Citation Nr: 1309997 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 06-14 960 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wichita, Kansas THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for right shoulder arthritis prior to June 17, 2011. 2. Entitlement to a rating in excess of 20 percent for right shoulder arthritis since June 17, 2011. 3. Entitlement to an effective date prior to August 23, 2000 for the grant of service connection for right shoulder arthritis. (The issues of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to April 18, 2007; and entitlement to an effective date prior to May 6, 1999 for the grant of service connection for posttraumatic stress disorder (PTSD) are the subject of a separate Board decision.) ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION The Veteran had active military service from July 1970 to March 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. By way of history, in a July 2010 decision, the Board reopened and remanded the Veteran's claim for service connection for a right shoulder disability. In the above-noted December 2011 rating decision, the RO granted service connection for right shoulder arthritis and assigned a 10 percent rating from August 23, 2000 and a 20 percent rating from June 17, 2011. The Veteran has appealed the disability ratings assigned as well as the effective date for the grant of service connection--August 23, 2000. (The decision below addresses the issue of entitlement to an effective date prior to August 23, 2000 for the grant of service connection for right shoulder arthritis. The claim for an initial rating in excess of 10 percent prior to June 17, 2011, and the claim for a rating in excess of 20 percent since June 17, 2011 are addressed in the remand that follows the Board's decision.) FINDINGS OF FACT 1. By a February 1994 decision, the United States Court of Veterans Appeals (currently known as the United States Court of Appeals for Veterans Claims) (hereinafter "Court"), affirmed the Board's December 1992 denial of the Veteran's claim of service connection for residuals of a right shoulder injury. 2. The Veteran did not appeal the February 1994 Court decision to the United States Court of Appeals for the Federal Circuit. 3. On August 23, 2000, the RO received the Veteran's application (VA Form 21-526) to reopen a claim of service connection for a right shoulder disability. 4. There is a lack of written communication received prior to August 23, 2000, but after the prior denial that may be construed as a formal or informal claim to reopen. CONCLUSIONS OF LAW 1. A December 1992 Board decision and February 1994 decision of the Court affirming the denial of a claim of service connection for residuals of a right shoulder injury are final. 38 U.S.C.A. §§ 7291(a)(1) and 7292 (West 2002 & Supp. 2012). 2. The criteria for the assignment of an effective date prior to August 23, 2000, for the grant of service connection for right shoulder arthritis has not been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23353-56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the Veteran to provide any evidence in the Veteran's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).) The Board finds that all notification action needed has been accomplished to make a decision on the claim for an earlier effective date for the grant of service connection for right shoulder arthritis. In a July 2010 notice letter, the RO notified the Veteran of the information and evidence needed to substantiate his underlying claim for service connection for a right shoulder disability. The July 2010 notice letter also provided the Veteran with the general criteria for assigning disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board also finds that the July 2010 notice letter satisfies the statutory and regulatory requirement that VA notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). In the letter, the RO notified the Veteran that VA was responsible for obtaining relevant records from any Federal agency and that VA would make reasonable efforts to obtain relevant records not held by a Federal agency, such as from a state, private treatment provider, or an employer. Additionally, the notice letter asked the Veteran to submit medical evidence, opinions, statements, and treatment records regarding his right shoulder. Once a veteran disagrees with an initial determination, other provisions apply to the remainder of the adjudication process, particularly those pertaining to the issuance of rating decisions and statements of the case. See 38 U.S.C.A. §§ 5104(a), 7105(d) (West 2002); 38 C.F.R. §§ 3.103(b)(1), 19.29 (2012); Dingess, 19 Vet. App. at 490-91; see also Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007). Consequently, a remand of the claim for an earlier effective date for further notification of how to substantiate the claim is not necessary. There is also no indication that any additional action is needed to comply with the duty to assist in connection with the claim for an earlier effective date on appeal. The Veteran's service treatment records (STRs) have been obtained and associated with the claims file, as have VA and private treatment records. Furthermore, the outcome of the appeal for an earlier effective date turns on a determination as to the date that a claim was filed and whether a prior adverse decision became final. Thus, there is no reason to obtain a medical examination or opinion. The Veteran has requested that VA obtain morning reports and/or sick call records associated with his reported treatment for a right shoulder injury during basic training at Fort Leonard Wood. The Veteran has also requested VA consider 38 C.F.R. § 3.156(c) in adjudicating his claim. It would appear that the Veteran is arguing that morning reports (or other similar-type documents), as service department records, in conjunction with the provisions of 38 C.F.R. § 3.156(c), would warrant reconsideration of his original claim for service connection and an effective date award of August 23, 1990, the date of his original claim. In his July 1992 Board hearing testimony, the Veteran recounted that following the injury to his right shoulder in 1970, he was sent for medical treatment and was seen for a few minutes. The clinician (the Veteran is unsure as to whether the individual was a medic or doctor) reportedly told the Veteran that he should not use the right arm/shoulder and that it would ultimately get better. Other than the clinician's order/advice, no treatment was received for the right shoulder. The Veteran otherwise appears to report that he was limited in physical training until his right shoulder improved. The injury reportedly occurred in July or August 1970. The Veteran's STRs do not reflect any treatment notes for the year 1970. As per the National Personnel Records Center (NPRC) website, the military services create morning reports each morning, . . . to detail each day's personnel changes. They are an "exception based" system, only containing information on those individuals who were not "present and accounted for." Among the reasons for being listed on a Morning Report: promotion or demotion; being killed, wounded or missing in action; being assigned to a unit or leaving a unit; [or] going to a hospital for treatment or to another activity for training. The Board concedes that morning reports would fall into the category of service department records, as would, for instance, a "temporary profile" limiting a service member's activity after an injury. Morning reports would not document the purpose for which a service member sought medical treatment. In the Veteran's case, if a morning report had been created, the report would only show that the Veteran was sent for treatment. It would not show the nature of any treatment. Notwithstanding the above, and more importantly, in its December 1992 decision, the Board considered the Veteran's testimony that he suffered a right shoulder injury during basic training and that he continued to suffer from pain following the injury. The Board ultimately assigned greater weight to the evidence showing the lack of any complaint by the Veteran, or any clinical finding by the examiner, of a right shoulder problem or symptoms during a separation medical examination. It also assigned greater to the evidence of the Veteran's lack of treatment for any right shoulder problem for many years following service. As noted above, the Board's decision was upheld by the Court in February 1994. Here, the sole purpose of obtaining any morning reports (or other similar records reflecting treatment or an injury) would be to establish that an injury occurred in service. As discussed above, the Board considered the Veteran's report of suffering an injury in service in its December 1992 decision, but found the evidence, or lack thereof with respect to any residual disability, weighed against a grant of service connection. Therefore, in the present case, a remand to develop for morning reports (or other similar records reflecting treatment or an injury) is not warranted. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Therefore, the Board finds that the duties to notify and assist the Veteran in substantiating his claim for an earlier effective for the grant of service connection for right shoulder degenerative arthritis have been met. II. Analysis The Veteran originally filed a claim of service connection for a right shoulder disability on August 23, 1990. By a November 1990 rating decision, the RO denied the claim. The Veteran appealed the RO's decision to the Board, and in July 1992 testified before the Board. In a December 1992 decision, the Board denied the Veteran's claim. In a February 1994 decision, the Court upheld the Board's denial of the Veteran's claim. The Veteran did not appeal the Court's decision to the United States Court of Appeals for the Federal Circuit; hence, the denial of service connection for residuals of a right shoulder injury became final. See 38 U.S.C.A. §§ 7291(a)(1) and 7292. On August 23, 2000, the RO received an application for benefits from the Veteran whereby he essentially asked to reopen his previously denied claim of service connection for a right shoulder disability. Subsequently, as noted above, in a December 2011 rating decision, the RO granted service connection for right shoulder arthritis and assigned a 10 percent rating from August 23, 2000, and a 20 percent rating from June 17, 2011. The Veteran contends that the effective date of the award of service connection for right shoulder arthritis should be the date of his original claim for service connection for the disability, August 23, 1990. The Veteran has cited to 38 C.F.R. § 3.400 and 38 C.F.R. § 3.156(c) (2006) (pre-amendment) as a legal basis to warrant an earlier effective date. The provisions of 38 C.F.R. § 3.156(c) pertain to reconsidering claims based on newly discovered service department records and assigning an effective date as early as the date that the initial claim was filed (notwithstanding any final decisions). The Board is mindful that in a May 2012 statement, the Veteran alleged the following, No where [sic] does it say if I fail to file appeal I lose my retroactive pay to 1992. You have just made up the appeal thing. Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. Specifically, the effective date of a reopened claim is the date of receipt of claim or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q)(2), (r). In the present case, because of the prior final decision, the claim by which the Veteran was granted service connection for right shoulder arthritis, and which led to this appeal, was a claim to reopen a previously denied claim. The Court has held that when a claim is reopened, the effective date cannot be earlier than the date of the claim to reopen. Juarez v. Peake, 21 Vet. App. 537, 539-40 (2008) (citing Bingham v. Nicholson, 421 F.3d 1346 (Fed. Cir. 2005); Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005). A review of the evidence reflects that there is a lack of any VA medical records dated prior to August 23, 2000, but after the prior denial, reflecting treatment for a right shoulder condition. On July 27, 1999, the RO received private outpatient treatment records documenting the Veteran's treatment for the right shoulder. As noted above, on August 23, 2000, the RO received correspondence from the Veteran. It was determined that the statement constituted an application to reopen the previously denied claim for service connection. Otherwise, the evidence does not reflect any written communication from the Veteran prior to August 23, 2000 but after the prior denial that may be interpreted as a formal or informal claim to reopen the previously disallowed claim for service connection for a residuals of a right shoulder injury. The Board has also considered whether the provisions of 38 C.F.R. § 3.156(c) are for application in the present case, and whether they would allow for reconsideration of the Veteran's original claim for service connection and a possible legal basis for an earlier effective date for the grant of service connection for right shoulder arthritis. As discussed above, 38 C.F.R. § 3.156(c) is for application when relevant service department records, not previously associated with the claims file, are located and made available for review. In the present case, the Veteran alleges that morning reports (or other similar records reflecting treatment or an injury), which the Board accepts are service department records, should be obtained. He alleges that these records should allow for reconsideration of his original claim and ultimately an effective date from August 23, 1990. See e.g., McGrath v. Gober, 14 Vet. App. 28, 35 (2000) (In an original claim for benefits, the date the evidence is submitted or received is irrelevant when considering the effective date of an award, even (as was the case in McGrath) when it was submitted over twenty years after the time period in question.) The Board again emphasizes that the purpose of the records the Veteran has identified is to establish that an injury to the right shoulder occurred in service. The morning reports would not be helpful-at most, they would show the Veteran was excused from duty without identifying the reason. Thus, in the present case, as there are a lack of service department records that would warrant reconsideration of the Veteran's original claim for service connection for a right shoulder disability, the Board does not find the application of 38 C.F.R. § 3.156(c) (either pre- or post-amendment provisions) is warranted in this instance. For the foregoing reasons, the Board finds that the Veteran did not attempt to reopen the claim for service connection for a right shoulder disability until a written request to do so was received on August 23, 2000. That reopened claim was ultimately granted with the effective date assigned of August 23, 2000. The effective date of an award based on a claim reopened after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q)(2), (r). Accordingly, the criteria for an effective date earlier than August 23, 2000 for the grant of service connection for right shoulder arthritis are not met. ORDER An effective date prior to August 23, 2000 for the award of service connection for right shoulder arthritis, is denied. REMAND In a report of June 2011 VA examination, the Veteran was diagnosed with degenerative osteoarthritis of the right shoulder and acromioclavicular joint. He was also noted as having supraspinatus tendinitis and intrasubstance tear of the right shoulder, as well as grade 1 and grade 2 superior labral anterior-posterior lesion of the right shoulder. The Veteran reported symptoms of instability, pain, stiffness, weakness, and flare-ups. The flare-ups were noted as moderate in severity, occurred weekly, and lasted for hours. The Veteran also noted that the right shoulder was very tender at the end of the day. Clinical examination revealed crepitus, tenderness, weakness, and abnormal motion. There were objective signs of pain with range of motion, to include repetitive motion. The Court has stressed that, in evaluating disabilities of the joints, VA has a duty to determine whether the joint in question exhibits weakened movement, excess fatigability, or in coordination and whether pain could significantly limit functional ability during flare-ups or when the joint is used repeatedly over a period of time. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011), citing DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45 (2011). The Court has indicated that these determinations should be made by an examiner and should be portrayed by the examiner in terms of the additional loss in range of motion due to these factors. In Mitchell, the Court noted that, in the context of examinations evaluating functional loss in the musculoskeletal system under Diagnostic Codes based upon limitation of motion, DeLuca stands for the proposition that when pain is associated with movement, to be adequate for rating purposes, an examination must comply with the requirements of § 4.40, and the medical examiner must be asked to express an opinion on whether pain could significantly limit functional ability during flare-ups or when a joint is used repeatedly over a period of time. In this case, the June 2011 VA examiner is noted to have conducted repetitive motion testing of the Veteran's right shoulder, the results of which were noted in the report of examination. He did not, however, comment on whether pain could significantly limit functional ability during flare-ups and, if so, express such functional loss in terms of additional range-of-motion loss (i.e., beyond what is shown clinically). In the present case, the Veteran's contentions have consistently described flare-ups of pain with activity resulting in functional loss. Therefore, the Board is of the opinion that another examination is warranted in order to comply with Mitchell and Deluca. 38 U.S.C.A. § 5103A(d)(1) (West 2002). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file the Veteran's VA treatment records dated since December 2011. 2. Thereafter, schedule the Veteran for a VA orthopedic examination to determine the current level of severity of his service-connected right shoulder arthritis. The Veteran's claims folder, including a copy of this REMAND, must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report. All pertinent pathology associated with the Veteran's right shoulder should be annotated in the examination report. The examiner should elicit information as to the frequency, duration, and severity of associated symptomatology. The examiner should also discuss the extent of any loss of function in daily activities, including work and physical activity. The examiner should undertake range-of-motion studies of the Veteran's right shoulder and comment on the degree of disability due to functional loss resulting from pain, flare-ups, weakness, fatigability, etc. (All functional losses, especially those associated with flare ups, must be equated to additional loss in range of motion (beyond what is shown clinically).) If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. 3. Thereafter, readjudicate the issues remaining on appeal for an initial rating in excess of 10 percent for right shoulder arthritis prior to June 17, 2011, and a rating in excess of 20 percent since June 17, 2011. If any benefit sought remains denied, the Veteran should be provided a supplemental statement of the case (SSOC). The Veteran should then be given an appropriate opportunity to respond before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2012). _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs