Citation Nr: 1237160	
Decision Date: 10/26/12    Archive Date: 11/09/12

DOCKET NO.  10-14 675	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1.  Entitlement to an effective date earlier than August 27, 2007, for a grant of service connection for a rotator cuff tear of the left shoulder. 

2.  Entitlement to an initial rating in excess of 10 percent for a rotator cuff tear of the left shoulder. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J. Andrew Ahlberg, Counsel



INTRODUCTION

The Veteran served on active duty from January 2000 to December 2001. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO).  The Veteran was scheduled for a hearing before a Veterans Law Judge in October 2011 but failed to attend the hearing.  

The issue of entitlement to an initial rating in excess of 10 percent for a rotator cuff tear of the left shoulder addressed in the REMAND portion of the decision below requires additional development and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  A July 2002 rating decision to which the Veteran was notified in that month denied his claim for service connection for a left shoulder disability on the bases of there being no evidence of a chronic in-service left shoulder disability, that any in service left shoulder disability resolved in service, and the lack of any evidence of t post-service left shoulder disability; a timely appeal of this decision was not perfected to the Board, nor was new and material evidence received within one year of notification of the decision.  
  
2.  The Veteran filed a request to reopen his claim for service connection for a left shoulder disability that was received on August 27, 2007.   

3.  By rating decision in August 2009, the RO granted service connection for left shoulder disability, effective from August 27, 2007.

4.  There is no document of record which may be construed as a formal or an informal claim to reopen the previously denied claim of entitlement to service connection for a left shoulder disability between the notice of the July 2002 rating decision and the August 27, 2007, claim for that benefit. 


CONCLUSIONS OF LAW

1.  The July 2002 rating decision is final.  38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2002).  

2.  The legal requirements for an effective date prior to August 27, 2007, for a grant of service connection for a rotator cuff tear of the left shoulder have not been met.  38 U.S.C.A. §§ 5107, 5110 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.109, 3.159, 3.400(r) (2012); Sabonis v. Brown, 6 Vet. App. 426 (1994).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Veterans Claims Assistance Act of 2000 

Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R.
§§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). 

Duty to Notify 

The record shows that in a September 2007 letter, the Veteran was informed of the information and evidence necessary to reopen and grant the claim for entitlement to service connection for a left shoulder disability, the original benefit sought on appeal.  The Veteran was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence.  See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). 

The United States Court of Appeals for Veterans Claims' (Court) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits.  The notice requirements apply to all five elements of a service connection claim: 
1) Veteran status; 2) existence of a disability; (3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006). 

In this case, the aforementioned September 2007 letter provided the notice contemplated by Dingess.  The appellant was provided with notice of the types of evidence necessary to establish a disability rating and an effective date for any rating that may be granted, and this letter explained how VA determines disability ratings and effective dates.  As this letter were sent prior to the August 2009 rating decision that gave rise to this appeal, the requirements the Court enumerated in Pelegrini have been satisfied. 

The Board would additionally note that the Veteran's claim on appeal arises from his disagreement with the effective date assigned following the grant of service connection for a rotator cuff tear of the left shoulder.  The Courts have held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). 

In sum, 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 in the course of his appeal.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  These facts notwithstanding, the Veteran has not demonstrated any prejudice with regard to the content of the notice.  See Shinseki v. Sanders, 129 S. Ct. 1696(2009)(Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.)  See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34   (Fed. Cir. 2006). 
Duty to Assist 

Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations.  The record in this case includes service treatment records and post-service VA and private medical records.  
The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary.  See generally 38 C.F.R. § 3.159(c)(4).  No additional pertinent evidence has been identified by the claimant.  For the foregoing reasons, the Board therefore finds that VA has satisfied its duty to notify and the duty to assist pursuant to the VCAA.  See 38 U.S.C.A. §§ 5102 and 5103; 38 C.F.R. §§ 3.159(b), 20.1102; Pelegrini, supra; Quartuccio, supra; Dingess, supra. 

Any error in the sequence of events or content of the notice is not shown to have any effect on the case or to cause injury to the claimant.  Thus, any such error is harmless and does not prohibit consideration of this matter on the merits.  See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

II. Analysis

The Board notes that it has reviewed all of the evidence of record, to include in the Veteran's claims file and the Virtual VA file (VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal.  (The Virtual VA file does not contain any evidence or correspondence pertinent to the matter at hand.)  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim adjudicated herein.   

The Veteran asserts that he is entitled to an effective date for his grant of service connection for a rotator cuff tear of the left shoulder from the time that he originally filed his claim for service connection for this disability (April 2002).  He appears to assert that such an effective date is warranted because the service treatment reports (STRs) then of record did document treatment for the left shoulder.  In addition, he asserts that he should not be "penalized" by the fact that the Army "lost" his STRs.  See September 2009 notice of disagreement.  

Final rating decisions may only be reopened based on the receipt of new and material evidence.  38 U.S.C.A. § 5108; see Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998).  "New" evidence is defined as evidence not previously submitted to agency decision-makers.  "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a).  The U.S. Court of Appeals for Veterans Claims has held that the phrase "raises a reasonable possibility of establishing the claim" must be viewed as enabling rather than precluding reopening.  Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed.  Justus v. Principi, 3 Vet. App. 510 (1992).

The initial denial of service connection for a left shoulder disability was by a July 2002 rating decision to which the Veteran was notified in that month by a letter that also furnished notice of appeal rights.  The bases of the denial for service connection for a left shoulder disability in the July 2002 rating decision, after acknowledging that the STRs indicated that the Veteran injured his left shoulder and had complaints of pain following a fall from a vehicle, was that a chronic left shoulder disability as not shown in service, that any left shoulder disability resolved in service, and the lack of any evidence of post post-service left shoulder disability.  The law provided in July 2002, as currently, that service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  

The Veteran filed a notice of disagreement with respect to the July 2002 decision but did not perfect an appeal of this decision following a July 2003 statement of the case.  Moreover, new and material evidence was not received within one year of notification of the July 2002 decision.  In this regard, the STRs received in November 2002 cannot be considered "new" as they were duplicates of STRs of record at the time of the July 2002 decision.  The reports from the negative November 2002 x-rays of the left shoulder and November 2002 examination of the left shoulder that revealed no pathology therein, while "new," cannot be considered to be "material," as such evidence that was cumulative of evidence of record at the time of the July 2002 decision that also showed no post-service left shoulder disability clearly could not raise a reasonable possibility of establishing the claim.  Accordingly, the July 2002 decision became final.  38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2002).  

Following receipt of VA and private treatment reports reflecting a left shoulder disability, to include a rotator cuff tear for which surgery was performed in December 2008, as well as reports from an August 2009 VA examination that included a medical opinion linking such left shoulder disability to service, the August 2009 rating decision granted service connection for a rotator cuff tear of the left shoulder, effective from August 27, 2007, the date of receipt of the claim to reopen.  This decision was not based on receipt of additional STRs and, contrary to the Veteran's assertions, the STRs were not "missing" at the time of the July 2002 rating decision. 

The Board has thoroughly reviewed the Veteran's claims file and concludes that notwithstanding his belief that service connection should be granted effective from the date of his original claim, in light of the evidence of record and procedural history, the Veteran's claim for an effective date prior to August 27, 2007, for a grant of service connection for a rotator cuff tear of the left shoulder must be denied.  A date earlier than August 27, 2007, is inconsistent with the rules and regulations concerning effective dates for award of compensation.  In particular, under 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(r), the effective date based on new and material evidence (other than service department records) received after the final disallowance of a claim is the date of receipt of the new claim or the date entitlement arose, whichever is later.  As such, a finding as to when entitlement to this benefit arose is unnecessary insofar as, per the applicable regulation, an effective date earlier than August 27, 2007, would not be warranted.  

The Board has carefully reviewed the record to determine whether there is any other communication or record between the notice of the July 2002 rating decision and the August 27, 2007, claim to reopen which may be interpreted as a claim for benefits.  See Servello v. Derwinski, 3 Vet. App. 196 (1992) [the Board must look at any communication that can be interpreted as a claim, formal or informal, for VA benefits].  An informal claim was not otherwise submitted because no communication was ever filed between those dates indicating the Veteran's intent to reapply for service connection for a left shoulder disability.  An informal claim must identify the benefit sought.  See Brannon v. West, 12 Vet. App. 32, 34-35 (1998) (noting that VA "is not required to anticipate a claim for a particular benefit where no intention to raise it was expressed," and citing Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995), for the proposition that VA is not required to do a "prognostication" or "conjure up" issues that were not raised by the appellant, but to review issues reasonably raised by the substantive appeal).  These cases make it evident that medical records generally cannot be construed as constituting an informal claim for service connection.  They may be an informal claim for an increased disability rating or to reopen a compensation claim originally denied by reason of not being compensable in degree, but that is not the situation here.  See 38 C.F.R. § 3.157.  

In short, the evidence demonstrates that between notice of the July 2002 rating decision and August 27, 2007, the Veteran did not submit any claim, either formal or informal, for service connection for a left shoulder disability.  The Veteran does not contend that he filed an express request to reopen during this period, and the Board has not identified any communication which could be reasonably interpreted as such.  In sum, entitlement to an effective date earlier than August 27, 2007, for the grant of service connection for a left shoulder disability is not warranted.


ORDER

The appeal with respect to the claim for an effective date earlier than August 27, 2007, for a grant of service connection for a rotator cuff tear of the left shoulder is denied. 

REMAND

The Veteran was last afforded a VA compensation examination to assess the severity of his service connected left shoulder disability in August 2009, and his representative by way of the October 2011 informal hearing presentation contended that this examination was too old for ratings purposes and requested that he be afforded another VA examination to assess the severity of his left shoulder disability.  The Veteran's representative indicated the Veteran believed this disability has worsened since the August 2009 VA examination, and a VA outpatient treatment report dated since that time suggests that this may be the case.  See January 22, 2010, VA outpatient treatment report wherein "any movement" was said to produce pain and it was noted that the shoulder had "fallen out of place."  

Governing regulations provide that VA's duty to assist includes conducting a thorough and contemporaneous examination of the Veteran which takes into account the records of prior examinations and treatment as well as to provide a medical examination or, obtain a medical opinion, when such an examination or opinion is necessary to make a decision on the claim.  See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.326; see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991). 

Given the contentions and evidence as set forth above, the Board concludes that a remand for a more contemporaneous examination to assess the current severity of the service-connected left shoulder disability is necessary in this case.  38 U.S.C.A. § 5103A; Snuffer v. Gober, 10 Vet. App. 400 (1997); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992).  In order to obtain sufficient clinical information to adjudicate this claim, the examiner will also be requested to focus the examination on the relevant rating criteria as directed below.  Accordingly, the case is REMANDED for the following action:

1.  The RO should arrange for a VA examination to determine the severity of the Veteran's service connected left shoulder disability.  It is imperative that the claims files be made available to the examiner in connection with the examination.  All clinical and special test findings should be clearly reported, and pertinent findings should be reported to allow for application of the rating criteria for disability of the shoulder and arm.  

The examination of the shoulder should include range of motion studies.  With regard to range of motion testing, the examiner should report at what point (in degrees) that pain functionally limits range of motion as well as whether there is any other functional loss due to weakened movement, excess fatigability, or incoordination.  The examiner should report any dislocation, nonunion, (and whether such nonunion is with or without loose movement), malunion, or other impairment of the clavicle or scapula.  

2.  In the interest of avoiding further remand, the RO should review the examination reports and opinions to ensure that such is responsive to the above requests for information. 

3.  After completion of the above, the RO should review the expanded claims file and determine whether the claim for an increased rating for the service-connected left shoulder disability may be granted.  To the extent that this claim is denied, the RO should furnish the Veteran and his representative with an appropriate supplemental statement of the case.  After they are afforded an opportunity to respond, the case should be returned to the Board for appellate review.

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

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. 2010).



______________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs