Citation Nr: 20021168 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 15-03 712A DATE: March 24, 2020 ORDER The Agency of Original Jurisdiction’s (AOJ’s) action to revise or reverse the September 15, 2005, rating decision to the extent it awarded a 10 percent rating, from September 1, 1991, to May 19, 2005, based on clear and unmistakable error (CUE), was proper; entitlement to a compensable rating, from September 1, 1991 to May 19, 2012, for the service-connected residuals of a dislocation of left sternoclavicular joint (left shoulder disability) is denied. The AOJ’s action to revise or reverse the September 15, 2005, rating decision to the extent that it awarded a 10 percent rating, from May 20, 2005 to June 12, 2012, the service-connected left shoulder disability, based on based CUE, was not proper; entitlement to a 10 percent rating, but not higher, effective from May 20, 2005 to June 12, 2012, for the service-connected left shoulder disability is granted. FINDINGS OF FACT 1. A June 1991 rating decision, which reduced the rating for the service-connected left shoulder disability from 10 percent to noncompensable, effective September 1, 1991, became final as that rating decision was not appealed; nor was new and material evidence received within the appeal period. 2. A March 1996 rating decision, which confirmed and continued a non-compensable rating for the service-connected left shoulder disability, became final as that rating decision was not appealed; nor was new and material evidence received within the appeal period. 3. The September 2005 rating decision did not find clear and unmistakable error in either the June 1991 or March 1996 rating decisions, and therefore, did not reopen those decisions for revisions. 4. The Veteran’s claim for an increased rating, adjudicated in a September 2005 rating decision, was received on May 20, 2005. 5. The September 2005 rating decision, which erroneously “continued” a compensable rating for the service-connected left shoulder disability, became final and the rating decision was not appealed; nor was new and material evidence received within the appeal period. 6. The Veteran’s left shoulder disability presented with painful motion or limitation of the arm at the time of the September 2005 rating decision. 7. As the record existed at the time of the September 2005 rating decision, the Veteran was entitled to a 10 percent, but no greater, evaluation for his left shoulder disability. 8. The Veteran’s claim for an increased rating, adjudicated through the May 2013 rating decision, was received on June 13, 2012. CONCLUSIONS OF LAW 1. But for clear and unmistakable error (CUE) in the September 2005 rating decision, the Veteran was entitled to a noncompensable rating, and no higher, for his service-connected left shoulder disability from September 1, 1991 to May 19, 2005. 38 U.S.C. §§ 5109A, 1155; 38 C.F.R. §§ 3.105(a), 3.160(f), 4.31, 4.40, 4.45. 4.59, 4.71a, Diagnostic Code 5203. 2. The September 2005 rating decision, to the extent it awarded a 10 percent rating from May 20, 2005, for the service-connected left shoulder disability, did not contain clear and unmistakable error; and based upon the date of receipt of the claim and record evidence as it existed at the time of that decision, the Veteran was entitled to a 10 percent rating, and no higher, for his left shoulder disability from May 20, 2005 to June 12, 2012. 38 U.S.C. §§ 5109A, 1155; 38 C.F.R. §§ 3.105(a), 3.160(f), 4.31, 4.40, 4.45. 4.59, 4.71a, Diagnostic Code 5203. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1986 to June 1988. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which decreased the rating of the Veteran’s service-connected left shoulder disability from 10 percent to noncompensable, effective September 1, 1991, on the grounds of finding clear and unmistakable error (CUE) in a September 2005 rating decision. In January 2017, the Veteran testified in a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been prepared and associated with the Veteran’s claims file. In an August 2018 decision, the Board upheld the finding of CUE in the September 2005 rating decision, and in effect denied the Veteran’s claim for a compensable rating from May 20, 2005 to June 12, 2012. The Veteran timely appealed the August 2018 Board decision to the Court of Appeals for Veterans Claims (CAVC or Court). In August 2019, the Court granted a joint motion for remand in which the parties moved for vacatur of the Board’s August 2018 decision. See August 2019, Court Order. The order further granted the parties’ motion to remand this matter to the Board for consideration of whether the Veteran’s functional impact and pain on motion, warrants a compensable rating for the period in question, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5201. Whether there was CUE in the September 15, 2005, rating decision that continued a 10 percent rating for the service-connected left shoulder disability, to include whether the Veteran was entitled to a compensable rating from September 1, 1991 to June 12, 2012. The Veteran argues that he is entitled to a compensable rating for his left shoulder disability as of May 2005. See July 2019, Joint Motion for Remand; June 2013, Notice of Disagreement. The Veteran was granted service connection for his left shoulder disability in a February 1989 rating decision. See February 1989, Rating Decision. That decision assigned a 10 percent rating, effective June 24, 1988, due to a determination that medical records did not support an actual dislocation or nonunion of the clavicle, but rather, the Veteran’s condition was considered analogous to malunion of the clavicle, pursuant to DC 5203. Id. A June 1991 rating decision reduced the rating to zero percent (noncompensable), effective September 1, 1991. See June 1991, Rating Decision. The Veteran did not initiate an appeal, nor did he submit new and material evidence within a year of that rating decision. 38 C.F.R. § 3.156(b). That decision, therefore, became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. Despite the finality of that decision, a September 2005 rating decision “continued” a 10 percent compensable rating from June 24, 1988, essentially overturning the June 1991 decision which assigned a noncompensable rating from September 1991. See September 2005, Rating Decision (the Board notes that there was an additional decision in March 1996 which also continued the noncompensable rating). The September 2005 rating decision became final as the Veteran did not initiate an appeal, nor did he submit new and material evidence within a year of that rating decision. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.1103. As noted above, the May 2013 rating decision on appeal assigned a noncompensable rating for the period of September 1, 1991 to June 12, 2012, based upon a finding of clear and unmistakable error in the September 2005 rating decision. See May 2013, Rating Decision. That decision explained that the 2005 rating “incorrectly described our decision as confirming and continuing your evaluation for this condition at 10 percent, when in fact, the condition was confirmed and continued at 0 percent disabling.” Id.; see also September 2005, Rating Decision; January 2017, Hearing Transcript (discussing the agreed upon time period at issue being as stated). Because the September 2005 rating decision became final, any revision of that decision must be based upon clear and unmistakable error (CUE). 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. CUE is a very specific and rare kind of “error.” It is 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 result would have been manifestly different but for the error. CUE is established when the following conditions are met: (1) either (a) the correct facts in the record were not before the adjudicator, or (b) the statutory or regulatory provisions in existence at the time were incorrectly applied; (2) the alleged error must be “undebatable,” not merely “a disagreement as to how the facts were weighed or evaluated”; and (3) the commission of the alleged error must have “manifestly changed the outcome” of the decision being attacked on the basis of CUE at the time that decision was rendered. Evans v. McDonald, 27 Vet. App. 180, 185 (2014), aff’d, 642 F. App’x 982 (Fed. Cir. 2016); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). A manifest change in the outcome of an adjudication means that, absent the alleged CUE, the benefit sought would have been granted at the outset. King v. Shinseki, 26 Vet. App. 433, 441 (2014). Turning back to the case at hand, the Board finds clear and unmistakable error in the September 2005 rating decision solely as it relates to the period from September 1, 1991 to May 20, 2005. However, as fully explained below, as to the assignment of a compensable rating beginning on May 20, 2005, the September 2005 rating decision does not present the requisite clear and unmistakable error to be subject to revision. The Board finds that in the September 2005 rating decision, the RO erred in stating “[a]n evaluation of 10 percent is continued from June 24, 1988.” See September 2005, Rating Decision (emphasis added). At the time of the rating decision, the Veteran was in receipt of a noncompensable rating. See June 1991 & March 1996, Rating Decisions. Because the prior decisions from June 1991 and March 1996 were deemed final, the earliest date for an award of the Veteran’s claim for an increased rating would be May 20, 2005, the date of receipt of the claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(1)-(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997) (explaining that the award of an increased rating should normally be effective either on the date of receipt of the claim or on some date in the preceding year if it was ascertainable that the disorder had increased in severity during that time). Therefore, it was factually impossible to continue a 10 percent rating from June 1988, when such rating had been discontinued as of September 1, 1991. It was also impossible to do so by regulation, as the only way to circumvent those rating decisions would have been for the RO to find clear and unmistakable error in the June 1991 rating decision and reinstate a 10 percent rating as of September 1991. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. It is undisputed that such a finding was not made in this case. Furthermore, the record is silent as to any argument for revision of the 1991 decision based upon clear and unmistakable error. Therefore, the assignment of a 10 percent rating from September 1, 1991 to May 20, 2005 was factually and legally incorrect, which manifestly changed the outcome of the decision as to that time period. Russell, 3 Vet. App. at 313-14. The Board finds that the September 2005 rating decision, solely as to that time period, was based upon clear and unmistakable error and subject to revision. However, as to the time period beginning on May 20, 2005, the Board finds that the September 2005 rating decision does not meet the high threshold of CUE, as it cannot be established that the error addressed above manifestly changed the outcome of the decision as it relates to the period from May 20, 2005 to June 13, 2012 (the effective date of the currently assigned 20 percent rating). Fugo v. Brown, 6 Vet. App. 40, 44 (1993) (“[E]ven 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.”); see also Crippen v. Brown, 9 Vet. App. 412, 421 (1996) (holding that, when a decision is attacked on the basis of clear and unmistakable error, “the Board would have to decide whether, had the error not been made, the outcome after reopening —that is, on the merits—would have ‘manifestly’ been changed”); Mason v. Brown, 8 Vet. App. 44, 53 (1995) (holding that the Board must consider whether “the correction of the error would have [manifestly] changed the outcome—that is, that service connection would have resulted had the lay statements been considered.”). The crux of the issue in this case, as explained by the Court in King v. Shinseki, is whether it is undebatable that the outcome would have been different: Whether it is reasonable to conclude that the outcome would have been different is not the standard that must be met for a motion alleging clear and unmistakable error to succeed. The governing law requires that the error be “undebatable” and that the commission of the alleged error must have “manifestly changed the outcome” of the decision. King, 26 Vet. App. at 442, citing Russell v. Principi, 3 Vet. App. 310 (1992). Indeed, the September 2005 rating decision could have come to the same result in awarding a 10 percent rating from May 2005, even absent the error, based upon the medical evidence of record. See July 2005 VA Examination Report. The Veteran’s July 2005 VA examination reported that the left shoulder’s general appearance and range of motion were within normal limits. Id. X-ray testing also showed results within normal limits. In addition, the examination indicated that there was no change in the diagnosis, which at the time, was noted as residuals of dislocated left sterno-clavicle joint. Id. The examination did, however, include the Veteran’s reporting of pain and limitation of function during flare-ups. Id. The Veteran’s left shoulder disability has been rated pursuant to Diagnostic Code (DC) 5203. Under DC 5203, a 20 percent rating is warranted if there is nonunion of the clavicle or scapula with loose movement or dislocation of the clavicle or scapula. This is the maximum schedular rating under DC 5203. 38 C.F.R. § 4.71a, DC 5203. A 10 percent rating is warranted where there is nonunion of the clavicle or scapula without loose movement or malunion of the clavicle or scapula. Id. The Board takes into consideration the Veteran’s reports of pain at the time of the September 2005 rating decision. See July 2005 VA Examination Report. DC 5203 allows assignment of an evaluation based on impairment of function of a contiguous joint and DC 5201 provides the rating criteria for limitation of motion due to a shoulder joint disability. 38 C.F.R. § 4.71a, DC 5201-5203. Diagnostic Code 5201, limitation of motion to shoulder level (e.g., flexion to 90 degrees) in the major or minor extremity warrants a 20 percent rating. Limitation of motion to midway between side and shoulder level (e.g., flexion to 45 degrees) in the minor extremity warrants a 30 percent rating and limitation of motion to 25 degrees from the side in the minor extremity warrants a 40 percent rating. Id. Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 to 180 degrees, abduction from 0 to 180 degrees, and both internal and external rotation from 0 to 90 degrees. 38 C.F.R. § 4.71, Plate I. Here, the Board finds the preponderance of the evidence is against a finding that the Veteran’s left shoulder disability was manifested by painful motion or limitation of the arm to shoulder level to warrant the minimum compensable rating assignable for limitation of motion of the shoulder. See 38 C.F.R. § 4.59 (it is the intent of the schedule to recognize actually painful joints as entitled to at least the minimum compensable rating for the joint); see also 38 C.F.R. § 4.71a, Diagnostic Code 5201. At the July 2005 VA examination, the examiner reported flexion and abduction to 180 degrees and internal and external rotation to 90 degrees. Moreover, in addition to the full range of motion of the joint, the examiner noted that motion was “not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use.” The medical evidence demonstrates that the Veteran’s reports of pain at the time were not based upon pain on motion except for a statement regarding the inability to lift anything heavy, rather, the Veteran reported increased pain when sleeping on the shoulder. Therefore, the evidence of record is against a finding that the left shoulder disability, as of the date of the September 2005 rating decision, was productive of painful motion or limitation of motion of the arm to shoulder level which would warrant a rating pursuant to diagnostic code 5201. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); 38 C.F.R. §§ 4.40, 4.59. Nevertheless, previous medical records demonstrate the same reporting of pain and irritation to the Veteran’s left shoulder which resulted in consideration of the condition as malunion of the left clavicle pursuant to DC 5203, warranting a 10 percent rating. See April 1988, Military Separation Examination. Therefore, while it may be reasonable to surmise that the outcome could have been different, there is no evidence that the error “manifestly changed the outcome” as the Veteran’s condition, as it was presented in 2005, may have been considered as malunion of the clavicle, warranting a 10 percent rating. King, 26 Vet. App. at 442, citing Russell v. Principi, 3 Vet. App. 310 (1992). For these reasons, the Board finds that the September 2005 rating decision, insofar as it assigned a 10 percent rating from May 2005, was not based upon clear and unmistakable error. Therefore, the Veteran is entitled to the assigned rating of 10 percent from May 20, 2005 to June 12, 2012. To the extent that the Veteran has argued an earlier effective date of the current 20 percent rating assigned by the May 2013 rating decision on appeal, as discussed at length above, the earliest effective date for an increased rating is the date of receipt of the claim or a date within the preceding year if ascertainable that the severity of the condition increased during that time. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(1)-(2). Absent a finding of CUE in the September 2005 rating decision as to the time period from May 2005 to June 2012, the earliest effective date for the Veteran’s current increased rating claim is June 13, 2012, the date that the Veteran submitted his claim. There is no evidence of record prior to that date of any increase in severity or otherwise any change in the Veteran’s condition at all. See June 2012, VA Form 21-526b; 2007-2012, VA Treatment Records. In an April 2013 VA Examination, it was reported that the Veteran was experiencing a worsening of his condition. See April 2013, VA Examination. In addition, that report indicated that the Veteran’s diagnosis had progressed and was no longer residuals of dislocated left sterno-clavicle joint but dislocation of left sterno- clavicular joint. Id. As there is no clear and unmistakable error in the September 2005 rating decision regarding an assignment of a 10 percent rating from May 20, 2005, and there is no evidence of an increase in the severity of the Veteran’s condition prior to the receipt of his claim on June 13, 2012, entitlement to an earlier effective date of a 20 percent rating is not warranted. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Sutherell, Associate Counsel 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.