Citation Nr: 18148132 Decision Date: 11/08/18 Archive Date: 11/06/18 DOCKET NO. 16-46 687 DATE: November 8, 2018 ORDER Entitlement to an earlier effective date for an initial service connection for rotator cuff tear, right is denied. REMANDED Entitlement to an evaluation in excess of 10 percent for status post hip arthroplasty with degenerative joint disease (DJD), left hip, is remanded. Entitlement to a rating in excess of 10 percent for rotator cuff tear, right is remanded. FINDING OF FACT The Veteran was discharged from active duty on February 26, 2012, and service connection for the residuals of the right rotator cuff tear was granted effective February 27, 2012, the day after the Veteran was discharged from service. CONCLUSION OF LAW The criteria for an earlier effective date prior to February 27, 2012, for the grant of service connection for residuals of a rotator cuff tear, right, have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.157, 3.159, 3.340, 3.341, 3.400 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army Reserves from August 1978 to July 1989, and July 2007 to February 2012. This case comes before the Board of Veterans’ Appeals (Board) on appeal from October 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran’s rating for lung cancer, chronic obstructive pulmonary disease (COPD), and pulmonary hypertension was increased to a 100 percent rating in a September 2016 rating decision. As this is the highest schedular rating permitted, this action represents a full grant of the benefits sought, and this issue is no longer on appeal. 1. Entitlement to an earlier effective date for an initial service connection for rotator cuff tear, right is denied. The Veteran contends that he is entitled to an earlier effective date for the grant of service connection for his right rotator cuff tear. However, after a review of the evidence, the Board finds that he is not entitled to an earlier award for this disability. The provisions for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110. The effective date for a grant of service connection is the day after separation from service or day entitlement arose, if a claim is received within one year of separation from service; otherwise it is the date of receipt of claim, or the day entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(1); 38 C.F.R.§ 3.400(b)(2)(i). A veteran is not entitled to a grant of service connection before discharge from service. The Veteran contends that he is entitled to an earlier effective date because his military records show that his rotator cuff had limited range of motion in 2010. The Veteran filed his claim for service connection within one year of separation from the Army Reserves. He separated from active duty on February 26, 2012, and his claim was received by the RO on March 8, 2012. While the Veteran’s entitlement may have arisen while he was still in service, as stated above, a Veteran is not entitled to a grant of service connection before discharge. Since his claim was filed within a year of separation, his effective date is the day after he separated from the Army Reserves, February 27, 2012. In making its determination the Board has considered the Veteran’s contention and whether an earlier effective date is warranted due to the fact that there is medical evidence that predates his current effective date. However, as stated above, the Veteran filed for this claim on March 8, 2012. The Court has explained that, in an original claim for service connection, the date entitlement arose is governed by the date the claim is received, not the date of the medical evidence submitted to support a particular claim. See McGrath v. Gober, 14 Vet. App. 28 (2000). This conclusion affirms the decision of Lalonde v. West, 12 Vet. App. 377 (1999), where the Court stressed that the effective date for an award of service connection is not based on the earliest medical evidence demonstrating a causal connection, but on the date of the claim for service connection. When the Veteran filed his claim for right rotator cuff tear in March 2012, the VA was required to identify and act on informal claims for benefits. 38 U.S.C. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a). See also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). Upon receipt of an informal claim, if a formal claim had not been filed, an application form would be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it would be considered filed as of the date of receipt of the informal claim. In this regard, an informal claim might be raised in any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must have identified the benefit sought. 38 C.F.R. § 3.155. However, while VA must interpret a claimant’s submissions broadly, VA is not required to conjure up issues not raised by claimant. That is to say, VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). Thus, while making its determination the Board has interpreted the Veteran’s claim broadly, but it is not required to interpret the medical evidence of a right rotator cuff tear from 2010 as a claim for service connection prior to his March 2012 filing. Moreover, medical evidence of the injury alone, was not sufficient to warrant a filing. Therefore, while there is evidence in the claims record that the Veteran’s right rotator cuff predated his date of separation, his effective date is limited by the date he filed his claim in March 2012. Accordingly, the Veteran is receipt in the earliest possible date for service connection for the residuals of the right rotator cuff tear, and an earlier effective date is not warranted. REASONS FOR REMAND 2. Entitlement to an evaluation in excess of 10 percent for DJD, left hip, and entitlement to a rating in excess of 10 percent for residuals of a right rotator cuff tear are remanded. With respect to the Veteran’s claims for increased rating for his left hip DJD and right rotator cuff tear, the Board notes that in Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016) the United States Court of Appeals for Veterans Claims (Court) held that adequate examination reports must include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. The Board finds that the examinations on record from May 2016 are inadequate because they do not include complete findings as to the Veteran’s functional impairment due to pain on active and passive motion, and during both weight-bearing and nonweight-bearing. Accordingly, a remand is needed for adequate examinations. Additionally, the most recent VA medical record in the claims file is from August 2013, not including the Veteran’s later VA examinations. As such, on remand the RO should ensure the claims record contains updated medical records, including VA and private. The matters are REMANDED for the following action: 1. All updated treatment records should be obtained and associated with the claims file to the extent possible. 2. The Veteran should be scheduled for a VA examination to ascertain the severity of his service-connected DJD left hip condition using the most recent Disability Benefits Questionnaire form. The claims file, including a copy of this remand, must be reviewed and the review noted in the report. All symptoms should be identified along with their frequency, duration, and severity. Joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint should be conducted. All clinical findings should be reported in detail to include the functional impact. (Continued on the next page)   3. The Veteran should be scheduled for a VA examination to ascertain the severity of his service-connected right rotator cuff condition using the most recent Disability Benefits Questionnaire form. The claims file, including a copy of this remand, must be reviewed and the review noted in the report. All symptoms should be identified along with their frequency, duration, and severity. Joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint should be conducted. All clinical findings should be reported in detail to include the functional impact. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs