Citation Nr: 18147299 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 14-30 196 DATE: November 2, 2018 ORDER An initial 10 percent rating for gastroesophageal reflux disease (GERD) is granted. An initial rating in excess of 10 percent for patellofemoral pain syndrome of the right knee is denied. An initial rating in excess of 10 percent for patellofemoral pain syndrome of the left knee is denied. An effective date earlier than August 30, 2016 for the award of 20 percent ratings for subacromial bursitis and rotator cuff impingement of the right and left shoulders, to include consideration of whether clear and unmistakable error was committed in the August 2012 rating decision, is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. During the period on appeal, the Veteran’s GERD has manifested by symptoms of epigastric distress, pyrosis, and regurgitation. 2. During the period on appeal, the Veteran’s patellofemoral pain syndrome of the right and left knees has not been manifested by flexion limited to 30 degrees; moreover, there is no evidence of limitation of extension, recurrent subluxation or lateral instability, tibia and fibula impairment, genu recurvatum, dislocated or removed semilunar cartilage, or ankylosis of the right or left knees. 3. Based on the facts and law as they were known at the time, the August 2012 rating decision that assigned 10 percent ratings for subacromial bursitis and rotator cuff impingement of the right and left shoulders based on painful motion was proper, and clear and unmistakable error is not found. 4. The Veteran’s increased rating claims for subacromial bursitis and rotator cuff impingement of the right and left shoulders were received on August 30, 2016; it is not factually ascertainable that the Veteran met the criteria for higher 20 percent ratings within one year prior to August 30, 2016. 5. The evidence of record does not show that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an initial 10 percent rating, but no higher, for GERD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.20, 4.114, Diagnostic Code 7346 (2017). 2. The criteria for an initial rating in excess of 10 percent for patellofemoral pain syndrome of the right knee have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5260 (2017). 3. The criteria for an initial rating in excess of 10 percent for patellofemoral pain syndrome of the left knee have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5260 (2017). 4. The criteria for an effective date earlier than August 30, 2016 for the award of 20 percent ratings for subacromial bursitis and rotator cuff impingement of the right and left shoulders, to include consideration of whether clear and unmistakable error was committed in the August 2012 rating decision, have not been met. 38 U.S.C. §§ 5107, 5109A, 5110 (2012); 38 C.F.R. §§ 3.105, 3.400, 4.59 (2017). 5. The criteria for a TDIU have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.15, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from June 1990 to June 1994. These matters are on appeal from August 2012 and November 2016 rating decisions. The Board remanded these matters in April 2018 for additional development. While in remand status, the Regional Office (RO) issued a July 2018 rating decision increasing the Veteran’s ratings for patellofemoral syndrome of the right and left knees to 10 percent disabling effective April 30, 2012. The Veteran continues to appeal for higher ratings. AB v. Brown, 6 Vet. App. 35 (1993) (holding that a claimant is presumed to be seeking the maximum rating allowed by law). As the actions specified in the April 2018 remand have been substantially completed, these matters have been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Duties to Notify and Assist With respect to the Veteran’s claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. Neither the Veteran nor his representative have advanced any procedural arguments in relation to VA’s duty to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Increased Rating Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; see generally 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for distinct periods of time, based on the facts found, is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The Board has reviewed all of the evidence in the Veteran’s claims file, with an emphasis on the lay and medical evidence for the issues on appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, it does not have to discuss each piece of evidence in detail. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran’s claims. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to an initial compensable rating for GERD The Veteran seeks an initial compensable rating for his service-connected GERD. He contends that his symptoms, including pyrosis and regurgitation, warrant the assignment of a 10 percent rating. The Veteran’s GERD is currently assigned a noncompensable rating, effective April 30, 2012, under 38 C.F.R. § 4.114, Diagnostic Code 7346. As GERD is not specifically provided for in the rating criteria, it is rated by analogy to hiatal hernia. See 38 C.F.R. § 4.20. Under Diagnostic Code 7346, a 10 percent rating is assigned for two or more symptoms associated with the 30 percent rating, but of less severity. A 30 percent rating is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A maximum rating of 60 percent is warranted for symptoms of pain, vomiting, material weight loss, and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. 38 C.F.R. § 4.114. The Veteran underwent a VA examination in June 2012. Upon examination, the Veteran reported a history of heartburn and burping acid, which is worse when he lies down. He reported continuously taking over-the-counter medications for his symptoms “with good success.” The examiner noted that the Veteran had reoccurring, but not severe, symptoms. In his November 2012 notice of disagreement, the Veteran argued that his GERD should be rated 10 percent disabling because he suffers from at least two symptoms listed in the rating schedule under Diagnostic Code 7346, pyrosis and regurgitation. He stated that his GERD is severe enough that he must take over-the-counter medication almost every day to control these symptoms. He noted that the June 2012 examiner did not include his reported symptoms in the examination report. The Veteran underwent another VA examination in May 2014. Upon examination, the Veteran reported that he takes over-the-counter medications when he experiences heartburn, which resolves his symptoms, however, he does not take the medication as a preventative treatment. The Veteran was noted to have infrequent episodes of epigastric distress. The examiner remarked that the Veteran continues to have intermittent, mild GERD symptoms, which are well-controlled with medications. Because the May 2014 examination report did not describe the symptoms alleged by the Veteran in his November 2012 notice of disagreement, the Board remanded the claim in April 2018 for a new examination. The Veteran underwent another VA examination in June 2018. Upon examination, the Veteran reported that his GERD symptoms have recently worsened. He began taking omeprazole daily, as prescribed by his VA primary care physician, which has markedly improved his symptoms. He reported that he now only gets occasional symptoms of acid in his esophagus/throat and burping. The examiner noted that his symptoms are pyrosis and reflux, but that his GERD is well-controlled. The Board notes that, although the Veteran’s GERD symptoms are currently well-controlled with medication, the ameliorative effects of such medication cannot be considered when evaluating the severity of his disability. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Based on the foregoing, the Board finds that an initial 10 percent rating is warranted for the Veteran’s GERD for the entire period on appeal. As noted above, a 10 percent rating is assigned when there are two or more of the symptoms for the 30 percent rating, but of less severity. A 30 percent rating requires persistently recurrent epigastric distress with dysphagia, pyrosis and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. The lay and clinical evidence of record outlined above reflects that the Veteran has experienced intermittent episodes of epigastric pain, pyrosis (i.e. heartburn, acid reflux), and regurgitation (i.e. “burping acid”) throughout the appellate period. Therefore, the Board concludes that the criteria for a 10 percent rating have been met. The Board has considered whether the Veteran is eligible for the next higher rating for GERD. However, there is nothing in the record to suggest that, at any time during the period on appeal, the Veteran has suffered persistently recurrent epigastric distress, or that his symptoms have resulted in considerable impairment of his health. Therefore, a 30 percent rating is not warranted. Finally, the Board has also considered whether a separate or higher rating is warranted under any other diagnostic code. In this regard, the Board notes that under 38 C.F.R. § 4.114, “[r]atings under diagnostic codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other.” Rather, a single evaluation should be assigned under the diagnostic code which best reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. Here, the predominant disability picture is covered by the currently assigned diagnostic code, as the Veteran’s symptoms are primarily those addressed in Diagnostic Code 7346. As such, no other diagnostic code is for application. 38 C.F.R. § 4.114. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that an initial 10 percent rating, but no higher, for GERD is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. 2. Entitlement to an initial rating in excess of 10 percent for patellofemoral pain syndrome of the right knee 3. Entitlement to an initial rating in excess of 10 percent for patellofemoral pain syndrome of the left knee The Veteran seeks entitlement to initial higher ratings for his service-connected patellofemoral pain syndrome of the right and left knees (hereinafter “bilateral knee disability”). The Veteran is currently in receipt of 10 percent disability ratings for each knee pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5260, which contemplates limitation of flexion. Under Diagnostic Code 5260, flexion limited to 30 degrees warrants a 20 percent rating. Flexion limited to 15 degrees warrants a 30 percent rating. The Board notes that separate ratings under Diagnostic Code 5260 (limitation of flexion) and Diagnostic Code 5261 (limitation of extension) may be assigned for disability of the same joint. VAOPGCPREC 9-04 (September 17, 2004). Therefore, Diagnostic Code 5261 may also be for application here. Under Diagnostic Code 5261, extension limited to 5 degrees is noncompensable. Extension limited to 10 degrees warrants a 10 percent rating. Extension limited to 15 degrees warrants a 20 percent rating. Extension limited to 20 degrees warrants a 30 percent rating. For a 40 percent rating, extension must be limited to 30 degrees. Finally, where extension is limited to 45 degrees, a 50 percent rating may be assigned. For reference, normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71a, Plate II. In addition to the ratings based on limitation of motion, a separate rating may also be assigned for instability of the knee. See VAOPGCPREC 23-97 (July 1, 1997). Under Diagnostic Code 5257, other knee impairment with slight recurrent subluxation or lateral instability warrants a 10 percent rating. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. When evaluating disabilities of the musculoskeletal system predicated on limitation of motion, VA may consider granting a higher rating in cases where the veteran experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, when those factors are not contemplated by the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The diagnostic codes predicated on limitation of motion do not subsume sections 4.40 and 4.45, and the rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. See DeLuca, 8 Vet. App. at 206; see also Johnson v. Brown, 9 Vet. App. 7 (1996). In determining if a higher rating is warranted on this basis, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. Id. at 41. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance, as provided in sections 4.40 and 4.45. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. See 38 C.F.R. §§ 4.40, 4.45; Mitchell, 25 Vet. App. at 37. The Veteran underwent a VA examination in June 2012. Upon examination, the Veteran reported experiencing flare-ups of increased pain when he ascends stairs and kneels. Range of motion testing on both knees revealed flexion to 140 degrees or greater and extension to zero degrees, signifying no limitation of flexion or extension in either knee. The Veteran did not have any additional limitation in range of motion following repetitive use testing. There was no objective evidence of painful motion on examination. Functional loss was noted, described as pain with climbing stairs and kneeling. Muscle strength and joint stability testing was within normal limits. There was no evidence of recurrent patellar subluxation, or any other impairment, in either knee. At a June 2013 VA physical therapy consult, the Veteran reported that his knee pain has progressively worsened over the past year, particularly after prolonged squatting and standing on ladders at work. At a March 2014 VA orthopedic surgery consult, the Veteran was evaluated for knee pain, which the Veteran described as typical anterior knee pain felt behind the kneecap. An MRI was normal. The Veteran reported that he was currently asymptomatic because he has been off work due to recent gallbladder removal surgery. However, typically, by the end of the workday he experiences stiffness in his knees, which is worse when climbing ladders and going up and down stairs. A physical examination of the knees was negative for any pain, tenderness, instability, or weakness. The Veteran underwent another VA examination in May 2014. The examination report notes that the Veteran complained of normal muscle pains in several joints at the examination, but did not have any specific complaints of knee pain or arthritic pain. The Veteran did not report flare-ups. Range of motion testing on both knees revealed flexion to 140 degrees or greater and extension to zero degrees, signifying no limitation of flexion or extension in either knee. The Veteran did not have any additional limitation in range of motion following repetitive use testing. There was no objective evidence of painful motion on examination or tenderness or pain to palpation in the soft tissues of either knee. Muscle strength and joint stability testing was within normal limits. There was no evidence of recurrent patellar subluxation, or any other impairment, in either knee. The Veteran did not report any functional loss. The examiner opined that the Veteran does not have a current, active knee condition and that his bilateral patellofemoral syndrome has resolved. Pursuant to the April 2018 Board remand, the Veteran underwent another VA examination in June 2018. The Veteran reported to the examiner that his knees are getting weaker, and that he experiences flare-ups of pain after prolonged walking, climbing stairs and ladders, or long car rides or flights. He reported that sometimes, about once a week, his knees feel so tight that they “buckle” on him. He did not report any functional loss. Range of motion testing on both knees revealed flexion to 140 degrees or greater and extension to zero degrees, signifying no limitation of flexion or extension in either knee. The Veteran did not have any additional limitation in range of motion following repetitive use testing. There was no evidence of pain on examination, including on passive range of motion and on weight-bearing, however, there was objective evidence of mild bilateral patellar tenderness on palpation. There is no history of recurrent subluxation or lateral instability, and muscle strength and joint stability testing were within normal limits. Since the examination did not take place during a period of flare-up or after repetitive use, the examiner could not determine whether pain, weakness, fatigability, or incoordination significantly limited functional ability as such a determination would be mere conjecture. The examiner opined that the Veteran’s bilateral patellofemoral pain syndrome is currently mild and does not limit his ability to work. Based on a review of the relevant lay and medical evidence of record, the Board concludes that the Veteran is not entitled to an increased rating for either knee at any time during the appeal period. A close review of the record reveals no distinct period during which the criteria for a 20 percent rating were met for either knee. Specifically, for the period on appeal, the Board finds that both the left and right knee disabilities have been manifested by, at most, subjective complaints of pain and stiffness during periods of flare-up. The objective medical evidence of record, including three VA examinations, does not show that the Veteran has flexion limited to 30 degrees, as required to warrant a 20 percent rating under Diagnostic Code 5260. In fact, the Veteran was never shown to have any limitation of motion, on flexion or extension, at any time as all range of motion testing was deemed to be within the normal range. Moreover, the Veteran has not alleged, and VA examiners did not find, any additional functional loss due to pain as such that would approximate flexion limited to 30 degrees. As the Veteran’s subjective reports of pain and painful motion are already contemplated by his currently-assigned 10 percent ratings, higher ratings under DeLuca are also not warranted. See 38 C.F.R. §§ 4.40, 4.45. The Board has also considered whether separate compensable ratings are warranted based on limitation of extension and subluxation/instability. However, as noted above, there is no evidence of limited extension, subluxation, or instability of either knee. In this regard, the Veteran did report to the June 2018 VA examiner that his knees sometimes “buckle.” He is competent to report such symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994). This statement, however, is outweighed by the specific instability testing conducted on three separate occasions by VA examiners. As joint instability testing was negative, the Board finds that there is no recurrent subluxation or lateral instability. Therefore, separate ratings for limitation of extension and subluxation/instability are not warranted. See VAOPGCPREC 23-97 (July 1, 1997); VAOPGCPREC 9-04 (September 17, 2004). Finally, the Board has also considered whether the Veteran is eligible for an increased rating under other potentially applicable diagnostic code. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). However, after reviewing the medical evidence, the Board finds that these codes do not apply in this case. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5256, 5258, 5259, 5261, 5262, 5263 In reaching the above conclusion, the Board acknowledges that the Veteran sincerely believes his symptoms to be more severe than contemplated by his currently-assigned 10 percent disability ratings. The Veteran is competent to report on factual matters of which he has first-hand knowledge, such as experiencing an increased level of pain and other symptomatology. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see also Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). While the Board has considered the lay statements of record, the Board has given them appropriate weight where they are consistent with the objective medical evidence of record. However, the Board has accorded greater weight to the objective evidence of record as VA clinicians and examiners have the requisite medical training and expertise to make complex medical determinations. Therefore, the medical evidence is more probative regarding the Veteran’s claim in this case, and the most probative medical evidence has shown that the Veteran’s patellofemoral pain syndrome is no more than 10 percent disabling in each knee during the entire period on appeal. Accordingly, the Board finds that the preponderance of the evidence is against finding that initial ratings in excess of 10 percent for the Veteran’s bilateral knee disability is warranted. Therefore, the benefit-of-the-doubt rule does not apply and the claims must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. Earlier Effective Date 4. Entitlement to an effective date earlier than August 30, 2016 for the award of 20 percent ratings for subacromial bursitis and rotator cuff impingement of the right and left shoulders, to include consideration of whether a clear and unmistakable error was committed in the August 2012 rating decision The Veteran seeks entitlement to an effective date earlier than August 30, 2016 for the award of 20 percent ratings for service-connected subacromial bursitis and rotator cuff impingement of the right and left shoulders (hereinafter “bilateral shoulder disability”). Specifically, he contends that the Regional Office (RO) committed clear and unmistakable error (CUE) when it assigned him a 10 percent rating for each shoulder in the August 2012 rating decision. By way of background, the Veteran filed an informal claim for service connection for his bilateral shoulder disability on April 30, 2012. He was afforded a VA examination in June 2012, which did not show compensable limitation of motion, however, painful motion was noted. The Veteran was granted service connection for his bilateral shoulder disability in an August 2012 rating decision. He was assigned a 10 percent rating for each shoulder, based on functional loss due to painful motion under 38 C.F.R. § 4.59, with an effective date of April 30, 2012, the date of his informal claim. The Veteran did not appeal this rating decision and it became final. The Veteran filed a claim for increased ratings for his bilateral shoulder disability, received by VA, on August 30, 2016. In a November 2016 rating decision, the RO assigned 20 percent ratings for each shoulder effective August 30, 2016, the date of receipt of the claim for an increase. In his December 2016 notice of disagreement, the Veteran disagreed with the assigned effective date of the 20 percent rating increases, arguing that the 20 percent ratings should be assigned from April 30, 2012. At that time, the Veteran argued that CUE had been committed in the August 2012 rating decision with the assignment of 10 percent ratings for each shoulder. Specifically, he argued that he should have received 20 percent ratings for each shoulder based on painful motion under 38 C.F.R. § 4.59, as 20 percent is the minimum compensable rating under Diagnostic Code 5201. 38 C.F.R. § 4.71a. The Board will address the Veteran’s CUE claim first. Previous determinations that are final and binding will be accepted as correct in the absence of CUE. Where evidence establishes such error, however, the prior decision will be reversed or amended. See 38 U.S.C. § 5109A; 38 C.F.R. § 3.105(a). “[CUE] is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts; it is not mere misinterpretation of facts.” Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). To establish a valid CUE claim, a claimant must show that either the correct facts, as they were known at the time, were not before the adjudicator, or that the statutory or regulatory provisions extant at the time were incorrectly applied. Russell v. Principi, 3 Vet. App. 310, 313 (1992). CUE is a very specific and rare kind of error of fact or law that compels the conclusion, to which reasonable minds could not differ, that the result in the decision in question would have been manifestly different but for the error. Fugo v. Brown, 6 Vet. App. 40, 43 (1993). The Court has propounded a three-pronged test to determine whether CUE is present in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be based on the record and the law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994), quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). The claimant must assert more than a mere disagreement as to how the facts were weighed or evaluated. Eddy v. Brown, 9 Vet. App. 52 (1996). When attempting to raise a claim of CUE, a claimant must describe the alleged error with some degree of specificity and provide persuasive reasons as to why the result would have been manifestly different but for the alleged error. Fugo, 6 Vet. App. at 43. Neither a claim alleging improper weighing and evaluating of the evidence in a previous adjudication, nor general, non-specific claims (including sweeping allegations of failures to follow the regulations or to provide due process), meet the restrictive definition of CUE. Id. at 44. A simple disagreement with how the RO evaluated the facts is not sufficient to raise a valid claim of CUE. Luallen v. Brown, 8 Vet. App.92, 95 (1995). To prove the existence of CUE as set forth in § 3.105(a), the claimant must show that an outcome-determinative error occurred, that is, an error that would manifestly change the outcome of a prior decision. Yates v. West, 213 F.3d 1372, 1374 (Fed. Cir. 2000). Based on the above legal criteria, the Board does not find that CUE was committed in the August 2012 rating decision when the RO assigned the Veteran 10 percent ratings for each shoulder based on functional loss due to painful motion under 38 C.F.R. § 4.59. The Board notes that 38 C.F.R. § 4.59 allows consideration of functional loss due to painful motion to be rated to at least the minimum compensable rating for a particular joint. Prior to May 23, 2016, it was longstanding VA policy to interpret “the minimum compensable rating” for a joint as a 10 percent rating, irrespective of the diagnostic code involved. See VA Adjudication Procedures Manual (M21-1), Part III, Subpart iv, Chapter 4, Section A, Topic 1(g). While the Board notes that the M21 is not binding on the Board, this portion is pertinent to consideration of the CUE claim in this decision. Therefore, keeping with standard practice at the time, the RO assigned the Veteran 10 percent ratings for his bilateral shoulder disability in the August 2012 rating decision to compensate him for functional loss. Subsequently, in Sowers v. McDonald, 27 Vet. App. 472 (2016), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 4.59 is limited by the specific diagnostic code most applicable to the claimant’s disability. Although the Court did not specifically hold that the minimum compensable rating must be assigned under the applicable diagnostic code for the disability involved, the holding influenced subsequent VA policy that the minimum compensable rating under the specific diagnostic code must be assigned when painful motion is demonstrated under 38 C.F.R. § 4.59. This policy particularly affects painful motion of the shoulder evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5201, in which painful motion of the shoulder warrants assignment of a 20 percent rating, the minimum compensable rating. This policy became effective May 23, 2016. See M21-1, Part III, Subpart iv, Chapter 4, Section A, Topic 1(g). The Board finds that, based on the facts and law as they were known at the time of the August 2012 rating decision, the assignment of 10 percent ratings for each shoulder based on painful motion was proper. First, the medical evidence of record at the time did not show that the Veteran was eligible for a 20 percent rating based on limitation of motion under Diagnostic Code 5201, or for any other impairment of the shoulder under another diagnostic code. Second, at the time of the rating decision, longstanding VA practice directed the assignment of a standard minimum compensable rating of 10 percent for painful motion of a joint, irrespective of the diagnostic code involved. Therefore, the Board does not find that the RO committed error in applying the law, as it existed in August 2012, to the facts of the Veteran’s case. Accordingly, the August 2012 rating decision, which assigned 10 percent ratings for each shoulder based on painful motion, was not based on clear and unmistakable error. In making this determination, the Board acknowledges the Veteran’s sincere belief that he should be assigned 20 percent ratings of the shoulders back to the effective date of service connection due to the change in VA policy after the Sowers decision in May 2016. However, the Board notes that Court decisions invalidating VA regulations or statutory interpretations do not have retroactive effect in relation to prior final adjudications of a claim. The Veteran did not appeal the August 2012 rating decision and it became final. Therefore, the only way the Veteran’s assigned disability rating could be eligible for consideration under the Court’s ruling in Sowers, and the subsequent change to VA policy, was to file a new claim, which is what he did when he filed a claim for an increased rating for his bilateral shoulder disability on August 30, 2016. Turning to the Veteran’s claim for an effective date earlier than August 30, 2016 for the award of 20 percent ratings for his bilateral shoulder disability, the Board notes that, generally, the effective date of an award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase shall be fixed in accordance with the facts found, but shall be no earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110(a). The statutory provision is implemented by regulation which provides that the effective date for an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. The reference above to “the date entitlement arose” is not defined in the current statute or regulation. The Court has interpreted it as the date when the claimant met the requirements for the benefit sought; this is determined on a “facts found” basis. See 38 U.S.C. § 5110(a); McGrath v. Gober, 14 Vet. App. 28, 35 (2000). An exception to the above rule applies in certain circumstances for increased compensation claims. The effective date of an award for an increased rating is the earliest date when it is factually ascertainable that an increase in disability occurred, if the application for an increase is received within one year from the date of increase. Otherwise, the effective date is the date of receipt of the claim. See 38 U.S.C. § 5110(b)(2); 38 C.F.R. §3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997). Upon review of the record, the Board finds that an effective date earlier than August 30, 2016, for the assignment of 20 percent ratings for each shoulder, is not warranted. In this regard, the Board finds that the preponderance of the evidence weighs against the Veteran’s claim as the Veteran is already in receipt of the earliest possible effective date for his award of increased ratings, and there is no legal basis upon which to award an even earlier effective date. A careful review of the record does not show that there were any pending, unadjudicated claims for an increased rating for the Veteran’s bilateral shoulder disability prior to August 30, 2016. Thus, the Board has determined that August 30, 2016 is the date of receipt of the claim. On the question of when entitlement arose, the Veteran underwent a VA examination on October 17, 2016. This examination provided the earliest ascertainable evidence of record that the Veteran was eligible for an increased 20 percent rating for each shoulder. Therefore, the date entitlement arose is October 17, 2016. As noted above, VA regulations provide that the effective date of an award of increased compensation will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). In this case, the date of receipt of the claim is August 30, 2016, and the date entitlement arose is October 17, 2016. Although the later of the two dates is October 17, 2016, the Board accepts that the RO assigned the Veteran an earlier effective date of August 30, 2016 based on the date of receipt of his claim. In fairness to the Veteran, the Board will not disturb the assigned effective date of August 30, 2016. Generally, the effective date can be no earlier than the date of receipt of the claim for increase. The Board has considered the exception to that general rule, in which the effective date of an award for an increased disability rating is the earliest date when it is factually ascertainable that an increase in disability occurred, if the application for an increase is received within one year from the date of increase. See 38 C.F.R. § 3.400(o)(2). However, after a review of the pertinent medical evidence, the Board finds that there is no indication that the Veteran’s bilateral shoulder disability was of sufficient severity to warrant a 20 percent rating of each shoulder under Diagnostic Code 5201, within one year prior to August 30, 2016. In fact, an October 2015 VA treatment note remarks that the Veteran has full range of motion in his shoulders. Accordingly, the exception does not apply as it is not factually ascertainable that an increase in the Veteran’s bilateral shoulder disability occurred within the year prior to the August 30, 2016 claim for increased ratings. The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by that authority. The Board finds that the preponderance of the evidence is against the assignment of an effective date earlier than August 30, 2016 for the award of 20 percent ratings for each shoulder. Accordingly, the benefit-of-the-doubt rule is not for application and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. 5. Entitlement to a TDIU Entitlement to a TDIU has been raised by the record pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15. If the total rating is based on a disability or combination of disabilities for which the Rating Schedule provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability. 38 C.F.R. § 3.341(a). If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, will be considered as one disability. The existence or degree of nonservice-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran’s service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran is currently service-connected for subacromial bursitis and rotator cuff impingement of the right and left shoulders, rated 20 percent disabling each; patellofemoral syndrome of the right and left knees, rated 10 percent disabling each; tinnitus, rated 10 percent disabling; and, by this Board decision, GERD, rated 10 percent disabling. The Veteran’s service-connected disabilities, with consideration of the bilateral factor, combine to a 60 percent rating. See 38 C.F.R. §§ 4.25, Combined Ratings Table; 4.26, Bilateral Factor. Although the Veteran’s 20 percent ratings for his bilateral shoulder disability, when calculated to include the bilateral factor, combine to a disability rating of 40 percent, the Board finds that the Veteran does not meet the percentage requirements under 38 C.F.R. § 4.16(a) because his disabilities do not combine to a 70 percent or higher rating. In exceptional circumstances, where the Veteran does not meet the percentage requirements under the schedular criteria, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment due to service-connected disability. Such cases are referred to the Director of Compensation Service for extraschedular consideration. The veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). Referring a case for extraschedular consideration requires that the record reflect some factor which places the case in a different category than other veterans with an equal rating of disability. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The pertinent question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Id. This is so because a disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. Id. In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Review of the record indicates that the Veteran was employed full-time for many years as a welder for a construction company before retiring in 2016. After retiring from construction, the Veteran has continued to work full-time self-employed as a landlord, working to maintain his rental properties, and also remodeling and flipping houses. In a November 2012 statement, the Veteran stated, generally, that his service-connected bilateral knee disability “affects his employment.” At his June 2012 VA examination for his bilateral knee disability, the Veteran reported that he experiences knee pain when kneeling and climbing stairs. The VA examiner opined that the Veteran is “unable to weld (trained as welder) due to the demands and pain associated with kneeling.” At a contemporaneous examination for GERD with the same examiner, his GERD was not found to impact his ability to work. VA treatment records from June 2013 and March 2014 show that the Veteran complained of bilateral knee pain and stiffness, which is worsened after a day of work climbing ladders and stairs. At his March 2014 VA examination for his bilateral knee disability, the Veteran did not report any specific knee pain. The examiner noted that he worked as a welding manager, overseeing the work of other welders, and determined that his work is not impaired by his knee condition. At his concurrent VA examination for GERD, his GERD was deemed to be well-controlled and did not impact his ability to work. At an August 2016 VA orthopedic consultation for nonservice-connected low back pain, the examining clinician noted that the Veteran works full-time as a welder without any current job restrictions, as well as works to maintain his 13 rental properties. The Veteran stated that he would be retiring as a welder in the next few months. At his October 2016 VA examination for his bilateral shoulder disability, the Veteran reported that, due to his shoulder condition, he has to favor his left arm over his right for work that requires him to operate machinery overhead. The examiner determined that his bilateral shoulder disability impacts his ability to work. Pursuant to the Board’s April 2018 remand, in May 2018, the RO requested the Veteran to complete and return VA Form 21-8940 Veteran’s Application for Increased Compensation Based on Unemployability, which would provide the Board with additional information regarding the Veteran’s employment history and claimed unemployability. However, to date, the Veteran has not returned the form. A May 2018 physical therapy note states that the Veteran is self-employed flipping houses and being a landlord. The clinician remarked that the Veteran is “very active,” noting that he reports just having finished a four-day roofing job, which caused progressively worsening pain in his shoulders. At his June 2018 VA examination for his bilateral knee disability, the Veteran reported that he is self-employed and that he restores and flips foreclosed houses. He reported that his knees sometimes flare-up while working, making performing his work more difficult, but that he is still able to do what needs to be done. The examiner determined that his disability impacts his ability to work, however, later noted in the examination report that his bilateral knee disability is mild in severity and does not currently limit his work. At his concurrent GERD examination, the examiner opined that his GERD is well-controlled and does not restrict his work in any way. Based on the foregoing evidence of record, the Board finds that the preponderance of the evidence does not show that the Veteran’s service-connected disabilities, to include a bilateral shoulder disability, a bilateral knee disability, GERD, and tinnitus, render him unable to secure and follow a substantially gainful occupation consistent with his educational and occupational background. In this regard, although the Veteran clearly experiences some functional impact due to his service-connected disabilities, and in fact, has been awarded a combined 70 percent disability rating in light of such impairment, such does not result in total occupational impairment. This is evidenced by the fact that the Veteran is currently self-employed, full-time, as a landlord, which requires him to perform maintenance on his 13 rental properties, and also works to restore and flip houses. Although his service-connected disabilities undoubtedly cause him pain and stiffness, which is worsened by physically demanding labor, the evidence does not suggest that this pain has prevented from continuing to maintain his employment. Moreover, the Veteran has never argued that he is preventing from following a substantially gainful occupation due to his service-connected disabilities. He has only ever stated that his knee pain “affects his employment,” which the Board does not dispute. Therefore, because the evidence shows that the Veteran is currently employed full-time in a substantially gainful occupation, the Board does not find that the Veteran’s claim should be referred to the Director of Compensation Service for consideration of entitlement to a TDIU on an extraschedular basis under the provisions of 38 C.F.R. §4.16(b). In making this finding, the Board emphasizes that the rating schedule is intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. To the extent that service-connected disabilities affect the Veteran’s employment, the assigned schedular ratings for his disabilities compensate the Veteran for such impairment. (CONTINUED ON NEXT PAGE) Accordingly, the Board finds that the preponderance of the evidence is against finding that the Veteran’s service-connected disabilities, either individually or cumulatively, prevent him from securing or following a substantially gainful employment. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and the claim for entitlement to a TDIU must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Melissa Barbee, Associate Counsel