Citation Nr: 1308367	
Decision Date: 03/12/13    Archive Date: 03/20/13

DOCKET NO.  09-42 174A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities.

2.  Entitlement to an effective date earlier than November 30, 2006, for the assignment of an increased disability rating of 30 percent for the service-connected left scapulothoracic syndrome.

3.  Entitlement to service connection for an adjustment disorder with depressed mood and anxiety, to include as secondary to the service-connected disabilities.


REPRESENTATION

Veteran represented by:	North Carolina Division of Veterans Affairs



WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Shauna M. Watkins, Associate Counsel


INTRODUCTION

The Veteran served on active duty from January 1979 to February 1983.  

The earlier effective date claim comes before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Washington, D.C., which increased the disability rating for the service-connected left scapulothoracic syndrome to 20 percent disabling, effective July 30, 2004.  The Veteran filed a Notice of Disagreement (NOD) in March 2005, appealing the disability rating assigned.  The RO then issued another rating decision in October 2006, which denied a disability rating in excess of 20 percent for the left scapulothoracic syndrome.  The Veteran then submitted another NOD in November 2006, again appealing the disability rating assigned.  In February 2008, the RO issued another rating decision, increasing the disability rating for the left scapulothoracic syndrome to 30 percent, effective November 30, 2006.  In April 2008, the Veteran submitted a NOD, requesting an earlier effective date for the 30 percent disability rating.

In June 2009, the RO in Roanoke, Virginia, issued a rating decision, denying the Veteran's TDIU claim.  The June 2009 rating decision also granted the Veteran a temporary evaluation of 100 percent based on surgical or other treatment necessitating convalescence for his left scapulothoracic syndrome, effective March 1, 2005.  The RO then assigned a 20 percent evaluation from May 1, 2005.  The RO also continued the 30 percent evaluation, effective since November 30, 2006.  The Veteran continued to appeal and perfected timely appeals of both the TDIU and earlier effective date claims.

The service connection claim comes before the Board on appeal from a May 2010 rating decision of the RO in Winston-Salem, North Carolina, which denied the service connection claim.  The Veteran submitted a NOD in June 2010.  In response, the RO issued another rating decision in March 2011, again denying the claim.  In April 2011, the Veteran submitted another NOD.  To date, the RO has not issued a Statement of the Case (SOC) for this issue.

The RO in Winston-Salem, North Carolina, currently has jurisdiction over these appeals.  

In November 2012, the Board remanded this appeal to the RO via the Appeals Management Center (AMC) in Washington, DC, for the Veteran to be scheduled for his requested Board hearing.  In January 2013, the Veteran was afforded his requested Board videoconference hearing before the undersigned Veterans Law Judge (VLJ).  A copy of the hearing transcript has been associated with the claims file.  

The Veteran's Virtual VA records were also reviewed and considered in preparing this decision and remand.

The Board notes that additional medical evidence was submitted after the most recent Supplemental SOC (SSOC) in April 2011, and no waiver from the Veteran was received.  However, these medical records are all from recent treatment that the Veteran received, and do not contain any records dated prior to November 30, 2006, the current effective date of the Veteran's left scapulothoracic syndrome.  As such, these records are in no way pertinent or relevant to the earlier effective date claim adjudicated below.  Thus, a waiver for this evidence is not necessary, nor is the initial consideration of this evidence by the RO.  38 C.F.R. §§ 20.800, 20.1304 (2012).

The issues of: (1) entitlement to service connection for a neck disorder; (2) entitlement to an increased rating for the left scapulothoracic syndrome, currently evaluated as 30 percent disabling; and, (3) entitlement to an increased rating for the chronic lumbosacral strain with a history of degenerative disc disease with sacroilitis, currently evaluated as 40 percent disabling, have been raised by the record in an April 2011 statement by the Veteran, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  

The issue of entitlement to service connection for an adjustment disorder with depressed mood and anxiety, to include as secondary to the service-connected disabilities, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  Following the receipt of the Veteran's November 2009 Substantive Appeal (on VA Form 9), VA received notification from the Veteran in January 2013 that he wished to withdraw his claim of entitlement to a TDIU.  The Board received this notification prior to the promulgation of a decision.

2.  No earlier than November 30, 2006, was the Veteran's service-connected left (non-dominant) scapulothoracic syndrome manifested by limitation of motion of the arm to 25 degrees from the side.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal by the Veteran of a Substantive Appeal pertinent to the issue of entitlement to a TDIU have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012).
2.  The criteria for an effective date earlier than November 30, 2006, for the grant of a 30 percent disability rating for left scapulothoracic syndrome have not been met. 38 U.S.C.A. §§ 1155, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.155, 3.157, 3.400(o), 4.7, 4.71a, Diagnostic Codes (DCs) 5201 & 5203 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf.  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 Veteran.  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 Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


I.  Withdrawal

A June 2009 rating decision, in pertinent part, denied entitlement to a TDIU.  In July 2009, the Veteran submitted his NOD appealing this denial.  The RO issued a SOC on the issue in October 2009.  The Veteran then submitted his Substantive Appeal on the issue in November 2009, and perfected a timely appeal of this issue.  Subsequently, VA received notice from the Veteran in a January 2013 statement that he was withdrawing this appeal.  An appeal may be withdrawn at any time before a decision is rendered by the Board.  38 C.F.R. § 20.204(b).  Once the Veteran withdrew this issue, there remained no allegations of error of fact or law for appellate consideration regarding the issue.  The Board no longer has jurisdiction to review the TDIU issue and it is dismissed.  38 U.S.C.A. § 7105(d)(5).  

II.  Notice and Assistance

Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

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).  Proper notice from 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; and, (3) that the claimant is expected to provide.  This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

The Board finds that the content requirements of a duty to assist notice letter have been fully satisfied.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  Letters from the RO dated in May 2005, October 2007, October 2008, and May 2009 provided the Veteran with an explanation of the type of evidence necessary to substantiate his earlier effective date claim, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf.  

Also, keeping in mind that his appeal is for an earlier effective date, the final downstream element of his claim initially arose in the context of him trying to establish his underlying entitlement to an increased disability rating for his left scapulothoracic syndrome, which has since been granted.  In Goodwin v. Peake, 22 Vet App 128 (2008), the United States Court of Appeals for Veterans Claims (Court) held that once a decision awarding service connection has been made and a disability rating and an effective have been assigned, then 38 U.S.C.A. § 5103(a) notice has served its purpose, and its application is no longer required because the claim, as it arose in its initial context, has already been substantiated.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Thereafter, once a NOD has been filed, for example contesting a downstream issue such as the effective date assigned for the award, the notice requirements of 38 U.S.C.A. §§ 5104 and 7105 (West 2002) control as to the further communications with the Veteran, including as to what evidence is necessary to establish a more favorable decision with respect to downstream elements of the claim.  See Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  

The Veteran received this required notice concerning the downstream effective date element of his claim in the October 2007, October 2008, and May 2009 letters.  These notice letters were provided prior to the respective rating decisions.  Thus, the Board finds that VA has satisfied its duty to notify the Veteran regarding his appeal.

VA also has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained.  His STRs, post-service treatment records, and Social Security Administration (SSA) records have been obtained.  The Board does not have notice of any additional relevant evidence that is available but has not been obtained.  He was afforded the opportunity for a personal hearing.  He has been afforded VA examinations, and the reports of those evaluations contain all findings needed to properly evaluate his disability.  38 C.F.R. § 4.2 (2012). 

Furthermore, the Veteran was afforded a Board hearing in January 2013.  A Board member has two duties at a hearing: (1) a duty to fully explain the issues still outstanding that are relevant and material to substantiating the claim, and (2) a duty to suggest that a claimant submit evidence on an issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record.  See 38 C.F.R. § 3.103(c)(2) (2012); Procopio v. Shinseki, No. 11-1253, 2012 WL 4882287 at 3 (Vet. App. Oct. 16, 2012) (citing Bryant v. Shinseki, 23 Vet. App. 488, 492, 496 (2010)).

Here, during the hearing, the VLJ specifically noted the issue as entitlement to an effective date prior to November 30, 2006, for a 30 percent evaluation for left scapula thoracic syndrome.  The Veteran was assisted at the hearing by an accredited representative from the North Carolina Department of Veterans Affairs.  The representative and the VLJ asked questions of the Veteran to ascertain his symptoms prior to his current effective date of November 30, 2006.  In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim.  Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with the hearing requirements, nor identified any prejudice in the conduct of the Board hearing.  By contrast, the Veteran's representative and the VLJ asked questions to draw out the evidence that would establish an earlier effective date for the Veteran's service-connected disability, the only element of the claim in question.  The hearing focused on the element necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the element necessary to substantiate his claim for benefits.  As such, the Board finds that the VLJ complied with the aforementioned hearing duties, and that any error in notice provided during the Veteran's Board hearing constitutes harmless error.

The Board is also satisfied as to substantial compliance with its November 2012 remand directives.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998).  This included scheduling the Veteran for a Board hearing, which was held in January 2013.  Thus, all of the remand directives were satisfied by the RO.

For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim.  Therefore, no further assistance to the Veteran with the development of evidence is required.

III.  Earlier Effective Date 

The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400.  In a claim for a higher disability rating (i.e., increased compensation), unless specifically provided otherwise, the effective date of an award based on a claim for increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.

An effective date for a claim for increase may be granted prior to the date of claim if it is factually ascertainable that an increase in disability had occurred within one year from the date of claim.  38 U.S.C.A. § 5110(b)(2); 38 C.F.R. §§ 3.400(o)(1) and (2).

Thus, according to Harper v. Brown, 10 Vet. App. 125, 126 (1997), three possible effective dates may be assigned depending on the facts of the particular 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)); or,

(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)).

In summary, determining the appropriate effective date for an increased rating under the effective date statutes and 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).

While the term "application" is not defined in the statute, the regulations use the terms "claim" and "application" interchangeably, and they are defined broadly to include "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); see Rodriguez v. West, 189 F.3d. 1352 (Fed. Cir. 1999), cert. denied, 529 U.S. 1004 (2000).  

Additionally, under 38 C.F.R. § 3.155(a), a veteran or a representative of the veteran may file an informal claim by communicating an intent to apply for one or more VA benefits.  The benefit sought must be identified, see Stewart v. Brown, 10 Vet. App. 15, 18 (1997), but need not be specific, see Servello v. Derwinski, 3 Vet. App. 196, 199 (1992).  See id.  Also, under 38 C.F.R. § 3.157(b), once a claim for compensation has been allowed, receipt of a VA outpatient or hospital examination or admission to a VA hospital will be accepted as an informal claim for increased benefits.  See Servello v. Derwinski, 3 Vet. App. 196, 199 (1992).  The date on the VA outpatient or hospital examination will be accepted as the date of claim.  38 C.F.R. § 3.157(b).

Here, an unappealed rating decision of August 1983 granted service connection for the Veteran's left scapulothoracic syndrome, and assigned an initial noncompensable (0 percent) disability rating.  Subsequent unappealed rating decisions, to include the most recent in September 2000, increased the disability rating.  In particular, the unappealed September 2000 rating decision increased the disability rating to 10 percent.  The Veteran does not contend, and the record does not establish, that he appealed these decisions.  See 38 U.S.C.A. § 7105.  

Instead, on July 30, 2004, the Veteran submitted a claim for an increased disability rating.  In a December 2004 rating decision, the RO increased the disability rating to 20 percent disabling, effective July 30, 2004, the date of the Veteran's claim.  In March 2005, the Veteran submitted his NOD, appealing the 20 percent disability rating assigned.  The RO treated the March 2005 statement as a new increased rating claim; however, with the March 2005 statement, the Veteran submitted medical evidence showing that he had left shoulder surgery in March 2005.  The United States Court of Appeals for the Federal Circuit (Federal Circuit) recently held that when evaluating the finality of an issue, 38 C.F.R. § 3.156(b) requires VA to evaluate submissions received during the relevant appeal period and determine whether they contain new and material evidence relevant to a pending claim.  Bond v. Shinseki, 659 F.3d 1362, 1368 (Fed. Cir. 2011); see Muehl v. West, 13 Vet. App. 159, 161-62   (1999) (holding that when the VA fails to consider new and material evidence submitted within the one-year appeal period pursuant to 38 C.F.R. 
§ 3.156(b), and the evidence establishes entitlement to the benefit sought, the underlying RO decision does not become final).  Thus, under this case law, since the medical evidence submitted with the March 2005 statement led to an increase in the Veteran's service-connected disability (i.e., established entitlement to the benefit sought), then the Veteran's March 2005 statement is best characterized as a NOD, and not a new claim.  Id.

Following the March 2005 NOD, the RO issued another rating decision in October 2006, which denied a disability rating in excess of 20 percent for the left scapulothoracic syndrome.  The Veteran then submitted another NOD in November 2006, again appealing the disability rating assigned.  In February 2008, the RO issued another rating decision, increasing the disability rating for the left scapulothoracic syndrome to 30 percent, effective November 30, 2006.  In April 2008, the Veteran submitted a NOD, requesting an earlier effective date for the 30 percent disability rating.  Again, the RO treated the April 2008 statement as a new claim for an increased disability rating.  However, the April 2008 statement clearly states "Notice of Disagreement" on the top of the page, and is within the one year appeal period from the date of the rating decision.  By statute, a NOD is a written communication by the claimant to the AOJ received within one year of notice of the rating decision and expressing the claimant's disagreement or dissatisfaction and a desire to contest or appeal.  No particular form is required.  See 38 U.S.C.A. §§ 7105(b)(1), (2); 38 C.F.R. § 20.201 (2012).  Thus, the April 2008 statement is best characterized as a NOD.  Id.

In June 2009, the RO issued another rating decision, which granted the Veteran a temporary evaluation of 100 percent based on surgical or other treatment necessitating convalescence for his left scapulothoracic syndrome, effective March 1, 2005.  The RO then assigned a 20 percent evaluation from May 1, 2005.  The RO also continued the 30 percent evaluation, effective since November 30, 2006.  In July 2009, the Veteran submitted his NOD, requesting an earlier effective date for the 30 percent disability rating.  The RO issued a SOC in October 2009.  The Veteran then submitted his Substantive Appeal on the issue in November 2009, and perfected a timely appeal of this issue.  

At his Board hearing, the Veteran argued that the 30 percent disability rating for his service-connected left scapulothoracic syndrome should be May 1, 2005, the date following his temporary evaluation of 100 percent.

In the present case, the Veteran's most recent claim of entitlement to an increased rating for his left scapulothoracic syndrome was received by the RO on July 30, 2004.  Again, notice of the last final unappealed rating decision on this claim was issued in September 2000.  The effect of that finality is to preclude an award of an effective date prior to September 2000.  The Veteran has not raised any claim of clear and unmistakable error (CUE) such as to challenge the finality of this or any prior determination.

Having established the date of claim, the next step in the analysis would normally be to determine whether, sometime between July 30, 2003 (one year prior to the date of the Veteran's increased rating claim), and July 30, 2004, an increase in the Veteran's left scapulothoracic syndrome became factually ascertainable.  Here, however, the Veteran was awarded an increased rating of 30 percent as of November 30, 2006.  As such, the window for determining whether a factually ascertainable increase has occurred is widened.  July 30, 2003, remains as the potentially earliest possible effective date, but the Board must now determine whether, sometime between July 30, 2003, and the current effective date of November 30, 2006, an increase in the Veteran's left scapulothoracic syndrome became factually ascertainable.

In this regard, disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity in civil occupations.  See 38 U.S.C.A. § 1155.  Separate DCs identify the various disabilities.  The assignment of a particular DC is dependent on the facts of a particular case.  See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One DC may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology.  In reviewing the claim for a higher rating, the Board must consider which DC or codes are most appropriate for application in the Veteran's case and provide an explanation for the conclusion.  See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995).

The Veteran is currently in receipt of a 30 percent evaluation for his left scapulothoracic syndrome under DCs 5201 and 5203, effective November 30, 2006.  38 C.F.R. § 4.71a.  

In addressing the pertinent DCs, the Board notes that the Veteran is right-handed, and thus his left arm is his non-dominant arm.  See Board Hearing Transcript.  DC 5203 provides ratings for other impairment of the clavicle or scapula.  The maximum schedular rating available under DC 5203 is 20 percent; thus, DC 5203 cannot provide a basis to warrant a higher 30 percent disability evaluation for the Veteran's service-connected disability.  38 C.F.R. § 4.71a. 

Under DC 5201, a 20 percent rating is assigned when the motion of the arm is limited to the shoulder level, which is essentially 90 degrees of abduction.  A 30 percent rating is assigned for limitation of motion of the arm to 25 degrees from the side is rated as 30 percent for the minor shoulder.  38 C.F.R. § 4.71a.  In determining whether a Veteran meets the criteria for this Diagnostic Code, the abduction and forward elevation ranges of motion for the shoulder are used, since these measurements begin at the side of the body, while the other measurements begin at shoulder level.  See 38 C.F.R. § 4.71a, Plate I (2012).  In this regard, normal shoulder motion is defined as 0 to 180 degrees of forward elevation (flexion) and 0 to 180 degrees of abduction.  Id.

When an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable DC, any additional functional loss the veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45 (2012).  DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).  Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse.  A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the veteran.  38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997).  If the veteran is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable.  Johnston, 10 Vet. App. at 80.

In applying the above law to the facts of the case, the Board does not find that the Veteran is entitled to an effective date earlier than November 30, 2006, for his service-connected left scapulothoracic syndrome.  From July 30, 2003, to November 29, 2006, the Veteran's left scapulothoracic syndrome was not manifested by limitation of motion of the left arm to 25 degrees from the side.  38 C.F.R. § 4.71a, DC 5201.  

Upon review of the VA examinations and treatment records dated from July 30, 2003, to November 29, 2006, there is simply no evidence showing limitation of motion of the left arm to 25 degrees from the side.  A July 2004 VA outpatient treatment record documents that the Veteran's abduction of his left shoulder was 90 degrees and his flexion was 50 degrees, even when considering his pain.  At the November 2004 VA examination, the Veteran's abduction of the left shoulder was 70 degrees and his flexion was 70 degrees, even when considering his pain.  At the June 2005 VA examination, the Veteran refused to show the examiner his ranges of motion, indicating that he could not lift his arm.  However, around this same time period, in May 2005, a VA outpatient treatment record documented that the Veteran had full active range of motion (AROM) of his left shoulder with a painful arc from 60 degrees to 120 degrees.  In October 2005, a VA outpatient treatment record documents that the Veteran's abduction of the left shoulder was 90 degrees and his flexion was 150 degrees, even when considering his pain.  A December 2005 VA treatment record found the Veteran's abduction to be 80 degrees and his flexion to be 100 degrees.  None of this medical evidence, or the remaining treatment records in the claims file, establishes that at any time during the period in question the Veteran's abduction or flexion of the left shoulder was limited to 25 degrees from his side - the requirements for a higher 30 percent disability rating.  Accordingly, from July 30, 2003, to November 29, 2006, the Veteran is not entitled to a higher disability rating of 30 percent for his left scapulothoracic syndrome under DC 5201.  38 C.F.R. § 4.71a.  

The Board acknowledges the Veteran's reports of pain in his left shoulder and arm throughout the ranges of motion.  However, the Veteran's subjective complaints of pain are not substantiated by the objective clinical findings, at least insofar as showing his pain effectively reduced his range of motion to 25 degrees from the side, which is required for a higher 30 percent rating under DC 5201.  38 C.F.R. § 4.71a.  All of the VA examiners considered the Veteran's pain when assessing his ranges of motion, but, even when considering the Veteran's pain, his ranges of motion were not severe enough to warrant a higher rating.  Accordingly, the Board finds that the 20 percent evaluation already assigned appropriately reflected the extent of pain and functional impairment that the Veteran may experience as a result of his service-connected left scapulothoracic syndrome.

In making this determination, the Board has also considered other DCs to see if another code would warrant an earlier effective date.  In this regard, DC 5200 provides that intermediate ankylosis of the scapulohumeral articulation, between favorable and unfavorable, warrants a 30 percent rating for the minor shoulder.  Unfavorable ankylosis of the scapulohumeral articulation with abduction limited to 25 degrees from the side warrants a 40 percent rating for the minor shoulder.  A Note provides that the scapula and humerus move as one piece.  38 C.F.R. § 4.71a.  Additionally, DC 5202 provides ratings for other impairment of the humerus.  Under this code, fibrous union of the humerus is rated as 40 percent for the minor shoulder.  Nonunion of the humerus (false flail joint) is rated as 50 percent for the minor shoulder.  Loss of the head of the humerus (flail shoulder) is rated as 70 percent for the minor shoulder.  38 C.F.R. § 4.71a. 

However, the Veteran is not entitled to an effective date earlier than November 30, 2006, for his service-connected left scapulothoracic syndrome under these alternate codes.  Prior to November 30, 2006, the Veteran's left scapulothoracic syndrome was not been manifested by ankloysis (favorable or unfavorable), fibrous union of the humerus, nonunion of the humerus, or loss of the head of the humerus, to warrant a higher disability rating.  38 C.F.R. § 4.71a, DCs 5200 & 5202.  

Upon review of the VA examinations and treatment records dated from July 30, 2003, to November 29, 2006, there is simply no evidence showing ankloysis of the left shoulder.  As previously mentioned, the Veteran has range of motion in his left shoulder and arm, albeit limited.  Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, surgical procedure.  Lewis v. Derwinski, 3 Vet. App. 259 (1992) (memorandum decision); see Nix v. Brown, 4 Vet. App. 462, 465 (1993); see also Shipwash v. Brown, 8 Vet. App. 218, 221 (1995).  Thus, by definition, the Veteran does not have ankloysis in his left arm or shoulder since he retains ranges of motion in these joints.  Further, the medical evidence of record does not establish that the Veteran has anklyosis.  Accordingly, from July 30, 2003, to November 29, 2006, the Veteran is not entitled to a higher disability rating of 30 percent for his left scapulothoracic syndrome under DC 5200.  38 C.F.R. § 4.71a.  

Additionally, upon review of the VA examinations and treatment records dated from July 30, 2003, to November 29, 2006, there is simply no evidence showing fibrous union of the humerus, nonunion of the humerus, or loss of the head of the humerus of the left shoulder.  The evidence of record establishes that the Veteran previously suffered a rotator cuff tear, but this is not medically the same as a fibrous union of the humerus, nonunion of the humerus, or loss of the head of the humerus.  At the November 2004 and June 2005 VA examinations, fibrous union of the humerus, nonunion of the humerus, or loss of the head of the humerus was not documented.  A VA magnetic resonance imaging (MRI) taken in December 2003 did not document fibrous union of the humerus, nonunion of the humerus, or loss of the head of the humerus.  VA X-rays of the left shoulder dated in May 2004 and June 2005 were normal.  The treatment records do not provide contrary evidence.  Accordingly, from July 30, 2003, to November 29, 2006, the Veteran is not entitled to a higher disability rating of 30 percent for his left scapulothoracic syndrome under DC 5202.  38 C.F.R. § 4.71a.  

VA must consider all favorable lay evidence of record.  38 U.S.C.A. § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995).  Accordingly, in addition to the medical evidence above the Board has carefully considered the lay evidence offered by the Veteran and his family and friends in the form of correspondence to VA and testimony at a Board hearing.  The Veteran, as a layperson, is competent to testify in regard to the onset and continuity of symptomatology.  Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991).  However, even affording the lay evidence full competence and credibility, nothing in these lay correspondences or in the hearing testimony shows that the Veteran's left scapulothoracic syndrome more closely approximated the criteria for a higher 30 percent evaluation at any time from July 30, 2003, to November 29, 2006.  

Accordingly, from July 30, 2003, to November 30, 2006, the evidence of record does not establish a factually ascertainable increase in the Veteran's service-connected left scapulothoracic syndrome to warrant an effective date earlier than November 30, 2006, for the assignment of a 30 percent disability rating.  Thus, the Veteran's effective date for a 30 percent rating cannot be earlier than the currently assigned date of November 30, 2006.  Accordingly, an effective date earlier than November 30, 2006, for the award of a 30 percent rating for the service-connected left scapulothoracic syndrome is not warranted. 


ORDER

The claim of entitlement to a TDIU is dismissed.

Entitlement to an effective date earlier than November 30, 2006, for the award of a 30 percent disability rating for service-connected left scapulothoracic syndrome is denied.


REMAND

Inasmuch as the Board regrets the additional delay of this appeal, a remand is required before the remaining service connection claim can be properly adjudicated.  

The RO denied service connection for a psychiatric disorder in the May 2010 rating decision.  The Veteran submitted a NOD in June 2010.  In response, the RO issued another rating decision in March 2011, again denying the claim.  In April 2011, the Veteran submitted another NOD.  However, to date, the RO has not responded to this NOD with a SOC addressing this issue.  The Board finds that this claim must be remanded for the issuance of a SOC.  Manlincon v. West, 12 Vet. App. 238 (1999).  

Accordingly, the case is REMANDED for the following action:

Issue a SOC addressing the Veteran's claim of entitlement to service connection for an adjustment disorder with depressed mood and anxiety, to include as secondary to the service-connected disabilities.  Notify the Veteran of his appeal rights and that he must file a timely Substantive Appeal (on VA Form 9) if he desires to perfect the appeal of this claim.

The Veteran 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. 
§§ 5109B, 7112 (West Supp. 2012).



______________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs