200401-75658

• Court: Board of Veterans' Appeals
• Decided: January 29, 2021
• Docket: 200401-75658
• Status: Unpublished

Opinion

Citation Nr: AXXXXXXXX Decision Date: 01/29/21 Archive Date: 01/29/21

DOCKET NO. 200401-75658 DATE: January 29, 2021

ORDER

An earlier effective of March 16, 2009 for a 10 percent disability rating for left knee instability disability is granted.

FINDING OF FACT

The earliest date that is factually ascertainable that the left knee instability increased in disability was on March 16, 2009, which is within one year prior to the filing of the February 16, 2010 claim for increased rating.

CONCLUSION OF LAW

The criteria for an earlier effective date of March 16, 2009 for the left knee instability rated at 10 percent have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400, 4.3, 4.7, 4.71a, Diagnostic Code 5257.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from September 1980 to July 1982.

This matter is on appeal from a claim for increased rating for residuals of a left knee injury filed on February 16, 2010, which was denied in a March 2010 rating decision. The Veteran filed a notice of disagreement in May 2010 and a statement of the case was issued in August 2010. The Veteran filed a substantive appeal (VA Form 9) in September 2010.

The matter came before the Board in March 2014. The Board remanded the issue in order to obtain more evidence, including private and VA medical records. A December 2015 supplemental statement of the case (SSOC) denied the appeal.

The matter came before the Board again in September 2016. The Board remanded in order to obtain a VA examination. At this time the Veteran was incarcerated and, according to evidence filed in November 2016, the VA examination was not scheduled because the prison did not respond to multiple letters and phone calls from VA. A November 2016 SSOC denied the claim. VA attempted to contact the prison again, on multiple occasions, and there was no response; as a result, the request for VA examination was cancelled again. See June 2017 VA Examination. A July 2017 SSOC denied the claim

The claim was brought before the Board again in February 2018. The Board remanded again for a VA examination. A VA examination was conducted in August 2019.

The Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA), became effective in February 2019. This law has created a new framework to seek review for veterans who disagree with VA’s decision on their claim.

A March 2020 AMA rating decision, among other actions, granted a separate 10 percent disability rating for left knee instability (Diagnostic Code 5257), effective from July 8, 2019. On April 1, 2020, the Veteran timely appealed the effective date assigned for the 10 percent left knee instability rating and requested Direct Review.

Earlier Effective Date for Left Knee Instability

Under Chapter 51 of Title 38 of the United States Code, the effective date for an increased rating for disability compensation will be the date entitlement arose, the earliest date as of which it is factually ascertainable that an increase in disability occurred if a claim is received within one year from such date, or the date of receipt of the claim, whichever is later. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010).

The Veteran is currently in receipt of a 10 percent disability rating for left knee instability from July 8, 2019. The Veteran contends that he experienced instability since at least 2010, when the claim for increased rating for the left knee injury disability was filed.

The Board finds that the Veteran filed a claim for increased rating for the left knee injury residuals on February 16, 2010, from which the separate 10 percent rating for left knee instability arose. The Board also finds that on March 16, 2009, within one year prior to the February 16, 2010 increased rating claim, the Veteran sought treatment at a VA medical center for left knee instability and wore a brace for stability. The Board notes that the left knee instability manifested in slight lateral instability since the March 16, 2009 treatment. There are no other relevant filings or medical treatment records within one year prior to the February 16, 2010 increased rating claim and earlier than March 16, 2009 that indicate an increase rating for the left knee instability is warranted.

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Based on the foregoing, the Veteran is entitled to an earlier effective date of March 16, 2009 for the 10 percent disability rating for the left knee instability as that is the earliest date within one year prior to the February 16, 2010 claim as of which it is factually ascertainable that an increase in disability (instability) occurred.

J. PARKER

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board D. Costantino, Associate 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.