Citation Nr: 18145296 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 10-08 476 DATE: October 26, 2018 REMANDED Entitlement to an effective date earlier than January 24, 2009, for the award of a 30 percent disability rating for residuals of a left shoulder injury with degenerative changes is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1952 to January 1956. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before a Decision Review Officer (DRO) in December 2010. He testified at a hearing before a Veterans Law Judge (VLJ) in January 2012. Transcripts are of record. In a decision dated April 2012, the Board awarded a 30 percent rating for residuals of left shoulder injury. That grant was implemented in the May 2012 rating decision, which assigned an effective date of January 24, 2009, for the 30 percent rating. In a February 2014 letter, the Board informed the Veteran that the VLJ who conducted the January 2012 hearing was no longer employed by the Board and gave him the option of appearing at another hearing before another VLJ. The Veteran opted for another Board hearing and the claim was remanded in June 2014 to schedule the Veteran for his requested hearing. The Veteran testified at a videoconference hearing before the undersigned VLJ in November 2014. A transcript is of record. The Board issued a decision in January 2015 that denied entitlement to an effective date earlier than January 24, 2009, for the award of a 30 percent disability rating for residuals of a left shoulder injury with degenerative changes. The Veteran appealed the denial of an earlier effective date to the Court of Appeals for Veterans Claims (Court). In a February 2016 Joint Motion, the parties requested that the Court vacate the January 2015 Board decision on that issue. In a February 2016 Order, the Court granted the Joint Motion. The Board issued a decision in January 2017 that again denied entitlement to an effective date earlier than January 24, 2009, for the award of a 30 percent disability rating for residuals of a left shoulder injury with degenerative changes. The Veteran again appealed to the Court. In a May 2018 Memorandum Decision, the Court vacated the Board’s January 2017 decision and remanded it for readjudication consistent with the Memorandum Decision. A claim for service connection for mesothelioma that was remanded by the Board in June 2018 remains in remand status and will be the subject of a future Board decision, if in order. Entitlement to an effective date earlier than January 24, 2009, for the award of a 30 percent disability rating for residuals of a left shoulder injury with degenerative changes is remanded. The May 2018 Memorandum Decision determined first that a July 1995 statement met the requirements of a notice of disagreement and that the relevant period at issue began on September 30, 1993; that VA examinations conducted in 1994, 2009 and 2011 were inadequate because they failed to assess the impact of left shoulder functional loss such that the Board improperly assessed whether it had to provide a retrospective opinion; and that the Board’s findings on the Veteran’s credibility and competency were insufficiently supported. Regarding the determination that the Board’s negative credibility finding was insufficiently supported, the Court determined that it was unclear from the March 2009 VA examiner’s statement that there were no signs of muscle atrophy from non-use, whether the examiner was opining that there should have been muscle atrophy if the Veteran’s assertions of pain were true. The Court concluded that the Board made an improper medical determination when it found the Veteran’s statements that he experienced pain and difficulty moving his left arm beginning at zero degrees less probative than the inadequate VA examinations, and that the Board must have inferred that the Veteran’s left shoulder should have atrophied if his symptoms were as bad as he claimed. Regarding the determination that the Board’s finding on the Veteran’s competency was insufficiently supported, the Court disagreed with the Board’s conclusion that the Veteran was not competent to opine on the degree at which his pain began on range of motion. It determined that the Veteran did not assert a specific measurement, that is, zero degrees, that required technical expertise to determine; rather, he asserted, albeit in technical verbiage, that he experienced pain and difficulty as soon as he moved his arm, which is an observable symptom that he was competent to relate. Given the determinations made in the Court’s Memorandum Decision, the Board finds that a retrospective opinion is needed to address the functional impact of the Veteran’s left shoulder disability (to include based on his lay statements regarding impairment) and whether the symptoms and functional impact of the left shoulder disability raises the possibility that a higher rating was warranted between September 30, 1993 and January 24, 2009. The matter is REMANDED for the following action: 1. Provide the Veteran’s claims file to a VA examiner to obtain a retrospective opinion as to the functional impact of the Veteran’s left shoulder disability between September 30, 1993 and January 24, 2009. If the examiner determines that an examination is needed to respond to the question presented, one should be scheduled. The examiner must consider medical evidence related to the left shoulder dated prior to July 20, 1995 and specifically address the Veteran’s lay statements regarding impairment made in July 1995, to include “I have impairment limiting motion of my left arm at any degree from the side starting at zero,” which the Court has determined meant that he experienced pain and difficulty as soon as he moved his arm; and that he had been “liv[ing] with an incapacitated left arm for 43 years.” The examiner must also address the March 2009 VA examiner’s finding of “no signs of muscle atrophy from non-use,” and opine whether there would have been muscle atrophy if the Veteran’s assertions of pain and limited motion, to include that he could not move his arm at any degree from his side, were true. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel