Citation Nr: 22010656 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 18-35 344 DATE: February 24, 2022 ORDER Entitlement to an earlier effective date of February 5, 2016, for the grant of an increased disability rating of 20 percent for a right shoulder disability, is denied. Entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as secondary to the right shoulder disability, is denied. FINDINGS OF FACT 1. The record reflects that it is factually ascertainable that the Veteran's right shoulder warrants an evaluation of 20 percent within the one-year period prior to December 7, 2016 receipt of the present claim; however, that date is the already-assigned effective date of February 5, 2016. 2. The Veteran's peripheral neuropathy of the right upper extremity is not etiologically related to his active duty service and has not been caused or made worse by his service-connected right shoulder disability. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to February 5, 2016 for the grant of an increased disability rating of 20 percent for a right shoulder disability have not been met. 38 U.S.C. § 7104; 38 C.F.R. §§ 3.400. 2. The criteria for service connection for peripheral neuropathy of the right upper extremity, to include as secondary to service-connected right shoulder disability, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2007 to January 2011. This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 2017 rating decision of the Department of Veterans Affairs (VA). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in October 2021. In a June 2018 Substantive Appeal, the Veteran asserted that his wife is a physician's assistant and that she said that she would have ordered an MRI instead of an x-ray in this case. The Board finds that this presents no basis for a remand for an MRI. The effective date claim concerns the evidence of record as the year prior to the December 7, 2016 claim, rather than current findings, and the Board has not questioned the existence of a current diagnosis with regard to the right upper extremity disorder but instead has questioned the etiology of such disorder. Current findings from an MRI would not be relevant to the resolution of either question, and a remand for such would result in no more than further delay. Earlier effective date The Veteran has asserted that he is entitled to an effective date earlier than February 5, 2016, for his service-connected right shoulder disability. In his Notice of Disagreement, received in July 2017, he noted that the effective date should be December 1, 2008. This date is when he was involved in a tank accident. He notes that he had experienced numbness, tingling and weakness since that time. Effective dates for claims seeking an increased rating for an already service-connected disability that are based on an original claim, or a claim for increase will be the day of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. However, unlike claims for service connection, the effective date may also be the earliest date as of which it is "factually ascertainable" that an increase in disability had occurred if the claim is received within one year from the date of the increase, based on a review of the evidence of record. 38 C.F.R. § 3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997). An effective date may be assigned up to one year preceding the date of claim where the contemporaneous evidence shows that the increase in disability occurred during that time period. If the increase in disability is shown to have occurred prior to that one-year period, an earlier effective date is not assignable one year prior to the date of claim. See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is the latter. 38 C.F.R. § 3.400. In this case, the Veteran filed his original claim for service connection for a right shoulder disability in November 2010. In an April 2013 rating decision, the Regional Office assigned a 10 percent disability rating, effective January 2, 2011. The Veteran did not appeal that decision or submit any further relevant information or evidence within one year of that decision. Hence, the rating decision became final, and the effect of this finality is to preclude an award of an earlier effective date for an increased rating based on that decision. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104(d), 3.156(b), 3.160(d). The next filing from the Veteran for his right shoulder disability was received on December 7, 2016. In connection with that claim, VA treatment records were associated with the Veteran's claims file which showed that the Veteran sought treatment for persistent right shoulder pain on February 5, 2016. The Veteran reported experiencing pain and crepitus in the right shoulder since his injury in service. In addition, the Veteran submitted a private shoulder examination report, received in December 2017, and attended a VA examination in March 2018. The Veteran reported that his shoulder condition had worsened with more frequent flare-ups of pain and numbness. The evaluation of the Veteran's right shoulder disability was increased to 20 percent in a March 2017 rating decision by VA, and an effective date of February 5, 2016 was assigned. At the Veteran's October 2021 Board hearing, the Veteran stated that his condition was due to a couple of accidents he was in while in service, to include a motorcycle accident and a tank accident. He indicated that had he undergone an MRI prior to February 5, 2016, instead of an x-ray, that the results would have shown that a higher rating was necessary up to the point. Generally, an effective date for an increased rating should not be assigned mechanically based on the date of an examination. Rather, all of the facts should be examined to determine the date that the disability first manifested. Accordingly, the effective date for an increased rating as well as for an initial rating or for staged ratings is predicated on when the increase in the level of disability can be ascertained. Swain v. McDonald, 27 Vet. App. 219, 224 (2015). The Board notes that the Veteran's service-connected right shoulder disability is rated under Diagnostic Code 5201. Under this code, a 20 percent rating (major (dominant hand) and minor) is warranted for limitation of motion to shoulder level, 30 percent (20 minor) for midway between side and shoulder level, and 40 percent (30 minor) for motion to 25 degrees from side. The Board notes the Veteran's contention that he should be entitled to an effective date earlier than February 5, 2016. However, the April 2013 rating decision granting service connection for the Veteran's right shoulder disability became final as no relevant information or evidence was submitted within one year of that decision. The increased rating claim for the right shoulder disability was received in December 2016. As noted above, an effective date may be assigned up to one year preceding the date of claim where the contemporaneous evidence shows that the increase in disability occurred during that time period. In this case, it is found that the exact onset of the limitation of motion to warrant a 20 percent disability for the Veteran's right shoulder arouse on February 5, 2016. The VA treatment records reflect that the Veteran noted that he experienced pain and crepitus in the right shoulder. Later examination reports reflect that the Veteran's condition had worsened with more frequent flare-ups of pain and numbness. There is no evidence during the intervening time of when the April 2013 rating decision became final and within a year prior to the filing of the claim for an increased rating in December 2016, other than the notation in the VA treatment records, that reflects a factually ascertainable date to establish an increased rating of 20 percent under Diagnostic Code 5201. Therefore, the Board can find no legal basis to assign an earlier effective date. Accordingly, an effective date prior to February 5, 2016 for a 20 percent disability rating for the service-connected right shoulder disability is not warranted. Service connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. "To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Additionally, service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.31(a). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was proximately caused or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Veteran seeks service connection for peripheral neuropathy of the right upper extremity, to include as secondary to service-connected right shoulder disability. At his October 2021 Board hearing, the Veteran reported that he experienced numbness in his arm beginning in 2008, a day after an accident, when he hurt his shoulder. He noted that his shoulder would hang low, affecting the circulation in his arm and hand. The Veteran noted that he experienced numbness when playing drums. Service treatment records dated in April 2008 show that the Veteran was involved in a motorcycle accident. A September 2010 Report of Medical History shows that the Veteran indicated experiencing a painful shoulder, elbow, or wrist. Numbness and tingling were also reported. However, the Veteran noted that the sensations occurred down his leg. A VA General Medical examination dated in February 2011 shows that for his right shoulder condition, the Veteran reported experiencing numbness and tingling down into his arm. He noted that it usually occurred during the night and when he was playing the drums. A November 2016 VA treatment record shows that he complained of right arm numbness. An assessment noted that a review of normal x-ray and shoulder and cervical spine results showed that the pain seemed to be more consistent with irritation of the peripheral nerves, which was analogous to carpal tunnel syndrome. A March 2017 VA treatment record shows that the Veteran complained of right shoulder pain and right hand paresthesias. It was noted that the Veteran experienced pain, burning, and numbness predominantly in the shoulder on the lateral aspect, which radiated down his arm into his hand and all fingers except for the index finger. An EMG and cervical MRI showed demyelinating and sensorimotor polyneuropathy with unknown significance. The Veteran underwent surgery for a superior labral tear from anterior to posterior (SLAP) tear in the right shoulder in November 2017. The Veteran was afforded a VA peripheral nerves condition examination in April 2018. A diagnosis of polyneuropathy unspecified was provided. The VA examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The VA examiner also stated that the claimed condition was less likely than not proximately due to or the result of the Veteran's service-connected condition. No baseline of severity was provided. It was noted that there was medical evidence that the Veteran had reported numbness and tingling in the right hand in 2010, approximately 2 years after the tank accident. There was no medical evidence that the Veteran was diagnosed or treated for this numbness and tingling. The VA examiner stated that since the separation history was negative for numbness in the right hand, there was no medical evidence that the condition was chronic. Since separation, there was medical evidence the Veteran complained of right hand numbness during a VA examination for the right shoulder and again prior to his shoulder surgery in 2016. There was additional medical evidence that the Veteran was diagnosed by EMG with a polyneuropathy involving 3 limbs in 2016, however, a subsequent neurologic examination felt the findings did not correlate with the Veteran's examination, and "the patient d[id] not appear to have a peripheral demyelinating disease." The Veteran was cleared for shoulder surgery and recommended reevaluation by neurology if symptoms persisted after surgery. The VA examiner stated that although the Veteran had a positive EMG, neurology did not feel the Veteran's symptoms (right hand numbness) correlated with the EMG (abnormalities in 3 limbs). Therefore, was no current diagnosis of his right hand numbness at that time for any type of service connection. It was noted that a right shoulder sprain (condition of muscle) or supraspinatus tendinopathy (a tendon condition) did not secondarily cause or aggravate a peripheral nerve condition. The Veteran is certainly competent, as a lay person, to report symptoms of which he has personal knowledge, such as a shoulder condition, and the Board finds his account credible. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, as a lay person, he is not competent to establish a medical diagnosis or show a medical etiology merely by his own assertions, as such matters require medical expertise. See 38 C.F.R. § 3.159(a)(1). The specific issue in this case, the relationship between the Veteran's claimed peripheral neuropathy condition and service or a service-connected disability, is a complex medical issue and thus is outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As a lay person, the Veteran has not shown that he has the education, training, or experience to offer a medical diagnosis or an opinion as to the onset or etiology of this disability. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). Thus, the Veteran's lay opinion as to the diagnosis or etiology of his claimed disability is of less probative weight than the foregoing medical evidence. To the contrary, the April 2018 VA medical opinion regarding direct and secondary service connection weighs against a finding of a relationship between the Veteran's claimed peripheral neuropathy condition, active duty, and his service-connected right shoulder disability. The Veteran has a current diagnosis of polyneuropathy unspecified. However, the opinion provided by the VA examiner is persuasive evidence, opposing rather than supporting the claim, because the opinion accurately reflects the evidence of record and thorough examination and treatment records, and provides a detailed discussion of all relevant facts. The examiner's opinion offered a rationale and plausible explanation for concluding that the Veteran's claimed peripheral neuropathy condition was not the result of his military service and/or his service-connected right shoulder disability. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). Further, the medical records contain no competent positive medical opinions relating the Veteran's peripheral neuropathy of his shoulder and hand to service or his service-connected right shoulder disability. In reviewing the post-remand development, the Board would point out that the VA examination and opinion report of record reflects a well-reasoned and supported conclusion based upon both a claims file review and a physical examination of the Veteran. The Board can identify no deficiencies in this regard that would warrant another remand for corrective action. Accordingly, the Board finds that the evidence is persuasively against service connection for the Veteran's claimed peripheral neuropathy condition on a direct and secondary service connection basis. See 38 C.F.R. § 3.310. As such, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, service connection is not warranted. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Evans, A-L 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.