Citation Nr: 1806724 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 11-30 188 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a left shoulder disability. 2. Entitlement to service connection for a heart disorder. 3. Entitlement to service connection for the residuals of a head injury other than headaches. 4. Entitlement to service connection for left carpal tunnel syndrome. 5. Entitlement to service connection for right carpal tunnel syndrome. 6. Entitlement to an initial rating in excess of 20 percent for a torn right rotator cuff, status post superior labrum anterior and posterior repair. 7. Entitlement to a rating in excess of 30 percent for bronchial asthma, chronic obstructive pulmonary disease, and obstructive sleep apnea. 8. Entitlement to an effective date prior to June 29, 2016 for service connection for obstructive sleep apnea. 9. Entitlement to a compensable rating for headaches from June 17, 2011 to November 17, 2015. 10. Entitlement to a rating in excess of 30 percent for headaches since November 18, 2015. 11. Entitlement to an initial rating in excess of 10 percent for degenerative disc disease of the lumbar spine since July 1, 2011. 12. Entitlement to an initial rating in excess of 10 percent for degenerative disc disease of the cervical spine since December 15, 2011. 13. Entitlement to an initial rating in excess of 20 percent for right upper extremity radiculopathy from November 4, 2013 to June 3, 2015. 14. Entitlement to a rating in excess of 30 percent for right upper extremity radiculopathy since June 4, 2015. 15. Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy since July 1, 2011. 16. Entitlement to an effective date prior to June 17, 2011, for service connection for headaches. 17. Entitlement to an effective date prior to July 1, 2011 for service connection for lumbar degenerative disc disease. 18. Entitlement to an effective date prior to December 15, 2011 for service connection for cervical degenerative disc disease. 19. Entitlement to an effective date prior November 4, 2013 for service connection for right upper extremity radiculopathy. 20. Entitlement to an effective date prior to July 1, 2011 for service connection for right lower extremity radiculopathy. 21. Entitlement to a temporary total rating, pursuant to 38 C.F.R. § 4.30, for a period of convalescence following a January 2014 right carpal tunnel release. 22. Entitlement to a temporary total rating, pursuant to 38 C.F.R. § 4.30, for a period of convalescence following a March 2014 left carpal tunnel release. REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from June 1976 to January 1979. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. This case was most recently before the Board of Veterans' Appeals (Board) in May 2017. At that time the Board granted entitlement to service connection for obstructive sleep apnea, residuals of a torn right rotator cuff, status post superior labrum anterior and posterior repair; lumbar degenerative disc disease; cervical degenerative disc disease; and for headaches. The Board denied service connection for chest pain, and entitlement to extraschedular ratings for his service-connected right wrist tendinitis and residuals of a right elbow fracture. The Board remanded the issues of entitlement to service connection for a heart disorder, carpal tunnel syndrome of both wrists, a left shoulder disorder, and for residuals of a head injury. The Board also remanded the issues of entitlement to an increased rating for asthma and chronic obstructive pulmonary disease, and entitlement to temporary total ratings due to surgeries for carpal tunnel syndrome. The development ordered in May 2017 has yet to be completed with respect to the issues of entitlement to service connection for a left shoulder disability, a heart disorder, bilateral carpal tunnel syndrome, and residuals of a head injury. Also yet to be completed is the development ordered concerning claims of entitlement to temporary total ratings due to a need for convalescence following surgery for left and right carpal tunnel syndrome. Those issues will be the subject of a separate decision once that development has been completed. In June 2017, the RO implemented the Board's May 2017 decision granting service connection for obstructive sleep apnea and associated it with the service-connected bronchial asthma and chronic obstructive pulmonary disease. Notably, previously ordered development concerning a claim of entitlement to an increased rating for bronchial asthma and chronic obstructive pulmonary disease has not yet been completed. Therefore, it is premature to rate this disorder at this time pending the previously ordered development. As the Veteran has perfected timely appeals to the rating assigned for residuals of a torn right rotator cuff, status post superior labrum anterior and posterior repair, and the effective date for service connection for obstructive sleep apnea those issues will be addressed. The issues of entitlement to an increased rating for bronchial asthma, chronic obstructive pulmonary disease, and obstructive sleep apnea, and claims pertaining to increased ratings and earlier effective dates for service connection for headaches, lumbar and cervical degenerative disc disease, and radiculopathy of the right upper and lower extremities are addressed in the REMAND section at the end of this decision. FINDINGS OF FACT 1. Since June 30, 2010, residuals of a torn right rotator cuff, status post superior labrum anterior and posterior repair, have been manifested primarily by complaints of pain, pain on motion, weakness, crepitus, and right arm flexion and abduction to at least 90 degrees. 2. The Veteran's claim for service connection for obstructive sleep apnea was received on July 1, 2011. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for residuals of a torn right rotator cuff, status post superior labrum anterior and posterior repair have not been met. 38 U.S.C. §§ 1155, 5103, 5103A (2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.10, 4.20, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5201 (2017) 2. The criteria for an effective date of July 1, 2011 for a grant of service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5110(a)-(b)(1) (2012); 38 C.F.R. §§ 3.159, 3.400(b)(2)(1) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify the claimant of the information and evidence necessary to substantiate a claim for VA benefits and to assist claimants in obtaining that evidence. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. After reviewing the record, the Board finds that VA has met that duty. On several occasions, such as in July 2010, VA appropriately notified the Veteran of the information and evidence needed to substantiate and complete his claims. VA then obtained identified and available evidence, conducted examinations, and provided the Veteran a hearing before the Board. There is no evidence of any VA error in notifying or assisting the Veteran in the development of his claims; and therefore, the Board will proceed to the merits of the appeal. Increased Rating for Right Shoulder Disorder The Veteran contends that the rating for residuals of a torn right rotator cuff, status post superior labrum anterior and posterior repair does not adequately reflect the severity of that disorder. Therefore, he maintains that an increased rating is warranted. However, after carefully considering the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against that claim. Disability evaluations are determined by comparing the manifestations of a particular disability with the criteria set forth in the Diagnostic Codes of the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155, 38 C.F.R. Part 4 (2017). The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity (in civilian occupations) resulting from service-connected disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. During the course of an appeal, a veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Similarly, when service connection is granted and an initial rating award is at issue, separate ratings can be assigned for separate periods from the time service connection became effective. Fenderson v. West, 12 Vet. App. 119 (1999). Therefore, the following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. There is no diagnostic code specifically applicable to rating residuals of a torn right rotator cuff, status post superior labrum anterior and posterior repair. Therefore, it is rated by analogy to arthritis. 38 C.F.R. § 4.20, 4.71a, Diagnostic Code 5003. In turn, arthritis is rated on the basis of any limitation of right shoulder motion. The appellant's right arm is his dominant upper extremity. 38 C.F.R. §§ 4.69, 4.71a, Diagnostic Code 5201. A 20 percent rating is warranted when motion of the major arm is limited to shoulder level. A 30 percent rating is warranted when the motion of the major arm is limited to midway between the side and shoulder level. Since service connection became effective June 30, 2010, the Veteran has received treatment from private sources, as well as VA, for complaints pertaining to his right shoulder disability. He has also been examined by VA on four occasions to determine, in part, the severity of his right shoulder disorder, September 2010, February 2013, November 2015, and August 2017. Throughout the period, the Veteran's right shoulder disability has been manifested, primarily by complaints of pain, pain on motion, weakness, crepitus, and limitation of motion. Range of motion testing during his February 2013 VA examination revealed objective evidence of pain on flexion at 65 degrees and pain on abduction at 60 degrees. However, the Veteran was able to flex the arm to 115 degrees and to abduct it to 120 degrees. Indeed, the treatment records and examination reports show that the Veteran has consistently been able raise his right arm to at least shoulder level and that he has not demonstrated any additional limitation of motion on repetitive testing, such as fatigue, weakness, or incoordination. Moreover, there is no evidence of disuse, such as muscle atrophy or the condition of the skin. Indeed, the Veteran has good muscle tone and bulk, and his right shoulder strength is generally full and equal compared to his nonservice-connected left shoulder. There is also no evidence of ankylosis, deformity, heat, or redness of the right shoulder and no history of instability or recurrent dislocation. On balance, such findings do not meet or more nearly approximate the schedular criteria for a rating in excess of 20 percent. Accordingly, the initial 20 percent disability evaluation is confirmed and continued. In arriving at this decision, the Board finds that the symptoms presented by the Veteran's right shoulder disability are fully contemplated by the rating schedule. There is no evidence his disability picture is exceptional when compared to other veterans with the same disorder, and the rating schedule provides for higher ratings for increased symptoms. Thus, the Board finds no evidence warranting a referral of this claim for extraschedular consideration. Thun v. Peake, 22 Vet. App. 111 (2008). Earlier effective date for obstructive sleep apnea Prior to June 2017, service connection had been in effect for the Veteran's bronchial asthma and chronic obstructive pulmonary disease. A single 30 percent disability rating was assigned in accordance with 38 C.F.R. § 4.96(a) (2017). In June 2017, the RO implemented the Board's May 2017 decision granting service connection for obstructive sleep apnea and associated it with the service-connected bronchial asthma and chronic obstructive pulmonary disease. The RO assigned an effective date of June 29, 2016, the date that the Veteran had successfully reopened a claim for service connection for bronchial asthma. The Veteran contends, however, that an earlier effective date for obstructive sleep apnea is warranted. After reviewing the evidence, the Board agrees. Generally, the effective date of an award of service connection shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b) (2). There is an exception in that the effective date of disability compensation will be the day following the Veteran's separation from active service, if the claim is received within one year after the Veteran's separation from service. Otherwise, the effective date will be the date of the receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a)-(b)(1); 38 C.F.R. § 3.400(b)(2)(1). In this case, the RO received the Veteran's claim of entitlement to service connection for sleep problems on July 1, 2011. The RO interpreted that claim as a claim for service connection for obstructive sleep apnea. On March 1, 2012, the RO notified the Veteran that it had denied the claim. The Veteran disagreed with that decision and perfected an appeal to the Board. That claim remained open in various stages of development through May 2017, when the Board granted the appeal. Because the claim was open the entire time, the Board finds that the proper effective date for service connection for obstructive sleep apnea is July 1, 2011. Even if obstructive sleep apnea was present prior to July 1, 2011, the date of the claim controls, as it was the latter of the two dates. ORDER Entitlement to an initial rating in excess of 20 percent for residuals of a torn right rotator cuff, status post superior labrum anterior and posterior repair is denied. Entitlement to an effective date of July 1, 2011 for service connection for obstructive sleep apnea is granted. REMAND In May 2017, the Board granted entitlement to service connection for obstructive sleep apnea, residuals of a torn right rotator cuff, status post superior labrum anterior and posterior repair, lumbar degenerative disc disease, cervical degenerative disc disease; and for headaches. In August 2017, the RO implemented the Board's decision and assigned an initial noncompensable rating for headaches, from June 17, 2011 to November 17, 2015; a 30 percent rating for headaches, effective November 18, 2015; an initial 10 percent rating for lumbar degenerative disc disease, effective July 1, 2011; an initial 10 percent rating for cervical degenerative disc disease, effective December 15, 2011; an initial 20 percent rating for right upper extremity radiculopathy, effective from November 4, 2013 to June 3, 2015; a 30 percent rating for right upper extremity radiculopathy, effective June 4, 2015; and a 10 percent rating for right lower extremity radiculopathy, effective July 1, 2011. In October 2017, the Veteran disagreed with those ratings and effective dates. To date, however, the Veteran has not been issued a Statement of the Case with respect to those claims. As such, further development is required. Manlincon v. West, 12 Vet. App. 238 (1999). In light of the foregoing, the case is REMANDED for the following action: Issue a statement of the case concerning the claims of entitlement to an increased ratings and earlier effective dates for the Veteran's service-connected headaches, lumbar and cervical degenerative disc disease, and radiculopathy of the right upper and lower extremities. If, and only if, the Veteran perfects his appeal by filing a timely substantive appeal on the aforementioned issues should those claims be returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs