ANXIETY DISORDER

Summary

The Veteran, who served from December 2003 to February 2005, appeals the denial of an increased rating for unspecified anxiety disorder and an earlier effective date for his right shoulder impingement syndrome. The Board reviewed the Veteran's claims, considering medical evidence from VA treatment records and mental status examinations, as well as lay affidavits from his wife and co-worker. For the anxiety disorder, the Board found that the Veteran's symptoms, including panic attacks, fragmented sleep, anxiety, and occasional forgetfulness, more closely approximated the criteria for a 50 percent rating, citing occupational and social impairment with reduced reliability and productivity. While acknowledging a statement about suicidal ideation and a co-worker's affidavit noting forgetfulness and dizziness, the Board determined these did not meet the higher criteria for 70 or 100 percent ratings due to the Veteran's ability to maintain employment, good relationships, and manage his symptoms. For the right shoulder impingement syndrome, the Board found that the Veteran's claim for an earlier effective date for a 20 percent rating was warranted. Reviewing a February 2012 VA treatment record noting chronic joint pain and reduced motion, the Board determined that an increase in disability was factually ascertainable in the year prior to his claim, thus granting an earlier effective date of February 21, 2012, resolving all reasonable doubt in the Veteran's favor. Service connection for unspecified anxiety disorder is granted at 50 percent, and an earlier effective date for the 20 percent rating for right shoulder impingement syndrome is granted.

Rationale

Symptoms more nearly approximate 50 percent rating criteria; Includes panic attacks, memory impairment, flattened affect, and motivation disturbances; Does not meet 70 percent criteria due to ability to maintain employment and relationships

Full Decision Text

Citation Nr: 22032793
Decision Date: 06/04/22	Archive Date: 06/04/22

DOCKET NO. 19-21 528
DATE: June 4, 2022

ORDER

Entitlement to an initial rating of 50 percent, but no higher, for unspecified anxiety disorder is granted.

Entitlement to an earlier effective date of February 21, 2012, for the award of a 20 percent rating for right shoulder impingement syndrome is granted.

FINDINGS OF FACT

1. Throughout the appeal period, the Veteran's unspecified anxiety disorder more closely approximated the severity, frequency, and duration of occupational and social impairment with reduced reliability and productivity.

2. An increase in the severity of the Veteran's right shoulder disability was factually ascertainable on February 21, 2012. 

CONCLUSIONS OF LAW

1. The criteria for an initial rating of 50 percent, but no higher, for unspecified anxiety disorder have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.20, 4.126, 4.130, Diagnostic Code (DC) 9413.

2. An earlier effective date of February 21, 2012 is warranted for the grant of a 20 percent rating for right shoulder impingement.  38 U.S.C. §§ 1155, 5110; 38 C.F.R. § 3.400.  

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from December 2003 to February 2005.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office.

In a September 2019 decision, the Board denied an initial rating in excess of 30 percent for unspecified anxiety and also denied an earlier effective date prior to December 10, 2012 for the award of a 20 percent rating for right shoulder impingement syndrome.  

The Veteran appealed the September 2019 decision to the United States Court of Appeals for Veterans Claims.  In December 2020, the Court issued a Memorandum Decision which set aside the September 2019 Board decision and remanded the claims to the Board for readjudication.  

Entitlement to an initial rating higher than 30 percent for unspecified anxiety disorder 

Service connection for an unspecified anxiety disorder was granted in a December 2018 rating decision, at which time a 30 percent rating was assigned, from December 2012.  The Veteran contends that he is entitled to a higher initial rating.    

The Veteran's representative asserts that the Veteran's missed VA treatment appointments reflect reduced reliability and an impairment of the Veteran's long-term memory.  It is also asserted that the Veteran has reported high blood pressure symptoms, which were due to anxiety attacks. It is further contended that the evidence shows panic attacks consistent with a 50 percent rating.  The Veteran's representative additionally contends that lay evidence supports a 70 percent rating.  In support of that contention, the Veteran's representative cites to affidavits from the Veteran's wife and co-worker.  

Anxiety disorder is rated under the General Rating Formula for Mental Disorders.  The rating criteria provide that a 30 percent evaluation is assignable for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).

A 50 percent rating is assigned when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.  Id.

A 70 percent rating is assigned when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence);
 impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.  Id.

A 70 percent rating is assigned when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships.

 A 100 percent rating is assigned when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; memory loss for names of close relatives, own occupation or name.

The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation.  Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). 

However, a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that such symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013).

Under the General Formula, the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22; 38 C.F.R. § 4.130.

After a review of the record, for reasons set forth below, the Board finds that a 50 percent rating is warranted for anxiety throughout the appeal period, as his symptoms more nearly approximate occupational and social impairment with reduced reliability and productivity.  

At a VA initial mental health intake visit in July 2012, the Veteran described palpitations, shortness of breath and reported that he was told his symptoms were related to his hypertension.  He reported that he had fragmented sleep since his return from Kuwait, episodes of nervousness and anxiety, shortness of breath, a sense of choking, and fear of dying.  He denied depressive symptoms or wanting to hurt himself or others.

A September 2012 VA treatment record noted that the Veteran reported anxiety episodes, worries, nervousness, and fragmented sleep.  The Veteran reported that he was able to fulfill his job duties.  He denied suicidal ideation, intention, or plan.  He denied disorganized speech or behavior, hallucinations, and delusions.  He was advised to try Clonazepam and Sertraline.

A November 2012 VA psychiatric note reflects that the Veteran reported that he had been taking Clonazepam as recommended after his last visit.  He reported that Clonazepam was helping him, as anxiety episodes had diminished, and he was sleeping well.  No acute complaints were reported.  He denied any suicidal intentions or plans, disorganized speech and behavior, and active hallucinations or delusions.  

A January 2013 VA psychiatry note reflects that the Veteran reported an improvement in his mood since taking medication.  He reported that he was now able to sleep a few hours and felt rested.  He reported that he had only had three anxiety episodes and was able to manage his emotions.  He denied depressive episodes.  He adamantly denied any suicidal ideas, intentions, or plans.  He denied any homicidal ideation, intention or plan. He denied disorganized speech or behavior and denied hallucinations or delusions.  A mental status examination showed that he was alert and oriented times three, well-dressed and groomed. He answered questions spontaneously and in a normal tone, rate, and volume of speech. His mood was better, and his affect was appropriate. He was coherent, logical, and relevant. He denied suicidal and homicidal ideas or plan. No delusional ideas were elicited. No active perceptual disturbances were observed. His insight and judgment were fair
 anxiety episodes and was able to manage his emotions.  He denied depressive episodes.  He adamantly denied any suicidal ideas, intentions, or plans.  He denied any homicidal ideation, intention or plan. He denied disorganized speech or behavior and denied hallucinations or delusions.  A mental status examination showed that he was alert and oriented times three, well-dressed and groomed. He answered questions spontaneously and in a normal tone, rate, and volume of speech. His mood was better, and his affect was appropriate. He was coherent, logical, and relevant. He denied suicidal and homicidal ideas or plan. No delusional ideas were elicited. No active perceptual disturbances were observed. His insight and judgment were fair.

A January 2013 VA social work note reflects that the Veteran reported feeling calm and sleeping well. He reported adequate interest, energy, focus and concentration. He denied audiovisual hallucinations. He reported that he and his wife got along well.

A July 2013 VA psychiatry note reflects that the Veteran reported that he was in a calmer mood, although he experienced anxiety on and off.  He was able to cope with his symptoms in a better way.  The Veteran reported that he was sleeping with the aid of medication.  No depressive symptoms were reported.  He adamantly denied any suicidal ideas, intention, or plans.  He denied any homicidal ideation, intention, or plan.  He denied disorganized speech or behavior.

The Veteran had a VA examination in March 2015.  The Veteran reported that he was employed as an engineer at a hotel.  He denied job-related difficulties.  He denied legal or behavioral difficulties for any period.  The examiner noted that the Veteran's symptoms included anxiety and chronic sleep impairment.  The examination report did not describe the frequency of his anxiety episodes.

The Veteran reported other symptoms related to PTSD.  He indicated that his neck would get "strangled" and that he had heart palpitations.  The Veteran reported that he could not sleep for three consecutive nights and would get up during the night.  The Veteran was noted to be calm, alert, and cooperative.  The examiner found that the Veteran was capable of managing his financial affairs. 

A VA emergency room treatment record dated in May 2015 reflects that the Veteran reported that he developed head pressure, red ears, and palpitations, which he recognized as high blood pressure symptoms.  He reported that he took a second dose of Lisinopril at that time, and his symptoms resolved.  Around 2 p.m., he developed the same symptoms and again took 10 mg of Lisinopril and was asymptomatic.  His wife stated that he had been under a lot of stress recently but had not been taking his Clonazepam.  He was advised to increase his Lisinopril to 20 mg starting tomorrow and to take Clonazepam at bedtime as needed for anxiety.

A June 2015 VA treatment record noted that the Veteran reported three panic attacks a week.  A treatment provider diagnosed panic attacks.  

A July 2015 mental status examination showed that the Veteran denied self-harm ideation.  A mental status examination noted adequate hygiene.  His behavior and motor activity were normal.  His speech was noted to be readily spontaneous.  He was oriented in all spheres.  The Veteran's mood was worried, and his affect was constricted.  He did not have unusual thought content or abnormality of perception.  His memory was intact, judgment was good, and insight was fair.  The Veteran denied suicidal or homicidal ideation.  

A November 2015 VA treatment record reflects that the Veteran reported experiencing very few brief anxiety episodes, which he was able to manage satisfactorily. He described a work-related situation and elaborated on how he was coping. He received support from fellow co-workers and friends which contributed to positive outcomes. The Veteran denied self-harm ideas.

A May 2016 VA treatment record noted that the Veteran reported that he experienced acute anxiety while having a MRI procedure.  The Veteran reported that he asked to be removed from the MRI machine and later had an open MRI procedure.  He mentioned palpitations, shortness of breath, and agitation.  He reported that he anxiety episodes at work and home that he was able to manage.  The Veteran was provided with information about relaxation and coping with anxiety.  

A mental status examination noted that the veteran was appropriately dressed.  His motor and behavior activity were normal.  His speech was readily spontaneous.  He was alert and oriented in all spheres.  His mood was euthymic.  His thought content was coherent and logical.  There was no unusual thought content noted.  There was no abnormality of perception noted or reported.  His memory was intact.  His judgement and insight were good. There were no suicidal or homic
 later had an open MRI procedure.  He mentioned palpitations, shortness of breath, and agitation.  He reported that he anxiety episodes at work and home that he was able to manage.  The Veteran was provided with information about relaxation and coping with anxiety.  

A mental status examination noted that the veteran was appropriately dressed.  His motor and behavior activity were normal.  His speech was readily spontaneous.  He was alert and oriented in all spheres.  His mood was euthymic.  His thought content was coherent and logical.  There was no unusual thought content noted.  There was no abnormality of perception noted or reported.  His memory was intact.  His judgement and insight were good. There were no suicidal or homicidal ideas.

An October 2016 VA treatment note reflects that the Veteran reported mild episodes of anxiety that he was able to manage with breathing exercises.  He denied self-harm ideas.  A mental status examination noted adequate hygiene, normal behavior and motor activity, and spontaneous speech.  He was alert and oriented in all spheres.  His mood was euthymic.  Affect was stable and appropriate.   There was no unusual thought content noted.  There was no abnormality of perception noted or reported.  

A mental status examination showed that he had adequate hygiene.  His behavior and motor activity were normal.  His attitude was cooperative.  His speech was readily spontaneous.  His level of consciousness was alert and attentive.  He was oriented in all spheres.   His mood was euthymic.  His affect was stable and appropriate.  His thought content was coherent and logical.  He did not have unusual thought content or abnormality of perception.  His memory was intact.  His judgment and insight were good.  He did not have suicidal or homicidal ideas.   

A March 2017 VA treatment record noted that he reported panic attacks.  The Veteran indicated that most of these attacks happened on Sunday afternoon.  

A March 2017 VA psychologist note reflects that the Veteran reported a recent transfer to another hotel within the same company and indicated that he was optimistic about this development.  According to the Veteran, his episodes of anxiety appeared less frequent, less intense, and he had been able to manage them.  He denied self-harm ideas.

An August 2018 treatment record reflects that the Veteran reported that he had panic attacks since he was in Iraq.

A September 2018 VA treatment record reflects that the Veteran was seen in the emergency room for abdominal pain.  No nursing intervention was required.  He denied suicidal ideation.  

A November 2018 VA treatment record reflects that he reported tense situations at his job.  The Veteran reported that he sometimes felt overwhelmed by his supervisor's behavior.  

A November 2018 mental status examination noted that the Veteran adequate hygiene.  His behavior was normal.  Speech was spontaneous.  He was oriented in all spheres.  His thoughts were logical, and goal directed.  There was no unusual thought content and no abnormality of perception. His judgment and insight were good.  He denied suicidal or homicidal ideas.  

A February 2019 VA treatment note reflects that the Veteran reported that he was dealing better at his job by reframing perceived stressors.  A mental status examination noted that he was alert and oriented. His mood was relaxed.  His affect was full.  His thought processes were coherent and logical.  His thought content was not unusual.  There were no perceptual abnormalities noted.  His memory was intact.  His judgment and insight were good.  There were no suicidal or homicidal ideas.

A mental status examination noted that he was alert and oriented.  His mood was relaxed.  Affect was full.  His thought processes were coherent and logical.  His thought content was not unusual.  There were no perceptual abnormalities noted; His memory was intact.  His judgment and insight were good.  There were no suicidal or homicidal ideas.

A July 2020 VA psychologist note noted that the Veteran expressed feeling "anxious and sad with this whole situation" in mood. He endorsed frequent crying spells, sadness, anxiety, lack of sleep and helplessness due to the pandemic since May 2020.  However, he reported that he was currently managing by keeping active and busy.  He identified his family as a strong support.  The Veteran denied problems with motivation, energy levels, or appetite.  He also denied significant levels of worrying, tension, or irritability.  The Veteran did not present symptoms indicative of mania such as decreased need for sleep, marked increase in energy levels, feeling euphoric, increased speed of speech or flight of ideas.

A VA psychologist noted that the Veteran experienced chronic symptoms but was currently stable and showing some efficacy in managing thoughts, feelings, and behavior.

A May 2021 VA treatment record noted that the Veteran reported occasional episodes
 of sleep and helplessness due to the pandemic since May 2020.  However, he reported that he was currently managing by keeping active and busy.  He identified his family as a strong support.  The Veteran denied problems with motivation, energy levels, or appetite.  He also denied significant levels of worrying, tension, or irritability.  The Veteran did not present symptoms indicative of mania such as decreased need for sleep, marked increase in energy levels, feeling euphoric, increased speed of speech or flight of ideas.

A VA psychologist noted that the Veteran experienced chronic symptoms but was currently stable and showing some efficacy in managing thoughts, feelings, and behavior.

A May 2021 VA treatment record noted that the Veteran reported occasional episodes of anxiety.  He commented on situations at work that challenge his coping abilities and on his chronic sleep problems.  He reported strong support from his wife.  No current signs of distress were reported.

A May 2021 mental status examination noted that the Veteran's speech was spontaneous.  He was alert and oriented in all spheres.  His mood was anxious.  His affect was stable and appropriate.  His thought processes were logical and coherent. No unusual thought content was noted.  There was no abnormality of perception.   His memory was intact.  His judgment and insight were fair.  He did not have homicidal or suicidal ideation. 

In August 2021, the Veteran submitted an affidavit from a co-worker, D.C.  The affidavit noted that the Veteran had panic attacks several times a week, and she would take walks with the Veteran during those attacks.  She stated that he would frequently forget things.  She noted that he gets red in the face and gets dizzy.  It was noted that occasionally the Veteran did not remember his scheduled meetings.

In a July 2021 affidavit, the Veteran's wife noted that he forgets things, such as medical appointments, and becomes distracted and disoriented.  She stated that, in March 2021, the Veteran told her that he thought about taking a bottle of sleeping pills.  She indicated that he has three panic attacks a week.  She stated that he overreacts if someone approaches him when he is working, to the point of punching someone or throwing whatever he is holding.  

The above evidence shows that the Veteran's anxiety disorder is manifested by symptoms contemplated by a 50 percent rating, such as panic attacks more than once a week, impairment of short and long-term memory, flattened affect, and disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships.  The Veteran has a diagnosis of panic attacks.  Lay statements indicate that his panic attacks occur on a weekly basis, and he sometimes has several panic attacks in a week.  He was noted to have a constricted affect, which a symptom associated with a 50 percent rating.  The Veteran also has symptoms that are not listed in the rating criteria, such as palpitations and shortness of breath.  VA treatment records appear to reflect that his palpitations and shortness of breath were related to both blood pressure fluctuations and anxiety.  His blood pressure medication was increased when he reported those symptoms, and he was also advised to take Clonazepam.  

The Board finds that the criteria for a 70 percent rating are not met.  The Veteran does not exhibit symptoms that are associated with a 70 percent rating or symptoms of similar severity, frequency, or duration.  He is consistently well-dressed and groomed.  He has denied suicidal ideations throughout the appeal period.  The lay and medical evidence shows that his anxiety attacks occur several times a week; he does not have near-continuous anxiety or depression affecting the ability to function independently, appropriately, and effectively.  Lay evidence reflects that, due to anxiety, he periodically must take walks and do breathing exercises when he is at work.  However, he is able to maintain full-time employment and has an effective work relationship with his assistant, D.C.  His brief periods of taking walks and doing breathing exercises at work reflect an ability to adapt to stressful circumstances, including work.  His VA treatment records do not support a finding of an inability to adapt to stressful circumstances, including a work-like setting.  In March 2015, the Veteran denied difficulties at work.  In November 2018, he reported a tense situation with his supervisor.  In February 2019, he reported to a VA treatment provider that he was doing better at his job by reframing stressors.  Thus, his occupational impairment does not approximate difficulty in adapting to stressful circumstances, including a worklike setting.  The evidence does not show that his anxiety is manifested by symptoms of the frequency and duration resulting in an inability to establish and maintain effective relationships.  Rather, during the appeal, he reported good relationships with his wife and some of his co-workers.  In
 support a finding of an inability to adapt to stressful circumstances, including a work-like setting.  In March 2015, the Veteran denied difficulties at work.  In November 2018, he reported a tense situation with his supervisor.  In February 2019, he reported to a VA treatment provider that he was doing better at his job by reframing stressors.  Thus, his occupational impairment does not approximate difficulty in adapting to stressful circumstances, including a worklike setting.  The evidence does not show that his anxiety is manifested by symptoms of the frequency and duration resulting in an inability to establish and maintain effective relationships.  Rather, during the appeal, he reported good relationships with his wife and some of his co-workers.  In November 2015, he reported that he received support from fellow co-workers and friends, which contributed to positive outcomes.  In May 2021, he reported strong support from his wife.  In July 2020, he reported that his family was a strong support.  A July 2021 affidavit from his co-worker described a good working relationship.  That affidavit indicates that while the Veteran experienced some symptoms, such as forgetfulness and being dizzy, he is able to complete his duties in a work setting.  The Board finds that the evidence does not support the assignment of a 70 percent rating based on an inability to adapt to stressful circumstances, such as work or a work-like setting.  

The Board also acknowledges the Veteran's wife's statement in her affidavit that he told her that he thought about swallowing a bottle of pills.  See Bankhead 29 Vet. App. at 20 ("[T]he presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas."); see id. (affirming that suicidal ideation does not require suicidal intent, a plan, or preparatory behavior).  However, the Board finds that the frequency and duration of this symptom, when considered against other evidence of record, to include the VA treatment records showing a consistent denial of suicidal or homicidal ideation, is not such that the Veteran's overall disability picture is more nearly approximated by the next-higher 70 percent evaluation.  VA treatment records reflect that the Veteran has not reported any instances of suicidal ideation to treatment providers during the appeal period.

The Board acknowledges the lay evidence by the Veteran's wife that he became upset when people came up behind him and would punch someone or throw something.  The evidence indicates that the Veteran became startled at times, but his VA treatment records and examinations do not contain evidence showing unprovoked irritability with periods of violence.  His VA medical records and examinations during the appeal are devoid of any report of impaired impulse control.  There were no complaints or reports of violent behavior or conflict with others, or any reports of legal actions taken against him for violent behavior.  Thus, considering all of the medical and lay evidence, the record does not reflect that the frequency and duration of the Veteran punching or hitting someone when startled equates with impaired impulse control (such as unprovoked irritability with periods of violence).  

The evidence overall also does not demonstrate the level of impairment associated with a 100 percent rating.  The evidence does not show such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; memory loss for names of close relatives, own occupation, or name. As noted above, the Veteran's other remaining symptoms were either contemplated by or more consistent with a 50 percent rating.  The Veteran has good relationships with his family and a co-worker, and he is able to maintain full-time employment.  Thus, the evidence, as a whole, does not show total occupational and social impairment due to anxiety disorder.

In conclusion, the Board finds the Veteran's symptoms more nearly approximate a rating of 50 percent, but no higher, for the entire period on appeal. In so finding, all reasonable doubt has been resolved in favor of the Veteran. 

Entitlement to an effective date earlier than December 10, 2012 for the award of a 20 percent rating for right shoulder impingement syndrome.

Service connection for right shoulder impingement syndrome was granted in an October 2005 rating decision, at which time a 10 percent rating was assigned, effective February 2005.

A claim for an increased rating for right shoulder impingement was received on December 10, 2012.  An April 2015 rating decision continued a 10 percent rating for right shoulder impingement.  The Veteran appealed the rating assigned in the April 2015 rating decision. 
 on appeal. In so finding, all reasonable doubt has been resolved in favor of the Veteran. 

Entitlement to an effective date earlier than December 10, 2012 for the award of a 20 percent rating for right shoulder impingement syndrome.

Service connection for right shoulder impingement syndrome was granted in an October 2005 rating decision, at which time a 10 percent rating was assigned, effective February 2005.

A claim for an increased rating for right shoulder impingement was received on December 10, 2012.  An April 2015 rating decision continued a 10 percent rating for right shoulder impingement.  The Veteran appealed the rating assigned in the April 2015 rating decision.  A December 2018 rating decision granted a 20 percent rating for right shoulder impingement syndrome from December 10, 2012.  The Veteran contends that an earlier effective date is warranted for a 20 percent rating.  The Veteran's representative contends that VA treatment records support a 20 percent rating from February 2012.  

The effective date of a rating and award of compensation based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. However, an increased rating may be awarded up to one year prior to receipt of the claim if the evidence shows an increase in disability was factually ascertainable during that period. 38 C.F.R. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2). For this purpose, the evidence must show that the increase in disability was sufficient to warrant a higher rating under the rating criteria. Hazan v. Gober, 10 Vet. App. 511, 519 (1992). Thus, determining the proper date for an increased rating requires (1) a determination of the receipt of the claim for the increased rating and (2) a review of all the evidence of record since one year prior to the date of the claim to determine when an increase in disability was "factually ascertainable" in terms of meeting or approximating the criteria for a higher rating.

38 U.S.C. § 5110 (b)(2) and 38 C.F.R. § 3.400 (o)(2) are applicable only where the increase precedes the claim, provided that the claim is received within one year after the increase. Harper v. Brown, 10 Vet. App. 125, 126-27 (1997). The phrase "otherwise, date of receipt of claim" provides the applicable effective date when a factually ascertainable increase occurred more than one year prior to receipt of the claim for increased compensation. Id.; see also VAOPGCPREC 12-98 at 2. Because neither 38 U.S.C. § 5110 (b)(2) nor 38 C.F.R. § 3.400 (o)(2) refer to the date of the claim as the effective date of an award of increased disability compensation, the effective date for increased disability compensation is the date on which the evidence establishes that a Veteran's disability increased, if the claim is received within one year from such date. 

In determining when an increase is "factually ascertainable," VA should look to the record as a whole, including testimonial evidence and expert medical opinions, to determine when the increase took place. VAOPGCPREC 12-98 at 5.

The currently assigned 20 percent rating was based on painful motion of the shoulder.  The RO found that the painful motion of his shoulder warranted the minimum compensable rating for a shoulder disability, pursuant to 38 C.F.R. § 4.59.  The Veteran's shoulder disability is rated under DC 5201.  The Veteran is right-handed; therefore, the rating criteria for the major extremity are applicable. 

Diagnostic Code 5201 provides that a 20 percent rating is warranted for limitation of motion of the arm at shoulder level.  See 38 C.F.R. § 4.71a, Diagnostic Code 5201.

In assessing the severity of limitation of shoulder motion, it is necessary to consider both forward flexion and abduction.  See Mariano v. Principi, 17 Vet. App. 305, 317-18 (2003).  

Normal shoulder motion is from 0 to 180 degrees of forward elevation (flexion), from 0 to 180 degrees of abduction, and from 0 to 90 degrees of internal and external rotation.  See 38 C.F.R. § 4.71, Plate I.

A February 2012 VA treatment record noted chronic joint pain, reduced motion, and swelling of the
.  See 38 C.F.R. § 4.71a, Diagnostic Code 5201.

In assessing the severity of limitation of shoulder motion, it is necessary to consider both forward flexion and abduction.  See Mariano v. Principi, 17 Vet. App. 305, 317-18 (2003).  

Normal shoulder motion is from 0 to 180 degrees of forward elevation (flexion), from 0 to 180 degrees of abduction, and from 0 to 90 degrees of internal and external rotation.  See 38 C.F.R. § 4.71, Plate I.

A February 2012 VA treatment record noted chronic joint pain, reduced motion, and swelling of the right shoulder.  Based on the February 2012 record, the Board finds that it was factually ascertainable that an increase in his right shoulder disability occurred in the year prior to his claim.  Therefore, an earlier effective date of February 21, 2012 for the grant of a 20 percent rating for the Veteran's right shoulder disability is granted. In so finding, all reasonable doubt has been resolved in favor of the Veteran. 

 

L. ANDERSEN

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Catherine Cykowski

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.