BVA9507804 DOCKET NO. 93-12 981 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUE Entitlement to an earlier effective date for recurrent dislocation left shoulder with myositis, rated 20 percent disabling from December 31, 1991. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Wayne A. Tonkins, Associate Counsel INTRODUCTION The veteran had active service from September 1980 to August 1982. This matter came before the Board of Veterans' Appeals (hereinafter the Board) on appeal from a rating decision in August 1992 from the San Juan, Puerto Rico, Regional Office (hereinafter the RO) which raised the veteran's left shoulder (minor extremity) disability rating from 10 percent to 20 percent disabling effective from December 1991. A notice of disagreement was received in September 1992 that requested an earlier effective date for the 20 percent disability rating. CONTENTIONS OF APPELLANT ON APPEAL The veteran asserts that an earlier effective date of October 20, 1986, is warranted pursuant to 38 C.F.R. § 3.400 (1994). Specifically, he asserts that his left shoulder was 20 percent disabling before and after the October 20, 1986 recurrent dislocation surgery on his left shoulder. It is further asserted that there are treatment records which have not been associated with the veteran's claims folder and were not considered by the agency of original jurisdiction in adjudicating the veteran's claim. Therefore, the veteran's representative requested the Board to remand the case to the RO to obtain all of the veteran's VA inpatient and outpatient treatment records from October 1986 to the present. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material of record in the veteran's claims file, and for the following reasons and bases it is the decision of the Board that the preponderance of the evidence is against the claim for an earlier effective date for a left shoulder disability. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The date of receipt of the claim for an increased rating was December 31, 1991, and evidence showing an increase post dates this claim. CONCLUSION OF LAW The criteria for an earlier effective date for a left shoulder disability rated 20 percent disabling from December 31, 1991, have not been met. 38 U.S.C.A. §§ 5107, 5110 (1991); 38 C.F.R. § 3.400(o)(2). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107 (West 1991). That is, he has presented a claim that is plausible. All relevant facts have been properly developed and no further development is required to comply with the duty to assist the veteran as mandated by 38 U.S.C.A. § 5107(a) (West 1991). A review of the records pertaining to the veteran's military service showed the veteran suffered from recurrent dislocation of the left shoulder joint. The separation examination conducted in March 1992 indicated he sustained or suffered from bone, joint or other deformity including painful or swollen joints. Following a review of the evidence, which included a VA compensation and pension examination report conducted in March 1983, service connection was established for a left shoulder disability. A 20 percent evaluation was assigned from August 1982. A 10 percent evaluation was assigned from February 1985. A 100 percent evaluation was assigned pursuant to paragraph 30 from October 1986. A 10 percent evaluation was assigned from January 1987. A 20 percent evaluation was assigned from December 1991. The veteran's claim for an increased rating regarding his left shoulder was received on December 31, 1991. A VA orthopedic examination report pertaining to the veteran's left shoulder dated in May 1992 showed a mild moderate atrophy of the left shoulder girdle musculature, healed surgical scar anterior aspect, painful and limited movements. External rotation was 60 degrees, flexion was 140 degrees with crepitus and snapping sounds with movement. Disability evaluations are determined by application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). Separate diagnostic codes identify the various disabilities. Diagnostic Code 5003 provides in pertinent part that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. In the absence of limitation of motion a 10 percent evaluation will be assigned where there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups. A 20 percent evaluation will be assigned when there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. Diagnostic Code 5021 states in pertinent part that the diseases under Diagnostic Codes 5013 through 5024 will be rated on limitation of motion of affected parts, as arthritis, degenerative. Diagnostic Code 5201 provides in pertinent part that a 20 percent evaluation is warranted for limitation of motion of the minor arm when motion is possible to the shoulder level or to midway between the side and shoulder level. A 30 percent evaluation requires that motion be limited to 25 degrees from the side. Diagnostic Code 5202 provides in pertinent part that a 20 percent evaluation is warranted for malunion of the humerus of the minor upper extremity with either moderate or marked deformity. A 20 percent evaluation is warranted for frequent or infrequent episodes of dislocation of the scapulohumeral joint of the minor upper extremity with guarding of movement only at the shoulder level or with guarding of all arm movements. A 40 percent evaluation is warranted for fibrous union of the humerus of the minor upper extremity. A 50 percent evaluation requires nonunion of the humerus (a false, flail joint). A 70 percent evaluation requires loss of the head of the humerus (flail shoulder). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7 (1994). In the present case, the veteran's left shoulder disability showed mild moderate atrophy, external rotation to 60 degrees, and flexion to 140 degrees. The anterior aspect of the left shoulder exhibited painful and limited movements. Crepitus and snapping sounds with movements were noted. This indicates that motion is possible to at least the shoulder level and possibly a little beyond the shoulder level. There was no indication that motion of the left shoulder was limited to midway between the side and shoulder level or that motion was limited to 25 degrees from his side as required for higher disability under Diagnostic Code 5201, nor is there any indication of a fibrous union of the humerus of the minor upper extremity as required for higher disability rating under Diagnostic Code 5202. The evidence of record revealed that the veteran's left shoulder disability consists of infrequent episodes of dislocation and guarding of movement only at shoulder level. It is this Board member's view that the aforementioned evidence of record reflects impairment which correlates with the description of a 20 percent evaluation for the limitation of motion and recurrent dislocation at the scapulohumeral joint of the minor extremity pursuant to Diagnostic Codes 5201 and 5202 respectively. Findings to support a grant of a 30 percent rating under the aforementioned diagnostic codes have clearly not been shown, nor is an evaluation in excess of 20 percent appropriately assignable under any other applicable code or the extraschedular provisions of 38 C.F.R. § 3.321 (1994). As to the veteran's claim for an effective date earlier than the December 31, 1991, date for the 20 percent evaluation for his left shoulder disability, the record shows that the veteran's notice of disagreement dated in December 1992 requested an effective date of October 20, 1986, for the 20 percent evaluation for left shoulder disability. However, the evidence of record does not show that an increase in his left shoulder disability warranting a 20 percent evaluation had occurred in October 1986. A hospital summary dated in October 1986 showed the veteran underwent left shoulder surgical intervention pursuant to his left shoulder disability. He was allowed a convalescent period because of the necessity to immobilize his left shoulder post surgery. He was granted a 100 percent disability rating pursuant to paragraph 30. The progress notes post surgery indicated the veteran was doing well and did not indicate a higher evaluation than the 10 percent disability evaluation assigned after the convalescence period was warranted. The evidence of record does show that his left shoulder exhibited an increase in disability warranting a 20 percent evaluation during the May 1992 VA examination. This was based upon the limitation of motion of the left arm (minor extremity) to at least shoulder level and a little beyond shoulder level, and recurrent dislocation at the scapulohumeral joint with infrequent episodes and guarding of movement only at shoulder level. Diagnostic Codes 5201 and 5202. The veteran requested the VA to reopen his claim in December 1991 and his accredited representative submitted a statement in the veteran's behalf dated in July 1994 requesting an earlier effective date for the 20 percent evaluation for the veteran's left shoulder disability. The evidence of record shows that he was hospitalized for treatment for a service-connected disability, his left shoulder, in October 1986. A convalescence period was required to allow for complete immobilization of the left shoulder for recovery purposes. The 100 percent disability rating pursuant to paragraph 30 was not an indication of the extent of disability of his left shoulder immediately after the period of convalescence. Indeed, the period of convalescence was to allow for a gradual recovery of health and strength after the October 1986 surgery involving his left shoulder. The hospital summary covering a period in October 1986 alone without evidence of symptomatology required under Diagnostic Codes 5201 and 5202 for a 20 percent disability evaluation does not provide a basis warranting a 20 percent rating at the end of the convalescence period. Therefore, pursuant to 38 U.S.C.A. § 5110(b)(2) (West 1991); 38 C.F.R. § 3.400(o)(2) the effective date for the 20 percent evaluation for a left shoulder disability should be December 31, 1991, the date of receipt of the claim. These provisions provide the effective date will be the earliest date which it is ascertainable that an increase occurred, if application is received within one year of such date. Otherwise, the proper date is the date of claim. Here the proper date is the date of claim inasmuch as there is no showing of a 20 percent disability rating until after that date. As to the veteran's representative's request for a remand to obtain all VA treatment records from October 1986 to the present, the evidence of record indicates the VA requested and obtained those records and that the RO considered those records prior to its August 1992 rating decision. ORDER Entitlement an effective date prior to December 31, 1991, for a left shoulder disability rated 20 percent disabling is denied. Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.