Citation Nr: 1756478 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 14-13 573 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to an effective date prior to March 25, 2013, for the award of a 10 percent rating for left knee retro-patellofemoral pain syndrome. 2. Entitlement to an effective date prior to March 25, 2013, for the award of a 20 percent rating for left shoulder impingement. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. E. Jones, Counsel INTRODUCTION The Veteran served on active duty from February 2005 to April 2006. This matter is before the Board of Veterans' Appeals (Board) on appeal from April 2013 and May 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office in Portland, Oregon. The Board notes that on his April 2014 VA Form 9 the Veteran requested a videoconference hearing before a Veterans Law Judge (VLJ). The decision below fully grants the benefits sought by the Veteran. Consequently there is no prejudice in deciding the Veteran's claims without providing the requested hearing. FINDINGS OF FACT 1. The Veteran's claim for increased ratings for his left knee and left shoulder disabilities was received on September 20, 2012. 2. As of September 10, 2012, the Veteran met the criteria for a 10 percent rating for his left knee disability. 3. As of September 10, 2012, the Veteran met the criteria for a 20 percent rating for his left shoulder disability. CONCLUSIONS OF LAW 1. The criteria for an effective date of September 10, 2012, for the award of a 10 percent rating for left knee retro-patellofemoral pain syndrome have been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.400, 4.59 (2017). 2. The criteria for an effective date of September 10, 2012, for the award of a 20 percent rating for left shoulder impingement have been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.400, 4.71a, Diagnostic Code (DC) 5201 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In light of the favorable determination contained herein, further development with regard to VA's duties to notify and assist would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540 (1991). I. Left Knee The Veteran asserted on his April 2013 notice of disagreement (NOD) that he is entitled to an effective date of September 20, 2012, for the award of a 10 percent rating for his left knee disability. As explained below, the Board finds that an earlier effective date of September 10, 2012 is warranted for the award of a 10 percent rating. An April 2012 rating decision granted the Veteran service connection and a noncompensable rating for left knee retro-patellofemoral pain syndrome. The Veteran's claim for an increased rating for his left knee disability was received by VA on September 20, 2012. The April 2013 rating decision on appeal granted the Veteran a 10 percent rating for his left knee disability effective from March 25, 2013. The April 2013 rating decision granted the Veteran a 10 percent rating based on a March 25, 2013 VA examination report indicating that the Veteran had left knee flexion limited to 85 degrees with weakened movement and painful movement. The RO assigned the Veteran a 10 percent rating under 38 C.F.R. § 4.59 based on the Veteran having painful motion of the left knee. Painful motion is recognized as sufficient to entitle a Veteran to at least a minimum compensable rating. 38 C.F.R. § 4.59. 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. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. That is, the effective date of an award "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. § 5110(a). However, in a claim for increased compensation, the effective date may date back as much as one year before the date of the application for increase if it is factually "ascertainable that an increase in disability had occurred" within that timeframe. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); see Gaston v. Shinseki, 605 F.3d 979, 982-83 (Fed. Cir. 2010). Although the RO determined that entitlement arose as of March 25, 2013, the Board finds otherwise. On his claim for an increased rating dated September 10, 2012, and received by VA on September 20, 2012, the Veteran reported that his left knee was causing him pain on movement and causing him to limp. The Board finds the Veteran's reported symptoms to be credible. Consequently the Veteran met the criteria for a 10 percent rating under 38 C.F.R. § 4.59 as of September 10, 2012. Under 38 C.F.R. § 3.400(o)(2) when it is factually ascertainable that the increase in disability occurred in the year prior to the date of claim, that date may be the effective date of the increased rating. Here the Veteran was shown to have increased disability 10 days prior to receipt of his claim. There is no indication of an increase in left knee disability prior to September 10, 2012. Accordingly, an effective date of September 10, 2012 for the award of a 10 percent rating is warranted. 38 C.F.R. § 3.400(o). All doubt has been held in the Veteran's favor. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has granted the full benefit sought by the Veteran with regard to this claim. II. Left Shoulder The Veteran asserted on his April 2013 NOD that he is entitled to an earlier effective date of September 20, 2012, for the award of a 20 percent rating for his left shoulder disability. As explained below, the Board finds that a September 10, 2012 effective date is warranted for the award of a 20 percent rating. An April 2012 rating decision granted the Veteran service connection and a 10 percent rating for left shoulder impingement. The Veteran's claim for an increased rating for his left shoulder disability was received by VA on September 20, 2012. The May 2013 rating decision on appeal granted the Veteran a 20 percent rating for his left shoulder disability effective from March 25, 2013. The May 2013 rating decision granted the Veteran a 20 percent rating based on a March 25, 2013 VA examination report indicating that the Veteran had left shoulder flexion limited to shoulder level. The RO assigned the Veteran a 20 percent under 38 C.F.R. § 4.71, Diagnostic Code 5201. DC 5201 provides for a 20 percent rating for limitation of motion of the arm (regardless of whether dominant or nondominant) to shoulder level. Although the RO determined that entitlement arose as of March 25, 2013, the Board finds otherwise. On his claim for an increased rating dated September 10, 2012, and received by VA on September 20, 2012, the Veteran reported that he had a hard time lifting with his left shoulder and that he could not lift it to head level. The Board interprets the Veteran's statement as indicating that his left arm range of motion was limited to shoulder level and finds the Veteran's reported symptoms to be credible. Consequently the Veteran met the criteria for a 20 percent rating under Diagnostic Code 5201 as of September 10, 2012. Under 38 C.F.R. § 3.400(o)(2) when it is factually ascertainable that the increase in disability occurred in the year prior to the date of claim, that date may be the effective date of the increased rating. Here the Veteran was shown to have increased disability 10 days prior to receipt of his claim. There is no indication of an increase in left shoulder disability prior to September 10, 2012. Accordingly, an effective date of September 10, 2012 for the award of a 20 percent rating is warranted. 38 C.F.R. § 3.400(o). All doubt has been held in the Veteran's favor. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has granted the full benefit sought by the Veteran with regard to this claim. ORDER An effective date of September 10, 2012, is granted for the award of a 10 percent rating for left knee retro-patellofemoral pain syndrome, subject to the law and regulations governing the payment of monetary benefits. An effective date of September 10, 2012, is granted for the award of a 20 percent rating for left shoulder impingement, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs