Citation Nr: 18149166 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 18-41 194 DATE: November 8, 2018 ORDER The September 18, 1945 rating decision which severed service connection for residuals of recurrent right shoulder dislocations was clearly and unmistakably erroneous, and severance was improper. Service connection for residuals of recurrent right should dislocations is restored effective November 1, 1945. REMANDED Entitlement to a rating higher than 30 percent for a right shoulder impingement syndrome, to include on an extraschedular basis, is remanded. Entitlement to a rating higher than 30 percent for residuals of a right shoulder dislocation, to include on an extraschedular basis, is remanded. Entitlement to special monthly compensation for loss of use of the right hand is remanded. Entitlement to an effective date earlier than July 5, 2017 for the award of service connection for right shoulder impingement syndrome is remanded. REFERRED The issue of entitlement to service connection for a hip fracture, secondary to service-connected right shoulder disabilities, was raised at the October 2018 Board hearing and is referred to the agency of original jurisdiction for adjudication. FINDINGS OF FACT 1. Entitlement to service connection for residuals of recurrent right shoulder dislocations was granted in a March 1944 rating decision. 2. In a September 18, 1945 rating decision VA found that the March 1944 rating decision had improperly granted service connection, and entitlement to service connection for right shoulder dislocation was severed. 3. The September 18, 1945 rating decision failed to identify any clear and unmistakable error in the March 1944 rating decision. The September 18, 1945 rating decision’s failure to properly apply the appropriate regulations for severance is clear and unmistakable error, and severance was improper. CONCLUSIONS OF LAW 1. The September 18, 1945 severance of service connection for residuals of recurrent right shoulder dislocations was improper. 38 U.S.C. § 5112; 38 C.F.R. § 3.105 (2017); 38 C.F.R. § 2.1009(a) [also known as R&PR 1009(a)] (1944). 2. The criteria for restoration of the earlier effective date of November 1, 2017 for residuals of right shoulder dislocations have been met. 38 U.S.C. §§ 5110, 5112; 38 C.F.R. §§ 3.105, 3.400 (2017); 38 C.F.R. § 2.1009(a) [also known as R&PR 1009(a)] (1944). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1943 to November 1943. The Veteran contends that the September 1945 rating decision which severed his previously granted award of service connection for recurrent right shoulder dislocations was clearly and unmistakably erroneous. The Veteran wrote in September 2017 that he first dislocated his shoulder in service while loading tree trunks onto a truck to make tank traps in 1943. The appellant wrote that he had never had any problems with his right shoulder prior to service, but since that injury he continued to have limited use of his right arm. The Veteran’s March 1943 induction examination found no physical defects disqualifying him from service, and the only musculoskeletal defect noted was round back postural. Hence, the Veteran’s right shoulder was sound at enlistment. 38 C.F.R. § 2.1079 (1944). R&PR 1079. In May 1943, the Veteran was treated for complete dislocation of the right shoulder which occurred while lifting a log on the rifle range. In October 1943, the Veteran was treated for right shoulder joint dislocation, cause undetermined. An Abbreviated Clinical Record stated that the Veteran had a recurrent dislocation of the right shoulder and a history of injury to the shoulder prior to induction. The Veteran was unable to lift heavy objects or make certain movements with his right shoulder. A disposition board then found that the Veteran had a permanent partial disability of recurrent complete dislocation of the right shoulder joint, cause undetermined. The board decision stated “No” regarding whether it was in the line of duty. A Report of the Medical Officers stated that the Veteran’s disability was permanent and that it was not aggravated by or in the military service. The board found that “no useful service can be obtained from this soldier,” and the Veteran was discharged from service. In February 1944, the Veteran claimed entitlement to service connection for recurrence of dislocated shoulder which occurred in the summer and in October of 1943. Based on a review of the Veteran’s service treatment records, in a March 1944 rating decision, VA granted the Veteran entitlement to service connection for recurrent right shoulder dislocation, noted to have been aggravated in service. In April 1945, the Veteran attended a VA examination. The Veteran reported that he had been working in a defense plant, but quit because it was aggravating his shoulder, and he was now working as a clerk. He reported that he had weakness in the right upper shoulder and could not lift heavy objects. He was diagnosed with recurrent right shoulder dislocation. In May 1945, the VA New York Regional Office rating board issued a memorandum which found that the Veteran’s service connection for recurrent right shoulder dislocation should be severed. The rating board stated that although the Veteran had not been found to have a shoulder disability on induction, in October 1943, he gave a history of an injury and dislocation prior to service. The May 1945 rating board stated that a chronic recurrent dislocation of the shoulder occurring within such a short period of service indicated that it was a chronic recurrent condition that had clearly and unmistakably preexisted induction. The rating board stated that in the absence of any superimposed disease or trauma in service, the aggravation, if any, was not over and beyond the natural progress. It stated that the “mere recurrence of the dislocation should not in itself be considered as aggravation.” The Veteran was sent notification of the proposed severance in June 1945. In September 1945 a rating decision held that there was clear and unmistakable evidence establishing the impropriety of granting service connection in the March 1944 rating decision. An October 1, 1945 letter informed the Veteran that his disability benefits had been discontinued. While the regulations pertaining to the finality of past rating decisions was revised in 1961, the regulations in effect at the time of the Veteran’s 1944 rating decision provided similar guarantees on the finality of board decisions to those currently in effect. The prior regulations stated that no rating board will reverse a rating decision except where “such reversal or amendment is clearly warranted by a change in law or by a specific change in interpretation thereof specifically provided for” or where reversal “is obviously warranted by a clear and unmistakable error shown by the evidence at the time the prior decision was rendered…” 38 C.F.R. § 2.1009(a) (1944) [R&PR 1009]. Similarly, the current regulations require that previous determinations which are final and binding “will be accepted as correct in the absence of clear and unmistakable error,” and severance of service connection will only occur “where evidence establishes that it is clearly and unmistakably erroneous (the burden of proof being upon the Government).” 38 C.F.R. §3.105(a), (d) (2017). To establish that a prior grant of service connection was the product of clear and unmistakable error, VA must show that (1) either the correct facts as they were known at the time were not before the adjudicator, the adjudicator made an erroneous factual finding, or the statutory or regulatory provisions were incorrectly applied; (2) the alleged error was undebatable, not merely a disagreement as to how the facts were weighed or evaluated; and (3) the error manifestly changed the outcome of the prior decision. See Allen v. Nicholson, 21 Vet. App. 54, 58-59 (2007); Stallworth v. Nicholson, 20 Vet. App. 482, 488 (2006). The Veteran’s attorney has submitted a June 2017 brief which argues that the September 1945 decision to sever the Veteran’s grant of service connection contained clear and unmistakable error. She argues that the 1945 rating decision failed to find any error in the application of facts or law in the prior rating decision that could constitute clear and unmistakable error. She wrote that the facts and record before the adjudicator of the 1944 rating decision were identical to those before the 1945 adjudicator, with the exception of the April 1945 physical examination which did not offer any opinion as to service connection. She also argued that the evidence and facts at the time of the 1944 rating decision entitled the Veteran to a presumption of soundness regarding his right shoulder because the entrance examination found no right shoulder defect, and there was no clear and unmistakable evidence that his condition preexisted his service, and there was no clear and unmistakable evidence that the disorder was not aggravated by service. She wrote that the 1945 finding that the 1944 rating decision was erroneous was not “undebatable,” but was “merely disagreement with the original adjudicator’s evaluation of the facts.” The Board agrees. VA regulations favor the finality of rating decisions, and the requirements for VA to reverse one of its prior final decisions requires that the rating decision being reversed contain clear and unmistakable error. In this case, the September 1945 adjudicators reviewed the same evidence that was available to the March 1944 adjudicator and applied the same laws. It was reasonable for the March 1944 adjudicator to find that the Veteran’s right shoulder dislocation was incurred in or aggravated by his service. The Veteran’s did not have a right shoulder dislocation noted on entrance to service, and he clearly was treated for dislocation following a right shoulder injury in May 1943. The fact that a military medical officer found in October 1943 that the Veteran’s right shoulder disability was not aggravated by service did not bind the VA adjudicator to that finding, as the VA adjudicator had to apply VA regulations regarding the presumption of soundness and the high standards surrounding proof of no aggravation during service. It is clear to the Board that the correct facts, as they were known at the time, were before the 1944 adjudicator, and there is no indication that the correct statutory or regulatory provisions were not followed. Because severance of service connection requires that there be a finding of clear and unmistakable error, and because it is so manifestly obvious to the Board that the March 1944 rating decision did not contain clear and unmistakable error, the September 1945 severance was itself clearly and unmistakably erroneous. The findings of the 1945 rating decision were essentially a reevaluation of the evidence. The fact that adjudicators in 1945 came to a different conclusion regarding whether the Veteran’s right shoulder dislocation preexisted service and whether it had been aggravated by his service is simply a difference of opinion in the outcome of the adjudication. It was nothing more than a disagreement as to how the facts were weighed and evaluated. It was not clear and unmistakable error. See Luallen v. Brown, 8 Vet. App. 92 (1995). It was therefore erroneous to sever the appellant’s benefits. The September 1945 rating decision which severed service connection for recurrent right shoulder dislocation was clearly and unmistakably erroneous. Service connection is restored effective the date severance, November 1, 1945. See 38 C.F.R. §§ 3.105, 3.400. REASONS FOR REMAND The Veteran is requesting increased ratings for his service-connected right shoulder dislocation and right shoulder impingement syndrome, including consideration on an extraschedular basis and for special monthly compensation for loss of use of the right hand. At a March 2018 VA examination, the Veteran was diagnosed with a right shoulder impingement syndrome, glenohumeral joint osteoarthritis and joint instability. The appellant’s right hand was noted to be his dominant hand. He had very limited range of right arm motion, it was very unstable, and minor motion caused the shoulder to dislocate. The Veteran reported a constant aching pain to his shoulder and increased pain with minor motion. He reported flare ups occurring weekly and being unable to raise his arm to assist with eating, drinking, showering, dressing, and performing other daily tasks. The Veteran demonstrated right shoulder flexion to 40 degrees and abduction to 35 degrees. He was not able to perform repetitive use testing. The examiner was unable to say without mere speculation what the limitation of motion would be during a flare up “without directly observing function under the flare up condition.” The examiner also stated that the Veteran had ankylosis in abduction at 25 degrees or less from the side. The Board finds that the March 2018 VA examination is not fully adequate to decide the claims for increased ratings at this time. The examiner indicated that the Veteran has ankylosis in abduction at 25 degrees or less, but he also found that the Veteran had some right shoulder flexion and abduction range of motion. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary (32nd ed. 2012); see also Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (observing that ankylosis is “stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint,” citing Stedman’s Medical Dictionary 87 (25th ed. 1990)). If the Veteran really does have ankylosis in his shoulder, this would allow for a higher rating, but it must be explained how this can exist simultaneously with a finding of some range of motion. The examiner also stated that he could not provide estimates on loss of function during a flare up without directly observing a flare up. The Board, however, must find that this medical opinion was inadequate in light of the holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017). Sharp holds that VA examiners must attempt to estimate functional loss during a flare up based on all information that can be feasibly derived, including the lay statements of the Veteran. In this case, it does not appear that the examiner was willing to consider the lay statements of the Veteran or his medical treatment records prior to determining that he could not estimate functional loss without resort to speculation. An additional examination opinion is also needed to discuss the Veteran’s request for special monthly compensation for loss of use of the right hand. See 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a)(2), 4.63. The loss of use of a hand is held to exist when its function would be no better than if the hand were amputated and replaced by a suitable prosthesis. The Veteran’s attorney wrote in October 2018 that the Veteran has no effective function with his right arm and hand, and that he is limited in his ability to grasp, manipulate, hand, lift, and carry things. Given the evidence of record an examiner is to address whether the Veteran’s right shoulder disabilities have caused him loss of use in his right hand. The Veteran must also be provided with adequate notice regarding the requirements to establish a claim for special monthly compensation based on loss of use of a hand. In August 2018, the Veteran also requested that he be considered for an extraschedular rating. See 38 C.F.R. § 3.321(b). The Veteran’s attorney submitted a brief in October 2018 stating that the appellant’s disability picture is unusual or exceptional in nature because he is essentially unable to use his right arm, resulting in serious physical limitations. She wrote that the Veteran cannot shower, dress himself, or feed himself without assistance and that he is confined to a wheelchair because he is unable to use a walker. She wrote that the Veteran’s exceptional disability picture has interfered with his employment since 1946. The Board requests that the examiner also address any of the Veteran’s symptoms stemming from his right shoulder disabilities that may fall outside of the regular rating criteria. If it is found that the Veteran has symptoms resulting in an exceptional or unusual disability picture, the issue should be referred to the Director of Compensation Service for extraschedular consideration. An additional retrospective opinion is also required in light of the Board’s finding that the 1945 severance of service connection was improper and the Veteran’s effective date for service connection has been restored to November 1, 1945. The examiner is asked to review all of the Veteran’s medical records and to consider the lay statements of the Veteran and attempt to describe the severity of the Veteran’s right shoulder dislocation disorder from 1945 to 2017. The examiner should also discuss the Veteran’s diagnosis of right shoulder impingement syndrome and attempt to identify the date at which this disorder had its onset and its severity from the time of its onset until 2017. The Board notes that because the 1945 severance has been found to be improper, if it can be established when the Veteran’s right shoulder disability arose, the Veteran may also be entitled to an earlier effective date for this additional right should injury disability. See 38 C.F.R. § 3.400. Lastly, the Veteran testified at the October 2018 Board hearing that in the years after service he had occasional treatment for his shoulder at Rockaway Beach Hospital and Brook Haven Hospital. The Veteran should be requested to provide records or authorization to obtains records pertaining to all treatment of his right shoulder from 1945 to the present, and these records must be obtained prior to obtaining the retrospective medical opinion. The matters are REMANDED for the following action: 1. Provide the Veteran with adequate notice, pursuant to the Veterans Claims Assistance Act, regarding the requirements to establish a claim of entitlement to special monthly compensation due to loss of use of a hand. 2. Provide the Veteran with an opportunity to submit a completed release form (VA Form 21-4142) authorizing VA to request any and all treatment records pertaining to his right shoulder disabilities since 1945, including all records from the Rockaway Beach Hospital and Brook Haven Hospital. The Veteran should be advised that he can also submit those records himself, including any private evaluations he has attended. If the Veteran provides a completed release form, then request the identified treatment records. At least two attempts should be made to obtain any records, and all attempts to secure those records must be documented in the Veteran’s claims file. He and his attorney should be notified of any unsuccessful efforts. 3. After all records have been obtained, schedule the Veteran for a VA orthopedic examination to address the full medical history and current severity of his service-connected right shoulder dislocation and impingement syndrome. The examiner must be provided access to all files in Veteran’s VBMS and Virtual VA/Legacy files, and must specify in the report that these files have been reviewed. The examiner is to provide a detailed review of the Veteran’s pertinent medical history and current complaints. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The Board notes that it is inadequate for the examiner to state that he or she is unable to offer such an opinion because the examination was not performed during a flare up. The examiner must attempt to estimate the functional loss based on statements provided by the Veteran and available medical records. The examiner must state whether the Veteran has right shoulder ankylosis, such that this joint is fixed and immovable. If ankylosis is found, the examiner must explain how this is possible when the Veteran also has some range of motion. The examiner must also address whether the Veteran has loss of use of the right hand. The examiner is advised that a “loss of use” exists when there is “deprivation of the ability to avail oneself” of that extremity, and functional impairment caused by pain, weakness, or incoordination should be taken into account when making that determination. See Jensen v. Shulkin, 29 Vet. App. 66, 78-79 (2017); Tucker v. West, 11 Vet. App. 369, 373 (1999). The examiner should discuss whether the Veteran has any symptoms caused by his right shoulder dislocation and impingement syndrome which are outside of the regular rating criteria and demonstrate an exceptional or unusual disability picture. The examiner must also review all medical records and consider the lay statements of the Veteran, and provide a retrospective opinion regarding the severity of the Veteran’s right shoulder dislocation disorder from November 1945 to the present. The examiner should also discuss the Veteran’s diagnosis of right shoulder impingement syndrome and attempt to identify the date at which this disorder had its onset and its severity from the time of its onset to the present. A complete and fully explanatory rationale must be provided for any opinion offered. If any opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 4. If symptoms indicative of an exceptional or unusual disability picture are found on examination or in the Veteran’s medical treatment records, refer the claim to the Director of Compensation Service for consideration of an extraschedular rating for right shoulder dislocation or right shoulder impingement syndrome. 5. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mary E. Rude, Counsel