Citation Nr: 18145532 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 16-34 992 DATE: October 29, 2018 ORDER 1. Entitlement to an effective date prior to December 8, 2015, for an increased rating for service-connected rotator cuff tendonitis of the right shoulder with resolved glenohumeral joint dislocation (hereinafter “right shoulder disability”), is denied. 2. Entitlement to an increased rating in excess of 20 percent for service-connected right shoulder disability is denied. REMANDED Entitlement to an increased rating in excess of 10 percent for chronic obstructive pulmonary disease (COPD) with asthmatic bronchitis is remanded. FINDINGS OF FACT 1. Prior to December 8, 2015, there was no formal claim, informal claim, or written intent to file a claim for an increased rating for a right shoulder disability. 2. For the entire period on appeal, the preponderance of the evidence is against a finding that the Veteran’s right shoulder disability was manifested by, or more nearly approximated, limitation of motion of the right arm to midway between side and shoulder level. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to December 8, 2015, for the award of an increased rating of 20 percent for the Veteran’s right shoulder disability have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.155, 3.400 (2017). 2. For the entire period on appeal, the criteria for an increased rating in excess of 20 percent for the Veteran’s right shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Code 5201 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1979 to September 1981. These matters come before the Board of Veterans’ Appeals (Board) from a February 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Duties to Notify and Assist As a preliminary matter, the Board has reviewed the electronic claims file and finds there exist no deficiencies in VA’s duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159 (b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). Earlier Effective Date for Increased Rating for a Right Shoulder Disability. The Veteran was granted service connection for a right shoulder injury from September 8, 1981 and assigned a non-compensable rating. The Veteran filed his claim for a right shoulder condition in December 2015. Thereafter, in the February 2016 rating decision currently on appeal, the Veteran was granted service connection for rotator cuff tendonitis of the right shoulder (previously rated as residuals of a right shoulder injury) and was assigned a 20 percent rating, effective from December 8, 2015. The Veteran contests the effective date of the increased award, claiming the 20 percent rating should date back to the date he originally filed his claim rather than the date he filed for an increased rating. The effective date for a claim seeking an increased rating for an already service-connected disability that is based on an original claim, or a claim for increase will be the day of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (2017). In determining whether an effective date assigned for an increased rating is correct or proper under the law requires (1) a determination of the date of the receipt of the claim for the increased rating as well as (2) a review of all the evidence of record to determine when an increase in disability was “ascertainable.” See Hazan v. Gober, 10 Vet. App. 511 (1997). A “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) (2017); Brannon v. West, 12 Vet. App. 32, 34-35 (1998). Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155 (a) (2017). 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). In that regard, the first correspondence from the Veteran indicating that he was seeking an increased rating for his right shoulder disability was received in December 2015. There was no earlier claim. The Veteran does not argue the contrary. The Board notes the Veteran contentions that he has been unable to sleep on his right side for 35 years and has had limited motion in his right shoulder since submitting his claim of service connection in 1981. However, there is no evidence of an earlier (formal or informal) claim. Thus, having determined that there was no earlier (formal or informal) claim, the only question remaining is when a 20 percent disability rating for the Veteran’s right shoulder disability was factually ascertainable. 38 C.F.R. § 3.400. In an April 1982 rating decision, the RO granted the Veteran service connection for a right shoulder injury and assigned a noncompensable rating under Diagnostic Code 5399-5305 from September 9, 1981. Under the criteria for Diagnostic Code 5305, which pertains to Muscle Group V, including the biceps, brachialis, and brachioradialis, and which affect elbow supination and flexion of the elbow, a noncompensable evaluation is provided for slight muscle injury of the minor upper extremity. A 10 percent evaluation is provided for moderate muscle injury. A 30 percent rating is warranted where muscle injury is to the dominant upper extremity and is moderately severe, or 20 percent if the moderately severe injury is to the non-dominant upper extremity. Diagnostic Code 5305 describes the Group V muscle function as elbow supination, provided by the long head of the biceps, which stabilizes the shoulder joint, and flexion of the elbow, provided by the biceps, brachialis, and brachioradialis. Prior to December 8, 2015, the evidence of record pertinent to this claim, includes service treatment records, VA treatment records and a March 1982 VA examination. At the March 1982 examination the examiner noted the Veteran had a history of dislocation of the right shoulder. At that time, the examiner noted there was no history of recurrence or disability only persistent pain. Upon physical examination it was noted that the shoulder was normal in appearance. There was no shoulder girdle atrophy. Muscular development was excellent. The Veteran appeared to have normal flexibility involving the shoulder arm complex. The right arm elevated easily above the head in abduction and in forward flexion. Internal and external rotation were complete. However, it was noted that on any manipulation the Veteran complained of severe pain over the prominence of the shoulder joint. There was excellent muscle power to the right upper extremity. The examiner also indicated diagnostic testing revealed there was no evidence of articular disease or disease of the bones forming the shoulder girdle and there were no soft tissue calcifications. In reviewing all the evidence of record, to include medical treatment records from 1982 to 2015 the Board finds that a noncompensable rating is appropriate prior to December 8, 2015. To warrant a higher disability rating, the evidence should show there was moderate muscle injury of the right upper arm, which the evidence does not demonstrate. The medical evidence reveals the Veteran’s consistent complaints of right shoulder pain. However, medical treatment records have revealed range of motion was within normal limits. There were no significant osseous degenerative changes observed in the right AC joint or right glenohumeral joint. There has been no evidence of acute fracture or dislocation in the right shoulder during this time. Thus, the Board finds that the competent evidence of record does not support a compensable disability rating prior to December 8, 2015. Based on the foregoing, the Board finds that the evidence of record does not show that the Veteran’s right shoulder symptoms approximated the criteria for a compensable rating prior to his February 2016 VA examination. In summary, after a thorough review of the evidence of record, the Veteran did not make a claim for an increased rating for his service-connected right shoulder disability prior to December 2015 and there was no evidence that his right shoulder symptomatology more nearly approximated the criteria for a compensable disability rating until February 2016. Pursuant to 38 C.F.R. § 3.400, the effective date of the award will be the later of the above dates. As such, the Veteran’s appeal with respect to an effective date earlier than December 8, 2015 for an increased rating for a right shoulder disability is denied. Entitlement to an Increased Rating in excess of 20 Percent for a Right Shoulder Disability. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by diagnostic codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Where an increase in the level of a service connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1999). The Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). That is to say, the Board must consider whether there have been times when her service-connected disability has been more severe than at others, and rate it accordingly. It should also be noted that, when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40; DeLuca, 8 Vet. App. 205. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology or evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. The factors involved in evaluating, and rating disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of her disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). 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. § 5107 (b). Here, the Veteran was assigned a 20 percent rating effective from December 8, 2015 (the date of claim) for his right shoulder disability under Diagnostic Code 5201. Under DC 5201, the assignment of a 20 percent disability evaluation is warranted when arm motion is limited to shoulder level in the major or minor arm. If arm motion is limited midway between the side and shoulder, a 20 percent rating is warranted for the minor arm and a 30 percent rating is warranted for the major arm. If arm motion is limited to 25 degrees from the side, a 30 percent rating is warranted for the minor arm and a 40 percent rating is warranted for the major arm. For rating purposes, under DC 5201, a distinction is made between major (dominant) and minor musculoskeletal groups. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. The injured hand, or the most severely injured hand, of an ambidextrous individual will be considered the dominant hand for rating purposes. 38 C.F.R. § 4.69. Here, the Veteran is right-hand dominant. Under Plate I of 38 C.F.R. § 4.71a, normal range of motion of the shoulder encompasses forward elevation (flexion) and abduction to 180 degrees. The Board finds the competent evidence of record does not support a rating in excess of 20 percent after December 8, 2015. Here, the Veteran was afforded a VA examination in February 2016. The Veteran reported his flare ups can be described as be unable to sleep on his right side. It was noted that 4 years ago the Veteran tore 2 ligaments in his shoulder by throwing a volleyball. It was also noted that the Veteran is limited in lifting and has no over shoulder use or sleeping on right side. Based on initial range of motion (ROM) testing, the Veteran’s right shoulder forward flexion was to 90 degrees, his abduction was to 90 degrees, his external rotation was to 60 degrees, and his internal rotation was to 60 degrees. According to the examiner, the range of motion contributed to a functional loss, specifically, it would mildly increase the time required to complete certain occupational tasks such as lifting and carrying secondary to pain. Pain was noted on flexion, abduction, external rotation and internal rotation testing, which was noted to cause functional loss. There was evidence of diffuse tenderness to mild palpation of the entire joint, non-anatomic in nature. There was no evidence of pain with weight bearing, and no evidence of crepitus. Following three repetitions, the examiner noted there was no additional loss of function or ROM. According to the examiner, there was additional functional loss after three repetitions, specifically, pain only. The Veteran was not examined immediately after repetitive use over time, or during a flare-up, however, the examiner indicated that pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time due to pain. Additionally, the examiner noted he was unable to provide degree of additional ROM loss as the Veteran did not indicate that flare ups are always of the same intensity. The examiner noted this would suggest flare ups range from a mild to severe magnitude with a corresponding difference in additional loss of ROM. Theoretically, the examiner noted, a very mild flare up may not reduce range of motion at all while an extremely severe flare up may prevent any movement whatsoever. The Veteran also did not indicate that repetitive use is always of the same duration. Theoretically, the examiner noted, repetitive use over a few minutes may result in a smaller loss of range of motion however repetitive use over a half hour or hour would result in a greater loss of range of motion. Furthermore, the examiner noted, the Veteran did not indicate a specific numerical loss of range of motion either during flare ups or repetitive use. The examiner performed muscle strength testing, which showed normal right shoulder strength of 5/5 on both forward flexion and abduction testing. The Veteran had no muscle atrophy. There was no ankylosis. A right shoulder rotator cuff condition was suspected based on positive Hawkins’ impingement, and empty can test. External rotation/infraspinatus strength and lift-off/subscapularis tests were negative. There was suspicion of right shoulder instability, dislocation, labral pathology, however, there was no history of mechanical symptoms such as clicking or catching. There was a history of recurrent dislocation of the glenohumeral joint that was described as infrequent episodes. The crank apprehension and relocation test was negative. There was no clavicle, scapula, AC joint, or sternoclavicular joint conditions. The Veteran did not have loss of head (flail shoulder), nonunion (false flail shoulder), or fibrous union of the humerus, nor did he have malunion of the humerus with moderate or marked deformity. Diagnostic testing revealed there was no degenerative or traumatic arthritis. As to the functional impact of the Veteran’s right shoulder disability, the examiner noted the Veteran would need increased time to complete certain occupational tasks such as right sided lifting and carrying secondary to pain however it is not a contraindication for him not to perform these tasks in most occupations. Upon careful review of the evidence, the Board finds that the preponderance of the evidence is against assigning a rating in excess of 20 percent at any time during the course of the appeal. Specifically, the evidence of record does not indicate that the Veteran’s disability has been manifested by, or has more nearly approximated, limitation of motion of the right, dominant arm to midway between the Veteran’s side and shoulder level. See 38 C.F.R. § 4.71a, Diagnostic Code 5201. The Board has also considered whether the Veteran might be entitled to a higher rating under a different diagnostic code. As the evidence of record contains no findings of right shoulder ankylosis, or impairment of the humerus, such as fibrous union, non-union/false flail joint, or loss of head (flail shoulder), a rating in excess of 20 percent would not be warranted under Diagnostic Codes 5200 or 5202, which apply to musculoskeletal disabilities of the shoulder and arm. See 38 C.F.R. § 4.71a, Diagnostic Codes 5200 (ankylosis of the scapulohumeral articulation), 5202 (other impairment of the humerus). The Board acknowledges the Veteran’s representations regarding pain and difficulty performing certain activities, particularly those involving prolonged, overhead arm use and sleeping on his right side. The Veteran is certainly competent to describe his observable symptoms, and the Board finds no reason to doubt the Veteran’s reports. See, e.g., Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (noting that personal knowledge is “that which comes to the witness through the use of his senses-that which is heard, felt, seen, smelled, or tasted”). However, the competent and objective medical findings by skilled professionals provide the most persuasive evidence regarding the limitations posed by the Veteran’s right shoulder disability. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). As indicated above, the objective medical evidence of record does not establish that the Veteran’s right shoulder disability has manifested in, or has more nearly approximated, limitation of motion of the right, dominant arm from midway between the Veteran’s side and shoulder level so as to warrant a rating higher than 20 percent. Accordingly, the preponderance of the evidence is against assigning a rating in excess of 20 percent for the Veteran’s right shoulder disability at any time during the course of the appeal. REASONS FOR REMAND Entitlement to an increased rating in excess of 10 percent for COPD with asthmatic bronchitis is remanded. Here, the Veteran was afforded a VA examination in February 2016. The examiner noted the Veteran had a current diagnosis of asthma and indicated the Veteran suffered from asthma attacks with episodes of respiratory failure 4 or more times per week in the past 12 months. However, after review of medical treatment records from 2015 and 2016, they indicate the Veteran had intermittent asthma and rarely uses his albuterol inhaler. The Board finds remand necessary to determine the current severity of the Veteran’s claim. The matter is REMANDED for the following action: 1. Obtain any outstanding VA or private medical treatment records. All records/responses received must be associated with the electronic claims file. 2. Schedule the Veteran for appropriate VA examinations to ascertain the current severity of his service-connected COPD with asthmatic bronchitis. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted, and the results included in the examination report. The electronic claims file, including a copy of this remand should be reviewed in conjunction with this examination. (Continued on the next page)   3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If any benefit sought remains denied a supplemental statement of the case (SSOC) must be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, then return the appeal to the Board for appellate review, if otherwise in order. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. McDuffie, Associate Counsel