Citation Nr: 1038210 Decision Date: 10/12/10 Archive Date: 10/22/10 DOCKET NO. 06-37 756 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana THE ISSUE Entitlement to an effective date earlier than February 27, 2002, for the award of a 20 percent rating for the service-connected left shoulder tendonitis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The Veteran had active military service from July 1979 to October 1979 and December 1990 to July 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in October 2004 and January 2005. FINDINGS OF FACT 1. In a September 1995 rating action, the RO granted service connection for left shoulder tendonitis and assigned a no percent rating effective on March 7, 1994. The RO notified the Veteran of this decision in October 1995, but he did not file a timely appeal. 2. On December 11, 2002, the RO received an informal claim for an increased rating for the service-connected left shoulder tendonitis. 3. The service-connected left shoulder tendonitis is not shown to have increased in severity earlier than February 27, 2002 when he was treated for complaints of pain and limited motion that first marked an increased level of disablement consistent with the subsequently identified functional loss. CONCLUSION OF LAW An effective date of February 27, 2002, is the earliest assignable for the award of the 20 percent evaluation for the service-connected left shoulder tendonitis in connection with the Veteran's claim for increase. 38 U.S.C.A. §§ 5107, 5110(a) (West 2002); 38 C.F.R. §§ 3.155, 3.157, 3.400 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The RO provided the Veteran with VCAA notice in January 2003 and November 2006. The letters notified the Veteran of what information and evidence must be submitted to substantiate the claim for an increased rating, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also told to inform VA of any additional information or evidence that VA should have, and was told to submit evidence in support of his claim to the RO. The content of the letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The requirements of VCAA also include notice of a disability rating and an effective date for award of benefits if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The November 2006 letter provided the Veteran with notice of the laws regarding degrees of disability or effective dates and the claim for an earlier effective date was readjudicated in March 2007. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. The Board finds that the duty to assist has been met. There is no identified relevant evidence that has not been accounted for. The RO obtained VA treatment records dated from 2001 to December 2002. The evidence needed to decide the appeal is associated with the claims folder. Under the circumstances, the Board finds that there is no reasonable possibility that further assistance is required to assist the Veteran in substantiating his claim for an earlier effective date. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Law and Regulations Effective Date Law and Regulations Except as otherwise provided, the effective date for the assignment of an increased evaluation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. The applicable statute specifically provides that the effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if an application is received within one year from such date. 38 U.S.C.A. § 5110(b)(2). However, if the increase became ascertainable more than one year prior to the date of receipt of the claim, then the proper effective date would be the date of the claim. In a case where the increase became ascertainable after the filing of the claim, then the effective date would be the date of increase. See generally Harper v. Brown, 19 Vet. App. 125 (1997). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. See 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151. 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 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 completion. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. See 38 C.F.R. § 3.155. A report of examination or hospitalization which meets the requirements of this section will be accepted as an informal claim for benefits if the report relates to a disability which may establish entitlement. Once a formal claim for pension or compensation has been allowed or a formal claim for compensation has been disallowed for the reason that the service-connected disability is not compensable in degree, receipt of a report of examination or hospitalization by VA or the uniformed services will be accepted as an informal claim for benefits. The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. 38 C.F.R. § 3.157. 38 C.F.R. § 3.157 (b)(2), specifically indicates that the date on which evidence is received from a private physician or layman is the date which will be used for effective date purposes. VA is required to look to all communications from the appellant which may be interpreted as applications or claims, formal and informal, for benefits. In particular, VA is required to identify and act on informal claims for benefits. 38 U.S.C.A. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a); See Servello v. Derwinski, 3 Vet. App. 196 (1992). All that is required is that a communication indicates an intent to apply for one or more benefits under the laws administered by the Department, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). Rating a Shoulder Disability Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Under 38 C.F.R. § 4.71a, Diagnostic Code 5201, limitation of motion of the arm, a 20 percent rating is assigned for limitation of motion at shoulder level on the major or minor side. A 30 percent rating is assigned for limitation of motion to midway between side and shoulder level on the major side. A 20 percent rating is assigned for limitation of motion to midway between side and shoulder level on the minor side. A 40 percent rating is assigned for limitation of motion of the arm to 25 degrees from side on the major side; and a 30 percent rating is assigned for limitation of motion of the arm to 25 degrees from side on the minor side. Diagnostic Code 5203 provides that 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, Diagnostic Code 5203. Normal range of motion in the shoulder is from 0 to 180 degrees of forward elevation (flexion) and 0 to 180 degrees of shoulder abduction. See 38 C.F.R. § 4.71a, Plate I. Analysis The Veteran seeks an effective date earlier than February 27, 2002, for the award of a 20 percent evaluation for the service- connected left shoulder tendonitis. He asserts that it should date back to March 1994, when he filed his original claim for a left shoulder disability. A review of the record shows that, on March 7, 1994, the Veteran's original claim of service connection for a left shoulder disability was received at the RO. In a September 1995 rating action, the RO granted service connection for left shoulder tendonitis and assigned a no percent rating, effective on March 7, 1994 under Diagnostic Code 5203. The Veteran was notified of this decision in October 1995, but did not file a timely appeal. On December 11, 2002, the RO received the Veteran's informal claim for an increased rating for the service-connected left shoulder tendonitis. In an October 2004 rating decision, the RO assigned a 20 percent rating for the service-connected left shoulder tendonitis, beginning on February 27, 2002 under Diagnostic Code 5201. The RO noted that the Veteran had sought medical treatment at a VA clinic on that date for left shoulder pain. The RO determined that this was the date when it was factually ascertainable that the 20 percent evaluation under Diagnostic Code 5201 was first warranted for the service-connected left shoulder tendonitis. The assignment of effective dates is governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Generally, the effective date of an award cannot be earlier than the date of receipt of the application therefor. 38 U.S.C.A. § 5110(a). The VA regulation applicable to effective dates for awards of increased compensation thus provides that the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). An exception to this general rule exists, however, for awards of increased compensation in certain circumstances. If the evidence demonstrates that an increase in disability occurred within the one year period preceding the date of receipt of a claim for increased compensation, the increase is effective as of the earliest date the increase in disability was factually ascertainable. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Dalton v. Nicholson, 21 Vet. App. at 31-32; Harper v. Brown, 10 Vet. App. 125 (1997); VAOPGCPREC 12-98 (1998). As noted, the date of receipt of the increased rating claim is December 11, 2002. The RO found that it was factually ascertainable on February 27, 2002 that the criteria for a 20 percent rating under Diagnostic Code 5201 were met for the left shoulder disability. The date of February 27, 2002 is within the one year period preceding the date of receipt of the claim for increased compensation. See 38 C.F.R. § 3.157. The record shows that the Veteran is left handed, so his left arm is his dominant or major arm. A 20 percent rating is assigned to the major arm under Diagnostic Code 5201 when there is evidence that the motion of the arm is limited to the shoulder level. See 38 C.F.R. § 4.71a, Diagnostic Code 5201. The 20 percent rating was assigned based upon the findings in the February 27, 2002 VA treatment record and the subsequent January 2003 VA examination. The January 2003 VA examination report indicated that the abduction of the left arm was limited to 90 degrees. The Veteran reported having pain in the left arm. The February 27, 2002 VA treatment record notes that the Veteran sought medical treatment for pain in the left shoulder. It was noted that there was limited range of motion on the left arm, although the range of motion in degrees was not reported. An examination revealed joint pain, swelling and painful movements. The Board has reviewed the evidence of record and finds no basis for assigning the 20 percent rating prior to February 27, 2002. The only other evidence for this time period refers to treatment for a cyst on the back in May 2001. This medical evidence does not address the left arm. The Board also finds that the recently submitted lay statements do not provide a factual basis that would warrant an earlier effective date in this case. These statements are too general in nature for the purpose of showing an earlier date of increase. Thus, on this record, it is not factually ascertainable that the service-connected disability underwent an increase in severity prior to February 27, 2002. The Board has reviewed all communications in the claims file since September 1995 to determine whether the Veteran had filed an earlier claim for an increased rating for the left shoulder disability. The Board emphasizes that a veteran is required to file a claim to obtain benefits and that, at a minimum, the veteran must identify the benefit sought in such a claim. See 38 C.F.R. §§ 3.1(p), 3.151, 3.155; see also Kessel v. West, 13 Vet. App. 9 (1999). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. VA is required to identify and act on informal claims for benefits. 38 C.F.R. § 3.155(a); see Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). The record shows that the Veteran submitted a statement in February 1997, but in this statement, the Veteran only addressed the claimed hearing loss disabilities. Also of record are statements from the Veteran's representative that addressed claims for hearing loss and tinnitus. These statements cannot be construed as a claim for an increased rating since there is no mention in these documents that the Veteran was seeking increased compensation benefits for the service-connected left shoulder disability. The next communication in the record is the December 11, 2002 informal claim for an increased rating. The Veteran argues that the effective date should be March 3, 1994, when he filed his initial service connection claim for a left shoulder disability. However, in a September 1995 rating action, the RO granted service connection for left shoulder tendonitis and assigned a no percent rating beginning on March 7, 1994. The Veteran was notified of this decision in October 1995, but did not file a timely appeal. A rating actions from which an appeal is not perfected becomes final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2009). Thus, on this record, the law does not permit the assignment of an effective date extending back to that time. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has made it clear that an appellant generally can attempt to overcome the finality of a prior final decision of the RO or Board in only one of two ways: By a request for revision of an RO or Board decision based on clear and unmistakable error or by a claim to reopen based upon new and material evidence. See Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002) (en banc); see also 38 U.S.C. § 7111(a) ("A decision by the Board is subject to revision on the grounds of clear and unmistakable error. If evidence establishes the error, the prior decision shall be reversed or revised."). In the present case, in order for the Veteran to be awarded an effective date based on an earlier claim, he would have to show clear and unmistakable error in the prior denial of the claim. Flash v. Brown, 8 Vet. App. 332, 340 (1995). However, the issue of clear and unmistakable error in the prior RO decision has not been raised by the Veteran or the record in connection with current appeal. Accordingly, under the applicable effective date regulations, a date earlier than February 27, 2002, is not assignable for the award of an increased 20 percent rating for the service-connected left shoulder disability. 38 U.S.C.A. § 5110; 38 C.F.R. §§ 3.400. ORDER The claim of an effective date earlier than February 27, 2002, for the assignment of a 20 percent evaluation for service- connected left shoulder disability is denied under the law. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs