Citation Nr: 21023295 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 15-33 241 DATE: April 20, 2021 ORDER An effective date of December 1, 2013, but not before, for the assignment of a 40 percent disability rating for degenerative disc disease (DDD) and degenerative joint disease (DJD) of the lumbar spine, is granted. An effective date of December 1, 2013, but not before, for the assignment of a 20 percent disability rating for DDD and DJD of the cervical spine, is granted. An effective date of December 1, 2013, but not before, for a 20 percent disability rating for DJD of the left shoulder, is granted. An effective date of December 1, 2013, but not before, for a 30 percent disability rating for tension headaches, is granted. FINDINGS OF FACT 1. In a May 2014 rating decision, the Veteran was awarded service connection for his lumbar spine, cervical spine, left shoulder, and tension headache disabilities, effective December 1, 2013, one day after the date of discharge. 2. On June 13, 2014, the Veteran filed a claim for increased disability ratings for his lumbar spine, cervical spine, left shoulder, and tension headache disabilities. 3. An August 2014 rating decision granted increased ratings for the lumbar spine, cervical spine, left shoulder, and tension headache disabilities, effective July 31, 2014, the date that the Veteran was afforded VA examinations for the disabilities. 4. The evidence demonstrates that symptoms of the lumbar spine, cervical spine, left shoulder, and tension headache disabilities were consistent from December 1, 2013, one day after the date of discharge, to July 31, 2014, the date of the VA examinations. CONCLUSIONS OF LAW 1. The criteria for an effective date of December 1, 2013, but not before, for the original assignment of a 40 percent disability rating for DDD and DJD of the lumbar spine, have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 2. The criteria for an effective date of December 1, 2013, but not before, for the original assignment of a 20 percent disability rating for DDD and DJD of the cervical spine, have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 3. The criteria for an effective date of December 1, 2013, but not before, for the assignment of a 20 percent disability rating for DJD of the left shoulder, have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 4. The criteria for an effective date of December 1, 2013, but not before, for the assignment of a 30 percent disability rating for tension headaches, have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1993 to November 2013. 1. Entitlement to an effective date of December 1, 2013, but not before, for the original assignment of a 40 percent disability rating for DDD and DJD of the lumbar spine, is granted. 2. Entitlement to an effective date of December 1, 2013, but not before, for the original assignment of a 20 percent disability rating for DDD and DJD of the cervical spine, is granted. 3. Entitlement to an effective date of December 1, 2013, but not before, for a 20 percent disability rating for DJD of the left shoulder, is granted. 4. Entitlement to an effective date of December 1, 2013, but not before, for a 30 percent disability rating for tension headaches, is granted. The Veteran contends that the effective date of the original assignment of a 40 percent disability rating for DDD and DJD of the lumbar spine and 20 percent disability rating for DDD and DJD of the cervical spine, a 20 percent disability rating for DJD of the left shoulder, and a 30 percent disability rating for tension headaches should be December 1, 2013, one day following his date of discharge. The Board will in part grant the claim. An effective date of December 1, 2013, for the original assignment of a 40 percent disability rating for DDD and DJD of the lumbar spine and 20 percent disability rating for DDD and DJD of the cervical spine, a 20 percent disability rating for DJD of the left shoulder, and a 30 percent disability rating for tension headaches, is warranted. The Veteran filed a pre-discharge compensation claim for benefits in August 2013, which included service connection claims for lumbar spine, cervical spine, left shoulder, and tension headache conditions. Effective December 1, 2013, one day following his date of discharge, a May 2014 rating decision granted service connection for a lumbar spine disability, rated as 10 percent disabling; a cervical spine disability, rated as 10 percent disabling; a left shoulder disability, rated as 10 percent disabling, and tension headaches, rated as noncompensable. The Veteran filed a claim for increased disability ratings for his lumbar spine, cervical spine, left shoulder, and tension headaches on June 13, 2014. The Veteran was afforded VA examinations for his lumbar spine, cervical spine, left shoulder, and tension headache disabilities on July 31, 2014. Effective July 31, 2014, an August 2014 rating decision granted increased ratings for the lumbar spine disability, rated as 40 percent disabling; cervical spine disability, rated as 20 percent disabling; left shoulder disability, rated as 20 percent disabling, and tension headaches, rated as 30 percent disabling. In an October 2014 notice of disagreement, the Veteran disagreed with the effective date of the assignment of the increased ratings. He stated that symptoms of his disabilities were consistent from December 1, 2013, one day following the date of his discharge, to July 31, 2014, the date of his VA examinations. Consequently, he stated that the effective date of the assignment of the disability ratings assigned in the August 2014 rating decision should have been December 1, 2013. Throughout the period on appeal, the Veteran has maintained that symptoms of his lumbar spine, cervical spine, left shoulder, and tension headache disabilities were consistent from December 1, 2013 to July 31, 2014. Due to the Veteran's continuous prosecution of the claims, the May 2014 rating decision remains on appeal and a decision on the proper effective date for the original award of the 40 percent disability rating for the lumbar spine disability and 20 percent disability rating for the cervical spine disability, 20 percent disability rating for the left shoulder disability, and the 30 percent rating for tension headaches, will be rendered accordingly. Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant's application. 38 U.S.C. § 5110(a). An exception to the general rule applies where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of the claim for increased compensation. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Under these circumstances, the effective date of the award is the earliest date at which it was ascertainable that an increase occurred. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125, 126 (1997). The question of when an increase in disability is factually ascertainable is based on the evidence in the veteran's claims folder. Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992). If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. U.S.C. §5110(b)(2); Harper, 10 Vet. App. at 125; 38 C.F.R. § 3.400(o); VAOPGCPREC 12-98 (1998). Disability evaluations are determined by the application of the facts presented in VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14. However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for the evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. As noted above, the Veteran filed his claim for increased ratings, on June 13, 2014, and he was assigned increased ratings, effective July 31, 2014, the date of the VA examinations. Although the regulations provide that the proper effective date for an increased rating claim is the date of receipt of the claim or the date that entitlement arose, whichever is later, an exception applies in this instance, which permits an effective date prior to July 31, 2014, based upon evidence showing a factually ascertainable increase in the disabilities. A review of the file demonstrates that the evidence is at least in equipoise that symptoms of the Veteran's lumbar spine, cervical spine, left shoulder, and tension headache disabilities were consistent from December 1, 2013 to July 31, 2014. Pursuant to the "benefit-of-the-doubt" rule, where there is "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. 38 U.S.C. § 5107(b). With the benefit of the doubt resolved in the Veteran's favor, a grant of an effective date of December 1, 2013, for the original assignment of a 40 percent disability rating for DDD and DJD of the lumbar spine and 20 percent disability rating for DDD and DJD of the cervical spine, a 20 percent disability rating for DJD of the left shoulder, and a 30 percent disability rating for tension headaches, is warranted. See Gilbert, 1 Vet. App. at 55. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Timothy T. Emmart 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.