Case 23067427

MICHAEL E. KILCOYNE · 2023 · Case ID: 23067427

MIXED

Summary

The veteran, who served in the U.S. Army from September 15, 1978, to October 25, 1978, appeals decisions from the RO regarding effective dates for several granted service connections and denials for others. The primary issue revolves around establishing an earlier effective date, specifically October 26, 1978, for several conditions, based on a February 11, 1979, letter to the VA which the RO recognized as an informal claim filed within one year of service separation. The Board found this letter likely encompassed claims for PTSD, TBI, cervical spine disability, and right hip disabilities, granting the October 26, 1978, effective date for these. Migraine headaches secondary to TBI were also granted an October 26, 1978, effective date based on a July 2013 VA exam. However, claims for loss of smell, loss of taste, and erectile dysfunction secondary to TBI, along with SMC for loss of use of a creative organ, were denied earlier effective dates prior to February 14, 2011, as they first appeared in the record after that date. Radiculopathy secondary to cervical spine disability was granted an effective date of June 9, 2003, the earliest evidence of its manifestation. Right knee disabilities were granted an August 31, 2012, effective date, consistent with the underlying chronic right knee strain. A left knee disability, secondary to the right knee, was denied an earlier effective date than February 4, 2014, the date of claim. The case was remanded for readjudication of TDIU, DEA, and SMC housebound claims based on the established effective dates and the veteran's reported unemployability since 1978.

Service Branch

ARMY

Special Benefit

SMC - HOUSEBOUND; TDIU

Docket No.

13-31 086

Full Decision Text

Citation Nr: 23067427
Decision Date: 12/26/23 Archive Date: 12/26/23

DOCKET NO. 13-31 086
DATE: December 26, 2023

ORDER

An effective date of October 26, 1978 for the award of service connection for posttraumatic stress disorder (PTSD), originally claimed as mental problems and depression, is granted.

An effective date of October 26, 1978 for the award of service connection for a traumatic brain injury (TBI) is granted.

An effective date of October 26, 1978 for the award of service connection for the migraine headaches associated with the service-connected TBI is granted.

An effective date prior to February 14, 2011 for the award of service connection for the loss of the sense of smell associated with the service-connected TBI is denied.

An effective date prior to February 14, 2011 for the award of service connection for the loss of the sense of taste associated with the service-connected TBI is denied.

An effective date prior to February 14, 2011 for the award of service connection for the erectile dysfunction associated with the service-connected TBI is denied.

An effective date prior to February 14, 2011 for the award of special monthly compensation (SMC) for loss of use of a creative organ is denied.

An effective date of October 26, 1978 for the award of service connection for degenerative joint/disc disease of the cervical spine (cervical spine disability) is granted.

An effective of June 9, 2003, and no earlier, for the award of service connection for radiculopathy of the right and left upper extremities associated with the cervical spine disability is granted.

An effective date prior to August 31, 2012, for the award of separate ratings for limitation of flexion of the right knee and dislocation semilunar cartilage of the right knee is denied.

An effective date of October 26, 1978 for the award of service connection for right hip disabilities (right hip strain, right hip limited adduction, and right hip limited extension) is granted.

An effective date prior to February 4, 2014 for the award of service connection for a left knee disability is denied.

REMANDED

Entitlement to an effective date prior to February 14, 2011 for a total disability evaluation based upon individual unemployability (TDIU) is remanded.

Entitlement to an effective date prior to February 14, 2011 for Dependents' Educational Assistance (DEA) under 38 U.S.C. Chapter 35, is remanded.

Entitlement to an effective date prior to February 14, 2011 for SMC based on the housebound criteria being met is remanded.

FINDINGS OF FACT

1. In March 2023, the Regional Office (RO) recognized the Veteran's February 11, 1979 statement as the date of his original claim for benefits.

2. The Veteran's PTSD, TBI, cervical spine disability, and right hip disabilities (right hip strain, right hip limited adduction, and right hip limited extension) were established as directly related to the Veteran's active service, and, therefore, can be presumed to have been the disabilities claimed on February 11, 1978.

3. Competent medical evidence has established that the Veteran's migraine headaches related to his TBI had its onset in 1978.

4. Loss of sense of smell, loss of sense of taste, and erectile dysfunction were deemed conditions that developed secondary to the service-connected TBI and are first shown in the record after the February 14, 2011 claim.

5. SMC for loss of use of a creative organ can only be awarded effective the date service connection is established for the loss of use, such as when service connection is established for erectile dysfunction.

6. The Veteran's right and left upper extremity radiculopathy were shown in the record to have developed secondary to the service-connected cervical spine disability on June 9, 2003.

7. The Veteran's service connected right knee strain was awarded service connection effective August 31, 2012, and the separate compensable ratings for limitation of flexion of the right knee and dislocation semilunar cartilage of the right knee were awarded as a part of the appeal as to the initial rating assigned for that disability.

8. The Veteran filed a statement on February 4, 2014 indicating he favored his left leg due to his service-connected right knee disability, and subsequent medical evidence established the existence of a left knee disability that is secondary to the right knee disability.

CONCLUSIONS OF LAW

1. The criteria for an October 26, 1978 effective date for the award of service connection for PTSD
3.

CONCLUSIONS OF LAW

1. The criteria for an October 26, 1978 effective date for the award of service connection for PTSD are met. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.

2. The criteria for an October 26, 1978 effective date for the award of service connection for TBI are met. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.

3. The criteria for an October 26, 1978 effective date for the award of service connection for the migraine headaches that developed secondary to the Veteran's service-connected TBI are met. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.

4. The criteria for an effective date prior to February 14, 2011 for the award of service connection for the loss of sense of smell that developed secondary to the Veteran's service-connected TBI are not met. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.

5. The criteria for an effective date prior to February 14, 2011 for the award of service connection for the loss of sense of taste that developed secondary to the Veteran's service-connected TBI are not met. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.

6. The criteria for an effective date prior to February 14, 2011 for the award of service connection for the erectile dysfunction that developed secondary to the Veteran's service-connected TBI are not met. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.

7. The criteria for an effective date prior to February 14, 2011 for the award of SMC for loss of use of a creative organ are not met. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.

8. The criteria for an October 26, 1978 effective date for the award of service connection for the cervical spine disability are met. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.

9. The criteria for an effective date of June 9, 2003, and no earlier, for the award of service connection for the radiculopathy, right and left upper extremities, are met. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.

10. The criteria for an effective date prior to August 31, 2012 for the award of separate ratings for limitation of flexion, right knee, and for dislocation semilunar cartilage, right knee, are not met. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.

11. The criteria for an October 26, 1978 effective date for the award of service connection for the right hip disabilities (right hip strain, right hip limited adduction, and right hip limited extension) are met. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.

12. The criteria for an effective date prior to February 4, 2014 for the establishment of service connection for the left knee disability are not met. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service in the United States Army from September 15, 1978 to October 25, 1978. The matters on appeal come before the Board of Veterans' Appeals (Board) from July 2012, June 2014 and December 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO).

In November 2017, the Board issued a decision denying the Veteran's earlier effective date claims and remanding the matter of whether
service connection for the left knee disability are not met. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In November 2017, the Board issued a decision denying the Veteran's earlier effective date claims and remanding the matter of whether service connection is warranted for a lumbar spine disability. The Veteran appealed the determination as to the earlier effective date claims to the Court of Appeals for Veterans Claims (Court). In November 2019, the Court signed an Order granting a Joint Motion for Partial Remand (Joint Motion). The Board's November 2017 decision was vacated and remanded for action in accordance with the Joint Motion. The lumbar spine disability claim was not addressed as it was in remand status.

Following the November 2017 remand, the lumbar spine disability claim was again remanded in April 2019.

The Veteran, by way of his representative, subsequently requested a Board hearing. This hearing was held before the undersigned in September 2021 and a transcript is in the Veteran's claims file.

In March 2022, the Board again remanded the lumbar spine disability claim and the effective date claims. In August 2022, the RO issued a rating decision awarding service connection for the lumbar spine disability and for associated right and left lower extremity radiculopathy. The lumbar spine claim, therefore, has been granted in full and is no longer before the Board. The effective date claims were again remanded in December 2022. The RO was to address the missing records in this case and issue a formal finding for the records at issue. In January 2023, the RO placed a formal finding memorandum in the Veteran's claims file listing the documents that were identified in the Board remand and officially determining that the records are not available for review. In March 2023, the RO wrote to the Veteran and notified him that the records were not available. The letter noted that the RO recognized the Veteran "filed a claim for benefits on February 11, 1979," but informed him that the original paperwork could not be located. The RO invited the Veteran to submit copies of the original claim documents if he had them in his possession. The Veteran responded in March 2023 and confirmed that he does not have a copy of the records. The Board will now move forward to address the issues based upon the evidence of record.

Effective Date

Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity 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. § 5110(a); 38 C.F.R. § 3.400. The Board cannot assign an effective date for a grant of service connection that is earlier than the date of claim, except when the claim is filed within one year of service separation. Id. For claims filed within one year of separation, the effective date will be the day following separation from active service or the date entitlement arose. 38 C.F.R. § 3.400(b)(2)(i).

The Veteran separated from active service on October 25, 1978. He has argued that he filed a claim for benefits within one year of his service separation, such that the effective date for service connection should be the day after his separation from service. In particular, with his January 2016 notice of disagreement, the Veteran argued for a 1979 letter to be considered an informal claim for benefits. The Board recognizes the RO's explicit finding in a March 2023 letter that the Veteran "filed a claim for benefits on February 11, 1979." This is presumably reference to the handwritten letter in the claims file dated February 11, 1979. This letter is addressed to VA and the Veteran stated, "I am writing about my V.A. Benefits. When I left the Army last year I was told I was disabled and was being discharged for getting hurt during training." This is indeed within one year of the Veteran's separation from service. The Board, however, recognizes the effective dates of many different awards are at issue and
a 1979 letter to be considered an informal claim for benefits. The Board recognizes the RO's explicit finding in a March 2023 letter that the Veteran "filed a claim for benefits on February 11, 1979." This is presumably reference to the handwritten letter in the claims file dated February 11, 1979. This letter is addressed to VA and the Veteran stated, "I am writing about my V.A. Benefits. When I left the Army last year I was told I was disabled and was being discharged for getting hurt during training." This is indeed within one year of the Veteran's separation from service. The Board, however, recognizes the effective dates of many different awards are at issue and the February 11, 1979 document does not reference a specific issue.

The claims file includes a copy of a handwritten letter with a date of March 18, 1992. This letter, also appearing to be written to VA, indicates the Veteran was "writing again about [his] benefits." This letter referenced the neck and back claim and mental issues. The Veteran also referenced not working since 1978 in that letter.

A copy of an October 4, 1997 handwritten letter is also contained within the claims file. This letter is sent to someone named "Bob" and references papers having been mailed to VA, but does not reference a date or any particular claim. Later documents added to the claims file in August 2012 show this person may be part of a County Veterans Service Office. As the October 1997 letter is not purported to be a claim sent to VA, it is not a basis for the assignment of an earlier effective date for any claim.

The record includes a VA Form 21-526 received by VA on February 14, 2011, which lists claims for back and cervical conditions. On the first page of this form the following question is asked, "HAVE YOU PREVIOUSLY APPLIED FOR ANY VA BENEFIT(S)? (Check applicable box)." The Veteran did not check the box for pension, compensation or "other." While the Veteran reported that the cervical condition began on September 22, 1978, he did not indicate he had filed a prior claim for this disability despite being given an explicit opportunity to do so.

A copy of a February 2011 communication with a Congressman shows the Veteran was seeking assistance with his VA claim. The Veteran reported at that time that he had sought this office's help in 2004 to prove his disabilities. He also reported having been working on the issue with filing his claim for over 30 years. He did not reference a specific claim.

The claims file includes a copy of a February 2011 letter the Veteran sent to a "Veterans Service Manager." This letter was sent after the Veteran filed the VA Form 21-526 claiming service connection for back and cervical spine disabilities. The Veteran reported having back and neck disabilities, as well as head injuries and mental problems. In this statement, the Veteran indicated having reported the incidents and injuries "in 1978 and many other times" having written letters "all over."

In March 2011, a copy of a Social Security Administration (SSA) award letter dated in February 2011 was added to the claims file. This letter shows the Veteran filed an SSA claim in March 1984 and was deemed disabled and entitled to SSA benefits in December 1983. The disability recognized by SSA related to a back injury sustained in a 1983 motor vehicle accident.

A copy of an October 2011 internal communication in the claims file shows a VA employee indicating "Veteran has filed repeated disability claims for his back and neck." The October 2011 VA examination reported shows the RO indicating to the examiner, "Veteran has filed repeated disability claims for his back and neck, Please see tabbed evaluation notes." These "tabbed evaluation notes" are not present in the Veteran's claims file.

In August 2012, the Veteran submitted a statement in which he reported having written letters to VA about his injuries soon after leaving Fort Knox, Kentucky. The specific injuries were not listed. In October 2012, he reported he was told in 1978 that he would receive VA benefits. He also reported, "I wrote many letters to V.A. in Feb 1979, 1980 so on."

In May 2013, a Congressman wrote to VA on behalf of the Veteran. This Congressman also referenced a February 11, 1979 claim, and suggested this was the first of over 90 letters that had been sent to VA requesting service-connected benefits. This letter also did not reference any particular claim having been filed in February 1979, but just referenced a claim for service-connected benefits
about his injuries soon after leaving Fort Knox, Kentucky. The specific injuries were not listed. In October 2012, he reported he was told in 1978 that he would receive VA benefits. He also reported, "I wrote many letters to V.A. in Feb 1979, 1980 so on."

In June 2013, at the time of a hearing with the RO, a copy of an October 4, 1979 handwritten note was added to the file. This was asking for a response, presumably a response to the February 1979 claim. The Veteran reported at the hearing that he first requested benefits with VA on February 11, 1979. The disabilities claimed at this time were not specified at the hearing. However, the Veteran did confirm in a discussion related to his psychiatric claim that he did not report his military sexual trauma until many years later when he reported it to his Congressman. The RO confirmed at the hearing that VA was not aware of military sexual trauma until after receiving the 2011 statement from the congressman.

At the September 2021 Board hearing, the Veteran, his representative, a Congressman and the Congressman's aid provided testimony. The primary arguments made at this hearing related to the recognition of the February 11, 1979 letter as an informal claim. As noted above, the RO did recognize the Veteran filed a February 11, 1979 claim in its March 2023 letter to him. Thus, that fact has been established. The question remains which disabilities were claimed at this time.

Given the longstanding allegations related to destroyed records in this case, coupled with the RO's determination that it would accept the February 11, 1979 document as a claim filed, the Board must assess the nature of the claims file in a way most favorable to the Veteran. Thus, the Board finds the February 11, 1979 claims likely included the claims that have now been deemed directly connected to the Veteran's active service. The disabilities that are deemed secondary to these primary disabilities, by their nature, had an onset later due to the symptoms of the underlying disability. Thus, the effective date for the secondary disabilities will be the date the medical evidence shows the disabilities manifested as secondary to the primary disability.

PTSD Prior to February 14, 2011

In October 2015, the Board issued a decision awarding service connection for PTSD as directly related to the Veteran's active service. The December 2015 rating decision on appeal effectuated that decision and assigned the February 14, 2011 effective date, which is on appeal. Because VA has assessed the Veteran's PTSD as being directly related to his in-service experiences, and therefore present to some degree at that time, the Board finds this to be a disability likely claimed on February 11, 1979. Because the claim was filed within one year of the Veteran's October 25, 1978 separation from service, the appropriate effective date is October 26, 1978. 38 C.F.R. § 3.400(b)(2)(i).

TBI Prior to February 14, 2011

In October 2015, the Board issued a decision awarding service connection for a TBI as directly related to the Veteran's active service. The December 2015 rating decision on appeal effectuated that decision and assigned the February 14, 2011 effective date, which is on appeal. Because VA has assessed the Veteran's TBI as being directly related to his in-service experiences, and therefore present to some degree at that time, the Board finds this to be a disability likely claimed on February 11, 1979. Because the claim was filed within one year of the Veteran's October 25, 1978 separation from service, the appropriate effective date is October 26, 1978. 38 C.F.R. § 3.400(b)(2)(i).

Migraine Headaches Associated with TBI Prior to February 14, 2011

The Veteran's migraine headaches were not explicitly claimed by the Veteran, and were not addressed by the Board in its October 2015 decision. Rather, after the development of the medical evidence, the RO awarded service connection by way of the December 2015 rating decision. The RO, in its evaluation of the TBI, did not include headaches in the rating. The RO determined the headaches to be a secondary disability associated with the TBI. Because this was not a disability deemed directly associated with the Veteran's active service, and was not a disability explicitly claimed by the Veteran, but was a disability that was determined to have developed secondary to the TBI, the Board reviewed the file to determine when the migraine headaches began. In July 2013, a VA examiner assessed the Veteran as having migraine headaches related to his TBI since 1978. As such, the Board also finds October 26, 1978 to be the appropriate effective date for the migraine headache disability.

Loss of Sense of Smell Associated with TBI Prior to February 14, 2011

The Veteran's loss of his sense of smell was not explicitly claimed by the Veteran, and was not addressed by the Board in its October 2015 decision. Rather, after the development of the medical evidence, the RO awarded service connection by way of the December 2015 rating decision. The RO, in its evaluation of the TBI, did not include loss of the sense of smell in the assessment for the appropriate rating. The RO determined the Veteran's total loss of his sense of smell to be a secondary disability associated with the TBI. Because this was not a disability deemed directly associated with the Veteran's active service, and was not a disability explicitly claimed by the Veteran, but was a disability that was determined to have developed secondary to the TBI, the Board finds there no basis to award an effective date prior to February 14, 2011 for this disability. It was first mentioned and first shown in the medical evidence in the development of the record following the February 14, 2011 claim. Thus, an earlier effective date for loss of the sense of smell is denied.

Loss of Sense of Taste Associated with TBI Prior to February 14, 2011

The Veteran's loss of his sense of taste was not explicitly claimed by the Veteran, and was not addressed by the Board in its October 2015 decision. Rather, after the development of the medical evidence, the RO awarded service connection by way of the December 2015 rating decision. The RO, in its evaluation of the TBI, did not include loss of the sense of taste in the assessment for the appropriate rating. The RO determined the Veteran's total loss of his sense of taste to be a secondary disability associated with the TBI. Because this was not a disability deemed directly associated with the Veteran's active service, and was not a disability explicitly claimed by the Veteran, but was a disability that was determined to have developed secondary to the TBI, the Board finds there no basis to award an effective date prior to February 14, 2011 for this disability. It was first mentioned and first shown in the medical evidence in the development of the record following the February 14, 2011 claim. Thus, an earlier effective date for loss of the sense of taste is denied.

Erectile Dysfunction Associated with TBI Prior to February 14, 2011

The Veteran's erectile dysfunction was not explicitly claimed, and was not addressed by the Board in its October 2015 decision. Rather, after the development of the medical evidence, the RO awarded service connection by way of the December 2015 rating decision. The RO, in its evaluation of the TBI, did not include erectile dysfunction in the assessment for the appropriate rating. The RO determined the Veteran's erectile dysfunction to be a secondary disability associated with the TBI. Because this was not a disability deemed directly associated with the Veteran's active service, and was not a disability explicitly claimed by the Veteran, but was a disability that was determined to have developed secondary to the TBI, the Board finds there no basis to award an effective date prior to February 14, 2011 for this disability. It was first mentioned and first shown in the medical evidence in the development of the record following the February 14, 2011 claim. Thus, an earlier effective date for erectile dysfunction is denied.

its evaluation of the TBI, did not include erectile dysfunction in the assessment for the appropriate rating. The RO determined the Veteran's erectile dysfunction to be a secondary disability associated with the TBI. Because this was not a disability deemed directly associated with the Veteran's active service, and was not a disability explicitly claimed by the Veteran, but was a disability that was determined to have developed secondary to the TBI, the Board finds there no basis to award an effective date prior to February 14, 2011 for this disability. It was first mentioned and first shown in the medical evidence in the development of the record following the February 14, 2011 claim. Thus, an earlier effective date for erectile dysfunction is denied.

SMC for Loss of Use of a Creative Organ prior to February 14, 2011

The Veteran's SMC for the loss of use of a creative organ was warranted based upon the service connected erectile dysfunction. Because an effective date prior to February 14, 2011 is being denied for service connection for erectile dysfunction in this decision, there is no basis for an award of SMC for loss of use of a creative organ prior to that date.

Cervical Spine Disability Prior to February 14, 2011

In October 2015, the Board issued a decision awarding service connection degenerative disc disease/degenerative joint disease as directly related to the Veteran's active service. The December 2015 rating decision on appeal effectuated that decision and assigned the February 14, 2011 effective date, which is on appeal. Thus, VA has assessed the Veteran's cervical spine disability as being directly related to his in-service experiences, and therefore was likely present to some degree in service. As such, the Board finds this to be a disability likely claimed on February 11, 1979. Because the claim was filed within one year of the Veteran's October 25, 1978 separation from service, the appropriate effective date is October 26, 1978. 38 C.F.R. § 3.400(b)(2)(i).

Right and Left Upper Extremity Radiculopathy Associated with the Cervical Spine Disability Prior to February 14, 2011

The Veteran's right and left upper extremity radiculopathy was awarded service connection by way of the December 2015 rating decision. The RO determined the Veteran's upper extremity radiculopathy to be a secondary disability associated with the cervical spine disability. Thus, the Board has reviewed the claims file for evidence of when the radiculopathy first manifested. The Veteran's Social Security Administration (SSA) records show the radiculopathy as existing by June 9, 2003, and was being characterized as related to the cervical spine disability. There is no prior record, however, showing the diagnosis.

As June 9, 2003 is the first indication in the file of radiculopathy related to the cervical spine disability, the Board finds an effective date of June 9, 2003 is warranted for the award of separate ratings for right and left upper extremity radiculopathy. Because the evidence does not show the radiculopathy having manifested prior to that date, and the Veteran has not made any statement suggesting his radicular symptoms were present in service or claimed at the time he filed the February 1979 claim, an effective date prior to June 9, 2003 is not warranted.

Right Knee Limitation of Flexion and Dislocation of Semilunar Cartilage Associated Prior to August 31, 2012

The Veteran was awarded service connection for a chronic right knee strain by way of an August 2013 rating decision. In October 2013, he filed a notice of disagreement challenging the initial rating assigned and the effective date. In October 2015, the Board issued a decision denying the challenge to the initial rating and the effective date for the chronic right knee strain, but awarding a separate rating for right knee limitation of flexion and for right knee dislocation of semilunar cartilage. These ratings were assigned as part of the challenge to the initial rating of the chronic right knee strain. The RO then issued the rating decision in December 2015 effectuating the Board's decision, after which the Veteran filed his notice of disagreement with the effective dates assigned.

The underlying chronic right knee strain was not addressed in the December 2015 rating decision on appeal and the Veteran did not file an appeal with the Court related to the Board's October 2015 decision. The October 2015 Board decision as to the effective date for the chronic right knee strain is, therefore, final, and that matter is not now before the Board. Again, the ratings assigned for the right knee flexion and
unar cartilage. These ratings were assigned as part of the challenge to the initial rating of the chronic right knee strain. The RO then issued the rating decision in December 2015 effectuating the Board's decision, after which the Veteran filed his notice of disagreement with the effective dates assigned.

The underlying chronic right knee strain was not addressed in the December 2015 rating decision on appeal and the Veteran did not file an appeal with the Court related to the Board's October 2015 decision. The October 2015 Board decision as to the effective date for the chronic right knee strain is, therefore, final, and that matter is not now before the Board. Again, the ratings assigned for the right knee flexion and dislocated semilunar cartilage were a part of the Board's decision related to the challenge to the initial rating for the chronic right knee strain. The RO assigned the effective date for the associated limitation of flexion and dislocation of semilunar cartilage as August 31, 2012, the date of service connection for the underlying chronic right knee strain. As the effective date for the underlying right knee disability is not on appeal, the Board finds no basis for awarding an earlier date for the limitation of flexion and dislocation of semilunar cartilage associated with that disability.

Right Hip Disabilities Prior to June 18, 2013

The Veteran was granted service connection for right hip strain by way of the June 2014 rating decision with a 30 percent rating assigned for limitation of flexion of the hip. Separate ratings were also awarded for limitation of adduction of the right hip and limitation of extension of the right hip. Each of these right hip disabilities were characterized as directly related to the Veteran's active service, and therefore likely present to some degree in service. As such, the Board finds the three right hip disabilities to be disabilities likely claimed on February 11, 1979. Because the claim was filed within one year of the Veteran's October 25, 1978 separation from service, the appropriate effective date is October 26, 1978. 38 C.F.R. § 3.400(b)(2)(i).

Left Knee Disability Prior to February 4, 2014

The Veteran's left knee disability was awarded service connection by way of the June 2014 rating decision. The RO determined the Veteran's left knee degenerative joint disease to be a secondary disability associated with the service-connected right knee strain, which had been awarded service connection by way of an August 2013 rating decision. The effective date assigned, February 4, 2014, was based on the statement received by the Veteran on that date indicating that due to his right knee disability, he had started to favor his left leg and then experience problems with this left leg. This was the first indication that a left knee disability had an onset. As such, the effective date of February 4, 2014 is appropriate as it is the date of the claim as well as the first indication that a left knee disability had manifested. Subsequent medical evidence confirmed the existence of the left knee disability that is secondary to the service-connected right knee disability. Thus, no earlier effective date is warranted for the left knee.

The Board recognizes the Veteran's statement in February 2014 suggesting that the RO should have considered a secondary left knee disability with the original knee claim. The Board recognizes a June 2013 statement referencing injuries to the Veteran's "knees" in service. The award of service connection for the left knee disability in this case, however, was based upon the establishment of a left knee disability that developed secondary to the right knee disability. Service connection was not established as directly related to the Veteran's active service. As such, the February 4, 2014 effective date remains appropriate.

REASONS FOR REMAND

TDIU, DEA, and SMC - Housebound Prior to February 14, 2011

The Veteran filed a formal claim for TDIU in March 2011. The Veteran claimed to have been unemployable since 1978 due to his back, neck and psychiatric disabilities. In May 2013, he reported to a VA clinician that he has been on SSA benefits since he was 18 and that he has not worked since the military.

The Veteran's TDIU, DEA, and SMC based on meeting the housebound criteria are currently all awarded effective February 14, 2011, the date the Veteran's schedular rating made him eligible for these benefits. By virtue of the Board's decision above, the RO must assess the appropriate ratings for the awards granted. The RO must then reassess the Veteran's TDIU claim based upon his combined schedular rating dating back to 1978.
unemployable since 1978 due to his back, neck and psychiatric disabilities. In May 2013, he reported to a VA clinician that he has been on SSA benefits since he was 18 and that he has not worked since the military.

The Veteran's TDIU, DEA, and SMC based on meeting the housebound criteria are currently all awarded effective February 14, 2011, the date the Veteran's schedular rating made him eligible for these benefits. By virtue of the Board's decision above, the RO must assess the appropriate ratings for the awards granted. The RO must then reassess the Veteran's TDIU claim based upon his combined schedular rating dating back to 1978. The RO will also need to assess eligibility to DEA and SMC based upon these determinations.

The matters are REMANDED for the following action:

Once the rating actions are issued related to the awards in the Board's decision above, the RO should readjudicate the Veteran's claim for TDIU and readjudicate the matters of eligibility for DEA and SMC based on the housebound criteria.

In its readjudication of the TDIU claim, the RO should recognize it has, by way of the March 2023 letter, found the Veteran has filed a claim on February 11, 1979, and also recognize the Veteran's various statements that he has been unemployed and unemployable since he separated from active service.

MICHAEL E. KILCOYNE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board A. Adamson, 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.

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