Citation Nr: 21004288 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 19-32 555A DATE: January 26, 2021 ORDER An effective date earlier than March 23, 2018 for the assignment of a temporary total rating for degenerative arthritis, right shoulder is denied. REMANDED The claim of entitlement to a disability rating greater than 20 percent for degenerative arthritis, right shoulder, is remanded. The claim of entitlement to an initial compensable disability rating for degenerative disc disease (DDD) with moderate foraminal narrowing of cervical spine is remanded. The claim of entitlement to a compensable disability rating for left upper extremity radiculopathy is remanded. The claim of entitlement to an effective date earlier than March 23, 2018 for the award of additional compensation based on dependency is remanded. The claim of entitlement to an effective date earlier than May 11, 2012 for the grant of service connection for DDD with moderate foraminal narrowing of cervical spine is remanded. The claim of entitlement to an effective date earlier than May 11, 2012 for the grant of service connection for left upper extremity radiculopathy is remanded. FINDING OF FACT There was not a qualifying source of hospitalization or other relevant treatment regarding the right shoulder before March 23, 2018 to warrant the start of a temporary total rating. CONCLUSION OF LAW The criteria for an effective date earlier than March 23, 2018 for the assignment of a temporary total rating based on a period of convalescence regarding the right shoulder are not met. 38 U.S.C. § 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.29. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1972 to May 1977; from July 1984 to January 1993; from July 2003 to November 2003; from July 2005 to December 2005; from September 2006 to April 2007; from August 2009 to April 2010; and again from December 2011 to May 2012. This case comes before the Board of Veterans’ Appeals (Board) on appeal of September 2018 and October 2018 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Specifically, the September 2018 rating decision assigned a temporary total rating for the Veteran’s right shoulder disability from March 23, 2018 to July 30, 2018 and continued a 20 percent disability rating effective August 1, 2018. At the time of the September 2018 rating decision, the RO also granted additional dependency benefits for the Veteran’s spouse effective March 23, 2018. The October 2018 rating decision effectuated a September 2018 Board decision in granting service connection for DDD with moderate foraminal narrowing at cervical spine and left upper extremity radiculopathy, assigning noncompensable disability ratings for each disability effective May 11, 2012. The Board notes that the Veteran has also perfected an appeal with regard to a January 2020 rating decision concerning the issue of entitlement to additional retroactive CRDP (concurrent retirement and disability pay). Notably, on August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55, 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. The AMA became effective on February 19, 2019 and the modernized review system applies to all claims for which VA issues a notice of an initial decision on or after the February 19, 2019 effective date of the modernized review system. The AMA may also apply to claims where the claimant has elected review of a legacy claim under the modernized review system. 38 C.F.R. §§ 3.2400, 19.2. A legacy claim is a claim for which VA provided notice of an initial decision prior to the February 19, 2019 effective date of the AMA modernized review system. 38 C.F.R. §§ 3.2400, 19.2. As the appeal regarding additional retroactive CRDP is under the AMA system (as opposed to the currently docketed appeal in the legacy system), it will be addressed in a separate Board decision at a later date. 1. An effective date earlier than March 23, 2018 for the assignment of a temporary total rating for degenerative arthritis, right shoulder is denied. Under substantive VA law, the effective date of an award of compensation is the date the claim was received or entitlement arose, whichever is later. See 38 U.S.C. § 5110 (b); 38 C.F.R. § 3.400. Increased disability compensation is awarded effective the date the claim was received, or when entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (o)(1). Compensation can be awarded earlier than the date of claim, up to one-year beforehand, if evidence requires. 38 C.F.R. § 3.400 (o)(2). Under applicable law, the provisions of 38 C.F.R. § 4.30 pertaining to convalescent ratings indicate that a total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge or outpatient release that entitlement is warranted, effective from the date of hospital admission or outpatient treatment and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge or outpatient release. To warrant a temporary total disability rating, the evidence must establish that the veteran’s service-connected disability resulted in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches; or (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30 (a). The Veteran is currently in receipt of a temporary total rating for his service-connected right shoulder disability, from March 23, 2018 to July 30, 2018. As to potential availability of an earlier effective date, it is clear that the Veteran underwent right shoulder arthroscopic surgery on March 23, 2018 at a private medical facility. Prior to this procedure, the Veteran obtained regular outpatient treatment. There is no indication of any other evidence indicating to the contrary. There is not a basis for finding any earlier effective date for a temporary total disability rating based on need for medical convalescence. Accordingly, the claim for earlier effective date for temporary total rating is denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law). REASONS FOR REMAND 2. The claim of entitlement to a disability rating greater than 20 percent for degenerative arthritis, right shoulder, is remanded. The Veteran was last afforded a VA shoulder examination in April 2017. A review of the record shows that the Veteran’s right shoulder disorder has potentially increased in severity since the April 2017 VA examination. Significantly, the Veteran underwent right shoulder arthroscopy in March 2018 due to a right shoulder rotator cuff tear. On remand, the Veteran should be afforded a new VA examination to determine the current level of severity of his right shoulder disorder following his March 2018 right shoulder surgery. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). 3. The claims of entitlement to an initial compensable disability rating for DDD with moderate foraminal narrowing of cervical spine and entitlement to a compensable disability rating for left upper extremity radiculopathy are remanded. The Veteran was last afforded a VA peripheral nerves examination in December 2012 and was last afforded VA cervical spine examination in November 2019. A review of the record shows that the Veteran’s cervical spine and associated left upper extremity disabilities have potentially increased in severity since the December 2012/November 2019 VA examinations. Significantly, in December 2020 correspondence from the Veteran’s representative as well as an accompanying affidavit, it was noted that the Veteran’s range of motion of the cervical spine had decreased since his last VA examination in November 2019. Specifically, in an affidavit dated in July 2020 but received by VA in December 2020, the Veteran wrote: My service-connected DDD and radiculopathy have continued to worsen both in frequency of symptoms and severity. I have pain around the base of my neck with chronic aching that is at least a 5 on a 10-point scale in severity. Daily, I experience more achiness and stiffness than sharp like pain. After my last VA Compensation and Pension examination in November 2019, the stiffness and discomfort in my neck is more pronounced. During the exam, the examiner instructed me to perform repetitious range of motion testing. After doing so, it is more difficult to rotate my neck. On remand, the Veteran should be afforded new VA cervical spine and peripheral nerve examinations to determine the current level of severity of these disabilities. Snuffer, 10 Vet. App. at 400; Caffrey, 6 Vet. App. at 377. While on remand, the RO should address the arguments made by the Veteran’s representative concerning the disability ratings assigned for the Veteran’s cervical spine and left upper extremity radiculopathy disabilities. By way of history, the Veteran has had several periods of active service beginning in December 1972. His second to last period of active service ended in April 2010. Prior to his last period of service, a VA radiology report dated December 9, 2011 shows that the Veteran complained of left upper extremity numbness. Magnetic resonance imaging (MRI) of the cervical spine revealed multilevel degenerative disc disease. An additional study conducted three-days later revealed degenerative changes of the cervical spine most prominent at C5-C6 and C6-C7 with up to severe neural foraminal narrowing. The report noted complaints of radicular pain with numbness in the left index finger; however, electromyography (EMG) was within normal limits. A few weeks later, on December 30, 2011, the Veteran entered his last period of active duty. A statement of medical examination and duty status dated in April 2012 noted that the Veteran had cervical spine degeneration “now with left hand C8 sensory changes.” The report further noted that the Veteran self-treated his condition in the previous few months, which improved his symptoms, but at the time of the report noted intermittent numbness and tingling. Lastly, it was noted that the injury was considered to have been incurred in the line of duty. The Veteran submitted an initial claim for service connection for a cervical spine disorder, to include cervical radiculopathy, in April 2012. While service connection for these disabilities was originally denied in an April 2013 rating decision based on a finding that the Veteran’s cervical spine and left upper radiculopathy disabilities pre-existed his last period of military service and were not aggravated during this service, the Veteran perfected an appeal of this decision and, in September 2018, the Board granted service connection for these disabilities on a direct basis, finding that the disabilities likely had their onset during one of the Veteran’s previous periods of service. By rating decision dated in October 2018, the RO effectuated the Board decision by granting service connection for DDD with moderate foraminal narrowing at cervical spine and left upper extremity radiculopathy, assigning noncompensable disability ratings for each disability effective May 11, 2012, the day after the Veteran’s discharge from his last period of active service. Notably, the RO found that while the Veteran’s cervical spine disability actually met the criteria for a 10 percent rating, because this disability was 10 percent disabling at the onset of his last period of active service, when subtracting the pre-existing percentage from the current percentage the disability rating assigned is noncompensable. Similarly, the RO found that while the Veteran’s left upper extremity radiculopathy actually met the criteria for a 20 percent rating, because this disability was 20 percent disabling at the onset of his last period of active service, when subtracting the pre-existing percentage from the current percentage the disability rating assigned is noncompensable. The Veteran disagreed with this decision and perfected this appeal. In rating the disabilities, note that the September 2018 Board decision that granted service connection for these disabilities was based on direct service connection and not aggravation of pre-existing disabilities. (CONTINUED ON NEXT PAGE) 4. The claims of entitlement to an effective date earlier than March 23, 2018 for the award of additional compensation based on dependency, entitlement to an effective date earlier than May 11, 2012 for the grant of service connection for DDD with moderate foraminal narrowing of cervical spine, and entitlement to an effective date earlier than May 11, 2012 for grant of service connection for left upper extremity radiculopathy are remanded. By way of history, the Veteran submitted an initial claim for service connection for a cervical spine disorder, to include cervical radiculopathy, during his last period of service, in April 2012. He is currently in receipt of a combined disability rating of 40 percent beginning March 16, 2017, 100 percent beginning March 23, 2018, and 40 percent beginning August 1, 2018. As above, the September 2018 rating decision assigned a temporary total rating for the Veteran’s right shoulder disability from March 23, 2018 to July 30, 2018 and continued a 20 percent disability rating effective August 1, 2018. At the time of the September 2018 rating decision, the RO also granted additional dependency benefits for the Veteran’s spouse effective March 23, 2018 based on the fact that the Veteran had a combined disability rating of at least 30 percent effective March 23, 2018. The October 2018 rating decision effectuated a September 2018 Board decision in granting service connection for DDD with moderate foraminal narrowing at cervical spine and left upper extremity radiculopathy, assigning noncompensable disability ratings for each disability effective May 11, 2012. In January and August 2019, the Veteran entered a notices of disagreement (NODs) with the agency of original jurisdiction (AOJ) with regard to several aspects of the September and October 2018 rating decisions, to include the effective dates assigned for the awards regarding dependency, cervical spine disability, and left upper extremity radiculopathy. When there has been an initial AOJ adjudication of a claim and a notice of disagreement as to its denial, the claimant is entitled to a statement of the case (SOC). See 38 C.F.R. § 19.26. While the Veteran was issued an SOC regarding the appeal for certain aspects of his disagreement with the September/October 2018 rating decisions, he was never issued an SOC with regard to his request for an earlier effective date for award of additional compensation based on dependency, the grant of service connection for DDD with moderate foraminal narrowing of cervical spine, and the grant of service connection for left upper extremity radiculopathy. Thus, remand for issuance of an SOC on these issues is necessary. Manlincon v. West, 12 Vet. App. 238 (1999). However, these issues will be returned to the Board only if the Veteran perfects an appeal after receiving the SOC. Finally, with regard to all of the remanded issues, the Board notes that there are likely outstanding VA treatment records as the most recent VA medical records in the claims file are dated in October 2019. Therefore, all outstanding VA treatment records should be obtained on remand. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records dated since October 2019. 2. Schedule the Veteran for VA examinations for evaluation of his right shoulder, cervical spine, and left upper extremity disabilities to establish the appropriate ratings. 3. In rating the cervical spine and associated radiculopathy, note that the October 2018 rating decision incorrectly interpreted the Board’s September 2018 decision, which granted service connection. Specifically, it granted service connection for these disabilities on the basis of direct service connection, rather than aggravation of pre-existing disabilities. 4. Issue an SOC regarding the effective dates assigned for the award of additional compensation based on dependency, the grant of service connection for DDD with moderate foraminal narrowing of cervical spine, and the grant of service connection for left upper extremity radiculopathy. He should be advised of the time period in which to perfect his appeal. Only if the Veteran’s appeal as to these issues are perfected within the applicable time period, then such should return to the Board for appellate review. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board April Maddox, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.