Citation Nr: 18157889 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 16-55 346 DATE: December 13, 2018 ORDER As new and material evidence has not been received, the request to reopen the claim of entitlement to service connection for a left shoulder disability, to include as secondary to a service-connected lumbar spine disability, is denied. As new and material evidence has not been received, the request to reopen the claim of entitlement to service connection for a right shoulder disability, to include as secondary to a service-connected lumbar spine disability, is denied. A rating in excess of 40 percent for a lumbar spine disability is denied. An effective date earlier than September 12, 2012 for the award of a 40 percent rating for a lumbar spine disability is denied. FINDINGS OF FACT 1. The September 2009 rating decision that denied entitlement to service connection for left and right shoulder disabilities, to include as secondary to a service-connected lumbar spine disability, was not timely appealed and became final. 2. New and material evidence has not been submitted to reopen the claims for service connection for left and right shoulder disabilities, to include as secondary to a service-connected lumbar spine disability. 3. Throughout the period on appeal, the Veteran’s lumbar spine disability has not resulted in unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes having a total duration of at least six weeks during the past 12 months. 4. The Veteran’s claim for an increased rating for his lumbar spine disability was received on September 12, 2012; there were no other pending, unadjudicated formal or informal claims for an increased rating prior to this date and it is not factually ascertainable that the Veteran met the criteria for a higher rating within one year prior to September 12, 2012. CONCLUSIONS OF LAW 1. Evidence received since the final September 2009 rating decision is not new and material and the claim for entitlement to service connection for a left shoulder disability, to include as secondary to a service-connected lumbar spine disability, is not reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 2. Evidence received since the final September 2009 rating decision is not new and material and the claim for entitlement to service connection for a right shoulder disability, to include as secondary to a service-connected lumbar spine disability, is not reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for a rating in excess of 40 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5237, 5243 (2017). 4. The criteria for an effective date earlier than September 12, 2012 for the award of a 40 percent rating for a lumbar spine disability have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.105, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from June 1986 to April 1987. These matters are on appeal from an August 2013 rating decision. During the pendency of the appeal, the Regional Office (RO) issued an August 2016 rating decision granting the Veteran a 40 percent rating for his lumbar spine disability effective September 12, 2012. The Veteran continues to appeal for a higher rating for his lumbar spine disability. AB v. Brown, 6 Vet. App. 35 (1993) (holding that a claimant is presumed to be seeking the maximum rating allowed by law). Duties to Notify and Assist With respect to the Veteran’s claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. As neither the Veteran nor his representative have advanced any procedural arguments in relation to VA’s duty to notify and assist, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). New and Material Evidence Whether new and material evidence has been received to reopen the claims of entitlement to service connection for left and right shoulder disabilities, to include as secondary to a service-connected lumbar spine disability Rating actions are final and binding based on the evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b), (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, 20.302(a). VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); see also Manio v. Derwinksi, 1 Vet. App. 140, 145 (1991). New evidence is evidence not previously submitted to agency decisionmakers. Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is a low one. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened. See id. at 117-18. The Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). For purposes of determining whether new evidence is material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade, 24 Vet. App. at 120. The last prior final denial for the claims for service connection for left and right shoulder disabilities was a September 2009 rating decision. It is final because the Veteran did not file a notice of disagreement within one year of the rating decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. Therefore, the Board looks to the evidence submitted since September 2009 for new and material evidence. When determining whether the evidence is new and material, the specified basis for the last final disallowance must be considered. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). In the September 2009 rating decision, the RO denied the Veteran’s claims for service connection after determining that the Veteran’s left and right shoulder disabilities were not caused by or a result of his service-connected lumbar spine disability, or otherwise related to military service. The evidence received since the September 2009 rating decision consists of VA medical records showing the Veteran has continued to receive treatment for his shoulder disabilities. These medical records are new because they were not of record at the time of the September 2009 denial. However, the records are negative for any evidence to suggest that the Veteran’s left and right shoulder disabilities were incurred in or caused by any in-service event, to include as secondary to his lumbar spine disability. Therefore, these new medical records are not material because they do not relate to an unestablished fact necessary to substantiate the Veteran’s claims. Accordingly, the Board finds that new and material evidence has not been submitted and the claims for service connection for left and right shoulder disabilities, to include as secondary to a service-connected lumbar spine disability, are not reopened. See Annoni v. Brown, 5 Vet. App. 463 (1993). Increased Rating Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; see generally 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when making disability determinations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the current level of disability that is of primary concern, and VA must only address the evidence concerning the state of the disability from the time period one year before the claim for an increase was filed until VA makes a final decision on the claim. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, in such cases, when the factual findings show distinct time periods during which the veteran exhibited symptoms of disability and such symptoms warrant different disability ratings, staged ratings may also be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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, 204-07 (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, deformity, or atrophy of disuse. The diagnostic codes pertaining to range of motion do not subsume sections 4.40 and 4.45, and the rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. See DeLuca, 8 Vet. App. at 206; see also Johnson v. Brown, 9 Vet. App. 7 (1996). In determining if a higher rating is warranted on this basis, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. Id. at 41. However, pain may result in functional loss if it limits some aspect of the normal working movements of the body, such as excursion, strength, speed, coordination, and endurance. Id. at 38. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. See 38 C.F.R. §§ 4.40, 4.45; Mitchell, 25 Vet. App. at 37. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to a rating in excess of 40 percent for a lumbar spine disability The Veteran has claimed entitlement to a rating in excess of 40 percent for his service-connected lumbar spine disability. The Veteran contends that he is entitled to a higher rating because his lumbar spine disability is worse than currently contemplated by his assigned rating. The Veteran filed his claim for an increased rating for his lumbar spine disability on September 12, 2012. The Veteran is in receipt of a 40 percent rating for his lumbar spine disability under Diagnostic Code 5237 for lumbosacral strain. See 38 C.F.R. § 4.71a. Diagnostic Code 5237 is evaluated under the General Rating Formula for Diseases and Injuries of the Spine, which stipulates (in part), with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, that the following ratings will apply: A 40 percent rating is assigned for forward flexion of the thoracolumbar spine of 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Note 1. Because the medical evidence of record shows that the Veteran has a diagnosis of intervertebral disc syndrome (IVDS), the Veteran could alternatively be rated under the Formula for Rating IVDS Based on Incapacitating Episodes. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Formula for Rating IVDS Based on Incapacitating Episodes provides that: The maximum 60 percent rating is assigned with incapacitating episodes having a total duration of at least six weeks during the past 12 months. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1. After a thorough review of the medical evidence of record, the Board finds that the preponderance of the evidence is against assigning a disability rating in excess of 40 percent at any time during the period on appeal for the Veteran’s lumbar spine disability. As noted above, to qualify for the next higher rating of 50 percent, the Veteran must demonstrate unfavorable ankylosis of the entire thoracolumbar spine. The Veteran underwent VA examinations of his lumbar spine in July 2013 and August 2016. However, the Veteran was not found to have ankylosis of the spine at either examination. Moreover, the Veteran’s VA medical records do not document ankylosis of the spine at any time during the relevant period. Therefore, the medical evidence of record does not support a finding that the Veteran is eligible for a rating in excess of 40 percent. With respect to the possibility of assigning a higher rating under 38 C.F.R. § 4.40 and § 4.45, the Board notes that the criteria for a 50 percent rating under Diagnostic Code 5237 is not predicated on limitation of range of motion. Therefore, §§ 4.40 and 4.45, with respect to pain, are not for consideration here. Johnson v. Brown, 9 Vet. App. 7, 11 (1996). The Board has also considered whether the Veteran is eligible for a separate disability rating for any associated objective neurologic abnormalities. The Veteran’s VA medical records document that the Veteran has sought treatment for radicular pain to the bilateral lower extremities. At the July 2013 VA examination, the VA examiner noted subjective complaints of mild radicular pain and numbness of the right lower extremity and moderate radicular pain and mild numbness of the left lower extremity. However, the examiner opined that the Veteran’s subjective radicular symptoms are unlikely to be related to his service-connected lumbar spine disability as “mild central annular tears without evidence of significant protrusion and only mild abutment of the bilateral transversing S1 nerve roots without posterior displacement noted on [August 2012] MRI… are consistent with normal aging.” VA obtained a medical opinion in August 2016 regarding whether the Veteran’s reported radiculopathy is related to his lumbar spine disability. In the opinion, the VA examiner noted that the Veteran underwent electromyography (EMG) and nerve conduction study (NCS) in October 2014, which did not reveal evidence of lumbar spine motor radiculopathy in the lower extremities. Therefore, the examiner concluded that it is less likely than not that the Veteran’s reported radicular symptoms are secondary to his lumbar spine disability as radiculopathy is not evidenced in the objective medical evidence. Because the objective medical evidence of record does not show that the Veteran has radiculopathy associated with his lumbar spine disability, the Board does not find that separate disability ratings are warranted for any associated neurological abnormalities. The Board has also considered whether the Veteran is eligible for a higher rating under any other diagnostic codes. Noting that the July 2013 VA examiner diagnosed the Veteran with IVDS, the Board has also considered whether the Veteran is eligible for a higher rating under Diagnostic Code 5243 for IVDS. However, as incapacitating episodes requiring physician-prescribed bedrest having a total duration of at least six weeks during the past 12 months has not been shown, a 60 percent rating under Diagnostic Code 5243 is not warranted. The Board acknowledges that the Veteran sincerely believes that his disability is more severe than the assigned rating reflects. The Board notes that the Veteran is competent to testify to the presence of observable symptoms, such as pain. See Layno v. Brown, 6 Vet. App. 465 (1994). However, he is not competent to report that his lumbar spine disability is of sufficient severity to warrant a higher rating under the rating schedule, as such an opinion requires specialized medical expertise which falls outside the realm of the common knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board must rely on the medical evidence of record to assign the appropriate disability rating, and therefore, accords the objective medical findings greater weight than subjective complaints of increased symptomatology. Accordingly, the Board finds that a rating in excess of 40 percent for service-connected lumbar spine disability is not warranted at any time during the period on appeal, and the claim must be denied. As the evidence of record preponderates against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Earlier Effective Date Entitlement to an effective date earlier than September 12, 2012 for the award of a 40 percent rating for a lumbar spine disability The Veteran seeks an effective date earlier than September 12, 2012 for the award of a 40 percent rating for his lumbar spine disability. Generally, the effective date of an award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase shall be fixed in accordance with the facts found, but shall be no earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110(a). The statutory provision is implemented by regulation which provides that the effective date for an evaluation and award of 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 the later. 38 C.F.R. § 3.400. The reference above to “the date entitlement arose” is not defined in the current statute or regulation. The Court has interpreted it as the date when the claimant met the requirements for the benefit sought; this is determined on a “facts found” basis. See 38 U.S.C. § 5110(a); McGrath v. Gober, 14 Vet. App. 28, 35 (2000). An exception to the above rule applies in certain circumstances for increased compensation claims. The effective date of an award for an increased rating is the earliest date when it is factually ascertainable that an increase in disability occurred, if the application for an increase is received within one year from the date of increase. Otherwise, the effective date is the date of receipt of the claim. See 38 U.S.C. § 5110(b)(2); 38 C.F.R. §3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997). The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). Prior to March 24, 2015, a claim is defined as 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). Any communication or action that (1) indicates an intent to apply for one or more VA benefits and (2) identifies the benefit sought may be considered an informal claim. 38 C.F.R. § 3.155(a). When determining the effective date of an award of compensation benefits, VA must review all the communications in the file that could be interpreted to be a formal or informal claim for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. The amendments also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155. The amended regulations apply only to claims filed on or after March 24, 2015. Because the claim on appeal was initiated prior to this date, the prior regulations apply. Upon review of the record, the Board finds that an effective date earlier than September 12, 2012 for the award of a 40 percent rating for a lumbar spine disability is not warranted. In this regard, the Board finds that the preponderance of the evidence weighs against the Veteran’s claim as the Veteran is already in receipt of the earliest possible effective date for his award of an increased rating, and there is no legal basis upon which to award an even earlier effective date. A careful review of the record does not show that there were any pending, unadjudicated formal or informal claims for an increased rating for the Veteran’s lumbar spine disability prior to September 12, 2012. Thus, the Board has determined that September 12, 2012 is the date of receipt of the claim. On the question of when entitlement arose, the Veteran underwent a VA examination on August 16, 2016 that showed an increase in severity. This examination provided the earliest ascertainable evidence of record that the Veteran was eligible for an increased 40 percent rating for his lumbar spine disability. Earlier VA examinations failed to support a 40 percent rating. Therefore, the date entitlement arose is August 16, 2016. As noted above, VA regulations provide that the effective date of an award of increased compensation will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). In this case, the date of receipt of the claim is September 12, 2012, and the date entitlement arose is August 16, 2016. Although the later of the two dates is August 16, 2016, the Board accepts that the RO assigned the Veteran an earlier effective date of September 12, 2012 based on the date of receipt of his claim. In fairness to the Veteran, the Board will not disturb the assigned effective date of September 12, 2012. Generally, the effective date can be no earlier than the date of receipt of the claim for increase. The Board has considered the exception to the general rule, in which the effective date of an award for an increased disability rating is the earliest date when it is factually ascertainable that an increase in disability occurred, if the application for an increase is received within one year from the date of increase. See 38 C.F.R. § 3.400(o)(2). However, after a review of the pertinent medical evidence, the Board finds that there is no indication that the Veteran’s lumbar spine disability was of sufficient severity to warrant a 40 percent rating under Diagnostic Code 5237 within one year prior to September 12, 2012. Accordingly, the exception does not apply as it is not factually ascertainable that an increase in the Veteran’s lumbar spine disability occurred within the year prior to the September 12, 2012 claim for an increased rating. The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by that authority. The Board finds that the preponderance of the evidence is against the assignment of an effective date earlier than September 12, 2012 for the award of a 40 percent rating for the Veteran’s lumbar spine disability. Accordingly, the benefit-of-the-doubt rule is not for application and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Melissa Barbee, Associate Counsel