Citation Nr: 0005018	
Decision Date: 02/25/00    Archive Date: 03/07/00

DOCKET NO.  97-23 958A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, 
Washington


THE ISSUE

Entitlement to an effective date prior to May 18, 1993, for a 
grant of a 10 percent evaluation for a left knee disability.


REPRESENTATION

Appellant represented by:	Washington Department of 
Veterans Affairs


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Solomon J. Gully, IV, Associate Counsel


INTRODUCTION

The veteran had active service from April 1974 to March 1975.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a June 1996 rating decision by the 
Department of Veterans Affairs (VA) Regional Office (RO), 
located in Seattle, Washington.

The Board notes that the veteran's appeal originally included 
the issues of whether new and material evidence had been 
submitted to reopen a claim of entitlement to service 
connection for a right knee disability, and whether new and 
material evidence had been submitted to reopen a claim of 
entitlement to service connection for a left hip disability.  
During the pendency of the appeal, an October 1998 rating 
decision granted service connection for these disabilities, 
and assigned a combined evaluation of 10 percent.  The 
veteran was notified of this decision, and did not file a 
notice of disagreement (NOD).  Therefore, the issue of a 
higher evaluation for these disabilities is not presently in 
appellate status.  See Grantham v. Brown, 114 F.3d 1156 (Fed. 
Cir. 1997). 

Since the October 1998 supplemental statement of the case, 
the veteran has submitted additional evidence in support of 
her claim, specifically a facsimile dated in January 2000, 
with attached documents.  After reviewing the foregoing 
evidence, the Board finds that while the additional 
submission is helpful in determining the proper evaluation of 
the veteran's service-connected left knee disability, it is 
not pertinent to the issue of entitlement to an effective 
date prior to May 18, 1993, for the grant of service 
connection for a left knee disability.  The documents consist 
of private records reflecting treatment for a left knee 
disability from September 1995 to January 1996, reports from 
the State of Washington Department of Labor and Industries 
from September 1995 to February 1996 regarding the veteran's 
workers' compensation benefits, and a statement from the 
veteran's son regarding her inability to work from December 
to May 1988 due to her left knee disability.  Consequently, 
the Board finds that it is not necessary to refer this 
evidence to the RO for review before rendering a decision 
regarding the veteran's entitlement to an 
effective date prior to May 18, 1993, for the grant of 
service connection for a left knee disability 38 C.F.R. §§ 
19.37(a), 20.1304(c) (1999). 

Based on the June 1996 notice of disagreement, it appears the 
veteran may be raising additional issues, including the issue 
of entitlement to temporary total disability benefits based 
on VA hospitalization in excess of 21 days due to a service-
connected disability.  The Board may not entertain an 
application for review on appeal unless it conforms to the 
law.  38 U.S.C.A. § 7108 (West 1991 & Supp. 1999).  The RO 
has not fully adjudicated this issue, and the Board may not 
unilaterally take jurisdiction of any additional claims.  The 
RO should request the veteran to clearly indicate what 
additional claims, if any, she wishes to pursue.  The RO 
should then take appropriate action to adjudicate these 
claims, if any.


FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable 
disposition of this appeal has been obtained.

2.  A claim for service connection for a left knee disability 
was received within one year of the veteran's discharge from 
service in March 1975.


CONCLUSION OF LAW

The criteria for an effective date of March 7, 1975, for the 
grant of service connection for a left knee disability have 
been met.  38 U.S.C.A. §§ 5107, 5110 (West 1991 & Supp. 
1999); 38 C.F.R. § 3.400 (1999).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

Factual Background

On May 18, 1993, the veteran filed a claim of entitlement to 
service connection for various disabilities, including a left 
knee disability.

In conjunction with the veteran's claim, the RO requested her 
service medical records (SMRs) from the National Personnel 
Records Center (NPRC) in May 1993.  The following month, NPRC 
forwarded the veteran's August 1974 enlistment examination, 
and stated that the rest of the SMRs were forwarded to the RO 
in Los Angeles, California on April 1, 1975.  The RO 
submitted a second request for the veteran's SMRs in July 
1993.  In an August 1993 response, NPRC reported that, 
according to its records, the veteran filed a claim at 
separation from service, which was forwarded to the RO in Los 
Angeles, California on March 6, 1975.

During a June 1994 VA examination, the veteran reported that 
she sustained a twisting injury to her left knee during 
physical training in 1974.  She related that she had eight 
surgeries on the left knee since that time, with the most 
recent operation performed approximately seven years earlier.  
The veteran complained of a chronic, cramping pain in the 
posterior aspect of the knee with occasional swelling.  She 
explained that she was limited to walking less than one mile, 
and standing less than one hour.  In addition, she was unable 
to jog, squat or kneel.  A physical examination of the left 
knee revealed evidence of extensive surgery.  There was 
tenderness to palpation posteriorly, but no swelling or 
erythema.  Range of motion of the left knee was from 0 to 95 
degrees with crepitus.  The veteran was unable to get into a 
full squat due to pain.  An X-ray of the left knee showed 
degenerative joint disease.  The pertinent diagnosis was 
chronic left knee pain, status post eight surgeries, and 
limited range of motion.

The RO denied entitlement to service connection for a left 
knee disability in July 1994.

In September 1994 correspondence, the veteran reported that 
she filed her initial claim for service connection for a left 
knee disorder in March 1975.  In support of her claim, she 
enclosed a copy of a Serviceman's Statement Concerning 
Application for Compensation from the Veterans Administration 
(AF Form 452), dated March 6, 1975.  This form indicates that 
the veteran filed a claim for service connection on that 
date, and copies of her service medical records were 
forwarded to the RO in Los Angeles, California.  In addition, 
she attached a photograph showing a cast on her left leg, 
which was reportedly taken during basic training in November 
or December 1974.

In a March 1995 response to the RO's request for information, 
NPRC reiterated that the veteran's SMRs were furnished to the 
RO in Los Angeles, California at the time of the veteran's 
separation from service.

The RO found that new and material evidence had not been 
submitted to reopen the veteran's claim in May 1995.  The 
veteran filed a notice of disagreement with this decision in 
December 1995.  She attached a copy of the March 1975 AF Form 
452, and a copy of a newspaper clipping with her picture 
announcing her entrance into service. 

In January 1996, NPRC again reported that the veteran's 
service medical records were forwarded to the RO in Los 
Angeles, California.  

In a March 1996 substantive appeal (Form 9), the veteran 
stated that she underwent an operation at the Sheppard Air 
Force Base after injuring her left knee during basic 
training, and was subsequently discharged from service.  She 
maintained that she filed a claim for service connection for 
a left knee disability at the time of her separation from 
service.

Based on this evidence, a June 1996 rating decision granted 
service connection for a left knee disability and assigned a 
10 percent evaluation, effective May 18, 1993.  The veteran 
filed a notice of disagreement with this decision later that 
month, and submitted a substantive appeal in August 1997, 
perfecting her appeal.

During an October 1997 personal hearing, the veteran 
testified that she underwent left knee surgery during 
service, and was subsequently discharged due to her left knee 
disability.  Transcript (T.) at 3.  She maintained that she 
filed a valid claim of entitlement to service connection for 
a left knee disability on her separation from service on 
March 6, 1975.  T. at 2.  She explained that she retained an 
attorney approximately one year later to assist in pursuing 
her claim, but was informed that "there was nothing he could 
do."  T. at 3-4.  She decided to file another claim in 1993, 
after discussing the matter with a retired colonel.  T. at 4.  
During the hearing, it was noted that the veteran's last name 
was misspelled on both her Department of Defense (DD) Form 
214 (Certificate of Release or Discharge from Active Duty), 
and the March 1975 AF Form 452.  T. at 5.  The veteran listed 
her parent's address as her mailing address following her 
separation from service, but received no correspondence from 
the VA regarding her claim for service connection for a left 
knee disability.  T. at 5-6.

An October 1998 hearing officer's decision denied entitlement 
to an earlier effective date for an award of a 10 percent 
evaluation for the veteran's service-connected left knee 
disability.

During a December 1999 video conference hearing before a 
Member of the Board, the veteran testified that she injured 
her left knee while playing basketball during basic training.  
T. at 5.  She related that she was taken to the clinic, and 
was given crutches.  T. at 5.  The next morning her left knee 
was "locked and was completely huge."  T. at 5.  She was 
taken to the emergency room, where blood was drained from the 
knee.  T. at 5.  The veteran reported that surgery was 
performed during service in January 1975 to repair torn 
ligaments and remove cartilage from the left knee.  T. at 5-
10.  She explained that she spent the remainder of basic 
training on crutches with a 40-pound plaster cast on her left 
leg.  T. at 5.  Following her discharge from service, a 
second operation was performed in 1983 to repair a torn 
ligament, and she underwent a donor ligament implant in 1986.  
T. at 6-10.  She related that several "minor surgeries" 
were performed to remove scar tissue.  T. at 11.  The veteran 
explained that while records regarding the operations in 1983 
and 1986 had been purged, she would attempt to obtain records 
related to the "minor surgeries" performed in the 1990s.  
T. at 7, 9 and 12.

Analysis

The applicable law and regulations concerning effective dates 
state that, except as otherwise provided, the effective date 
of an evaluation and award of compensation based on an 
original claim will be the date of receipt of the claim or 
the date entitlement arose, whichever is the later.  38 
U.S.C.A. § 5110(a) (West 1991); 38 C.F.R. § 3.400 (1999).  
For direct service connection, the effective date is the day 
following separation from service or date entitlement arose 
if the claim is received within 1 year after separation from 
service; otherwise, date of receipt of the claim or date 
entitlement arose, whichever is later.  38 C.F.R. § 
3.400(b)(2)(i).

The Board notes that while the veteran's March 1975 claim for 
service connection for a left knee disability is not of 
record, reports from NPRC indicate that the claim was filed 
on March 6, 1975, and the veteran's service medical records 
were forwarded to the RO in Los Angeles, California.  In 
addition, the veteran submitted a copy of an AF Form 452, 
dated on March 6, 1975, as further evidence that a claim was 
filed in March 1975.  During the October 1997 personal 
hearing, and the December 1999 video conference hearing, the 
veteran testified that she filed an initial claim of 
entitlement to service connection for a left knee disability 
on her separation from service in March 1975, and maintained 
that service connection should be effective from March 7, 
1975.

The Board is not prepared to hold, nor does it need to hold 
expressly, that the AF Form 452 constitutes conclusive 
evidence that the veteran submitted a claim that was received 
by VA at the time of separation.  What the record does show, 
however, is that the NPRC has affirmed that a claim was filed 
at separation and was forwarded to the RO.  Moreover, the 
NPRC reports that it forwarded service records to the RO at 
the time of separation.  The forwarding of the service 
medical records is consistent with the filing of a claim, 
though administrative practices that may have been in effect 
at that time make this less clear cut as evidence that a 
claim was filed.  The service medical records can not now be 
located, and this raises the obvious inference that the claim 
presumably was associated with the lost service medical 
records.  Finally, the claimant is competent to testify as to 
an action such as filing a claim, and her testimony is 
credible.  In view of all of these considerations, and given 
the benefit of the doubt doctrine, the Board concludes a 
claim was, in fact, received by the VA within one year of the 
date of separation from service.  The absence of the claim 
from the current record is due to administrative error by VA.  
Consequently, the Board finds that March 7, 1975, is the 
appropriate effective date for service connection for a left 
knee disability.  38 C.F.R. § 3.400(b)(2)(i).  


ORDER

Entitlement to the effective date of March 7, 1975, for the 
grant of service connection for a left knee disability is 
granted.


REMAND

As noted above, the veteran filed a timely notice of 
disagreement with a June 1996 rating decision, which granted 
service connection for a left knee disability and assigned a 
10 percent evaluation, effective May 18, 1993.  Therein, she 
noted her disagreement with the effective date assigned for 
the service-connected left knee disability, as well as the 10 
percent evaluation assigned.  In a July 1997 statement of the 
case, the RO characterized the issue on appeal as entitlement 
to an earlier effective date for the grant of a 10 percent 
evaluation for a left knee injury, status post surgery, with 
degenerative joint disease.  However, a statement of the case 
on the issue of entitlement to an initial evaluation in 
excess of 10 percent for the veteran's service-connected left 
knee disability has not been issued by the RO, and a 
substantive appeal as to the issue has not been received.

In Manlicon v. West, 12 Vet. App. 238 (1999), the Court held 
that in these circumstances where a notice of disagreement is 
filed, but a statement of the case has not been issued, the 
Board must remand the claim to the RO to direct that a 
statement of the case be issued.  

In the case of Fenderson v. West, 12 Vet. App. 119 (1999), 
the Court noted that the distinction between an original 
rating and a claim for an increased rating may be important 
in terms of determining the evidence that can be used to 
decide whether the original rating on appeal was erroneous 
and in identifying the underlying notice of disagreement and 
whether the VA has issued a statement of the case or 
supplemental statement of the case.

The aspect of Fenderson which is most relevant to the issue 
of entitlement to an evaluation in excess of 10 percent for a 
left knee disability from the date of the original claim for 
service connection is the manner in which the Court deals 
with the issue in Fenderson of entitlement to a compensable 
rating for residuals of right-testicle surgery.  Following a 
December 1992 grant of service connection for residuals of 
right-testicle surgery, the appellant in Fenderson filed a 
notice of disagreement as to the noncompensable rating 
assigned by the RO.  Although the RO issued an April 1995 
supplemental statement of the case purporting to address the 
rating issue following the receipt of the notice of 
disagreement, the Court found on appeal that the supplemental 
statement of the case could not serve as a statement of the 
case as to the right-testicle rating because that 
supplemental statement of the case mistakenly treated the 
right-testicle claim as one for an "[i]ncreased evaluation 
for service[-]connected . . . . residuals of surgery to right 
testicle," rather than as a disagreement with the original 
rating awarded, which is what it was.

Consequently, because the RO had never issued a statement of 
the case in response to the appellant's timely filed NOD as 
to his appeal of the initial rating of his service-connected 
right-testicle disability, the Court held that a remand was 
required pursuant to Holland v. Gober, 10 Vet. App. 433 
(1997) (per curiam), for issuance of an statement of the 
case.

Applying the above precedents to the facts of the instant 
case leads to the same conclusion.  The Board finds that just 
as in Fenderson, because the RO never issued a statement of 
the case in response to the veteran's timely filed notice of 
disagreement as to her appeal of the initial rating of her 
service-connected left knee disability, a remand is required 
pursuant to Holland, for issuance of a statement of the case.  
Upon receipt of the statement of the case, the veteran must 
thereafter timely file a substantive appeal before the case 
is returned to the Board.

In view of the foregoing, and the grant of an earlier 
effective date for service connection for the veteran's left 
knee disability, the RO must now evaluate this disability 
from the effective date of March 7, 1975, an effective date 
that was not recognized by the RO prior to the decision 
herein. 

Accordingly, to ensure that VA has met its duty to assist the 
claimant in developing the facts pertinent to the claim and 
to ensure full compliance with due process requirements, the 
case is remanded to the RO for the following development:

1.  The appellant has the right to submit 
additional evidence and argument on the 
matter the Board has remanded to the 
regional office.  Kutscherousky v. West, 
12 Vet. App. 369 (1999).

2.  The veteran has submitted treatment 
records dated since separation from 
service that have not been reviewed by 
the RO.  While the case is on remand, the 
RO should take the opportunity to request 
again that the veteran provide the names, 
addresses, and approximate dates of 
treatment for all VA and non-VA health 
care providers who have treated her for 
her service-connected left knee 
disability since March 1975, and whose 
records have not already been submitted.  
After obtaining any necessary 
authorization, the RO should attempt to 
obtain copies of any treatment records 
identified by the veteran.

3.  The RO should determine the correct 
percentage disability evaluation(s) for 
the veteran's left knee disability from 
March 7, 1975.  

4.  The RO should issue a statement of 
the case on the issue of whether an 
initial evaluation in excess of 10 
percent is warranted for the veteran's 
left knee disability from March 7, 1975.  
The veteran and her representative are 
advised that they must submit a timely 
substantive appeal to perfect their right 
to appellate review by the Board.

Thereafter, the case should be returned to the Board, if in 
order.  The Board intimates no opinion as to the ultimate 
outcome as to this issue.  The appellant need take no action 
until otherwise notified.

This claim must be afforded expeditious treatment by the RO.  
The law requires that all claims that are remanded by the 
Board or by the Court for additional development or other 
appropriate action must be handled in an expeditious manner.  
See The Veterans' Benefits Improvements Act of 1994, Pub. L. 
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. 
§ 5101 (West Supp. 1999) (Historical and Statutory Notes).  
In addition, Veterans' Benefits Administration (VBA)'s 
Adjudication Procedure Manual, M21-1, Part IV, directs the 
ROs to provide expeditious handling of all cases that have 
been remanded by the Board and the Court.  See M21-1, Part 
IV, paras. 8.44-8.45 and 38.02-38.03.



		
	Richard B. Frank
	Member, Board of Veterans' Appeals