, and the electronic claims file, and disagrees with the Veteran’s assertion on two bases. First, contrary to the Veteran’s assertion, the June 24, 2015 Board decision was appealed to the CAVC, but it was dismissed due to the Veteran’s failure to prosecute the case in accordance with the CAVC’s procedural rules. Upon the CAVC’s dismissal, the June 24, 2015 Board decision became final. Second, the Board issued the factual finding that the Veteran had moderate anterior instability of the right knee—based on lay and medical evidence dated in 2013 and 2014—consistent with a 20 percent rating under Diagnostic Code 5257. In the June 24, 2015 decision, the Board expressly stated: [T]he Veteran is not entitled to a disability rating in excess of 20 percent for his instability of the right knee as joint stability tests indicated normal results for posterior and medial-lateral instability. Additionally, in the Veteran’s December 2014 statement, his representative concedes that the Veteran’s instability is moderate as the representative only asks for the “next highest evaluation for the right knee instability.” The Board elected to have the RO issue the initial effective date for the awarded higher 20 percent rating, so as to grant the Veteran the opportunity for an initial determination and the right to appeal. It is clear from the final June 24, 2015 Board decision—as a whole—that the Board determined that the Veteran was not entitled to a rating higher than 20 percent under Diagnostic Code 5257, and the Board decision is final on this matter. As such, the November 2016 notice of disagreement is invalid to the extent that it seeks a rating higher than 20 percent following the June 24, 2015 Board’s decision on the merits of that issue. See Harris v. Nicholson, 19 Vet. App. 345, 348 (2005) (A veteran may not challenge the merits of a Board decision by expressing disagreement with the RO’s implementing rating decision as to the Board’s findings of fact); Donovan v. Gober, 10 Vet. App. 404, 409 (1997) (“a RO must not be placed in the anomalous position of reviewing the decision of the [Board], a superior tribunal.”). In a June 2019 Statement of the Case, the RO awarded an earlier effective date of December 13, 2010 for the 20 percent rating under Diagnostic Code 5257 for right knee instability. In July 2019, the Veteran filed a Substantive Appeal and the matter was subsequently certified to the Board for appellate disposition. In October 2019, the Board issued a decision denying an effective date earlier than December 13, 2010 for the award of a separate compensable rating for the Veteran’s right knee instability. The Veteran filed an appeal with the CAVC in February 2020. In October 2020, the CAVC granted an October 2020 joint motion for remand (JMR) of the Veteran and the Secretary of Veterans Affairs, vacating the October 2019 Board decision and remanding the matter back to the Board. The parties to the JMR agreed that the Board failed to consider the applicability of 38 C.F.R. § 3.157(b) (2013), as it pertained to an October 1, 2009 VA treatment record documenting the Veteran’s subjective report of right knee buckling, but normal right knee instability testing. The matter was remanded for the Board to determine whether this VA treatment record constituted an informal claim under 38 C.F.R. § 3.157(b) (2013), potentially giving rise to an effective date earlier than December 13, 2010 for the award of a separate compensable rating for right knee instability under Diagnostic Code 5257. The matter has now returned to the Board for readjudication consistent with the terms of the JMR. Legal Analysis Under 38 U.S.C. § 5110(a), the effective date of an increase in a veteran’s disability compensation “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” 38 U.S.C. § 5110(b)(2) provides an exception to this general rule: “The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.” Three possible dates may be assigned depending on the facts of an increased rating earlier effective date case: (1) If an increase in disability occurs on or after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1)); (2) If an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or (3) If an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)). See Gaston v. Shinseki, 605 F.3d 979, 982-84 (Fed. Cir. 2010); see also Harper v. Brown, 10 Vet. App. 125, 126 (1997). As to what constitutes a claim, a claim is defined as 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); 3.155 (2013). Any communication or action from a claimant indicating an intent to apply for one or more benefits under the laws administered by VA and which identifies the benefit sought, may be considered an informal claim. 38 C.F.R. § 3.155(a) (2013). Section 3.157(b)(1) (2013) applies to an informal claim to increase or reopen a previous compensation determination and permits a report of examination or hospitalization by VA or uniformed services to be considered such an informal claim when the report relates to a disability for which service connection has previously been established. 38 C.F.R. § 3.157(b)(1) (2013); see Massie v. Shinseki, 25 Vet. App. 123 (2011), aff’d 724 F.3d 1325 (Fed. Cir. 2013). There is no intent requirement inherent in 38 C.F.R. § 3.157(b)(1). See MacPhee v. Nicholson, 459 F.3d 1323, 1325-26 (2006) (contrasting 38 C.F.R. § 3.155(a)—the regulation governing original informal claims—with § 3.157(b)(1)—the regulation governing, inter alia, reports of examination or hospitalization as informal claims for increased compensation—and noting that § 3.155(a) requires that an informal claim “indicate an intent to apply for one or more benefits,” whereas § 3.157(b)(1) does not). 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 eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims under 38 C.F.R. § 3.157. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments apply only to claims filed on or after March 24, 2015. However, as 38 C.F.R. § 3.157 was in effect during the period under consideration in this decision, it is still for application. Additionally, the rating criteria for knee instability have been recently changed, effective February 7, 2021; however, as the period under consideration predates the regulatory changes, they have no effect in the instant appeal. See 85 Fed. Reg. 76453 (Nov. 30, 2020). As directed by the JMR, the Board has considered whether the October 1, 2009 VA treatment record documenting the Veteran’s lay report of right knee buckling constitutes an informal claim for a separate rating for right knee instability earlier than December 13, 2010, and finds that this evidence raised an informal claim for such under 38 C.F.R. § 3.157(b)(1)(2013). In holding so, the Board recognizes that the physical examination conducted at this VA treatment visit was negative for objective instability (“There is no rotatory instability”); nevertheless, veterans are competent to describe knee instability and objective medical evidence is not categorically more probative than lay evidence of knee instability. English v. Wilkie, 30 Vet. App. 347 (2018). The Board has fully reviewed the electronic claims file and finds the October 1, 2009 VA treatment record to be the first evidence, lay or medical, documenting right knee instability, since service connection was enacted for the right knee on January 15, 2009. At the February 2009 VA examination, objective testing for right knee instability was normal and the Veteran did not report right knee instability or related symptoms. Consequently, the Veteran is entitled to an earlier effective date of October 1, 2009 for the award of a separate compensable rating for right knee instability under Diagnostic Code 5257, as this is the first date entitlement arose. See 38 C.F.R. § 38 C.F.R. § 3.400(o)(1). Thus, the final question for resolution is the proper rating to be assigned for right knee instability between October 1, 2009 and December 12, 2010. Pursuant to the version of Diagnostic Code 5257 in effect during the relevant time period, a 10 percent rating is warranted for slight instability, a 20 percent rating is warranted for moderate instability, and a 30 percent rating is warranted for severe instability. Neither Diagnostic Code 5257 nor the overall Rating Schedule defines slight, moderate, and severe. However, slight is generally defined as “small in kind or amount.” Merriam-Webster ‘s Collegiate Dictionary, 1173 (11th ed. 2003). Moderate is defined as “tending toward the mean or average amount.” Id. at 798. Severe is generally defined as “of a great degree.” Id. at 1140. In the final June 24, 2015 decision, the Board found the use of a brace and cane to be indicative of moderate instability. The Board has reviewed the medical and lay evidence between October 1, 2009 and December 12, 2010 and finds the Veteran’s right knee is productive of, at worst, slight instability during this time period, consistent with a 10 percent rating under Diagnostic Code 5257. At the October 1, 2009 VA treatment visit, the Veteran subjectively reported buckling of the right knee. He did not quantify the frequency of this buckling sensation, nor did he indicate that the use of bracing/cane were needed for stability purposes. The Board notes that the Veteran reported the use of a brace while working at the February 2009 VA examination and wore a brace to a September 2009 VA treatment visit; however, he did not report continued use of a brace at the October 1, 2009 treatment visit, and there is no evidence of right knee brace use between October 1, 2009 and December 12, 2010. Objective instability testing from the October 1, 2009 VA treatment visit was normal. This medical finding, in conjunction with the Veteran’s vague report of right knee buckling as reported to the orthopedist, more nearly approximates a slight characterization than a moderate or severe characterization of instability. While there were reports of limping, no other lay or medical evidence within this period documents right knee instability (bucking/giving way sensation). In light of the above analysis, the Board finds that the evidence supports a 10 percent rating, but no higher, under Diagnostic Code 5257 for the Veteran’s right knee instability between October 1, 2009 and December 12, 2010. The Board shall not disturb the favorable finding of the RO increasing the Veteran’s disability rating for right knee instability to 20 percent, effective December 13, 2010. [Continued on Next Page] In sum, the October 1, 2009 VA treatment record constituted an informal claim for a separate compensable rating for right knee instability under 38 C.F.R. § 3.157(b)(1) (2013) and the evidence demonstrated the presence of slight instability on this date through December 12, 2010 under Diagnostic Code 5257. To this extent, the Veteran’s appeal is granted. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Galante 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.