Citation Nr: 1805397 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 17-51 235 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Whether a December 15, 1986, decision of the Board of Veterans' Appeals, addressing the proprietary of the reduction of the assigned rating for left shoulder scapular pain and entitlement to a compensable rating, should be revised or reversed based on clear and unmistakable error (CUE). (Separate Board decisions will address the issues of entitlement to service connection for a heart disability and a cervical spine disability; to an increased rating for a left shoulder disability, and a total disability rating; an effective date prior to May 9, 2001, for a compensable rating for a left shoulder disability; and to benefits under 38 U.S.C.A. § 1151 for additional disability of the left arm, hand and fingers, as well as whether new and material evidence has been received to reopen service connection claims for bilateral hearing loss and tinnitus) REPRESENTATION Moving party represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. Griffin, Counsel INTRODUCTION The Veteran is the moving party in this action. He had active service from February 1968 to December 1969. This matter is before the Board as an original action on the motion of the Veteran in which he alleges CUE in a December 15, 1986, Board decision, denying an appeal of the reduction of the assigned rating for a left shoulder disability and entitlement to compensable rating for the disability (characterized as entitlement to a compensable rating for scapular pain). FINDINGS OF FACT 1. In an October 1970 rating decision, the RO granted service connection for a left shoulder disability, assigning a noncompensable rating, effective December 22, 1969. 2. In a November 1971 rating decision, the RO granted a 10 percent rating for the left shoulder disability, effective June 16, 1971, based on subjective pain symptoms. 3. In a June 1985 rating, the RO reduced the disability rating for the left shoulder disability to noncompensable, effective September 1, 1985, and the Veteran perfected appellate review of this determination. 4. In a December 1986 decision, the Board denied entitlement to a compensable rating for the left shoulder disability and did not address whether the reduction was proper. 5. Although the correct facts, as they were know at the time, were before the Board, the statutory or regulatory provisions then existent were not correctly applied, and the failure to correctly apply the law and regulations to the fact manifestly changed the outcome of the December 1986 Board decision. CONCLUSION OF LAW The December 1986 Board decision was clearly and unmistakably erroneous; restoration of a 10 percent disability evaluation for the Veteran's service connected left shoulder disability is warranted. 38 U.S.C.A. § 7111 (West 2016); 38 C.F.R. §§ 20.1403, 20.1406 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's duties to notify and assist are not applicable to CUE claims. See Livesay v. Principi, 15 Vet. App. 165, 178-79 (2001) (en banc); see also Hines v. Principi, 18 Vet. App. 227, 235 (2004). In June 2017, the Veteran's representative filed a motion to reverse a December 15, 1986, Board decision. As articulated in the November 2017 supplemental motion, the Veteran alleges that the December 1986 Board decision, denying entitlement to a compensable rating for a left shoulder disability, did not address the proper issue of the propriety of the reduction of the assigned rating for the Veteran's left shoulder disability. Further, it is asserted that the Board did not apply the correct legal standard when addressing the Veteran's appeal. These contentions are cited as the basis that the December 1986 Board decision was clearly and unmistakably erroneous. A prior final Board decision must be revised or reversed where the evidence establishes CUE in that decision. 38 U.S.C.A. § 7111; 38 C.F.R. §§ 20.1400-1411. To warrant a finding of CUE, there must have been the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the results would have been manifestly different but for the error. 38 C.F.R. § 20.1403(c); see also Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999). The basis for this standard is that, "even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be, ipso facto, clear and unmistakable." Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). A CUE motion must be based on the evidence and applicable law at the time of decision being challenged. 38 C.F.R. § 20.1403(a); see also Pierce v. Principi, 240 F.3d 1348, 1354 (Fed. Cir. 2001). Examples of situations that are not CUE include a new medical diagnosis that "corrects" an earlier diagnosis considered in a Board decision; the Secretary's failure to fulfill the duty to assist; and disagreement as to how the facts were weighed or evaluated. 38 C.F.R. § 20.1403(d). CUE does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision, there has been a change in the interpretation of the statute or regulation. 38 C.F.R. § 20.1403(e). As a threshold matter, the Board finds that the argument advanced by the Veteran alleging CUE with the requisite specificity. See 38 C.F.R. § 20.1404(b). In the December 1986 decision, the Board noted the correct fact as there were known at the time. However, the Board incorrectly applied the applicable regulatory provision then existent, governing the reduction of the Veteran's disability rating. In a November 1971 rating decision, the RO granted service connection for the Veteran's left shoulder disability and assigned a 10 percent disability rating, effective June 16, 1971. In making this determination, the RO cited a June 1971 statement of private physician H. Walters, M.D., stating the Veteran had a chronic left shoulder problem that could not be corrected due to the physical activity of the Veteran. Additionally, the October 1971 VA examination provided in connection with the appeal stated that there were no abnormalities found on examination and to support any left shoulder diagnosis with the Veteran's reported pain to be of an undetermined cause. The RO further stated that the aforementioned VA examination findings were consistent with prior VA examination findings, which included a May 1970 VA examination that confirmed the Veteran's in-service treatment for left shoulder symptoms and a left shoulder disability manifested by pain without a known cause. Based on this evidence and his statements regarding his left shoulder symptomatology, the Veteran was granted a 10 percent disability rating based on his subjective complaints of pain. In June 1985, the RO notified the Veteran that the10 percent rating assigned for his left shoulder disability would be reduced to zero, effective September 1, 1985. In this decision the RO cited the findings of a May 1985 VA examination, reporting the Veteran's continued account of left shoulder symptomatology, normal physical examination findings, the examiner's assessment that there was no support for any orthopedic diagnosis. Based on this examination the RO determined the left shoulder disability had improved to the extent that a compensable rating was no longer warranted. The Veteran appealed the reduction of the assigned rating for his left shoulder disability and at his June 1986 Board hearing provided testimony of continuing to experience left shoulder pain causing impairment. The Veteran also submitted a July 1986 statement reporting the location of relevant left shoulder treatment since the compensable rating was established. In December 1986, the Board characterized the issue on appeal as an increased rating claim. Examining the four corners of this Board decision reveals the Board's citation to the May 1985 VA examination, the Veteran's June 1986 Board testimony, and the law and regulations governing the assignment of disability ratings. While acknowledging the Veteran's account of left shoulder symptomatology, the Board ultimately concluded that the a compensable rating was not warranted based on the degree of disability found because the left shoulder disability was "principally manifested by subjective complaints of pain and a 'popping' of the scapula without objective evidence of limitation of function." Analysis A review of record at the time of the December 1986 Board decision reveals that the decision contained clear and unmistakable error. Initially, the Board failed to characterize properly the issue on appeal, as the correct issue for appellate review was whether reduction the Veteran's left shoulder disability rating was proper. Although this alone does not constitute CUE, the error resulted in a misapplication of the applicable law to the facts, which would have manifestly changed the outcome of the decision. Notably, the Veteran's left shoulder disability rating of 10 percent had been in effect in excess of 5 years, making the provisions of 38 C.F.R. § 3.344 (1985) governing the stabilization of disability ratings applicable. 38 C.F.R. § 3.344(c) (1985) At the time of the Board decision, the applicable regulation stated (A)...It is essential that the entire record of examinations and the medical industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. This applies to treatment of intercurrent diseases and exacerbations, including hospital reports, bedside examinations, examinations by designated physicians, and examination in the absence of, or without taking full advantage of, laboratory facilities and the cooperation of specialists in related lines. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction....Moreover,, though material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life... 38 C.F.R. § 3.344 (1985). Upon examining the December 1986 Board decision it is clear that the Board did not consider the necessary medical evidence to ascertain if the May 1985 VA examination was full and complete. The October 1971 VA examination that served to establish entitlement to a compensable disability rating detailed current and prior VA examination findings, the Veteran's current and prior report of left shoulder symptomatology, and current radiological findings. The May 1985 VA examination, purporting to document left shoulder improvement, fails to include such detail and consideration. To the extent the October 1971 VA examination and the May 1985 examination report current left shoulder range of motion and physical examination findings both reflect essentially identical examination findings and an inability to associate the Veteran's reported symptomatology with an underlying diagnosis. Given the foregoing it is undebatable that the Board was required to determine the May 1985 VA examination was less full and complete than the June 1971 statement of Dr. Walters and the October 1971 VA examination which together served to establish the Veteran's entitlement to a compensable rating. 38 C.F.R. § 3.344(a) (1985). Thus, the Board could not rely on the May 1985 VA examination as a basis to deem the reduction of the Veteran's left shoulder disability rating proper. Further, even assuming, arguendo, that the May 1985 VA examination was found to be full and complete, the Veteran's competent and credible account of left shoulder symptomatology remained virtually unchanged. This is significant given the Veteran changed occupations to manage his left shoulder symptomatology and the absence of any abatement or deviation in his account of the relevant symptomatology, while the diagnosis and examination findings of the October 1971 and May 1985 VA examinations are virtually identical. These facts do not support a reasonable conclusion that any purported improvement was reasonably certain to be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344 (a) (1985). Thus, the Board would not reach the underlying issue of whether a higher rating was warranted. It is undebatable that the assignment of a 10 percent rating for the left shoulder disability was not clearly and unmistakably erroneous. Put another way, when viewing the case from the lens of the propriety of the reduction of the assigned 10 percent rating for the left shoulder disability rather than a de novo review of whether a compensable rating was warranted on the merits as the Board erroneously did, it was undebatable based on application of the applicable law to the evidence then of record that there was sufficient evidence to conclude reduction of the assigned rating was proper and warranted. The wrong standard was applied in the December 1986 Board decision and but for this error a compensable left shoulder disability rating should have been restored. In sum, there was no citation of the standard for determining the propriety of the reduction of the assigned compensable left shoulder disability, the Board instead adjudicated the merits of claim, as if the appeal were before it on a de novo basis. Thus, the Board did not correctly apply the law, and the Board's failure to do so manifestly changed the outcome of the appeal. Had the Board correctly analyzed the issue before it in its December 1986 decision, the Board would have concluded there was no reasonable basis in the record to conclude a reduction in benefits for the left shoulder was appropriate. Under these circumstances, the Veteran would have been entitled to restoration of the assigned 10 percent disability rating for the left shoulder disability from September 1, 1985, the effective date of the termination of that benefit. Accordingly, the Board concludes that there was CUE in the December 1986 Board decision denying the Veteran's appeal of the reduction in his disability benefits for the left shoulder. Hence, reversal of the December 1986 Board decision is warranted. (CONTINUED ON NEXT PAGE) ORDER CUE has been found in the December 15, 1986, Board decision and entitlement to a 10 percent rating, effective September 1, 1985, is reinstated; and to this extent, the CUE motion is granted. ____________________________________________ M. H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs