Citation Nr: 21022215 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 14-04 806 DATE: April 15, 2021 ORDER The claim of entitlement to an effective date prior to July 11, 2003, for the award of a 30 percent rating for degenerative joint disease of the right shoulder, status post injury of the right arm with ruptured right biceps muscle, post-operative, (right shoulder disability) is dismissed. REMANDED Entitlement to a rating in excess of 30 percent, exclusive of the time period where a total rating has been assigned, for right shoulder disability is remanded. FINDINGS OF FACT 1. A final rating decision issued in August 2004 awarded a 30 percent rating for right shoulder disability, effective July 11, 2003. 2. In July 2011, the Veteran filed a freestanding claim for an effective date prior to July 11, 3003, for the award of a 30 percent rating for right shoulder disability. CONCLUSIONS OF LAW 1. The August 2004 rating decision that granted a 30 percent rating for right shoulder disability, effective July 11, 2003, is final. 38 U.S.C. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2004). 2. The Board of Veterans’ Appeals (Board) has no authority to adjudicate a freestanding claim for an effective date prior to July 11, 2003, for the award of a 30 percent rating for right shoulder disability. 38 U.S.C. § 7105; Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1962 to February 1966. This matter comes to the Board on appeal from a rating decision issued in November 2011 by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Veteran and several family members testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In December 2019, the Board remanded the case for additional development. While on remand, rating decisions issued in June 2020 and September 2020 awarded an increased rating of 30 percent effective January 6, 2020, and restored the 30 percent rating effective January 10, 2014, for the Veteran’s right shoulder disability, respectively. Thus, such issue has been characterized as shown on the title page of this decision. Entitlement to an effective date prior to July 11, 2003, for the award of a 30 percent rating for right shoulder disability. The Veteran contends an effective prior to July 11, 2003, for the award of a 30 percent rating for his right shoulder disability is warranted. In general, 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 the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. In Rudd v. Nicholson, the United States Court of Appeals for Veterans Claims (Court) held that VA claimants may not properly file, and VA has no authority to adjudicate, a freestanding claim for an earlier effective date in an attempt to overcome the finality of an unappealed RO decision. See Rudd, 20 Vet. App. at 299-300. The Court reasoned that allowing such claims would vitiate the rule of finality. Id. at 300; see also DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006) (“Except as provided by law, when a case or issue has been decided and an appeal has not been taken within the time prescribed by law, the case is closed, the matter is ended, and no further review is afforded.”); Sutton v. Nicholson, 20 Vet. App. 419, 424-25 (2006) (holding that, where the appellant receives notice of a decision and a fair opportunity to appeal it, there is no basis to abate the finality of the decision). By way of background, a rating decision issued in August 2004 awarded a 30 percent rating for the Veteran’s right shoulder disability, effective July 11, 2003, the date of receipt of his claim for an increased rating. At such time, the Veteran was advised of the decision and his appellate rights. However, he did not enter a notice of disagreement as to the propriety of the assigned effective date for his increased rating. Moreover, no new and material evidence was received within one year of the issuance of such rating decision, and no relevant service department records have since been received. Therefore, the August 2004 rating decision is final with respect to the assignment of July 11, 2003, as the effective date of the award of a 30 percent rating for right shoulder disability. 38 U.S.C. § 7105(c) (West 2002) [(2012)]; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2004) [(2020)]. In July 2011, the Veteran filed a claim for an effective date prior to July 11, 3003, for the award of a 30 percent rating for right shoulder disability. However, given the foregoing, the Board finds that such claim is a freestanding earlier effective date claim. Specifically, the Veteran did not express disagreement with the effective date assigned for the 30 percent rating for his right shoulder disability in the August 2004 rating decision until July 2011. Further, while he raised a motion for revision or reversal of a July 1968 rating decision that assigned an initial noncompensable rating for his right shoulder disability and the August 2004 rating decision that assigned an effective date of July 11, 2003, for the award of a 30 percent rating for such disability based on clear and unmistakable error (CUE) at the July 2019 Board hearing, the undersigned advised him of the need to submit argument as to the nature of such allegation, which was reiterated in an August 2020 letter sent by the Agency of Original Jurisdiction (AOJ). However, he did not offer any additional argument in regard to such allegations. See e.g. Andre v. West, 14 Vet. App. 7, 10 (2000), aff’d sub nom, Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002) (any claim of CUE must be pled with specificity); Fugo v. Brown, 6 Vet. App. 40, 44 (1993) (“to raise CUE there must be some degree of specificity as to what the alleged error is and... persuasive reasons must be given as to why the result would have been manifestly different”). Thus, in a September 2020 rating decision, the AOJ found that a valid CUE claim had not been raised and the evidence did not otherwise show CUE in the July 1968 or August 2004 rating decision. Thus, the July 2011 claim for an earlier effective date for the award of a 30 percent rating for right shoulder disability represents an impermissible freestanding claim. As such, there is no basis upon which an earlier effective date can be awarded, and the appeal must be dismissed. 38 U.S.C. § 7105; Rudd, 20 Vet. App. at 299-300. REASONS FOR REMAND 2. Entitlement to a rating in excess of 30 percent, exclusive of the time period where a total rating has been assigned, for right shoulder disability. In the December 2019 Remand, the Board directed that the Veteran be afforded a VA examination so as to assess the nature and severity of his service-connected right shoulder disability, to include providing retrospective opinions addressing the range of motion findings recorded on VA examination in October 2011, August 2012, and January 2014. While the Veteran underwent such examination in June 2020, the VA examiner did not record the range of motion findings for pain on passive motion or in nonweight-bearing or explain why such could not be provided. In addition, although the VA examiner reported the range of motion findings from the previous VA examinations, the examiner did not provide the requested retrospective opinions as to the range of motion findings for pain on passive motion, weight-bearing, and nonweight-bearing. Thus, the Board finds a remand is necessary in order to ensure compliance with the prior remand orders by obtaining an addendum opinion addressing such matters. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matter is REMANDED for the following action: Return the record, to include a copy of this Remand, to the VA clinician who conducted the June 2020 examination of the Veteran’s right shoulder disability, or an appropriate substitute if unavailable, for addendum opinions. Following a review of the record, the clinician should address the following inquiries: (A) Please provide an opinion as to the range of motion findings, expressed in terms of degrees (if possible), for pain on passive motion, weight-bearing, and nonweight-bearing for the Veteran’s right shoulder at the time of the June 2020 VA examination. (B) Review the VA examinations containing range of motion findings pertinent to the Veteran’s right shoulder disability conducted in October 2011, August 2012, and January 2014 and offer an opinion as to the range of motion findings, expressed in terms of degrees (if possible), for pain on passive motion, weight-bearing, and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint at such time. A rationale for any opinion offered should be provided. If the clinician is unable to provide such opinions, s/he must make clear that s/he has considered all procurable data, but any member of the medical community at large could not provide such an opinion without resorting to speculation. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. M. Celli, 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.