Citation Nr: 1802289 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 17-14 382 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to an effective date earlier than March 4, 2013, for the establishment of a 20 percent evaluation for right shoulder osteoarthritis and residual tendonitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H. Hoeft, Counsel INTRODUCTION The Veteran served on active duty from June 1954 to May 1956. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland, which granted service connection for right shoulder osteoarthritis and residual tendonitis, assigning a 10 percent rating effective November 19, 2007, and a 20 percent rating effective March 4, 2013. The Veteran submitted a Notice of Disagreement in July 2014, seeking an earlier effective date than March 4, 2013, for a 20 percent rating for the right shoulder disability. He perfected a timely appeal on this earlier effective date claim in March 2017. On his March 2017 VA Form 9, the Veteran requested a Central Office Board hearing. The hearing was scheduled for November 2017. The electronic Veterans Appeals Control and Locator System (VACOLS) indicates that the Veteran was determined to be a no-show for this appearance. To date, he has not requested a new Board hearing. Accordingly, the Board considers his hearing request to be withdrawn. 38 C.F.R. § 20.704 (d) (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT The record for the one year period prior to November 19, 2007, does not reflect that it was factually ascertainable that the Veteran met or nearly approximated the criteria for a 20 percent rating for his service-connected right shoulder disability. CONCLUSION OF LAW The criteria for an effective date earlier than March 4, 2013, for the award of a 20 percent disability rating for right shoulder osteoarthritis and residual tendonitis, have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2014); 38 C.F.R. §§ 3.1, 3.155, 3.157, 3.400, 4.71a, Diagnostic Code 5010-5201 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes at the outset that VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In this case, however, it does not appear the Veteran has contended there is any deficiency regarding the notification he has received regarding this case. Moreover, with respect to his earlier effective date claim, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that once the underlying claim is granted, further notice as to downstream questions, such as the effective date, is not required. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); See also Dingess v. Nicholson, 19 Vet. App. 473, 490-1 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008). The Board also notes nothing indicates the Veteran has identified the existence of any relevant evidence that has not been obtained or requested with respect to his earlier effective date claims. Moreover, as a general rule, adjudication of a claim for an earlier effective date is based upon evidence already in the claims folder; the resolution of the claim depends upon when certain documents were either received by VA or promulgated to the claimant. No other deficiency in the duty to assist has been identified by the Veteran regarding the issues adjudicated by this decision. Accordingly, the Board need not search for, or address, any such argument. See Scott v. McDonald, 789 F. 3d 1375 (Fed. Cir. 2015). The Board will therefore proceed to the merits of the appeal. Entitlement to an effective date prior to March 4, 2013, for the grant of a 20 percent rating for the right shoulder disability The Veteran contends that he is entitled to an effective date earlier than March 4, 2013, for the grant of a 20 percent rating for right shoulder osteoarthritis and residual tendonitis. He asserts that the appropriate effective date is November 19, 2007, i.e., the effective date of the grant of service connection for his right shoulder disability. See July 2014 NOD. Factual Background and Analysis The Veteran submitted his claim for service connection for a right shoulder disability on November 19, 2007. In January 2008, he submitted a private treatment record, dated in October 2007, from Dr. G.A.M., in which he reported difficulty abducting his right shoulder and "so he cannot raise his right arm over his head unless he tilts his head down to the shoulder." (Emphasis added). On physical examination, the Veteran displayed loss of mobility, both in abduction and adduction, as well as flexion and extension above the right shoulder with pain and discomfort about palpation anteriorly, posteriorly, and inferiorly. In January 2008, the Veteran submitted another treatment report from Dr. G.A.M., dated in November 2007, which indicated that the Veteran's shoulder was painful when bringing it above shoulder height. Objectively, the right shoulder had full active and passive range of motion. Forward flexion at 90 degrees gave rise to pain. He also had some pain on the extremes of external rotation. The diagnosis was rotator cuff tendonitis. The Veteran submitted a Shoulder and Arm Conditions Disability Benefits Questionnaire (DBQ), conducted by Dr. G.A.M. and dated in March 2013. Dr. G.A.M. indicated that the Veteran could not lift his right shoulder above shoulder level during flare-ups. Right shoulder flexion was to 90 degrees with painful motion beginning at 75 degrees. Right shoulder abduction was to 85 degrees with painful motion beginning at 70 degrees. Following repetitive motion testing, flexion was to 75 degrees with painful motion beginning at 70 degrees. Muscle strength testing was 2/5. As noted, in December 2013 rating, the RO granted service connection for right shoulder osteoarthritis and residual tendonitis and assigned a 10 percent rating effective November 19, 2007, and a 20 percent rating effective March 4, 2013, under Diagnostic Code 5010-5201. The RO explained that it had assigned a 10 percent rating, as of November 19, 2007, based on x-ray findings of arthritis and evidence of painful motion of the arm; the 20 percent rating was assigned based on the March 4, 2013, DBQ examination, which showed a factual worsening of the condition (i.e., limited motion of the arm at shoulder level). Thereafter, in July 2014, the Veteran submitted an NOD seeking an effective date earlier than March 4, 2013, for a 20 percent rating for the right shoulder disability. The current appeal ensued. Briefly, Diagnostic Code 5010 contemplates arthritis, while Diagnostic Code 5201 contemplates limitation of arm motion. Degenerative arthritis (established by X-ray findings) is rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, an evaluation of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion. Id. Limitation of arm motion under Diagnostic Code 5201, distinguishes between the major (dominant) extremity and minor (non-dominant) extremity. The evidence demonstrates that the Veteran's right shoulder is his major (dominant) side. Under Diagnostic Code 5201, a 20 percent disability rating is contemplated for limitation of motion of the major arm at shoulder level. A 30 percent disability rating is warranted for limitation of the major arm midway between side and shoulder level. A maximum 40 percent disability rating is warranted for limitation of the major arm to 25 degrees from the side. For VA purposes, normal range of forward elevation (flexion) is zero degrees to 180 degrees; shoulder abduction is zero degrees to 180 degrees, internal rotation is zero degrees to 90 degrees; and external rotation is zero degrees to 90 degrees. Lifting the arm to shoulder level is lifting it to 90 degrees. See 38 C.F.R. § 4.71, Plate I (2017). The Board observes here that the effective date for increased ratings generally will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within 1 year from such date; otherwise, the effective date is the date of receipt of claim. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400(o)(2) (2017). In order for entitlement to an increase in disability compensation to arise, the disability must have increased in severity to a degree warranting an increase in compensation. See Hazan v. Gober, 10 Vet. App. 511, 519 (1992) (noting that, under § 5110(b)(2) which provides that the effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, "the only cognizable 'increase' for this purpose is one to the next disability level" provided by law for the particular disability). In this case, it is undisputed that the Veteran's service connection claim for a right shoulder disability was received by VA on November 19, 2007. The Board has reviewed the treatment records submitted by the Veteran and dated in the year prior to November 19, 2007, and finds that there was no factually ascertainable increase in the right shoulder disability in that time period. Indeed, the evidence dated within 1 year of November 19, 2007, shows arthritis of the right shoulder with painful above-the-shoulder range of motion, which supports the assignment of a 10 percent disability rating as of that date. The Board acknowledges that the Veteran had pain at 90 degrees of flexion in November 2007, however, he still retained full range of motion on contemporaneous objective examination. Notably, not even the Veteran, himself, endorsed arm motion limited to shoulder level (see October 2007 treatment record, stating that he could not raise his right arm over his head); there is otherwise no evidence - lay or otherwise - suggesting that the Veteran's right arm symptomatology approximated limited motion at the shoulder level during the period in question. In short, the evidence outlined above, to specifically include the October and November 2007 treatment records from Dr. G.A.M., and dated within 1 year of November 19, 2007, does not show a factually ascertainable increase in the shoulder disability. The evidence instead only demonstrates a factually ascertainable increase in right shoulder symptomatology on March 4, 2013, when range of motion findings reported during the March 2013 DBQ examination showed that flexion was limited to 90 degrees and abduction to 85 degrees and the Veteran was noted as not being able to lift the right shoulder above shoulder level during flare-ups. These findings of a definite increase in disability support the assignment of a 20 percent rating effective March 4, 2013, under DC 5010-5201. See 38 C.F.R. §§ 4.71s, DC 5201 (2017). The regulation governing effective dates for increased ratings is clear - the effective date is the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within 1 year from such date or the date of receipt of the claim. See 38 C.F.R. § 3.400 (o)(2). The Veteran has not identified or submitted any other evidence demonstrating his entitlement to an earlier effective date than March 4, 2013, for the 20 percent rating for service-connected right shoulder osteoarthritis and tendonitis. In summary, the criteria for an earlier effective date than March 4, 2013, for a 20 percent rating for right shoulder osteoarthritis and tendonitis have not been met. ORDER Entitlement to an effective date earlier than March 4, 2013, for the establishment of a 20 percent evaluation for right shoulder osteoarthritis and residual tendonitis, is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs