Citation Nr: 18154186
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 17-22 352A
DATE:	November 29, 2018
ORDER
Entitlement to an effective date earlier than January 31, 2013, for the grant of entitlement to service connection of left knee degenerative arthritis is denied.
Entitlement to an effective date earlier than November 22, 2011, for the grant of entitlement to service connection of right knee degenerative arthritis is denied. 
Entitlement to an effective date earlier than November 20, 2013, for the grant of entitlement to service connection of depressive disorder, not otherwise specified, is denied.
REMANDED
Entitlement to an evaluation in excess of 10 percent for left knee degenerative arthritis is remanded.
Entitlement to an evaluation in excess of 10 percent for right knee degenerative arthritis is remanded.
Entitlement to an evaluation in excess of 70 percent for depressive disorder, not otherwise specified, is remanded.
Entitlement to a total rating for compensation on the basis of individual unemployability (TDIU) is remanded.
FINDINGS OF FACT
1. The evidence of record does not show that a formal or informal claim to reopen the claim of entitlement to service connection for left knee degenerative arthritis was received subsequent to the April 2011 Statement of the Case and prior to the January 31, 2013, petition to reopen.
2. The evidence of record does not show that a formal or informal claim to reopen the claim of entitlement to service connection for right knee degenerative arthritis was received subsequent to the April 2011 Statement of the Case and prior to the November 22, 2011, petition to reopen.
3. The date of the Veteran’s original claim of entitlement to service connection for depressive disorder is November 20, 2013.
CONCLUSIONS OF LAW
1. The criteria for entitlement to an effective date earlier than January 31, 2013, for the award of entitlement to service connection for left knee degenerative arthritis have not been met.  38 U.S.C. §§ 5110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.400 (2018).
2. The criteria for entitlement to an effective date earlier than November 22, 2011, for the award of entitlement to service connection for right knee degenerative arthritis have not been met.  38 U.S.C. §§ 5110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.400 (2018).
3. The criteria for an effective date earlier than November 22, 2011, for the grant of entitlement to service connection for depressive disorder have not been met.  38 U.S.C. §§ 5110, 5107(b) (2012); 38 C.F.R. §§ 3.114, 3.155, 3.157, 3.400 (2018).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on Active duty from March 1986 to June 1986, and from June 2008 to July 2009.
With respect to the Veteran’s claims herein, VA has met all statutory and regulatory notice and duty to assist provisions.
Effective Date
In general, the effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection, shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later.  38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400(b)(2)(i). 
VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises.  See 79 Fed. Reg. 57660 (Sept. 25, 2014).  The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015.  As the Veteran's claims on appeal were filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015, will be applied in this case.
Under the old regulations, "claim" is 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) (2015); see also Brannon v. West, 12 Vet. App. 32, 34-35 (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 the 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) (2015).  To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim.  See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992).
There is no provision in the law for awarding an earlier effective date based simply on the presence of the disability.  See Brannon, 12 Vet. App. at 35 (the mere presence of medical evidence of a condition does not establish an intent on the part of the veteran to seek service connection for the disability).
1. Entitlement to an effective date earlier than January 31, 2013, for the grant of entitlement to service connection of left knee degenerative arthritis
The Veteran contends that he is entitled to an effective date earlier than January 31, 2013, for the grant of entitlement to service connection for left knee degenerative arthritis.  
In an April 2015 Rating Decision, entitlement to service connection for left knee degenerative arthritis was granted, and a 10 percent evaluation was assigned, effective November 20, 2013.  The Veteran disagreed with the effective date assigned, and, in a January 2018 Rating Decision, the RO granted an effective date of January 31, 2013.  
An initial claim of entitlement to service connection for a disability of the bilateral knees was received by the RO on December 24, 2009.  Service connection was denied by the RO in a July 2010 Rating Decision on the basis that the evidence did not show any permanent residual or chronic left knee disability.  Although the Veteran filed a Notice of Disagreement in October 2010, he did not file a timely appeal to the Board following issuance of the April 2011 Statement of the Case.  Additionally, new and material evidence was not received within the appeal period. Thus, the July 2010 Rating Decision became final.  See 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2018).  
After thorough consideration of the evidence of record, the Board concludes that an effective date prior to January 31, 2013, is not warranted for the grant of entitlement to service connection for left knee degenerative arthritis.  38 C.F.R. § 3.400(r).  The evidence of record does not reveal that a formal or informal claim to reopen the issue of entitlement to service connection for left knee degenerative arthritis was received after the last final denial of the Veteran's claim by the RO in July 2010 and prior to January 31, 2013.  See 38 C.F.R. §§ 3.155 and 3.157 (in effect prior to March 24, 2015).  
The Board acknowledges that on November 22, 2011, VA received a petition to reopen the Veteran “claim for a Right Knee Condition, secondary to the claimant’s right foot condition.”  Nevertheless, that petition only pertained to the Veteran’s right knee and was silent for any reference to the Veteran’s left knee.  Indeed, a correspondence requesting to reopen the claims of entitlement to service connection for both knees was not received until January 31, 2013.  
While VA treatment records and VA examination reports were added to the record subsequent to the last final denial of his claim, those records do not constitute an informal claim under 38 C.F.R. § 3.157.  See Lalonde v. West, 12 Vet. App. 377, 382 (1999) (because appellant had not been granted service connection for his anxiety disorder, the mere receipt of medical records could not be construed as informal claim)
Accordingly, the only communication indicating an intent to apply for service connection for a left knee disability in the Veteran's claims file after the RO's July 2010 last final denial of his claim is the petition to reopen received by VA on January 31, 2013.
As there is no evidence of a claim to reopen the issue of entitlement to service connection for a left knee disability prior to January 31, 2013, after the issuance of the April 2011 Statement of the Case, there is no legal basis upon which to assign an effective date prior to January 31, 2013, for the award of service connection for left knee degenerative arthritis.  An award of service connection "shall" be the later of the receipt of the claim to reopen or the date entitlement arose.  38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.  Accordingly, an effective date earlier than January 31, 2013, for the award of service connection for left knee degenerative arthritis is not warranted.
2. Entitlement to an effective date earlier than November 22, 2011, for the grant of entitlement to service connection of right knee degenerative arthritis
The Veteran also contends that he is entitled to an effective date earlier than November 22, 2011, for the grant of entitlement to service connection for right knee degenerative arthritis.  
In an April 2015 Rating Decision, entitlement to service connection for right knee degenerative arthritis was granted, and a 10 percent evaluation was assigned, effective November 22, 2011.  
An initial claim of entitlement to service connection for a disability of the bilateral knees was received by the RO on December 24, 2009.  Service connection was denied by the RO in a July 2010 Rating Decision on the basis that the evidence did not show any permanent residual or chronic right knee disability.  Although the Veteran filed a Notice of Disagreement in October 2010, he did not file a timely appeal to the Board following issuance of the April 2011 Statement of the Case.  Additionally, new and material evidence was not received within the appeal period. Thus, the July 2010 Rating Decision became final.  See 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2018).  Thereafter, on November 22, 2011, the Veteran filed a petition to reopen his “claim for a Right Knee Condition, secondary to the claimant’s right foot condition.”  
After thorough consideration of the evidence of record, the Board concludes that an effective date prior to November 22, 2011, is not warranted for the grant of entitlement to service connection for right knee degenerative arthritis.  38 C.F.R. § 3.400(r).  The evidence of record does not reveal that a formal or informal claim to reopen the issue of entitlement to service connection for right knee degenerative arthritis was received after the last final denial of the Veteran’s claim by the RO in July 2010 and prior to November 22, 2011.  See 38 C.F.R. § 3.155.  
While VA treatment records and VA examination reports were added to the record subsequent to the last final denial of his claim, those records do not constitute an informal claim under 38 C.F.R. § 3.157.  See Lalonde v. West, 12 Vet. App. 377, 382 (1999) (because appellant had not been granted service connection for his anxiety disorder, the mere receipt of medical records could not be construed as informal claim)
Accordingly, the only communication indicating an intent to apply for service connection for a right knee disability in the Veteran’s claims file after the RO’s July 2010 last final denial of his claim is the petition to reopen received by VA on November 22, 2011.
As there is no evidence of a claim to reopen the issue of entitlement to service connection for a right knee disability prior to November 22, 2011, after the issuance of the April 2011 Statement of the Case, there is no legal basis upon which to assign an effective date prior to November 22, 2011, for the award of service connection for right knee degenerative arthritis.  An award of service connection “shall” be the later of the receipt of the claim to reopen or the date entitlement arose.  38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.  Accordingly, an effective date earlier than November 22, 2011, for the award of service connection for left knee degenerative arthritis is not warranted.
3. Entitlement to an effective date earlier than November 20, 2013, for the grant of entitlement to service connection of depressive disorder, not otherwise specified
The Veteran’s original claim for service connection for “mental health conditions” was received by VA on November 20, 2013.  In an April 2015 Rating Decision, the RO granted service connection, assigning an effective date of November 20, 2013, the date his claim was received.  The Veteran disagreed with the effective date assigned.   
Here, a review of the claims file indicates that no claim for service connection for a psychiatric disorder was filed prior to November 20, 2013.  Indeed, even the “Brief in Response to 90-Day Letter” filed by the Veteran’s attorney in July 2018 referred to November 20, 2013, as the “original claim date” of his claim of entitlement to service connection for a psychiatric disorder.  
As such, the date of the claim is November 20, 2013.  No earlier communication or action by the Veteran could be interpreted as a claim for any psychiatric disorder.  See 38 C.F.R. §§ 3.1(p), 3.155(a); Servello, 3 Vet. App. at 198.  Thus, the Veteran’s claim for an earlier effective date is denied.  There is no reasonable doubt to be resolved as to this matter. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R.   § 3.102, 4.3 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
REASONS FOR REMAND
The Veteran also seeks entitlement to increased evaluations for left knee degenerative arthritis, right knee degenerative arthritis, and a depressive disorder, as well as entitlement to a TDIU.  Unfortunately, the Board finds that additional development must be undertaken before these claims can be adjudicated on the merits.  
With respect to the Veteran’s increased evaluation claims, he was most recently provided with a VA examination relevant to his service-connected disabilities in December 2014, approximately four years ago.  However, evidence added to the records since that time, to include VA treatment records, a September 2015 Mental Disorders Disability Benefits Questionnaire completed by a private psychologist, and a June 2018 VA Disability Review authored by a private vocational consultant, suggest that the Veteran’s service-connected symptomatology worsened in severity since the December 2014 VA examinations.  As such, these issues must be remanded to provide current VA examinations in order to adequately assess the present severity of the Veteran’s service-connected disabilities.  See Palczewski v. Nicholson, 21 Vet. App 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity). 
Additionally, a claim for increased evaluation includes a claim for a TDIU where there are allegations of worsening disability and related unemployability.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  As a TDIU claim has been explicitly raised by the record in this case, the Board finds that the issue of entitlement to TDIU must also be remanded, as it is inextricably intertwined with the increased evaluation claims remanded herein.  All issues "inextricably intertwined" with the issue certified for appeal, are to be identified and developed prior to appellate review.  Harris v. Derwinski, 1 Vet. App. 180 (1991).  The claim of entitlement to TDIU is "intertwined" with the increased evaluation claims because a decision on the latter claim may have an impact on the former.  Consequently, the claim of entitlement to a TDIU must be remanded for contemporaneous adjudication.
The matters are REMANDED for the following actions:
1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed disabilities.  After securing any necessary releases, the AOJ should request any relevant records identified.  In addition, obtain updated VA treatment records.  If any requested records are unavailable, the Veteran should be notified of such.
2. Schedule the Veteran for a VA knee examination to ascertain the current severity and manifestations of the Veteran's service-connected knee disabilities.  The claims file should be made available to the examiner for review in connection with the examination. 
The examination should include a statement as to the effect of the Veteran's service-connected knee disabilities on his occupational functioning and daily activities.  In particular, the VA examination must include range of motion testing for both knees which encompasses active motion, passive motion, weight-bearing; and nonweight-bearing.
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.
The VA examiner should provide a complete rationale for any opinions provided.
3. Schedule the Veteran for a VA mental health examination to determine the nature and level of severity of his depressive disorder.  The claims file should be made available to the examiner in conjunction with the examination. All necessary testing should be conducted. All pertinent history, symptomatology, and findings must be reported in detail. 
The examiner is to thereafter provide a detailed review of the Veteran's history, current complaints, and the nature and extent of his service connected mental health disability, including the frequency, duration, intensity, onset of any change in symptoms, and functional effects of symptoms.  All signs and symptoms of the Veteran should be reported in detail, and the examiner should describe the level of severity of the symptoms and how each symptom impacts the Veteran's occupational and social functioning in accordance with VA rating criteria.
4. After completing any additional notification or development deemed necessary, the Veteran’s remaining appeals should be readjudicated.  If any claim remains denied, then the Veteran and his attorney should be furnished with a Supplemental Statement of the Case and afforded a reasonable opportunity for response.
 
J. A. Anderson
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Anthony M. Flamini, Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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