Citation Nr: 0002024 Decision Date: 01/27/00 Archive Date: 02/02/00 DOCKET NO. 95-34 302 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for residuals of an acute encephalitic process, possibly due to poliomyelitis, to include right-sided pain and weakness. 2. Entitlement to service connection for a skin rash due to Lyme's disease. 3. Entitlement to an effective date earlier than July 22, 1998 for the award of service connection for right and left knee disabilities. 4. Entitlement to an initial rating in excess of 10 percent for a right knee disability. 5. Entitlement to an initial rating in excess of 10 percent for a left knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD K. Conner, Associate Counsel INTRODUCTION The veteran had active service from February 1943 to July 1944. This matter comes to the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Houston Regional Office (RO). By September 1994 rating decision, the RO denied service connection for an acute encephalitic process due to poliomyelitis, right sided weakness due to poliomyelitis, a skin rash due to Lyme's disease, and chronic tinnitus. The veteran duly appealed the RO determinations, and in November 1997, he testified at a hearing at the RO. Thereafter, in a January 1998 statement, the veteran withdrew his appeal on the issue of service connection for tinnitus. Accordingly, such issue is no longer within the Board's jurisdiction. See Hamilton v. Brown, 4 Vet. App. 528 (1993) (en banc), aff'd, 39 F.3d 1574 (Fed. Cir. 1994) (holding that the Board is without the authority to proceed on an issue if the veteran indicates that consideration of that issue should cease); see also 38 C.F.R. § 20.204 (1999). By May 1999 rating decision, the RO granted service connection for arthritis of both hips and knees, secondary to an unidentified post-infectious process in service. Separate 10 percent initial ratings were assigned each joint, effective July 22, 1998. The denial of service connection for right-sided weakness due to polio, an acute encephalitic process due to poliomyelitis, and skin rash due to Lyme disease were continued. In August 1999, the veteran argued that he was entitled to an effective date earlier than July 22, 1998 for the award of service connection for his right and left knee disabilities, as his claim "should have been granted" retroactive to 1980 as he first filed a claim for the disabilities at that time. He also indicated that he disagreed with the RO decision as "the percentage awarded to me is significantly low." Thereafter, the RO considered additional medical evidence submitted by the veteran showing that he had undergone right and left knee replacement surgeries in February and March 1999, respectively. By August 1999 rating decision, the RO recharacterized the veteran's service-connected right and left knee arthritis as right and left knee total arthroplasties. Separate 100 percent schedular ratings were assigned for each knee from February 24, 1999, the date of his hospital admission for knee replacement surgery. Effective May 1, 2000, the right and left disabilities were assigned prospective 30 percent schedular ratings pending future examination to ascertain residual disability. See 38 C.F.R. Part 4, § 4.71a, Code 5055. The Board finds that these 100 percent ratings represent the maximum possible schedular ratings available based upon the current medical evidence. AB v. Brown, 6 Vet. App. 35 (1993). (In the future, if the RO reduces the total ratings for the right and left knee disabilities, the veteran may initiate an appeal with that decision at that time). However, as the maximum possible ratings for the right and left knee disabilities for the period from initial award of service connection to February 21, 1999 were not assigned, the appeal that he had initiated with respect to those issues was not abrogated. Id. Thus, the issues of increased initial ratings for the period from the effective date of the initial award of service connection to February 21, 1999 remain in appellate status. In September 1999, the RO issued a Statement of the Case addressing the issues of earlier effective date for an award of service connection for right and left knee disabilities and increased initial ratings for those disabilities. In October 1999, the veteran's local representative submitted a statement in lieu of VA Form 646 in which he listed the same issues on appeal as those addressed in the September 1999 Statement of the Case. The RO then contacted the representative and advised him that those issues were not in appellate status as the veteran had not yet submitted a substantive appeal on the issues; rather, he was advised that the issues certified to the Board were service connection for right-sided weakness due to polio, an acute encephalitic process due to poliomyelitis, and a skin rash due to Lyme disease. The representative then submitted another statement in lieu of VA Form 646, listing the issues on appeal as service connection for right-sided weakness due to polio, an acute encephalitic process due to poliomyelitis, and a skin rash due to Lyme disease. The Board has jurisdiction over appeals involving benefits under the laws administered by VA. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.101. An appeal consists of a timely filed Notice of Disagreement in writing and, after a Statement of the Case has been furnished, a timely filed substantive appeal. 38 U.S.C.A. § 7105(a); 38 C.F.R. § 20.200. In this case, the Board has jurisdiction of the issues of an effective date earlier than July 22, 1998 for the award of service connection for arthritis of the right and left knees, and initial ratings in excess of 10 percent for right and left knee disabilities from the initial award to February 21, 1999. This finding is based on the following: The veteran submitted a timely Notice of Disagreement with the May 1999 rating decision assigning 10 percent initial ratings for his and left knee disabilities, effective July 22, 1998. The RO issued a Statement of the Case addressing these issues in September 1999. In October 1999, his representative submitted written argument relative to these issues and the Board finds that this submission constitutes a timely substantive appeal. Thus, the Board finds that these issues are currently in appellate status. 38 C.F.R. § 20.200. FINDINGS OF FACT 1. The record contains medical evidence to the effect that the veteran contracted an acute encephalitic process in service, possibly due to poliomyelitis, and current residuals of that in-service infectious process include pain and mild weakness of the right upper and lower extremities. 2. The record contains no competent medical evidence of a link between any current skin rash and the veteran's military service, any incident therein, any reported continuous symptomatology, or any service connected disability. 3. The veteran's original claim of service connection for right and left knee disabilities was denied by the RO in a final May 1980 decision. 4. His application to reopen his claim was received at the RO on January 25, 1994. CONCLUSIONS OF LAW 1. Residuals of an acute encephalitic process, possibly caused by poliomyelitis, to include right-sided pain and weakness, were incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). 2. The claim of service connection for a skin rash due to Lyme's disease is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 3. The criteria for an effective date of January 25, 1994, but no earlier, for an award of service connection for right and left knee disabilities has been met. 38 U.S.C.A. §§ 5107, 5110 (West 1991); 38 C.F.R. § 3.400 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran's service medical records show that in February 1944, he was hospitalized with symptoms of a fever of 101.8 degrees, a sore throat, and congestion. With treatment, his symptoms reportedly improved and he was returned to duty two days later; the diagnosis on discharge was pharyngitis. The next month, he reportedly developed pain and stiffness in multiple joints. On physical examination, several tender nodules on the tibias were observed. Laboratory testing performed in April 1944 showed that the veteran's sedimentation rate was 23 millimeters (mm) per hour. (The veteran has submitted medical treatise evidence showing that a sedimentation rate above 9 is indicative of an infection or inflammatory condition). The initial diagnosis was post- infectious arthritis, rule out erythema nodosum and Von Recklinghausen's disease. He was hospitalized for further observation. On admission to the hospital in April 1944, the veteran reported a pre-service low back injury five years prior and stated that he had been in constant pain since that time. It was also noted that one month previosly, his right knee became painful and stiff, and that his left knee, elbows and ankles had since become similarly involved. He also reported pain in the hips. During his 51-day hospitalization, he reportedly showed no improvement; however, no organic disease could be identified to account for his complaints. The diagnosis on discharge in June 1944 was psychoneurosis with conversion symptoms. He was determined to be unfit for further military service and was medically discharged. Following his separation from service, the veteran filed a claim of service connection for a psychoneurosis. By July 1944 rating decision, the RO granted service connection for psychoneurosis with conversion symptoms and granted a 10 percent rating thereto. In July 1945, the veteran filed a claim for an increased rating, stating that his right leg pain, stiffness, and numbness was becoming progressively worse. He was admitted to a VA hospital for observation of possible endarteritis obliterans. However, that diagnosis could not be substantiated and no orthopedic disease could be identified. It was the opinion of the neuropsychiatrist that all of the veteran's symptoms were referable to his psychoneurosis. By July 1945 rating decision, the RO increased the rating for his service-connected conversion disorder to 30 percent. In November 1948, the veteran underwent VA medical examination to determine the current severity of his service- connected disability. On examination, he reported that during his period of service, he developed a sudden paralysis in the right leg and left arm. He stated that his symptoms had since resolved, but for a "deadness" in right big toe. He had no other complaints. The diagnosis was conversion reaction referable to back and right leg. By December 1948 rating decision, the RO reduced the rating for the veteran's disability to zero percent. In May 1980, the veteran filed a claim for an increased rating for a psychoneurosis, as well as service connection for arthritis of both knees. In support of his claim, the RO obtained VA outpatient treatment records showing that in September 1979, the veteran was seen in the VA orthopedic clinic. A history of stable degenerative joint disease in the knees was noted, with a right osteotomy in 1978. Physical examination of the knees showed full range of motion bilaterally, with no laxity or effusion. Motrin was prescribed for the veteran's pain. In May 1980, he was seen in the orthopedic clinic and it was noted that the veteran was getting along fairly well; the plan was for conservative treatment of his knees. Later that month, the veteran was afforded a VA psychiatric examination at which he reported he had retired from his job two years earlier due to arthritis in his knee and currently felt depressed by the fact that he was unable to work. The impression was that he had some depression and anxiety secondary to his lack of mobility. By July 1980 rating decision, the RO increased the rating for the veteran's psychoneurosis to 10 percent. That 10 percent rating has remained in effect to date. In addition, service connection for arthritis of both knees was denied. The record contains VA Form 20-822a, Control Document and Award Letter, showing that he and his representative were notified of the rating decision and his appeal rights. In October 1992, the veteran filed a claim for increased rating for his "nervous condition." In connection with his claim, he underwent VA psychiatric examination in December 1992 at which he reported that during his period of service, he had been working to clear out an old warehouse when he developed an illness with a high fever followed by pain and weakness in the right leg. He indicated that he was discharged from service due to neurosis referable to his leg problem. He stated that his leg had given him problems over the years and indicated that he had undergone leg surgery at Mayo Clinic. Following mental status examination, the examiner concluded that a psychiatric diagnosis was not appropriate. Rather, he concluded that referral for neurological evaluation was necessary to consider the possibility that the veteran's leg disorder was due to a physical cause, rather than a psychosomatic disorder. On VA neurological examination in January 1993, the veteran reported a history of chronic right leg pain and weakness which developed in service. He stated that in 1944, he had been working in an old building in New York where there was a lot of dust, etc. He stated that he developed a fever, nausea, headache, paralysis of the right lower extremity, and a rash over his shins. Physical examination showed that the veteran's motor strength in all extremities was 5/5, except for diffuse 5-/5 weakness in the right lower extremity, primarily noted in the proximal muscles. Sensation was intact except for a patchy decreased sensation in the right leg and hand. The veteran was unable to walk up on his toes on the right side and he had a tendency to drag the right leg on watching his gait. The examiner reviewed the claims folder and noted that the veteran had been medically discharged from service due to a conversion disorder. However, he indicated that it was his impression that the veteran's right lower extremity discomfort and weakness was not related to a conversion disorder or to any psychiatric reasons whatsoever. Rather, he indicated that "it is my impression that in 1944 most likely he suffered some acute encephalitic process with the associated features of high fever, headache, nausea, vomiting, and a focal neurological examination with right-sided weakness." The examiner indicated that the veteran's symptoms could have been due to poliomyelitis or Lyme disease. By February 1993 rating decision, the RO denied a rating in excess of 10 percent for the veteran's service-connected psychoneurosis. On January 25, 1994, the veteran filed claims of service connection for an "acute encephalitic process due to poliomyelitis," "right-sided weakness right lower extremity due to polio to include right leg, knee," a skin rash due to Lyme's disease, and chronic tinnitus. By September 1994 rating decision, the RO denied his claims and the veteran duly perfected an appeal in September 1995. In November 1997, he testified at a hearing at the RO and again detailed the circumstances of his in-service hospitalization. Specifically, he indicated that he had been detailed to clean out a dirty warehouse and thereafter developed a fever, cough, headache and nausea, as well as a paralyzed right leg and a rash on his shins. He stated that his rash and weakness had persisted to the present day. In support of his claim, the veteran submitted statements from several medical professionals. In a November 1997 letter, a private neurologist indicated that the veteran had been examined by him in October 1997 for complaints of right- sided weakness since 1943. The neurologist indicated that objective examination showed a mild reduction in the power of the muscles throughout the right upper and lower extremities, with loss of feeling on the skirt below the scar on the right leg. In April 1998, a private chiropractor stated that the veteran had had heart problems, knee problems, headache, nausea, vomiting, radiating pain in the limbs, numbness, and partial paralysis. He indicated that "[a]ll of these symptoms are Lyme disease. These could very well be service connected. Who's to say it is not. Not very much is known about this disease, so why not give him the benefit of a doubt. It is more likely than not than not, this is a service connected condition." In April 1998, a private endocrinologist indicated that he had reviewed the veteran's service medical records and felt that "his present neurological and lower extremities condition are more likely than not related to sequela caused by an undiagnosed illness such as Lyme Disease or Polio." He further indicated that another consideration was Guillain- Barre Syndrome which has characteristics of Polio. He noted that in the literature of the time, there was reference to a wood tick disease which was characterized by gradual onset of fever, rash, respiratory and swallowing problems. Also submitted by the veteran were copies of excerpts from several medical websites which included information to the effect that early symptoms of polio may include fatigue, headache, fever, vomiting and pain in the extremities. Also included was a document showing that encephalitis is an infectious disease of the central nervous system, sometimes caused by the polio virus, typically manifested by symptoms such as headaches, double vision, muscle weakness, and delirium; after effects of this infection may include deafness, epilepsy and dementia. A document printed from the Encarta Encyclopedia website indicates that Lyme disease was first recognized in 1975 and is characterized by the development of flu-like symptoms and a rash. If left untreated Lyme disease may result in arthritis, often of the knee, as well as involvement of the peripheral nerves. On July 1998 VA neurological examination, the veteran's diagnosis was right leg pain and weakness, felt to be due to some type of post-infectious process, possibly polio, although the exact etiology was unclear. On July 1998 VA general medical examination, the veteran reported that he had a rash on his forearms since service. On examination, actinic keratosis on the forearms and the dorsal aspect of both hands was observed. Otherwise, there was no skin rash or disease. The diagnoses included possibly Lyme disease in 1943. On December 1998 VA orthopedic examination, the veteran reported bilateral knee and hip pain. The examiner indicated that the veteran also had weakness in his right lower extremity as a result of polio, but predominately his pain resulted from arthritis in the knees. The diagnoses included degenerative arthritis of both hips and knees. The examiner concluded that the veteran's degenerative arthritis in the hips and knees was a direct result of in-service post- infectious arthritis. On VA neurological examination in December 1998, the diagnosis was right leg pain with very minimal weakness. The examiner indicated that after reviewing the veteran's claims folder, he was unable to make a specific diagnosis regarding the etiology of the veteran's right leg pain and weakness. He noted that various theories had been offered, including some type of post-infectious process. Nonetheless, he indicated that he felt that the signs and symptoms "certainly were related to some event that occurred in 1944 with multiple theories, however, I cannot be certain of what specific diagnostic event occurred at that time." As set forth above, by May 1999 rating decision, the RO granted service connection for arthritis of the hips and knees. A 10 percent rating for each separate joint was assigned, effective July 22, 1998, the date of the VA neurological examination. The denial of service connection for right-sided weakness due to polio, an acute encephalitic process due to poliomyelitis, and a skin rash due to Lyme disease were confirmed. In an August 1999 rating decision, the RO recharacterized the veteran's service-connected right and left knee arthritis as right and left knee total arthroplasties. Separate 100 percent schedular ratings were assigned for each knee from February 24, 1999, the date of the veteran's admission to the hospital. See 38 C.F.R. Part 4, § 4.71a, Diagnostic Code 5055. II. Service Connection Claims Law and Regulations: Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U. S.C.A. 1110. Also, where a veteran served continuously for a period of 90 days or more and certain chronic disease, including arthritis, become manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. 1101, 1112, 1113, 1137; 38 C.F.R. 3.307, 3.309 (1999). Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. 3.303(d) (1999). In general, in any claim for benefits, the initial question before the Board is whether the veteran has met his burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim is well-grounded. 38 U.S.C.A. § 5107(a). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has set forth the parameters of what constitutes a well-grounded claim, i.e., a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of section 5107(a). See Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). More specifically, the Federal Circuit has held that in order for a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service disease or injury and the current disability. Id. at 1468. Although the claim need not be conclusive, it must be accompanied by evidence. The VA benefits system requires more than just an allegation; a claimant must submit supporting evidence. Furthermore, the evidence must "justify a belief by a fair and impartial individual" that the claim is plausible. 38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Where an issue is factual in nature, e.g., whether an incident or injury occurred in service, competent lay testimony may constitute sufficient evidence to establish a well-grounded claim; however, if the determinative issue is one of medical etiology or a medical diagnosis, competent medical evidence must be submitted to make the claim well grounded. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). A lay person is not competent to make a medical diagnosis or to relate a medical disorder to a specific cause. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, where the issue does not require medical expertise, lay testimony may be sufficient. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Residuals of an acute encephalitic process, possibly due to poliomyelitis, to include right-sided pain and weakness In this case, the veteran's service medical records confirm that he was hospitalized in service after he developed a fever, followed by pain and stiffness in multiple joints. Although his symptoms were originally felt to be due to a conversion disorder, recent medical evidence of record suggests that his in-service symptoms were likely due to an acute encephalitic process. While the cause of this encephalitic process has not been definitely identified, various theories have been offered by both VA and private medical professionals. These include theories that the veteran's in-service encephalitic process was due to poliomyelitis, Lyme disease, or Guillain-Barre syndrome. Although the exact etiology of the in-service encephalitic process remains unclear, the recent medical evidence of record is nonetheless consistent in finding that the encephalitic process (regardless of its cause) was incurred in service. Likewise, the recent medical evidence of record indicates that the current residuals of the veteran's in-service encephalitic process include right-sided pain and weakness. For example, in an April 1998 statement, a private endocrinologist indicated that "his present neurological and lower extremities condition are more likely than not related to sequela caused by an undiagnosed illness such as Lyme Disease or Polio." In a July 1998, VA examination report, the neurologist indicated that the veteran's right leg pain and weakness was "felt to be due to some type of post- infectious process, possibly polio although the exact etiology is unclear." The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107(b). Under that provision, a veteran is entitled to the "benefit of doubt" when there is an approximate balance of positive and negative evidence. The preponderance of the evidence must be against the claim for benefits to be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Such a conclusion cannot be reached in this case. Rather, although its cause remains unclear, the preponderance of the medical evidence of record indicates that an in- service encephalitis process (regardless of its etiology) resulted in current residuals, including right sided pain and weakness. In view of the foregoing, the Board finds that service connection for residuals of an acute encephalitic process, possibly due to poliomyelitis, to include right- sided pain and weakness is warranted. 38 C.F.R. § 3.303. Skin rash due to Lyme disease The veteran has also claimed entitlement to service connection for a skin rash, arguing that it was incurred in service as a result of Lyme disease and has persisted to the present day. Initially, the Board notes that the service medical records are negative for diagnoses of a skin disorder, although several tender nodules on the tibias were observed in March 1944. However, the remaining service medical records are negative for complaints or observations of a skin rash. Likewise, the first notation of a skin rash in the post- service medical evidence of skin rash is not until a July 1998 VA medical examination, approximately forty-eight years after service separation, when the veteran reported that he had had a rash on his forearms since service. At the time of that examination, actinic keratosis on the forearms and the dorsal aspect of both hands was observed. However, while the diagnosis was "possibly Lyme disease," the examiner did not relate the veteran's current actinic keratosis of the forearms and hands to his military service or any incident therein. See Sanchez-Benitez v. West, No 97-1948 (U.S. Vet. App. Dec. 30, 1999). There is no other competent medical evidence of record between a current skin rash and the veteran's period of service or any incident therein, including possible Lyme disease. The Board has also considered the veteran's claim that he has experienced a continuous rash since his separation from service. The U.S. Court of Appeals for Veterans Claims (Court) has held that a claim based on chronicity may be well-grounded if (1) the chronic condition is observed during service, (2) continuity of symptomatology is demonstrated thereafter, and (3) competent evidence relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). While the veteran is competent to testify as to observable symptoms such as a skin rash, he is not, however, competent to provide evidence that the observable symptoms are manifestations of chronic pathology or diagnosed disability. Id.; Falzone v. Brown, 8 Vet. App. 398, 403 (1995). In this case, there is no evidence in the service medical records of a chronic skin rash. Likewise, while the Board accepts the veteran's statements of continuity of symptomatology since service, medical expertise is required relating a current skin disability to his reported symptoms. Because the record is devoid of any such evidence, the Board concludes that the veteran has not submitted evidence sufficient to well ground his claim. Therefore, lacking competent medical evidence of a current skin rash which is related to the veteran's period of service, any incident therein, or any continuous symptomatology, the Board must conclude that the veteran's claim of service connection for a skin rash is not well grounded. 38 U.S.C.A. § 5107(a). Since a well-grounded claim has not been submitted, the VA is not obligated by statute to assist the-veteran in the development of facts pertinent to this claim. 38 U.S.C.A. 5107(a). Nonetheless, VA has an obligation to notify a veteran under section 5103(a) when the circumstances of the case put the Department on notice that relevant evidence may exist, or could be obtained, that, if true, would make the claim "plausible" and that such evidence had not been submitted with the application. McKnight v. Gober, 131 F.3d 1483, 1485 (Fed. Cir. 1997) (per curiam). In the instant case, however, the veteran has not identified any available evidence that has not been submitted or obtained, which would support a well-grounded claim. Thus, the VA has satisfied its duty to inform the veteran under 38 U.S.C.A. 5103(a). See Slater v. Brown, 9 Vet. App. 240, 244 (1996). III. Entitlement to effective date, earlier than July 22, 1998, for the award of service connection for right and left knee disabilities Unless otherwise provided, the effective date of an award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400 (1999). The effective date of an award of disability compensation based on new and material evidence received after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(q), (r) (1999). Any communication or actions, indicating an intent to apply for one or more benefits under the laws administered by the VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155 (1999) (emphasis added). Correspondence or evidence to constitute an informal claim must disclose an intent to apply for a particular benefit. Dunson v. Brown, 4 Vet. App. 327 (1993). As set forth above, the RO has assigned an effective date of July 22, 1998, for the award of service connection for the veteran's right and left knee disabilities. This date corresponds to the date of a VA neurological examination in which the examiner concluded that the veteran's right and left knee arthritis was secondary to an in-service post- infectious process. However, the veteran maintains that he is entitled to an effective date of 1980, apparently because his original claim of service connection for right and left knee disabilities was filed at that time and because such disabilities have remained symptomatic since that time. The record shows that the veteran did, indeed, file his original claim of service connection for right and left knee disabilities in May 1980. However, this claim was denied by the RO in a July 1980 rating decision. Although the veteran was notified of the RO's decision, he did not perfect an appeal within the applicable time period; thus, the RO's decision is final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. § 20.1103 (1999). Chronologically, the Board finds that the next pertinent communication from the veteran was received at the RO on January 25, 1994. In that communication, the veteran requested service connection for several disabilities, including residuals of an acute encephalitic process. Although he did not clearly identify arthritis of both knees as specific residuals of that in-service infectious process, he did attach medical evidence to his claim. That medical evidence included records of treatment for right and left knee pain. In view of the foregoing, and given the rationale on which the RO granted service connection for right and left knee arthritis (namely, secondary to a post-infectious process in service), the Board finds that the veteran's January 25, 1994 communication sufficiently identified the benefit he sought, i.e., service connection for residuals of a post-infectious type process in service, including right and left knee disabilities. In light of the Board's finding that the veteran's application to reopen his claims of service connection for right and left knee disabilities was received at the RO on January 25, 1994, an effective date of January 25, 1994 is warranted for the award of service connection for right and left knee disabilities. 38 C.F.R. § 3.400(q). The Board finds that there is no legal basis for an effective date earlier than January 25, 1994, absent a showing of clear and unmistakable error in the July 1980 rating decision denying service connection for right and left knee disabilities. In this case, the Board finds that a claim of clear and unmistakable error has not been reasonably raised. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). While the veteran has indicated that his in-service diagnosis of conversion disorder was, in retrospect, clearly and unmistakably erroneous, such assertions, even if true, would not provide a basis for finding clear and unmistakable error in the July 1980 rating decision. Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts, as they were known at the time. Damrel v. Brown, 6 Vet. App. 242, 245 (1994). A determination that there was 'clear and unmistakable error' must be based on the record that existed at the time of the prior decision. Here, the first medical evidence of record attributing the veteran's in-service symptoms (and post-service residuals) to a post-infectious process was not until January 1993. That recent medical evidence may not be used in hindsight to find that previous determinations were clearly and unmistakably erroneous. As a claim for clear and unmistakable error has not been reasonably raised, the earliest effective date possible for the award of service connection for right and left knee disabilities is January 25, 1994, the date of receipt of the veteran's request to reopen. 38 C.F.R. § 3.400(q). ORDER Service connection for residuals of an acute encephalitic process, possibly due to poliomyelitis, to include right- sided pain and weakness, is granted. Service connection for a skin rash due to Lyme's disease is denied. An effective date of January 25, 1994 for the award of service connection for right and left knee disabilities is granted, subject to the law and regulations governing the payment of monetary benefits. REMAND The veteran's claims for initial ratings in excess of 10 percent for right and left knee disabilities are well- grounded. Shipwash v. Brown, 8 Vet. App. 218, 224 (1995) (when a veteran is awarded service connection for a disability and subsequently appeals the initial assignment of a rating for that disability, the claim continues to be well grounded); see also Fenderson v. West, 12 Vet. App. 119, 125- 26 (1999). Because the claims are well grounded, VA has a duty to assist in the development of facts pertinent to the claims. 38 U.S.C.A. 5107. In that regard, the Board notes that the record with respect to these issues appears to be incomplete. Namely, other than VA medical examination reports, the record contains no medical evidence corresponding to the period from the initial award of service connection for right and left knee disabilities (now January 25, 1994) to February 24, 1999, when 100 percent ratings were assigned for each knee based on his admission to the hospital for total knee replacement surgeries. Such medical evidence is extremely pertinent in determining whether the veteran is entitled to a rating in excess of 10 percent for his right and left knee disabilities during this period. Therefore, the case is REMANDED for the following development: 1. The RO should contact the veteran and request that he identify all medical care providers who treated him for his right and left knee disabilities for the period from January 1994 to February 1999. After securing any necessary authorization for release of medical information, the RO should request copies of all records identified by the veteran for association with the claims folder. 2. After the above development has been completed, the RO should review the record to ensure compliance with this remand. If any development requested above has not been furnished, or additional development is deemed warranted, remedial action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). Thereafter, the RO should readjudicate the issues of entitlement to initial ratings in excess of 10 percent for right and left knee disabilities for the period from January 25, 1994 to February 24, 1999. Thereafter, if the benefits sought on appeal are not granted, the veteran and his representative should be provided a supplemental statement of the case and afforded an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or 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, 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. J.F. GOUGH Member, Board of Veterans' Appeals