Citation Nr: 21040321 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 15-10 613 DATE: July 3, 2021 ORDER An effective date as of June 29, 1982, but no earlier, for the award of service connection for a left knee scar is granted. An effective date as of March 10, 2003, but no earlier, for the award of service connection for a right knee scar is granted. REMANDED Entitlement to an initial rating compensable (rating higher than 0 percent) for right foot scars is remanded. Entitlement to service connection for a psychiatric disorder, claimed as depression, to include as secondary to service-connected disabilities, is remanded. Entitlement to an initial rating in excess of 10 percent prior to September 21, 2019 and 20 percent thereafter for left knee status post-repair recurrent patellar tendon rupture with degenerative joint disease is remanded. Entitlement to a rating in excess of 10 percent prior to February 7, 2021 and 30 percent thereafter for left knee instability is remanded. Entitlement to an initial rating in excess of 10 percent for right knee degenerative joint disease is remanded. Entitlement to a rating in excess of 10 percent prior to February 7, 2021 and 20 percent thereafter for right knee instability is remanded. Entitlement to an initial rating in excess of 10 percent prior to for total right foot disability, referred to as right foot hallux valgus status post-surgical repair and a history of a plantar fascial tear, prior to September 21, 2019, is remanded. Entitlement to an initial rating in excess of 10 percent as of September 21, 2019 for right foot hallux valgus status post-surgical repair is remanded. Entitlement to an initial rating in excess of 20 percent as of September 21, 2019 for right foot plantar fasciitis is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. On June 29, 1982, the Veteran underwent his first surgery for his then service-connected left knee disability, resulting in his left knee surgical scar, and apprised VA of this surgery, constituting an informal claim for service connection for a left knee surgical scar. 2. On March 10, 2003, VA received the Veteran's informal claim for service connection for a right knee disorder and history of a right knee surgery, thereby constituting an informal claim for service connection for a right knee surgical scar. CONCLUSIONS OF LAW 1. The criteria for an effective date of June 29, 1982 for the award of service connection for a left knee scar have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for an effective date of March 10, 2003 for the award of service connection for a right knee scar have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1976 to August 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in April 2014, May 2014, and August 2015, by a Regional Office (RO) of the Department of Veterans Affairs (VA). In December 2018, the Board issued a decision that, in relevant part, remanded the aforementioned psychiatric disorder service connection claim and orthopedic disability and related scar increased rating claims, as well as a service connection claim for a right hip disorder, for further development. Thereafter, the RO/Agency of Original Jurisdiction (AOJ) readjudicated these claims, granting service connection for a right hip disorder, thereby extinguishing the related appeal, and granted staged increased ratings for the Veteran's orthopedic disabilities, which are now reflected in the current characterization of these claims, above. The Board also remanded the Veteran's claims seeking earlier effective dates for the limited purpose of the issuance of a statement of the case per See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). After the AOJ undertook the requested development, the Veteran perfected appeals of his earlier effective date claims, thereby conferring jurisdiction of these claims to the Board. The Board acknowledges that when remanding these earlier effective date claims, the Board determined that five such claims had been raised by the Veteran's checking the boxes on his notice of disagreement form indicating his disagreement with the effective dates assigned for the grant of service connection for his bilateral knee scars and for his assigned disability ratings for his left knee instability, left knee degenerative joint disease, right knee instability, and right knee degenerative joint disease. Indeed, the Board is adjudicating the Veteran's claim seeking an earlier effective date for the grant of service connection for his bilateral knee scars below. (The Board has bifurcated the claim into separate claims regarding the Veteran's left and right knee scars.) However, with regard to the claims referenced as seeking earlier effective dates for his assigned bilateral knee disability increased ratings, the Board finds that the Veteran's disagreement with those effective dates does not constitute distinct earlier effective date claims, as these disagreements are encompassed within his increased rating claims already on appeal. Accordingly, the Veteran's disagreements with the assigned effective dates for his increased ratings will be addressed by the Board within the context of his increased rating claims and not adjudicated as separate effective date claims. Earlier Effective Date The assignment of an effective date for an award is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on a claim for service connection or for an increase of compensation "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore." 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The effective date for an award of service connection is the day after separation from service or day entitlement arose, if a claim is received within one year of separation from service, otherwise the date of receipt of claim, or the day entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). A claim for VA benefits, whether formal or informal, must be in writing and must identify the benefit sought. 38 U.S.C. § 5101; 38 C.F.R. §§ 3.1(p), 3.151, 3.155; Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999); Lalonde v. West, 12 Vet. App. 377 (1999). Prior to March 24, 2015, any communication or action indicating intent to apply for one or more benefits under the laws administered by VA, was considered an informal claim. Such informal claim must identify the benefit 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). 1. Entitlement to an effective date prior to April 2, 2015 for the award of service connection for left knee surgical knee scar. 2. Entitlement to an effective date prior to April 2, 2015 for the award of service connection for right knee surgical scar. The instant claims seeking an earlier effective date for the grant of service connection for the Veteran's left and right knee scars stem from the Veteran's disagreement with the effective date of April 2, 2015 that the AOJ assigned upon granting service connection for the Veteran's bilateral knee scars. Notably, the Veteran has never filed an express claim seeking service connection for his knee scars, potentially because he lacked knowledge of the eligibility of his knee scars to be recognized as separate, service-connected disabilities. Indeed, as a result of such general lack of knowledge, VA has a longstanding practice of addressing the presence of scars related to a service-connected disability on its own volition. In this case, in April 2015, the Veteran filed claims seeking increased ratings for his service-connected bilateral knee disabilities, and the Veteran underwent a related VA knee examination in July 2015. The VA knee examination form includes a field for indicating whether knee scars are present, and if so, the form instructs the examiner to complete a VA scars examination form. Accordingly, in this case, the July 2015 VA knee examination report notes the presence of bilateral knee surgical scars, and the examiner therefore completed a contemporaneous VA scars examination. Based on the findings during this VA scars examination of painful, superficial surgical scars on both knees, the AOJ granted service connection for "bilateral knee scars" and assigned a single 10 percent rating, based on the rating criteria in effect at this time that awards a 10 percent rating based on the presence of two such scars. The AOJ assigned effective dates for the award of service connection for these bilateral knee scars as of April 2015, the date of receipt of the Veteran's bilateral knee increased rating claims. The Veteran disagreed with this effective date, giving rise to the instant appeal. Based on a review of the record, and as explained further below, the Board finds that VA had constructive knowledge of the Veteran's bilateral knee surgical scars effective as of the date the Veteran underwent his first left knee surgery (and requested a related temporary total rating for surgical convalescence) and as of the date secondary service connection for the Veteran's right knee disability was awarded, as the medical evidence of record at that time reflected the Veteran's history of a right knee surgery. By way of background, the Veteran was initially granted service connection for a left knee disability, referred to as left knee chondromalacia patella, effective as of his discharge from service in August 1977. This left knee disability was evaluated as 10 disabling from this date until August 1982, when the AOJ discontinued the Veteran's compensable rating following a period of surgical convalescence after the Veteran first left knee surgery was performed in June 1982. Thereafter, the Veteran's left knee disability was evaluated as noncompensably disabling until December 1992, when a 10 percent rating was resumed. For this reason, it appears that the RO's recent records erroneously indicate that the Veteran was initially service connected for a left knee disability in December 1992. In addition to the total rating for left knee surgical convalescence awarded in June 1982, the Veteran was also awarded total ratings for convalescence for his second and third left knee surgeries, which were performed in August 2002 and February 2003. As such, the record reflects that VA had actual knowledge of the Veteran's left knee surgeries when they occurred, as well as knowledge of surgical incisions documented in contemporaneous surgical reports, and likely related scarring. Indeed, the Veteran's surgical left knee scars were described in VA examination reports from July 2003, January 2007, March 2010, and April 2012. With regard to the Veteran's right knee disability, the Veteran was awarded service connection for his right knee degenerative joint disease as secondary to his service-connected left knee disability as of March 2003, at which time the Veteran's history of a right knee surgery was noted. Indeed, VA knee examinations performed in January 2007, March 2010, and April 2012 described the Veteran's right knee surgical scar. Based on the foregoing procedural history, the Board finds that VA had constructive knowledge of the Veteran's left knee surgical scar when the Veteran submitted his June 1982 left knee surgical report and of his right knee surgical scar when service connection for a right knee disability was awarded in a September 2003 rating decision effective March 2003, at which time a July 2003 VA knee examination noted the Veteran's history of right knee surgery. As such, the Board finds that the June 1982 left knee surgical report and July 2003 VA knee examination serve as informal service connection claims for the Veteran's bilateral knee surgical scars, and that these claims remained pending and unadjudicated until service connection was granted effective as of April 2015. Shea v. Wilkie, 926 F.3d 1362 (Fed. Cir. 2019). Accordingly, the Board finds that an effective date of June 29, 1982 is warranted for the Veteran's left knee surgical scar and an effective date of March 10, 2003 for the Veteran's right knee surgical scar is warranted. However, the Board finds that effective dates prior than those indicated above for the award of service connection for bilateral knee scars is not warranted. In this regard, while the Veteran was service connected for a left knee disability as of August 1977, the Veteran had no left knee scars at this time or until he underwent his first left knee surgery in June 1982. Likewise, while the Veteran had sought service connection for a right knee disability prior to March 2003, his prior claims were denied in subsequent final rating decisions, and the Veteran has not asserted that these rating decisions are the product of clear and unmistakable error, the only vehicle for determining that these earlier claims could serve as a basis for awarding an earlier effective date. Thus, the Board finds effective dates of June 29, 1982 and March 10, 2003, but no earlier, for the award of service connection for left and right knee surgical scars, respectively, is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a psychiatric disorder, to include as secondary to service-connected disabilities. When last remanding this claim in December 2018, the Board instructed that the Veteran be afforded a VA psychiatric examination to determine whether the Veteran's depressive disorder diagnosed during this appeal period is related to his service-connected disabilities. In response, the Veteran was afforded such an examination in March 2021, at which time the examiner found no evidence of a current psychiatric disorder. Accordingly, in the corresponding medical opinion, the examiner essentially declined to offer an opinion regarding whether the Veteran has a current psychiatric disorder that is proximately due to his service-connected disabilities, noting the lack of any evidence of such a psychiatric disorder during the contemporaneous psychiatric examination. As argued by the Veteran's attorney, the VA examiner's failure to render an opinion or address the etiology of the Veteran's depressive disorder diagnosed during this rating period fails to comply with the Board's remand directives, necessitating a remand of this claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance). Further, the Board notes that while the VA examiner declined to offer an opinion as to whether the Veteran's current depressive disorder is proximately due to his service-connected disabilities, the examiner did offer a medical opinion as to whether the Veteran's psychiatric symptoms were aggravated by his service-connected disabilities. Specifically, the examiner found such a relationship is unlikely, as during his contemporaneous VA psychiatric examination the Veteran reported that his psychiatric symptoms were attributable to life stressors unrelated to his service-connected orthopedic disabilities. However, as the Veteran's VA treatment records reflect that when he was initially diagnosed with his depressive disorder, he reported his orthopedic pain as a contributing factor, this history should be considered in a new medical opinion. Further, the summaries of numerous articles regarding the correlation between pain and psychiatric disorders that were recently submitted by the Veteran's attorney should also be reviewed when forming the requested etiological opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). 2. Entitlement to an initial rating in excess of 10 percent prior to September 21, 2019 and 20 percent thereafter for left knee status post-repair recurrent patellar tendon rupture with degenerative joint disease. 3. Entitlement to a rating in excess of 10 percent prior to February 7, 2021 and 30 percent thereafter for left knee instability. 4. Entitlement to an initial rating in excess of 10 percent for right knee degenerative joint disease. 5. Entitlement to a rating in excess of 10 percent prior to February 7, 2021 and 20 percent thereafter for right knee instability. 6. Entitlement to an initial rating in excess of 10 percent prior to September 21, 2019 for right foot disability, referred to as right foot hallux valgus status post-surgical repair and a history of a plantar fascial tear. 7. Entitlement to an initial rating in excess of 10 percent as of September 21, 2019 for right foot hallux valgus status post-surgical repair. 8. Entitlement to an initial rating in excess of 20 percent as of September 21, 2019 for right foot plantar fasciitis. 9. Entitlement to an initial rating compensable (rating higher than 0 percent) for right foot scars. As the Veteran's VA treatment of record reflects that he receives ongoing VA treatment for his service-connected disabilities, and his VA treatment records were most recently obtained approximately four years ago, in October 2017, the Veteran's outstanding VA treatment records must be obtained before these increased rating claims can be adjudicated. 10. Entitlement to a TDIU. As the Veteran asserts that he is unemployable as a result of service-connected bilateral knee and right foot disabilities, as well as his claimed psychiatric disorder, a claim for a TDIU has been raised as part and parcel of the record, requiring development and adjudication. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The matters are REMANDED for the following action: 1. Provide the Veteran with a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, and associate the completed form with his claim file. 2. Obtain the Veteran's VA treatment records from October 2017 to the present. 3. Obtain an opinion regarding whether it is at least as likely as not that the Veteran's unspecified depressive disorder (as diagnosed during this appeal period by a VA practitioner in June 2015) is at least as likely as not (a 50 percent probability or greater) (a) proximately due to or (b) aggravated by his service-connected orthopedic disabilities. 4. Readjudicate. (Continued on Next Page) In forming the opinion, the examiner must consider the , Veteran's report in June 2015 that his orthopedic pain contributes to his depression, as well as excerpts of the medical studies and articles exploring the correlation between pain and depression, which were submitted by the Veteran's attorney in May 2021. A complete rationale must be provided for the requested opinions. TIFFANY HANSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Northcutt, 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.