Citation Nr: 1502090 Decision Date: 01/15/15 Archive Date: 01/27/15 DOCKET NO. 12-16 311 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for right shoulder osteoarthritis. 2. Entitlement to an effective date earlier than June 27, 2007 for the grant of service connection for right shoulder osteoarthritis. 3. Entitlement to an effective date earlier than January 22, 2007 for the award of a 30 percent rating for cervical spine degenerative disc disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. Joyner, Counsel INTRODUCTION The Veteran served on active duty from September 1988 to September 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in September 2010 and March 2012 of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. The September 2010 rating decision granted service connection for right shoulder osteoarthritis and assigned a 10 percent rating, effective June 27, 2007. The March 2012 rating decision granted an increased rating of 30 percent for cervical spine degenerative disc disease, effective January 22, 2007. The issue of entitlement to an initial rating in excess of 10 percent for right shoulder osteoarthritis is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In September 1992 the Veteran filed a claim for "back and neck, shoulder problems, spasms, pinching, constant pain." 2. In a September 1992 rating decision the RO adjudicated the Veteran's September 1992 claim in full, and granted service connection for "history of T2 hypesthesia, dysesthesia," assigning a noncompensable rating effective September 6, 1992; after an October 1992 VA examination, the RO, in a November 1992 rating decision, continued the noncompensable rating for history of T2 hypesthesia, dysesthesia. 3. The Veteran did not perfect an appeal of the September 1992 or October 1992 rating decision, nor did he thereafter indicate another attempt to file a claim for service connection for a right shoulder disability until June 27, 2007. 4. The Veteran had complaints of right shoulder problems during service which continued thereafter; he was first diagnosed with degenerative changes of the right acromioclavicular joint in December 1997. 5. The Veteran filed a timely notice of disagreement with respect to the initial noncompensable rating assigned for T2 hypesthesia, dysesthesia in the 1992 rating decisions and the RO issued a statement of the case in June 1993; the Veteran did not file a substantive appeal. 6. In November 1997 the Veteran filed a claim for an increased rating for his service-connected back disability (T2 hypesthesia, dysesthesia). 7. In an unappealed April 1998 rating decision the RO granted in increased rating of 20 percent for T2 hypesthesia, dysesthesia with right shoulder pain. 8. Subsequent to the unappealed April 1998 rating decision, the Veteran first filed an informal claim for an increased for his service-connected back disability (T2 hypesthesia, dysesthesia) on January 22, 2007. 9. A January 23, 2007 VA treatment record reflects the Veteran's complaints that his neck pain had worsened four to six months earlier. 10. In giving the Veteran the benefit of the doubt, the evidence of record shows that it was factually ascertainable that six months prior to January 23, 2007, namely on July 22, 2006, the Veteran's cervical spine degenerative disc disease (formerly referred to as T2 hypesthesia, dysesthesia with right shoulder pain) met the criteria for a 30 percent rating. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than June 27, 2007, for the grant of service connection for right shoulder osteoarthritis have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.159, 3.400 (2014). 2. The criteria for entitlement to an effective date of July 23, 2006, but no earlier, for the assignment of a 30 percent disability rating for cervical spine degenerative disc disease have been met. 38 U.S.C.A. §§ 5101, 5103, 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.155, 3.400, 4.71a, Diagnostic Code 5243 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2014); see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a) (2014), 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). With respect to the earlier effective date claims, these issues come on appeal of a September 2010 rating decision which granted service connection for right shoulder osteoarthritis effective June 27, 2007 and a March 2012 rating decision which granted an increased rating of 30 percent for cervical spine degenerative disc disease effective January 22, 2007. The current appeals are a result of the Veteran filing a notice of disagreement with respect to each effective date assigned. Courts have held that once service connection is granted the claim is substantiated and further appealable issues, such as the effective date, are "downstream" issues and therefore, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). As such, there is no further duty to notify under VCAA. See 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice arises upon receipt of a notice of disagreement). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). The Board also finds that there has been compliance with the VCAA assistance provisions. 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). No additional pertinent evidence has been identified by the Veteran. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. § 3.103(c)(2) (2014) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the Board personal hearing, the undersigned explained the issues on appeal. The Veteran was assisted at the hearing by an accredited representative from Disabled American Veterans and the undersigned and the Veteran's representative asked the Veteran pertinent questions regarding his claims. No relevant evidence that might have been overlooked and that might substantiate the claims was identified by the Veteran or his representative. The hearing focused on the elements necessary to substantiate the claims. Therefore, the Board finds that, consistent with Bryant, the underigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Legal Analysis Under VA laws and regulations, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. However, if a claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from service. 38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). A claim is defined in the VA regulations as 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) (2013). An informal claim is defined as any communication or action indicating intent to apply for one or more benefits. 38 C.F.R. § 3.155(a) (2013). For an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within one year from such date otherwise, date of receipt of claim. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(o)(2) ; see also Hazan v. Gober, 10 Vet. App. 511 (1997); Servello v. Derwinski, 3 Vet. App. 196 (1992). In VAOPGCPREC 12-98 (Sept. 23, 1998), VA's General Counsel noted that 38 C.F.R. § 3.400(o)(2) was added to permit payment of increased disability compensation retroactively to the date the evidence establishes the increase in the degree of disability had occurred. That section was intended to be applied in those instances where the date of increased disablement can be factually ascertained with a degree of certainty. It was noted that this section was not intended to cover situations where disability worsened gradually and imperceptibly over an extended period of time. "Claim" is 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); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication or action, indicating an intent to apply for one or more benefits under laws administered by the VA from a claimant may be considered an informal claim. Such an informal claim must identify the benefits sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). It is possible that a particular piece of evidence demonstrates the Veteran suffered from the symptoms of a disability earlier than the date of the examination, opinion, or diagnosis. See DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011) (holding that "entitlement to benefits for a disability or disease does not arise with a medical diagnosis of the condition, but with the manifestation of the condition and the filing of a claim for benefits for the condition" (citing 38 U.S.C. § 5110(a)); Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (holding that "it is the information in a medical opinion, and not the date the medical opinion was provided that is relevant when assigning an effective date"). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give 'due consideration' to 'all pertinent medical and lay evidence' in evaluating a claim for disability benefits. In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. Earlier Effective Date for Service Connection for Right Shoulder Osteoarthritis Service connection for right shoulder osteoarthritis was granted in a September 2010 rating decision (pursuant to the order of a September 2010 Board decision which granted service connection for a right shoulder disability). The effective date assigned was June 27, 2007, the date the RO determined that the Veteran's claim for service connection for a right shoulder disability was received. The Veteran contends that an earlier effective date is warranted. He specifically argues that the effective date should be September 6, 1992, the date following discharge from service because he filed a claim in September 1992, he has been dealing with right shoulder problems since service, and he had thought his right shoulder had been service-connected since then. The RO concluded that June 27, 2007 was the appropriate effective date for the grant of service connection for a right shoulder osteoarthritis, because the RO determined that the Veteran's claim for service connection for a right shoulder disability was received by VA on that date. In this regard, the Board notes that the Veteran indeed submitted a statement (a congressional correspondence), which was received by VA on June 27, 2007, in which the Veteran referred to severe pain when moving his right arm. The Board recognizes that the record also contains a September 2, 1992 VA claim form (application for compensation or pension) signed by the Veteran, which requests service connection for "back and neck, shoulder problems, spasms, pinching, constant pain." In a September 1992 rating decision, the RO granted service connection for "history of T2 hypesthesia, dysesthesia" and assigned a noncompensable rating, effective September 6, 1992. Although the rating decision does not explicitly discuss the Veteran's right shoulder, the Board notes that the claimed right shoulder disability was not ignored and was taken into account in the grant of service connection for T2 hypesthesia, dysesthesia. Importantly, a VA examination was performed in October 1992. The examination report reflects the Veteran's complaints of right shoulder pain. It was noted that the Veteran had, in the past, been diagnosed with trapezius muscle spasm, but that such diagnosis was not warranted based upon the current examination. Motor strength testing, reflexes, and sensory examination were normal for the right upper extremity. No right shoulder diagnosis was rendered. Moreover, a November 1992 rating decision specifically indicates that the issue being adjudicated was entitlement to compensation for "back/shoulder/neck condition." In that rating decision the RO denied a compensable rating for history of T2 hypesthesia, dysesthesia. In February 1993 the Veteran filed a notice of disagreement and in June 1993 the RO issued a statement of the case denying a compensable rating for history of T2 hypesthesia, dysesthesia. The Veteran did not file a substantive appeal. As such, the decision is final. 38 C.F.R. § 20.1103. Thereafter, in November 1997 the Veteran filed a claim for an increased rating for his service-connected "back condition." In December 1997 the Veteran underwent a VA examination. The December 1997 VA examination report reflects the Veteran's complaints of continuous right shoulder pain since 1989. There was tenderness on palpation of the acromioclavicular joint. There was positive ARC syndrome on abduction of the shoulder between 90 and 170 degrees. MRI of the shoulder was ordered. Before the results of the shoulder MRI were obtained, in an April 7, 1998 rating decision the RO granted an increased rating of 20 percent for "T2 hypesthesia, dysesthesia with right shoulder pain" effective November 6, 1997, the date of the Veteran's claim for an increased rating. As such, it again appears that the Veteran's right shoulder symptoms were being accounted for in the service-connected T2 hypesthesia, dysesthesia with right shoulder pain. Subsequent to the issuance of the April 7, 1998 rating decision, on April 15, 1997, the December 1997 shoulder MRI results were obtained. The December 1997 shoulder MRI revealed mild degenerative changes of the acromioclavicular joint. An April 22, 1998 rating decision was issued. This rating decision continued the 20 percent rating assigned. The rating decision noted the December 1997 shoulder MRI results. Again, although the September 1992 rating decision which granted service connection for T2 hypesthesia, dysesthesia does not appear to have expressly adjudicated the Veteran's claim for "shoulder problems," the shoulder symptoms were taken into account, and factored in to the grant of service connection for T2 hypesthesia, dysesthesia . The September 1992 rating decision was not based upon current examination of the Veteran; it was based upon the separation examination diagnosis o f The T2 hypesthesia, dysesthesia. The October 1992 VA examination, the first VA examination for this disability, took into account the Veteran's right shoulder complaints; however, no right shoulder diagnosis was rendered at that time. Although the November 1992 rating decision also does not seem to expressly discuss the right shoulder, the right shoulder is impliedly considered in the entire disability rating, as evidenced by the rating decision reflecting consideration of a compensable rating for "back/shoulder/neck" condition. Based upon the above, there is no evidence of an intent to file a claim of entitlement to service connection for a right shoulder disability at any time since the initial claim in September 1992, which was granted in full (as T2 hypesthesia, dysesthesia) or until the June 27, 2007 correspondence that was considered to be a claim for service connection. The November 1997 claim for an increased rating for the service-connected back disability in no way implies that the Veteran was seeking service connection for a separate shoulder disability. Similarly, the January 22, 2007 claim for an increased rating for his back disability in no way implies that he was seeking service connection for a separate shoulder disability. As such, the Board finds that the date of claim for service connection for a right shoulder disability is June 27, 2007. Regarding the issue of when entitlement to service connection arose, the evidence shows that entitlement arose as early as the December 1997 MRI results showing mild degenerative changes of the right shoulder. However, as determined above, because the Veteran's claim was received by VA on June 27, 2007, and the date entitlement arose was arguably in 1997, the proper effective date for the award of service connection for right shoulder osteoarthritis is June 27, 2007, the later of those two dates. 38 C.F.R. § 3.400. Even if entitlement arose earlier than 1997, the Board is bound by the law, which requires that the effective date be the later of the two dates. Therefore, even if entitlement arose earlier, the date of claim, June 27, 2007 would still be the effective date because it would still be the later of the two dates. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. Earlier Effective Date for the Award of a 30 Percent Rating for Cervical Spine Degenerative Disc Disease Service connection for T2 hypesthesia, dysesthesia was originally granted in a September 1992 rating decision. A noncompensable rating was assigned, effective September 6, 1992, the day following the Veteran's sepration from service. After the Veteran underwent a VA examination in October 1992, the RO issued a rating decision in November 1992, denying a compensable rating for T2 hypesthesia, dysesthesia. In February 1993 the Veteran filed a notice of disagreement and a statement of the case was issued in June 1993. The Veteran did not file a timely substantive appeal. Therefore, the decision is final. 38 C.F.R. § 20.1103. On November 6, 1997 the Veteran filed a claim for an increased rating for his service-connected back disability. In an April 7, 1998 rating decision the RO granted an increased rating of 20 percent for T2 hypesthesia, dysesthesia with right shoulder pain. After additional medical evidence was received on April 15, 1998, the RO issued another rating decision in April 1998, denying a rating in excess of 20 percent for T2 hypesthesia, dysesthesia with right shoulder pain. The Veteran did not file an appeal with respect to this decision. As such, it is final. 38 C.F.R. § 20.1103. On January 22, 2007 the Veteran filed a claim for an increased rating for his service-connected back disability. After a February 2007 VA examination was conducted, at which time the Veteran was diagnosed with cervical spine degenerative disc disease, the RO issued a rating decision in May 2007, which denied a rating in excess of 20 percent for cervical spine degenerative disc disease. The RO recognized that this disability was formerly described as T2 hypesthesia, dysesthesia, with right shoulder pain. The Veteran filed a timely notice of disagreement, a statement of the case was issued in January 2008, and the Veteran filed a timely substantive appeal. In a September 2010 Board decision, the Board remanded the Veteran's claim of entitlement to a rating in excess of 20 percent for cervical spine degenerative disc disease. Thereafter, in a September 2011 rating decision, the RO granted an increased rating of 30 percent for cervical spine degenerative disc disease, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5243, effective August 8, 2011. A supplemental statement of the case was issued in October 2011 on the issue of entitlement to an increased rating for cervical spine degenerative disc disease, rated as 20 percent disabling prior to August 8, 2011 and as 30 percent disabling beginning August 8, 2011. When the case returned to the Board in March 2012, the Board granted an increased rating of 30 percent for the time period prior to August 8, 2011. In a March 2012 rating decision, the RO implemented the Board's decision and awarded a 30 percent rating for cervical spine degenerative disc disease, effective January 22, 2007, the date of receipt of the Veteran's claim for an increased rating. The Veteran perfected an appeal with respect to the effective date assigned for the 30 percent rating. Based on the foregoing, the Board finds that a formal or informal claim for an increased evaluation was not received prior to the informal claim filed on January 22, 2007. While the date of claim has been established as January 22, 2007, the Board must next determine under 38 C.F.R. § 3.400(o)(2) the earliest date as of which it is factually ascertainable that a 30 percent disability evaluation was warranted during the one year prior to January 22, 2007. As previously discussed, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within one year from such date. Otherwise, it will be the date of receipt of claim. 38 C.F.R. § 3.400(o)(2). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. Disabilities found in 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 are evaluated using the General Rating Formula for Diseases and Injuries of the Spine. Under the general rating formula, a 10 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted if the evidence demonstrates the following: forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis. A 40 percent evaluation is called for when forward flexion of the thoracolumbar spine 30 degrees or less, or when the veteran suffers from favorable ankylosis of the entire thoracolumbar spine. Finally, unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating, and a 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (degenerative disc disease). The Veteran has not specifically indicated what he believes the appropriate effective date should be for the assignment of the 30 percent rating for his service-connected cervical spine degenerative disc disease. As noted above, the date of claim for increase is January 22, 2007. However, regarding the crucial issue of when it was "factually ascertainable" that an increase in disability took place, as previously noted, such date may potentially be up to one year earlier than January 22, 2007. Importantly, the only medical evidence showing range of motion testing during the time period at issue is the Februrary 2007 VA examination. The range of motion examination results from February 2007 show that a 30 percent rating was warranted at that time. The only medical evidence prior to that examination is VA treatment records dated in December 2006 and January 2007. Importantly, the December 26, 2006 treatment record reflects the Veteran's complaints of worsening neck pain in the past two to three months. Similarly, the January 23, 2007 VA treatment record reflects complaints of worsening neck pain in the past four to six months. As such, and in giving the Veteran the benefit of the doubt, the Board finds that it is factually ascertainable that the increase in severity warranting the 30 percent rating began, as the Veteran indicated at the time of the January 23, 2007 VA treatment record, six months earlier than January 23, 2007, or July 23, 2006. Consequently, an earlier effective date of July 23, 2006 is granted. 38 C.F.R. § 3.400(o)(2);Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an effective date earlier than June 27, 2007 for the grant of service connection for right shoulder osteoarthritis is denied. Entitlement to an earlier effective date of July 23, 2006, for the assignment of a 30 percent for cervical spine degenerative disc disease is granted, subject to the criteria governing the award of monetary benefits. REMAND At the February 2014 hearing the Veteran indicated that his service-connected right shoulder osteoarthritis had worsened since the most recent VA examination was conducted in May 2013. In Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993), the Court found that, when a veteran claims that his condition is worse than when originally rated, and the available evidence is too old for an adequate evaluation of the veteran's current condition, VA's duty to assist includes providing a new examination. While a new examination is not required simply because of the time that has passed since the last examination, VA's General Counsel has indicated that a new examination is appropriate when there is an assertion of an increase in severity since the last examination. VAOPGCPREC 11-95; see also Green v. Derwinski, 1 Vet. App. 121 (1991) (holding that VA's duty to assist includes conducting a thorough and contemporaneous examination of the veteran that takes into account the records of prior examinations and treatment). In this case, the February 2014 testimony indicating an increase in the severity of the Veteran's symptoms since the prior VA examination is enough to require a new VA examination. As such, a remand for a new VA examination is in order. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA joints examination in order to determine the current severity of the Veteran's service-connected right shoulder osteoarthritis. The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies, to include all tests required to objectively document all manifestations of the Veteran's service-connected right shoulder disorder must be accomplished. The examiner must determine range of motion, in degrees, noting by comparison the normal ranges of motion of the shoulder. It must also be determined whether there is weakened movement, excess fatigability, or incoordination attributable to the Veteran's right shoulder disorder, expressed in terms of the degree of additional range of motion loss or favorable or unfavorable ankylosis due to any weakened movement, excess fatigability, or incoordination. Furthermore, an opinion must be given as to whether any pain associated with the Veteran's right shoulder disorder could significantly limit functional ability during flare-ups or during periods of repeated use, noting the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use or during flare-ups. The examiner should also comment as to whether the clinical examination showed any ankylosis, malunion or nonunion of the humerus, scapula, or clavicle, or shoulder instability or subluxation. A complete rationale for all opinions expressed must be provided, to include reference to specific clinical findings or documents in the claims file. 2. Notify the Veteran that he must report for any scheduled examination and cooperate in the development of the claim. Failure to report for a VA examination without good cause may result in denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2014). 3. After the development requested is completed, readjudicate the claim on appeal. If the benefit sought remains denied, furnish the Veteran a supplemental Statement of the Case and allow him a reasonable opportunity to respond before returning the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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 2014). ______________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs