Citation Nr: 21012031 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 18-52 383 DATE: March 3, 2021 ORDER Entitlement to an effective date earlier than April 26, 2016 for the grant of service connection for right shoulder scars associated with right shoulder surgery is denied. Entitlement to an effective date earlier than June 23, 2016 for the award of a temporary total rating for surgical convalescence for left shoulder surgery is denied. REMANDED Entitlement to service connection for depression, secondary to service-connected disabilities, is remanded. Entitlement to a rating in excess of 10 percent disabling for low back disability is remanded. Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy involving the sciatic nerve is remanded. Entitlement to an initial disability rating in excess of 10 percent for right lower extremity radiculopathy involving the sciatic nerve is remanded. Entitlement to a rating in excess of 20 percent for left shoulder impingement syndrome, postoperative is remanded. Entitlement to a rating in excess of 20 percent for right shoulder separation, postoperative is remanded. Entitlement to a compensable rating for right shoulder scars is remanded. Entitlement to a compensable rating for right deviated septum is remanded. Entitlement to a compensable rating for left testicle varicocele is remanded. Entitlement to a compensable rating for laceration of scalp is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. There are no filings that can be construed as a formal or informal claim for right shoulder scars prior to April 21, 2016. 2. The Veteran underwent surgery on his left shoulder on June 23, 2016. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than April 21, 2016, for the grant of service connection for right shoulder scars are not met. 38 U.S.C. § 1155; 5107, 5110; 38C.F.R. §3.400. 2. The criteria for an effective date earlier than June 23, 2016, for the award of a temporary total rating for left shoulder impingement syndrome surgery and convalescence are not met. 38 U.S.C. § 1155, 5107; 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from December 1994 to October 1999. This appeal was last before the Board in August 2019, wherein the service connection claim for depression secondary to back pain, and the increased disability rating issues, as well as the earlier effective date issues, were denied, and TDIU was remanded. Subsequently, the Veteran, through Counsel, appealed to the Court of Appeals for Veterans Claims (Court). In June 2020, the Court issued a Joint Motion for Partial Remand (JMR) vacating the Board’s decision and remanding for the Board to comply with an outstanding records request and to “reexamine the evidence of record, seek any other evidence the Board feels is necessary, and issue a timely, well-supported decision.” The Board observes that the record request has been satisfied, and the Board appeal is ready for review. Effective Date 1. Entitlement to an effective date earlier than April 26, 2016 for the grant of service connection for right shoulder scars associated with right shoulder surgery By way of background, the Board observes that the Veteran has not submitted a claim for service-connection for his right shoulder scar. However, in September 2017, the Veteran submitted a claim for TDIU, which the Agency of Original Jurisdiction (AOJ) accepted as a claim for increased ratings for each of his service-connected shoulder disabilities. In a February 2018 rating decision, the AOJ granted service connection and a separate noncompensable rating for right shoulder scars effective September 5, 2017, the date of the claim for TDIU. The Veteran filed a Notice of Disagreement (NOD) with the effective date assigned, and in an April 2019 rating decision, the AOJ granted an earlier effective date of April 21, 2016, based on the date of a VA Shoulder examination which initially described the right shoulder scar. That examination report reflects that the Veteran underwent an arthroscopic surgery of his right shoulder in 2002. Generally, and except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity 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 later. 38U.S.C. §5110(a); 38C.F.R. §3.400. Based on the foregoing, the Board finds that an effective date for service connection earlier than April 21, 2016 is not warranted. In this case, the date of the claim for a TDIU, accepted as a claim for service connection for the right shoulder scar, was September 5, 2017. However, the AOJ then determined that the first evidence of the Veteran’s right shoulder scar was in the April 2016 VA Shoulder examination, and granted service connection back to that date. As noted above, the effective date of a claim will be the date of receipt of the claim, or the date entitlement arose, whichever is later. Here, the earliest evidence of the Veteran’s scar, and for which entitlement for compensation could arise, is the April 21, 2016 VA examination. As stated above, the Board notes that no other claim, informal or formal, for service connection was submitted by the Veteran regarding his right shoulder scar. Accordingly, the Board finds that the earliest available effective date for service connection for the Veteran’s right shoulder scar is April 21, 2016. 2. Entitlement to an effective date earlier than June 23, 2016 for the award of a temporary total rating for surgical convalescence for left shoulder surgery The Veteran asserts that his temporary total rating for his post-surgery left shoulder convalescence should begin prior to June 23, 2016. The Board finds that by operation of law, it cannot. Total disability rating will be assigned effective from the date of a hospital admission or outpatient treatment and continuing for a period of one, two, or three months from the first day of the month following such hospital discharge or outpatient release, if the hospital treatment of a service-connected disability resulted in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe post-operative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. See38C.F.R. §4.30(a). “Convalescence” is defined as the stage of recovery following an attack of disease, a surgical operation, or an injury. Felden v. West, 11 Vet. App. 427, 430 (1998). “Recovery” is defined as the act of regaining or returning toward a normal or healthy state. The purpose of a temporary total convalescence evaluation is to aid a claimant during the immediate post-surgical period when he or she may have incompletely healed wounds or may be wheelchair-bound, or when there may be similar circumstances indicative of transient incapacitation associated with recuperation from the immediate effects of an operation. Notations in the medical record as to the claimant’s inability to work after surgery must be taken into account in the evaluation. 38C.F.R. §4.30; see Seals v. Brown, 8 Vet. App. 291, 296-97 (1995); Felden, 11Vet. App.at 430 (1998). Medical treatment records reflect that the Veteran underwent a left shoulder surgery on June 23, 2016. The Board notes that the provisions of 38C.F.R. §4.30 make clear that the temporary total rating cannot begin prior to the date of hospital admission. Here, the Veteran’s surgery took place on June 23, 2016, and that is the current effective date of his temporary total rating. Thus, there is no legal basis for the grant of an effective date earlier than June 23, 2016, under the provisions of 38C.F.R. §4.30. Accordingly, the Veteran’s claim must be denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS FOR REMAND 1. Entitlement to service connection for depression, secondary to service-connected disabilities, is remanded. The Veteran filed his claim for service connection for depression, secondary to his service-connected back disability, due to the pain he experienced. In the February 2016 VA Mental Disorders examination, the examiner reported that the Veteran experienced pain and has complained of depression related to that pain on two occasions. The examiner then provided a negative nexus opinion wherein she noted the Veteran’s other painful service-connected disabilities, particularly his shoulders, but opined only on depression as it related to his back. The examiner provided no opinion as to aggravation. The Board notes that for an opinion to be adequate, it must include consideration of the Veteran’s statements, be based on accurate factual premises, and contain a rationale sufficient to support its conclusions. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise); see also Nieves-Rodriguez, 22 Vet. App. at 301 (explaining that a medical report without “a reasoned medical explanation” lacks probative value). Here, the opinion’s rationale is insufficient to support its conclusions, and is therefore, not probative for adjudication. In addition, the Board notes that under Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009), a claim should not be limited to the disorder as characterized by the Veteran, but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim. As such, the Board has broadened the Veteran’s claim to include depression due to his painful service-connected disabilities, to best reflect the Veteran’s intent. Thus, the Board determines that a new VA examination is necessary to address the Veteran’s assertion that the pain from his service-connected disabilities caused his diagnosed depression. 2. Entitlement to a rating in excess of 10 percent disabling for low back disability is remanded. 3. Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy involving the sciatic nerve is remanded. 4. Entitlement to an initial disability rating in excess of 10 percent for right lower extremity radiculopathy involving the sciatic nerve is remanded. 5. Entitlement to a rating in excess of 20 percent for left shoulder impingement syndrome, postoperative is remanded. 6. Entitlement to a rating in excess of 20 percent for right shoulder separation, postoperative is remanded. 7. Entitlement to a compensable rating for right shoulder scars is remanded. 8. Entitlement to a compensable rating for right deviated septum is remanded. 9. Entitlement to a compensable rating for left testicle varicocele is remanded. 10. Entitlement to a compensable rating for laceration of scalp is remanded. In each of the service-connected disabilities for which the Veteran seeks a higher disability rating, the last VA examination afforded the Veteran was nearly four to five years ago, and the Veteran asserts that the ratings do not reflect the severity of his current disabilities. The Board notes that the current level of disability is most important in claims for an increased rating. Where the evidence of record does not reflect the current state of the Veteran’s disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). Although age of an examination is not, in itself, an automatic reason for remand, the Board finds that a current examination is necessary to determine the overall disability picture in this case. As such, the claim must be remanded. 11. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The Board finds that the TDIU issue is inextricably intertwined with the increased disability rating issues on appeal. Thus, a remand of the TDIU claim is required. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his depression. The examiner must review the claims file and opine on the following: Is the Veteran’s depression at least as likely as not proximately due to the pain caused by his service-connected disabilities? Is the Veteran’s depression at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his service-connected disabilities? Provide a rational for opinions. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected: a. Low back disability; b. Left and right lower extremity radiculopathy involving the sciatic nerve; c. Left and right shoulder disability, to include scars; d. Deviated right septum; e. Left testicle varicocele; f. Scalp laceration. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. With regard to each musculoskeletal disability, the examiner must test and report the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Additionally, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training) Provide a rationale to support the opinions. (Continued on the next page)   3. After the above development and any other development deemed necessary is completed, readjudicate the Veteran’s claims, including his TDIU claim. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Nelson 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.