Citation Nr: 0812023	
Decision Date: 04/11/08    Archive Date: 04/23/08

DOCKET NO.  04-37 736A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in 
Muskogee, Oklahoma


THE ISSUES

1.  Entitlement to a compensable rating for residuals of 
fractures of the right side 3rd through 8th ribs.

2.  Entitlement to a rating in excess of 10 percent for 
residuals of a right clavicle fracture.

3.  Entitlement to an effective date earlier than July 24, 
2003, for the assignment of a 10 percent rating for residuals 
of a liver laceration.

4.  Entitlement to a compensable rating for postoperative 
diplopia.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J. B. Freeman, Associate Counsel


INTRODUCTION

The veteran served on active duty from September 1975 to 
September 1979 and from May 1980 to June 1992.  He had 
additional periods of active service as an activated Naval 
Reservist from June 1995 to November 1995, from April 1998 to 
September 1998 and from March 2000 to December 2001.  

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a January 2004 rating decision of the 
RO in Muskogee, Oklahoma, which, in pertinent part, continued 
noncompensable ratings for residuals of rib fractures and 
diplopia, granted 10 percent evaluations for residuals of a 
right clavicle fracture and for a healed liver laceration.  
The veteran contested the effective dates of the compensable 
awards and was granted a retroactive award in a November 2006 
rating decision for the clavicle fracture residuals.  The 
veteran appealed the appropriateness of the 10 percent rating 
for the clavicle residuals from the November 2006 rating 
decision. 

The Board notes, with respect to increased ratings, the 
United States Court of Appeals for Veterans Claims (Court) 
has held that on a claim for an original or increased rating, 
the appellant will generally be presumed to be seeking the 
maximum benefit allowed by law or regulations, and it follows 
that such a claim remains in controversy where less than the 
maximum benefit is allowed.  AB v. Brown, 6 Vet. App. 35, 38 
(1993).  The Court further held that, where a claimant has 
filed a notice of disagreement as to a RO decision assigning 
a particular rating, a subsequent RO decision awarding a 
higher rating, but less than the maximum available benefit, 
does not abrogate the appeal.  Id.  The grant of an earlier 
effective date for the veteran's clavicle fracture residuals 
was to September 4, 1998, the day following separation from 
service for the period in which the veteran broke his 
clavicle.  This is the earliest possible date that can be 
assigned.  See 38 C.F.R. § 3.400.  The appeal was granted in 
full, and is not before the Board.  See AB, supra.  The 
veteran also appealed a claim for service connection for 
hypertension, but this was granted in the November 2006 
rating decision.  This appeal has also been granted in full 
and is not before the Board.  See id.  

The veteran brought a claim for service connection for lower 
back and leg disabilities which were denied in June 2007.  
The veteran initiated an appeal on the issues in his June 
2007 Notice of Disagreement.  The veteran failed to perfect 
that issue with a timely Substantive Appeal following the 
August 2007 issuance of the Statement of the Case; the issues 
are not before the Board.

The Board also notes that the veteran has submitted 
statements in February and April 2007 requesting an award 
adjustment based on spouse and dependents.  The veteran also 
raised issues of service connection for a right rotator cuff 
tear and bone spurring of the right acromion in several 
statements.  The RO has taken no action on these matters.  
The request for an award adjustment and claims for service 
connection are REFERRED to the RO for appropriate action.

The issue of a compensable rating for post operative diplopia 
is REMANDED to the RO via the Appeals Management Center 
(AMC), in Washington, DC.  VA will notify the veteran if 
further action is required.


FINDINGS OF FACT

1.  The veteran's service-connected rib disability has been 
manifested by healed fractures with deformity, without rib 
removal or resection. 

2.  The veteran's right arm is the major arm.

3.  The veteran's service-connected residuals of a right 
clavicle fracture have been manifested by pain on motion, 
without malunion, nonunion or loss of range of motion.

4.  The veteran's claim for an increased rating for his liver 
disability was received by the RO on July 24, 2003; 
subsequently, a 10 percent disability was granted, effective 
July 24, 2003.

5.  The veteran's July 24, 2003, statement was not a Notice 
of Disagreement to a January 2003 rating decision; prior to 
receipt of the claim on July 24, 2003, there were no pending 
requests for an increased rating that remained unadjudicated.

6.  In the year prior to July 24, 2003, the medical evidence 
did not factually show that the veteran's liver condition had 
increased in disability.


CONCLUSIONS OF LAW

1. The criteria for entitlement to a compensable disability 
evaluation for the veteran's service-connected postoperative 
residuals of right 5th rib resection have not been met.  38 
U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7. 
4.20, 4.27, 4.71a, Diagnostic Code 5297 (2007).

2.  The criteria for a disability rating greater than 10 
percent for residuals of a right clavicle fracture have not 
been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, 
Diagnostic Codes 5201, 5203 (2007).

3.  The criteria for entitlement to a 10 rating for residuals 
of a liver laceration, prior to July 24, 2003, have not been 
met.  38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 
(2007); 38 C.F.R. § 4.118, Diagnostic Codes 7301, 7311, 7312, 
7345 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence in the 
veteran's claims folders.  The Board has an obligation to 
provide reasons and bases supporting this decision.  See 
Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) 
(the Board must review the entire record, but does not have 
to discuss each piece of evidence).  The analysis below 
focuses on the most salient and relevant evidence and on what 
this evidence shows, or fails to show, on the claims.  The 
veteran must not assume that the Board has overlooked pieces 
of evidence that are not explicitly discussed herein.  See 
Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law 
requires only that the Board address its reasons for 
rejecting evidence favorable to the veteran).  

The Board must assess the credibility and weight of all 
evidence, including the medical evidence, to determine its 
probative value, accounting for evidence which it finds to be 
persuasive or unpersuasive, and providing reasons for 
rejecting any evidence favorable to the claimant.  Equal 
weight is not accorded to each piece of evidence contained in 
the record; every item of evidence does not have the same 
probative value.  When all the evidence is assembled, VA is 
responsible for determining whether the evidence supports the 
claim or is in relative equipoise, with the appellant 
prevailing in either event, or whether a preponderance of the 
evidence is against a claim, in which case, the claim is 
denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

I. Veterans Claims Assistance Act

With respect to the veteran's claims, VA has met all 
statutory and regulatory notice and duty to assist 
provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 
5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326.

Under the VCAA, when VA receives a complete or substantially 
complete application for benefits, it is required to notify 
the claimant and his representative, if any, of any 
information and medical or lay evidence that is necessary to 
substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002); 
38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. 
App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 
120-21 (2004) (Pelegrini II), the United States Court of 
Appeals for Veterans Claims (Court) held that VA must inform 
the claimant of any information and evidence not of record 
(1) that is necessary to substantiate the claim; (2) that VA 
will seek to provide; (3) that the claimant is expected to 
provide; and (4) request that the claimant provide any 
evidence in his possession that pertains to the claim.  

Prior to initial adjudication of the veteran's claim, a 
letter dated in August 2003 fully satisfied the duty to 
notify provisions for the first three elements on the rib and 
eye claims.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); 
Quartuccio, at 187.  The veteran was provided notice of the 
requirements for earlier effective dates in a December 2006 
letter and the requirements for an increased rating for his 
clavicle fracture residuals in July 2007.  The veteran was 
aware that it was ultimately his responsibility to give VA 
any evidence pertaining to the claims.  The December 2006 and 
July 2007 letters also told him to provide any relevant 
evidence in his possession for all of his claims.  See 
Pelegrini II, at 120-121.  Although these letters was not 
sent prior to initial adjudication of the veteran's claim, 
this was not prejudicial to him, since he was subsequently 
provided adequate notice in December 2006 and July 2007, he 
was provided an opportunity to respond with additional 
argument and evidence and the claim was readjudicated and a 
Statement of the Case for the clavicle fracture residuals 
claim and an additional supplemental statement of the case 
(SSOC) for the other claims were provided to the veteran in 
August 2007.  See Prickett v. Nicholson, 20 Vet. App. 370 
(2006).  

Under the VCAA, when VA receives a complete or substantially 
complete application for benefits, it is required to notify 
the claimant and his representative, if any, of any 
information and medical or lay evidence that is necessary to 
substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002); 
38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. 
App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 
120-21 (2004) (Pelegrini II), the United States Court of 
Appeals for Veterans Claims (Court) held that VA must inform 
the claimant of any information and evidence not of record 
(1) that is necessary to substantiate the claim; (2) that VA 
will seek to provide; (3) that the claimant is expected to 
provide; and (4) request that the claimant provide any 
evidence in his possession that pertains to the claim.  

Prior to initial adjudication of the veteran's claim, a 
letter dated in [month/year] fully satisfied the duty to 
notify provisions elements 2, 3, and 4.  38 U.S.C.A. § 
5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187; 
Pelegrini II.  In order to satisfy the first Pelegrini II 
element for an increased-compensation claim, section 5103(a) 
compliant notice must meet the following four part test: 

(1) that the Secretary notify the claimant that, to 
substantiate a claim, the claimant must provide, or ask 
the Secretary to obtain, medical or lay evidence 
demonstrating a worsening or increase in severity of the 
disability and the effect that worsening has on the 
claimant's employment and daily life; 

(2) if the Diagnostic Code under which the claimant is 
rated contains criteria necessary for entitlement to a 
higher disability rating that would not be satisfied by 
the claimant demonstrating a noticeable worsening or 
increase in severity of the disability and the effect of 
that worsening has on the claimant's employment and 
daily life (such as a specific measurement or test 
result), the Secretary must provide at least general 
notice of that requirement to the claimant; 

(3) the claimant must be notified that, should an 
increase in disability be found, a disability rating 
will be determined by applying relevant Diagnostic 
Codes, which typically provide for a range in severity 
of a particular disability from noncompensable to as 
much as 100 percent (depending on the disability 
involved), based on the nature of the symptoms of the 
condition for which disability compensation is being 
sought, their severity and duration, and their impact 
upon employment and daily life; 

(4) the notice must also provide examples of the types 
of medical and lay evidence that the claimant may submit 
(or ask the Secretary to obtain) that are relevant to 
establishing entitlement to increased compensation, 
e.g., competent lay statements describing symptoms, 
medical and hospitalization records, medical statements, 
employer statements, job application rejections, and any 
other evidence showing an increase in the disability or 
exceptional circumstances relating to the disability.  

Vazquez-Flores v. Peake, 21 Vet. App. 37 (2008).  For the 
following reasons, the Board finds that the elements of the 
Vazquez-Flores test have either been met or that any error is 
not prejudicial.  

Preliminarily, the Board notes that the notice provided in 
this case was issued prior to the decision in Vazquez-Flores.  
As such it does not take the form prescribed in that case.  
Failure to provide pre-adjudicative notice of any of the 
necessary duty to notify elements is presumed to create 
prejudicial error.  Sanders v. Nicholson, 487 F.3d 881 
(2007).  The Secretary has the burden to show that this error 
was not prejudicial to the veteran.  Id., at 889.  Lack of 
prejudicial harm may be shown in three ways: (1) that any 
defect was cured by actual knowledge on the part of the 
claimant, (2) that a reasonable person could be expected to 
understand from the notice what was needed, or (3) that a 
benefit could not have been awarded as a matter of law.  Id., 
at 887; see also Mayfield v. Nicholson, 19 Vet. App. 103, 
(2005), rev'd on other grounds, Mayfield v. Nicholson, 444 
F.3d 1328 (Fed. Cir. 2006).  The Federal Circuit indicated 
that this was not an exclusive list of ways that error may be 
shown to be non prejudicial.  See Sanders, at 889.  In order 
for the Court to be persuaded that no prejudice resulted from 
a notice error, the record must demonstrate that, despite the 
error, the adjudication was nevertheless essentially fair.  
See also Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007).  

Prior to the initial adjudication of the claim, the RO sent 
the veteran an August 2003 letter, which requested that the 
veteran provide evidence describing how his disability had 
worsened.  In addition, the veteran was questioned about the 
effect that worsening has on his employment and daily life 
during the course of the 2003 and 2005 VA examination 
performed in association with this claim.  The veteran 
provided statements in which he details the impact of his rib 
and clavicle disabilities with his March 2004 Notice of 
Disagreement and his May 2007 Form 9, respectively, on his 
employment.  The Board finds that the notice given, the 
questions directly asked and the responses provided by the 
veteran both at interview and in his own statements show that 
he knew that the evidence needed to show that his disability 
had worsened and what impact that had on his employment and 
daily life.  As the Board finds veteran had actual knowledge 
of the requirement, any failure to provide him with adequate 
notice is not prejudicial.  See Sanders, supra.  The Board 
finds that the first criterion is satisfied.  See Vazquez-
Flores.  

As to the second element, the Board notes that the veteran is 
service connected for rib and clavicle disabilities.  As will 
be discussed below, rib disabilities are rated under 
Diagnostic Code 5297 and clavicle disabilities under 
Diagnostic Code 5203, 38 C.F.R. § 4.71a.  These are the only 
Diagnostic Codes to rate these disabilities and they are not 
cross referenced to any other Codes for the purposes of 
evaluation.  See id.  Furthermore, there is no single 
measurement or test that is required to establish a higher 
rating.  See id.  The Board finds that no more specific 
notice is required of VA and that any error in not providing 
the rating criteria is harmless.  See Vazquez-Flores.  

As to the third element, the Board notes that the veteran was 
provided notice that a disability rating would be determined 
by application of the ratings schedule and relevant 
Diagnostic Codes based on the extent and duration of the 
signs and symptoms of his disability and their impact on his 
employment and daily life in the November 2006 letter.  See 
Vazquez-Flores.  The veteran was afforded an opportunity to 
respond and readjudication in August 2007.  The Board 
concludes that the timing error is harmless.  See Prickett, 
supra.  

As to the fourth element, the August 2003 and November 2006 
letters did provide notice of the types of evidence, both 
medical and lay, including employment records, that could be 
submitted in support of his claim.  The Board finds that the 
fourth element of Vazquez-Flores is satisfied.  See id.  

In light of the foregoing, the Board finds that the 
requirements of Vazquez-Flores are met.  The Board, 
therefore, finds that the requirements of Pelegrini II are 
met and that the VA has discharged its duty to notify.  See 
Pelegrini II, supra.

The Board also concludes VA's duty to assist has been 
satisfied.  The veteran's service medical records and VA 
medical records are in the file.  Private medical records 
identified by the veteran have been obtained, to the extent 
possible.  The veteran has at no time referenced outstanding 
records that he wanted VA to obtain or that he felt were 
relevant to the claims.

The duty to assist includes, when appropriate, the duty to 
conduct a thorough and contemporaneous examination of the 
veteran.  Green v. Derwinski, 1 Vet. App. 121 (1991).  In 
addition, where the evidence of record does not reflect the 
current state of the veteran's disability, a VA examination 
must be conducted.  Schafrath v. Derwinski, 1 Vet. App. 589 
(1991); 38 C.F.R. § 3.327(a) (2007).

The RO provided the veteran appropriate VA examinations in 
2003 and 2005.  There is no objective evidence indicating 
that there has been a material change in the severity of the 
veteran's service-connected disorders since he was last 
examined.  38 C.F.R. § 3.327(a).  The duty to assist does not 
require that a claim be remanded solely because of the 
passage of time since an otherwise adequate VA examination 
was conducted.  VAOPGCPREC 11-95.  The 2003 and 2005 VA 
examination reports are thorough and supported by VA 
outpatient treatment records.  The examination in this case 
is adequate upon which to base a decision.

As there is no indication that any failure on the part of VA 
to provide additional notice or assistance reasonably affects 
the outcome of this case, the Board finds that any such 
failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 
103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 
444 F.3d 1328 (Fed. Cir. 2006).

II. Increased Ratings

Disability evaluations are determined by evaluating the 
extent to which a veteran's service-connected disability 
adversely affects his or her ability to function under the 
ordinary conditions of daily life, including employment, by 
comparing his or her symptomatology with the criteria set 
forth in the Schedule for Rating Disabilities.  The 
percentage ratings represent as far as can practicably be 
determined the average impairment in earning capacity 
resulting from such diseases and injuries and the residual 
conditions in civilian occupations.  Generally, the degree of 
disabilities specified are considered adequate to compensate 
for considerable loss of working time from exacerbation or 
illness proportionate to the severity of the several grades 
of disability.  38 U.S.C.A. § 1155 (West 2002 & Supp. 2007); 
38 C.F.R. § 4.1 (2007).  Separate diagnostic codes identify 
the various disabilities and the criteria for specific 
ratings.  If two disability evaluations are potentially 
applicable, the higher evaluation will be assigned to the 
disability picture that more nearly approximates the criteria 
required for that rating.  Otherwise, the lower rating will 
be assigned.  38 C.F.R. § 4.7.  Any reasonable doubt 
regarding the degree of disability will be resolved in favor 
of the veteran.  38 C.F.R. § 4.3.  However, the evaluation of 
the same disability under various diagnoses, known as 
pyramiding, is to be avoided.  38 C.F.R. § 4.14 (2007). 

Where entitlement to compensation has already been 
established and an increase in the disability rating is at 
issue, it is the present level of disability that is of 
primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 
(1994).  Consistent with the facts found, the rating may be 
higher or lower for segments of the time under review on 
appeal, i.e., the rating may be "staged."  Fenderson v. 
West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 
Vet. App. 505 (2007).

In the present case, it should also be noted that when 
evaluating disabilities of the musculoskeletal system, 38 
C.F.R. § 4.40 allows for consideration of functional loss due 
to pain and weakness causing additional disability beyond 
that reflected on range of motion measurements.  DeLuca v. 
Brown, 8 Vet. App. 202 (1995).  Further, 38 C.F.R. § 4.45 
provides that consideration also be given to weakened 
movement, excess fatigability and incoordination.

a. Ribs

The veteran contends that he is entitled to a compensable 
rating for his rib fracture residuals.  For the reasons that 
follow, the Board concludes that an increased rating is not 
warranted.

The veteran's rib disability is currently rated under 
Diagnostic Code (DC) 5297, for removal of the ribs.  The 
Board notes that this is the only Diagnostic Code to address 
ribs disability.  See 38 C.F.R. § 4.71a (2007).  DC 5297 
provides that a 10 percent evaluation is warranted for the 
removal of one rib or the resection of two or more ribs 
without regeneration. Id. A 20 percent evaluation is 
warranted where two ribs have been removed. Id.  A 30 percent 
evaluation is warranted where three or four ribs have been 
removed. Id.  A 40 percent evaluation is warranted where five 
or six ribs have been removed. Id.  And a maximum 50 percent 
evaluation is warranted for the removal of six or more ribs. 
Id.  Notes to this code provide that the rating for rib 
resection or removal is not to be applied with ratings for 
purulent pleurisy, lobectomy, pneumonectomy or injuries of 
pleural cavity. Id.  However, rib resection will be 
considered as rib removal in thoracoplasty performed for 
collapse therapy or to accomplish obliteration of space and 
will be combined with the rating for lung collapse or with 
the rating for lobectomy, pneumonectomy or the graduated 
ratings for pulmonary tuberculosis. Id.  

The veteran broke his right side 3rd through 8th ribs in a car 
accident in 1978.  The veteran did not have any ribs removed.  
There is no evidence of resection.  An August 2003 x-ray 
study showed that the ribs had healed with some deformity.  
The veteran retains his ribs without resection.  The Board 
finds that the criteria for a compensable rating have not 
been met under DC 5297.  See 38 C.F.R. § 4.71a, supra.

As discussed above, 38 C.F.R. § 4.40 allows for consideration 
of functional loss due to pain and weakness causing 
additional disability beyond that reflected on range of 
motion measurements.  DeLuca v. Brown, 8 Vet. App. 202 
(1995).  Further, 38 C.F.R. § 4.45 provides that 
consideration also be given to weakened movement, excess 
fatigability and incoordination. The veteran has complained 
of pain in his side, due to his ribs.  No additional 
compensation is warranted, however, because no functional 
loss, disability, or other manifestations of the service-
connected postoperative residuals of right 3rd through 8th rib 
fracture residuals have been shown.  Under Spurgeon v. Brown, 
10 Vet. App. 194 (1997), the Board is not required to assign 
a separate rating for pain.  A compensable rating under the 
criteria of DeLuca is not warranted.  

The Board has considered the possibility of staged ratings.  
Fenderson; Hart, both supra.  The Board, however, concludes 
that the criteria for a compensable rating have at no time 
been met.  Accordingly, staged ratings are inapplicable.  See 
id.  

As such, the Board finds that the preponderance of the 
evidence is against the veteran's claim.  Consequently, the 
benefit-of-the-doubt rule does not apply, and the claim must 
be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. 
Derwinski, 1 Vet. App. 49, 55 (1990).

b. Clavicle

The veteran contends that he is entitled to a rating in 
excess of 10 percent for his clavicle fracture residuals.  
For the reasons that follow, the Board concludes that an 
increased rating is not warranted.

The veteran's clavicle fracture is currently rated under DC 
5203.  Under the laws administered by VA, disabilities of the 
shoulder and arm are rated under Diagnostic Codes 5200 
through 5203. A distinction is made between major (dominant) 
and minor musculoskeletal groups for rating purposes. In the 
instant case, the evidence shows that the veteran's right 
shoulder is the major upper extremity.

In cases of clavicular or scapular impairment, with 
dislocation, a 20 percent rating is warranted where either 
the major or minor arm is involved.  Nonunion of the clavicle 
or scapula with loose movement shall be assigned a 20 percent 
rating, while nonunion without loose movement warrants a 10 
percent evaluation.  Malunion of the clavicle or scapula may 
be assigned a 10 percent rating, or may be rated based on 
impairment of function of the contiguous joint.  38 C.F.R. § 
4.71a.

On x-ray examination in August 2003, the veteran's clavicle 
was shown to be healed.  There is no notation in the 
veteran's medical records of malunion or nonunion of the 
clavicle.  For a higher rating, the veteran must be evaluated 
on impairment of the contiguous joint.  See id.  

Major arm shoulder disabilities, under DC 5201, are rated 30 
percent for limitation of the arm midway between side and 
shoulder level and 40 percent for limitation of the arm to 25 
degrees from the side.  38 C.F.R. § 4.71a.

The average range of motion of the shoulder is forward 
elevation (flexion) to 180 degrees; abduction to 180 degrees, 
external rotation to 90 degrees and internal rotation to 90 
degrees. 38 C.F.R. § 4.71.

At examinations in August 2003 and January 2005, the veteran 
had 180 degrees of forward flexion and abduction, and 
internal and external rotation to 90 degrees.  There is no 
evidence in the veteran's remaining medical records that he 
has lost range of motion in the shoulder.  VA treatment 
records from March and May 2005 indicate that the veteran had 
"full" and "fairly good" range of motion.  The Board 
concludes that the criteria for a rating in excess of 10 
percent under DC 5201 for limitation of motion have not been 
met.  See 38 C.F.R. § 4.71a, supra.

The Board has considered application of the DeLuca criteria.  
The veteran's disability does not, however, meet the minimum 
requirements for a compensable rating under either the 
clavicle impairment Diagnostic Code or the limitation of 
motion Diagnostic Code.  See 38 C.F.R. § 4.71a, DCs 5201 and 
5203, supra.  The veteran has received numerous injections 
into the shoulder for pain control.  The veteran's current 10 
percent was granted in recognition of the DeLuca criteria of 
painful motion.  An even higher rating is not warranted or 
legally permissible. 

The Board has considered the possibility of staged ratings.  
Fenderson; Hart, both supra.  The Board, however, concludes 
that the criteria for a compensable rating have at no time 
been met.  Accordingly, staged ratings are inapplicable.  See 
id.  

As discussed in the Introduction, the veteran has also 
claimed service connection for a rotator cuff tear and bone 
spurring of the acromion.  The manifestations of non service 
connected disabilities are not to be used in evaluating a 
service connected disability.  See Mittleider v. West, 11 
Vet. App. 181 (1998) (When it is not possible to separate the 
effects of the service-connected condition from a nonservice- 
connected condition, 38 C.F.R. § 3.102 requires that 
reasonable doubt on any issue be resolved in the veteran's 
favor, and that such signs and symptoms be attributed to the 
service-connected condition).  In this case, however, the 
Board has relied on all of the veteran's manifestations of 
shoulder disability and cannot assign a rating in excess of 
10 percent.  As such, there is no harm in proceeding without 
remanding for consideration of service connection.  See 
Bernard v. Brown, 4 Vet. App. 384 (1993).

As such, the Board finds that the preponderance of the 
evidence is against the veteran's claim.  Consequently, the 
benefit-of-the-doubt rule does not apply, and the claim must 
be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. 
Derwinski, 1 Vet. App. 49, 55 (1990).

III. Earlier Effective Date

The veteran contends that he is entitled to an effective date 
prior to July 24, 2003, for the increased rating of 10 
percent for his service connected liver laceration.  
Specifically, he has argued that the January 2003 rating 
decision continuing a noncompensable rating did not become 
final, and that the claim leading to that decision should be 
the one used to assign the effective date for the increased 
rating.  For the reasons that follow, the Board concludes 
that an increased rating is not warranted.  

A specific claim in the form prescribed by the Secretary is 
necessary for disability benefits to be paid to any 
individual under the laws administered by VA.  38 U.S.C. § 
5101(a); 38 C.F.R. § 3.151.  A claim is a formal or informal 
communication, in writing, requesting a determination of 
entitlement or evidencing a belief in entitlement, to a 
benefit.  38 C.F.R. § 3.1(p).

Any communication or action, indicating an intent to apply 
for one or more benefits under the laws administered by 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 an informal claim must identify the benefit 
sought.  Upon receipt of an informal claim, if a formal claim 
has not been filed, an application form will be forwarded to 
the claimant for execution.  If received within one year 
after the date it was sent to the claimant, it will be 
considered filed as of the date of receipt of the informal 
claim.  38 C.F.R. §§ 3.1(p), 3.155(a) (2006).  See Servello 
v. Derwinski, 3 Vet. App. 196 (1992).

Except as otherwise provided, the effective date of an award 
based on an original claim or a claim for an increased rating 
shall be fixed in accordance with the facts found, but shall 
not be earlier than the date of receipt of the claim.  The 
effective date of an award of increased compensation shall be 
the earliest date at which it is ascertainable that an 
increase in disability has occurred, if the claim for an 
increased rating is received within one year from such date, 
otherwise the date of receipt of the claim.  38 U.S.C.A. § 
5110(a), (b)(2); 38 C.F.R. § 3.400(o).  The award of an 
increased rating should normally be effective either on the 
date of receipt of the claim or on some date in the preceding 
year if it was ascertainable that the disorder had increased 
in severity during that time.  See also VAOGCPREC 12-98.  

Determining whether the effective date assigned for an 
increased rating is correct or proper under the law requires 
(1) a determination of the date of the receipt of the claim 
for the increased rating as well as (2) a review of all the 
evidence of record to determine when an increase in 
disability was "ascertainable."  See Hazan v. Gober, 10 
Vet. App. 511, 521 (1992).

The United States Court of Appeals for Veterans Claims has 
held that 38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. § 
3.400(o)(2) are applicable only where an increase in 
disability precedes a claim for an increased disability 
rating; otherwise the general rule of 38 C.F.R. § 3.400(o)(1) 
applies.  See Harper v. Brown, 10 Vet App 125, 126 (1997).  
Thus, three possible dates may be assigned depending on the 
facts of the case:

(1) if an increase in disability occurs 
after the claim is filed, the date that 
the increase is shown to have occurred 
(date entitlement arose) (38 C.F.R. § 
3.400(o)(1));

(2) if an increase in disability precedes 
the claim by a year or less, the date 
that the increase is shown to have 
occurred (factually ascertainable) (38 
C.F.R. § 3.400(o)(2));

(3) if an increase in disability precedes 
the claim by more than a year, the date 
that the claim is received (date of 
claim) (38 C.F.R. § 3.400(o)(2)).

Harper, 10 Vet. App. at 126.  Thus, determining an 
appropriate effective date for an increased rating under the 
effective date regulations involves an analysis of the 
evidence to determine (1) when a claim for an increased 
rating was received and, if possible, (2) when the increase 
in disability actually occurred.  38 C.F.R. §§ 3.155, 
3.400(o)(2).  The Board will therefore first determine the 
date of receipt of the veteran's claim, then proceed to 
consider whether the evidence showed entitlement prior to the 
assigned effective date for a 10 percent rating for a liver 
laceration.

The veteran brought a prior claim for a compensable rating in 
January 2002.  The RO denied this claim in a January 2003 
rating decision, of which the veteran was notified in the 
same month.  The veteran contends that his statement, 
received by the RO on July 24, 2003, should be held a Notice 
of Disagreement to the January 2003 rating decision.  If the 
statement is held a Notice of Disagreement, the January 2003 
rating decision would not be final, and the correct date of 
claim would be the January 2002 claim.

An appeal is initiated by filing a timely Notice of 
Disagreement (NOD).  See 38 C.F.R. § 20.201 (2007).  A NOD 
must express dissatisfaction or disagreement with a denial of 
a claim and a desire to contest the result.  Id.  Although 
any communication from the claimant will be liberally 
construed, it still must be expressed in terms that can 
reasonably be construed as disagreement with a denial and 
desire for appellate review.  Id.  The veteran's July 2003 
statement addresses service connection for hypertension 
before turning to his service-connected disabilities.  The 
veteran stated that he "would like to file for increase in 
my other service connections [sic] disabilities."  He then 
requested that the RO ensure that his service medical records 
from his last period of service be used to evaluate his 
disabilities.  There is no indication of a desire for 
appellate review and no reference to the prior decision or 
dissatisfaction with prior decisions.  The Board finds that 
the veteran's July 2003 statement did not constitute a Notice 
of Disagreement to the January 2003 rating decision.  

A Notice of Disagreement must be received within one year of 
the notice of an adverse decision.  See 38 C.F.R. § 20.302.  
No other communication was received prior to the expiration 
of one year following notice of the rating decision that 
could be construed as a Notice of Disagreement.  The Board 
concludes that the January 2003 rating decision is final.  
38 U.S.C. §§ 7104, 7105 (West 2002); 38 C.F.R. § 3.104 
(2007).  

The Board notes that there are two statutory exceptions to 
the rule of finality.  First, pursuant to 38 U.S.C. § 5108, 
the Secretary must reopen a claim if new and material 
evidence regarding the claim is presented or secured.  
Second, a decision is subject to revision on the grounds of 
clear and unmistakable error.  38 U.S.C. §§ 5109A (decision 
by the Secretary) & 7111 (decision by the Board).  These are 
the only statutory exceptions to the finality of VA 
decisions.  Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002).

The Board notes that while the veteran has disagreed with the 
effective dates assigned for his service-connected liver 
disability, he has not filed a claim for clear and 
unmistakable error (CUE) with regard to any rating decision.  
A claim for benefits based on CUE in a prior final rating 
decision entails special pleading and proof requirements to 
overcome the finality of the decision by collateral attack 
because the decision was not appealed during the appeal 
period.  In order for a claimant to successfully establish a 
valid claim of CUE in a final RO rating decision, the 
claimant must articulate with some degree of specificity what 
the alleged error is, and, unless the alleged error is the 
kind of error that, if true, would be CUE on its face, the 
claimant must provide persuasive reasons explaining why the 
result of the final rating decision would have been 
manifestly different but for the alleged error.  As no CUE 
has been alleged in the unappealed January 2003 rating 
decision, this decision is final and the effective date for a 
grant of a higher rating necessarily must be after the date 
of this decision.  See 38 C.F.R. §§ 3.105, 3.400.

The RO found that the veteran's July 2003 statement was the 
claim from which the instant appeal arises.  There is no 
other statement from the veteran after the previous final 
denial that might constitute an earlier claim.  The Board 
finds that July 24, 2003 was the date of claim.  The 
remaining question is when was it factually ascertainable 
that a 10 percent evaluation for residuals of a liver 
laceration was warranted.  See 38 C.F.R. § 3.400, supra.

The veteran's liver laceration residuals are rated as 10 
percent disabling under 38 C.F.R. § 4.114, Diagnostic Code 
7311.  That DC indicates to rate any specific residuals as 
adhesions of the peritoneum (DC 7301), cirrhosis of the liver 
(DC 7312), or chronic liver disease without cirrhosis (DC 
7345).  The veteran was granted a 10 percent rating for his 
liver laceration residuals because he reported abdominal pain 
during his August 2003 VA examination.  The RO assigned a 10 
percent rating under DC 7312, which requires symptoms such as 
weakness, anorexia, abdominal pain, and malaise.  See 
38 C.F.R. § 4.114.

The Board has reviewed the veteran's medical records, both 
before and since, and the veteran has not repeated this 
complaint to any other treatment provider.  There is no 
indication in the record of abdominal pain.  The veteran was 
seen for a variety of complaints pertaining to his right 
shoulder and back, but not for abdominal pain.  The Board 
concludes that an increase in disability was not factually 
ascertainable prior to July 24th, 2003 under DC 7312.  

A minimum compensable rating under DC 7301 would have 
required moderate pulling pain on attempting to work or 
aggravated by movements of the body, or occasional colic 
pain, nausea, constipation (perhaps alternating with 
diarrhea) or abdominal distention.  See 38 C.F.R. § 4.114.  
As before, there were no abdominal complaints prior to July 
24, 2003.  There were no complaints of colic pain, nausea, 
constipation or distension.  The Board concludes that an 
increase in disability was not factually ascertainable prior 
to July 24, 2003 under DC 7312.  See id.  

A minimum compensable rating under DC 7345 is applicable 
where the disability is productive of intermittent fatigue, 
malaise, and anorexia, or where there are incapacitating 
episodes with symptoms such as fatigue, malaise, nausea, 
vomiting, anorexia, arthralgia and right upper quadrant pain, 
having a total duration of at least one week, but less than 
two weeks during the previous 12 month period.  38 C.F.R. § 
4.114, Diagnostic Code 7345 (2007).  Again, there were no 
complaints of intermittent fatigue, malaise, and anorexia, 
and no indication of incapacitating episodes.  The Board 
concludes that an increase in disability was not factually 
ascertainable prior to July 24, 2003 under DC 7345.  See id.  

Having looked to every possible Diagnostic Code, the Board 
finds that the increase in disability was not factually 
ascertainable prior to July 24, 2003.  In light of the 
Board's finding that July 24, 2003 is the correct date of 
claim, the Board finds that the preponderance of the evidence 
is against the veteran's claim for an earlier effective date.  
Consequently, the benefit-of-the-doubt rule does not apply, 
and the claim must be denied.  38 U.S.C.A. § 5107(b) (West 
2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).


ORDER

Entitlement to a compensable rating for residuals of 
fractures of the right side 3rd through 8th ribs is denied.

Entitlement to a compensable rating for PO diplopia is 
denied.

Entitlement to a rating in excess of 10 percent for residuals 
of a right clavicle fracture is denied.

Entitlement to an effective date earlier than July 24, 2003, 
for the assignment of a 10 percent rating for residuals of a 
liver laceration is denied.




REMAND

The veteran's only VA examination in the course of this claim 
was in September 2003.  To ensure that the record reflects 
the current severity of the veteran's condition, the Board 
finds that a more contemporaneous examination is needed to 
properly evaluate the service-connected disability under 
consideration.  See Green v. Derwinski, 1 Vet. App. 121, 124 
(1991) (VA has a duty to provide the veteran with a thorough 
and contemporaneous medical examination) and Caffrey v. 
Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote 
for rating purposes cannot be considered 
"contemporaneous").  The examination should include a 
review of the veteran's claims file and past clinical 
history, with particular attention to the severity of present 
symptomatology, as well as any significant pertinent interval 
medical history since his examination in 2003. 

The Board also notes that the ratings criteria for diplopia 
require the administration and submission of a Goldmann 
Perimeter Chart in order to evaluate the disability.  In 
reviewing the record, the Board observes that the VA 
examination for diplopia in 2003 did not provide the RO with 
a Perimeter Chart.  At the time, the examiner indicated that 
the condition was entirely correctable and did not complete a 
Perimeter Chart.  The regulation governing diplopia ratings 
appears to require the completion of such a Chart for an 
examination to be considered thorough.  See 38 C.F.R. § 4.77.  
The Board also instructs that a Goldmann Perimeter Chart be 
completed at the examination.

As this claim must be remanded, the Board will take this 
opportunity to remedy other defects in the record.  In order 
to satisfy the Veterans Claims Assistance Act (VCAA) duty to 
notify requirements for an increased-compensation claim, 
section 5103(a) compliant notice must meet the following four 
part test: 

(1) that the Secretary notify the claimant that, to 
substantiate a claim, the claimant must provide, or ask 
the Secretary to obtain, medical or lay evidence 
demonstrating a worsening or increase in severity of the 
disability and the effect that worsening has on the 
claimant's employment and daily life; 

(2) if the Diagnostic Code under which the claimant is 
rated contains criteria necessary for entitlement to a 
higher disability rating that would not be satisfied by 
the claimant demonstrating a noticeable worsening or 
increase in severity of the disability and the effect of 
that worsening has on the claimant's employment and 
daily life (such as a specific measurement or test 
result), the Secretary must provide at least general 
notice of that requirement to the claimant; 

(3) the claimant must be notified that, should an 
increase in disability be found, a disability rating 
will be determined by applying relevant Diagnostic 
Codes, which typically provide for a range in severity 
of a particular disability from noncompensable to as 
much as 100 percent (depending on the disability 
involved), based on the nature of the symptoms of the 
condition for which disability compensation is being 
sought, their severity and duration, and their impact 
upon employment and daily life; 

(4) the notice must also provide examples of the types 
of medical and lay evidence that the claimant may submit 
(or ask the Secretary to obtain) that are relevant to 
establishing entitlement to increased compensation, 
e.g., competent lay statements describing symptoms, 
medical and hospitalization records, medical statements, 
employer statements, job application rejections, and any 
other evidence showing an increase in the disability or 
exceptional circumstances relating to the disability.  

Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008).  The VCAA 
notice provided for the veteran's increased rating claim did 
not satisfy the first, second and third requirements set out 
above.  The Board, therefore, remands for VCAA compliant 
notice.  

Accordingly, the case is REMANDED for the following action:

1.  Provide to the veteran all 
notification action required by the 
Veterans Claims Assistance Act of 2000, 
Pub. L. No. 106-475, 114 Stat. 2096 
(2000), with respect to the increased 
rating claim.  The notice should conform 
to the requirements of Vazquez-Flores, as 
described above.  Any notice given, or 
action taken thereafter, must comply with 
current, controlling legal guidance.

2.  Schedule the veteran for a VA 
examination to determine the current 
nature and severity of his diplopia.  
Sufficient evaluations should be scheduled 
to evaluate the veteran's symptomatology.  
All indicated tests and studies should be 
accomplished and the findings then 
reported in detail.  A Goldmann Perimeter 
Chart should be completed.

The examiner should identify the 
limitation of activity imposed by the 
veteran's service-connected diplopia with 
a full description of the effect of the 
disability upon his ordinary activities.  

3.  Then, the RO should readjudicate the 
claims on the merits.  If the benefits 
sought are not granted, the veteran and 
his representative should be furnished a 
SSOC and afforded a reasonable opportunity 
to respond before the record is returned 
to the Board for further review.

The veteran has the right to submit additional evidence and 
argument on the matter or matters the Board has remanded.  
Kutscherousky v. West, 12 Vet. App. 369 (1999).

No action is required of the veteran until further notice.  
However, the Board takes this opportunity to advise the 
veteran that the conduct of the efforts as directed in this 
remand, as well as any other development deemed necessary, is 
needed for a comprehensive and correct adjudication of his 
claims.  His cooperation in VA's efforts to develop his 
claim, including reporting for any scheduled VA examination, 
is both critical and appreciated.  The veteran is also 
advised that failure to report for any scheduled examination 
may result in the denial of a claim.  38 C.F.R. § 3.655.

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board of 
Veterans' Appeals or by the United States Court of Appeals 
for Veterans Claims for additional development or other 
appropriate action must be handled in an expeditious manner.  
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).




____________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs