Citation Nr: 21002703 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 17-45 017 DATE: January 14, 2021 ORDER Entitlement to an effective date prior to July 30, 2015 for the grant of service connection for posttraumatic stress disorder (PTSD), to include as due to clear and unmistakable error (CUE) in a May 2010 rating decision that initially denied entitlement to service connection for the disability, is denied. Entitlement to service connection for a left shoulder disability, to include a labral tear, is denied. FINDINGS OF FACT 1. The May 2010 rating decision that denied connection for PTSD is final. 2. The July 2010 rating decision denying the claim for service connection for a left shoulder disability was adequately supported by the evidence then of record, considered the correct facts as they then existed, correctly applied statutory or regulatory provisions extant at that time, and did not contain an undebatable error that was outcome determinative. 3. The preponderance of the evidence is against finding that the Veteran's left shoulder condition began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date earlier than July 30, 2015, for the award of service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 5110(a); 38 C.F.R. §§ 3.102, 3.105, 3.156(c), 3.400. 2. The criteria for entitlement to service connection for a left shoulder condition, to include a labral tear, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2001 to November 2006. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in May 2019 and were remanded for additional development. The case is once again before the Board. Entitlement to an Earlier Effective date The Veteran contends that an earlier effective date for service connection for PTSD is warranted, to include based on CUE in a May 2010 rating decision which denied service connection for PTSD. The Veteran seeks the assignment of an earlier effective date of November 30, 2009, which is the date the Veteran has identified as the date of his original claim submission for PTSD. Generally, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. However, if the claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from active service. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity 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. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Previous determinations that are final and binding, including decisions of service connection, will be accepted as correct in the absence of CUE. 38 C.F.R. § 3.105(a). VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). The record indicates that the Veteran's claim for service connection for PTSD was previously denied in a May 2010 rating decision. The Veteran filed a Notice of disagreement (NOD) in June 2010. The 2010 NOD contained an informal claim for psychosis and mental illness. In response, the RO issued a Statement of the Case (SOC) for the PTSD claim in May 2012. The SOC considered VA treatment records created within one year of the May 2010 rating decision and denied the Veteran’s claim. The Veteran did not perfect his appeal with the timely submission of a VA form 9 or its equivalent. Accordingly, the May 2010 rating decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. The VA received the Veteran’s intent to file on July 30, 2015, followed by a formal claim on October 7, 2015 for PTSD. In a January 2016 rating decision, entitlement to service connection was granted effective July 30, 2015. Review of the record shows no other communication was filed between June 2012 and July 2015 indicating an intent to apply for service connection for PTSD. See 38 C.F.R. § 3.155. In sum, the earliest possible effective date for the Veteran's claim of service connection for PTSD is July 30, 2015, the date he first contacted the RO with an intent to file a claim following the prior denial. 38 U.S.C. § 5110. As this appeal must be denied as a matter of law, the benefit of the doubt rule is not for application. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Thus, an effective date earlier than July 30, 2015, for the grant of service connection for PTSD is denied. CUE in the May 2010 Rating Decision The Veteran asserts that there was CUE in the May 2010 rating decision because the statutory or regulatory provisions extant at that time were not correctly applied. Specifically, he asserts that he should have been provided an examination per the VA Adjudication Manual (M21-1) and the claim was not properly considered under the amended 38 C.F.R. § 3.304(f)(3). A revision based on clear and unmistakable error is the only way to overcome the finality of a prior decision on the same issue and obtain an effective date that is earlier than the date of that prior final decision. 38 U.S.C. §§ 5109A, 7111; 38 C.F.R. §§ 3.104, 3.105, 3.2600, 20.1400-11. The appellant bears an “extra-heavy burden” when moving or requesting revision of a prior final decision based on CUE, as “[a] final decision is entitled to a strong presumption of validity.” Berger v. Brown, 10 Vet. App. 166, 169 (1997). CUE 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. See Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In determining whether a prior determination involves CUE, the United States Court of Appeals for Veterans Claims (Court) established a three-prong test. The three prongs are: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than simple disagreement on how the facts were weighed or evaluated), or the statutory/regulatory provisions extant at that time were not correctly applied; (2) the error must be “undebatable” and of the sort which, if it had 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 law that existed at the time of the adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994), citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). With respect to the Veteran’s argument that he should have been afforded an examination for his 2009 claim under the guidelines of M21-1, the Board does not find CUE. The Veteran argues that “M21-1 Part III.iv.4H.3e required VA to schedule an examination if there is evidence of a PTSD diagnosis or symptoms, and service in an area of potential hostile military or terrorist activity.” The provisions of the M21-1 are not binding statutory or regulatory provisions so any apparent misapplication cannot be CUE. See 38 C.F.R. § 3.105(a)(1)(i). Although phrased as a failure to follow the adjudication manual, the CUE argument is based on VA not fulfilling its duty to assist the Veteran in the development of his claim. Similarly, these assertions cannot constitute the basis for a CUE motion. 38 C.F.R. § 20.1403(d)(2); see also Cook v. Principi, 318 F.3d 1334, 1345-47 (Fed. Cir. 2002) (holding that a breach of the duty to assist cannot constitute CUE). With respect to the Veteran’s argument that the claim was not properly considered under the amended 38 C.F.R. § 3.304(f)(3), the Board does not find CUE. The Board acknowledges that the regulation was amended in July 2010, which is after the May 2010 rating decision, but before the May 2012 SOC. The new rule liberalized the evidentiary burden of establishing a stressor when it is related to a fear of hostile military or terrorist activity. See 75 Fed. Reg. 39843-01 (July 13, 2010), codified at 38 C.F.R. § 3.304(f)(3). Section 3.304(f)(3) addresses the second element of service connection, an in-service occurrence, injury or disease. The regulation provides that, if a stressor claimed by a veteran is related to the Veteran's fear of hostile military activity, and a VA psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor, as long as the claimed stressor is consistent with the places, types, and circumstances of the veteran's service and there is no clear and convincing evidence to the contrary. Id. The Board acknowledges the Veteran’s Iraq Campaign Medal, among other commendations, were noted on his DD-214 and his lay testimony alone could establish the occurrence of the claimed in-service stressor; however, the Veteran did not assert a claimed in-service stressor prior to October 2015. The May 2012 SOC stated that the Veteran had not provided any information about the traumatic events in service, or any evidence showing that PTSD is present. The Veteran was sent a VA Form 21-0781 requesting his stressor information in May 2012, the Veteran did not respond to this request. The Veteran’s first submission of this form was in October 2015. The evidence of record at the time of the May 2012 SOC did not establish that the Veteran’s PTSD was related to fear of hostile military or terrorist activity. In fact, treatment records indicated that the Veteran’s stressors during that period were related to finishing his education and finding a job after graduation. See January 2010 and June 2011 CAPRI received May 2012. Given the fact that the Veteran had not asserted a claimed stressor, the Board finds that section 3.304(f)(3) was not applicable for the May 2012 SOC. Moreover, while the amendments to section 3.304 created another evidentiary avenue in which veterans seeking disability compensation for PTSD can establish service connection, it did not eliminate the first element that a current disability must be present to establish service connection. Section 3.304, pre and post July 2010 amendments, requires the Veteran to have a current diagnosis of PTSD. At the time of the May 2010 rating decision and May 2012 SOC, the Veteran did not have a current diagnosis of PTSD. Treatment records contained multiple negative PTSD screenings. See December 2008, December 2009 and June 2011 treatment records. The Veteran’s claim file did not contain a diagnosis of PTSD until December 2015, after the May 2012 SOC. Therefore, application of section 3.304(f)(3) would not have manifestly changed the outcome of the May 2012 SOC because the first element of service connection had not been established. The Board is sympathetic to the Veteran’s belief that an earlier effective date is warranted. For the reasons outlined above, the Board is precluded from assigning an effective date earlier than July 30, 2015, including consideration of CUE in the May 2010 rating decision, for the grant of service connection for PTSD. Consequently, the Veteran's claim for an earlier effective date must be denied. Entitlement to service connection for a left shoulder condition is denied The Veteran maintains that his current shoulder condition is related to service. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires the following: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Alternatively, when a disease under 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptomology to establish service connection is limited only to those diseases listed under 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). With respect to evidence of a current disability, the Veteran was diagnosed with bicep tendinosis and a labral tear in his left shoulder in May 2014 which resulted in arthroscopic surgery. See December 2014 private treatment records. A current disability has therefore been demonstrated. With respect to an in-service incurrence, the Veteran maintains that he strained his shoulder while lifting weights in service. In support of his claim, the Veteran submitted a statement from Mr. S.C., a fellow serviceman, indicating that he witnessed the Veteran loss control of a weight and injured himself in the process. See December 2015 Statement in support of claim. Mr. S.C. further stated that the Veteran was unable to lift heavy strakes after the incident. An in-service event has therefore been demonstrated. As the record contains evidence of a current disability and evidence of an in-service injury, what remains to be established is a nexus between the claimed in-service disease or injury and the present disability. A review of the service treatment records did not reveal any treatment or diagnosis related to the Veteran’s shoulder. In fact, on the August 2006 separation report of medical history, the Veteran self-reported no painful shoulders. Post-service treatment records reflect that the Veteran sought treatment for shoulder pain beginning in February 2008. The Veteran sought treatment for a rotary cuff injury. The examiner noted the Veteran’s medical history was largely unremarkable. The Veteran stated that in the last three years, his left shoulder pain “comes and goes” particularly when he is weightlifting. An x-ray revealed no fractures, no lytic or blastic bony lesions, no glenohumeral or acromioclavicular joint lesions, and no soft tissue lesions. The physician diagnosed the Veteran with a left mild shoulder impingement and a grade 1 AC sprain. The Veteran was instructed to avoid heavy lifting to allow appropriate healing of the shoulder. See March 2008 CAPRI received May 2012. Private records demonstrate the Veteran began treatment at a sports medicine facility for lower back pain in 2013. In April 2014 the Veteran started reporting left shoulder pain. Ultimately, in May 2015 the Veteran underwent arthroscopic surgery in his left shoulder. Pre-operative magnetic resonance imaging (MRI) findings suggested that his shoulder pain was related to his bicep tendon. In December 2015, a VA examiner concluded that the Veteran’s left bicep tendon condition and left shoulder condition was less likely than not related to service. The examiner reasoned that there was no evidence of an evaluation or treatment in service. In November 2017, a VA examiner also concluded that the Veteran’s condition was less likely than not related to service. The examiner noted the Veteran’s medical history in service and the statement from Mr. S.C. regarding the injury and concluded that there was no objective evidence of a left shoulder injury in service, so she could not establish a nexus. Pursuant to the May 2019 Board remand, an addendum VA opinion was provided in October 2019. The examiner stated that the Veteran’s left shoulder condition was less likely than not incurred in or caused by service. The examiner acknowledged the statements made by the Veteran and his fellow serviceman and concluded that while the statements report an injury in service, they do not report that the in-service injury is related to his current shoulder condition. The examiner noted that the Veteran’s first documented complaint of left shoulder pain was in 2008. The Veteran’s next report of shoulder pain was in 2014. The examiner concluded that given the documented history of treatment, it was more likely than not that the Veteran’s in-service history of pain was related to an acute injury, and that the proximate cause of his diagnosed tendinosis and labral tear occurred from weightlifting after service. The Board finds that the preponderance of the evidence is against finding service connection for a left shoulder condition. The medical opinions from December 2015, November 2017 and May 2019 collectively establish that the Veteran’s shoulder condition is not etiology related to an in-service injury, event, or disease. Particularly the October 2019 opinion which consider the evidence of record, including the Veteran’s own statements, statements from his fellow servicemembers, as well as the evidence or lack thereof contained in service treatment and other VA medical records. The 2019 examiner’s opinion is highly probative, because it is based on an accurate medical history and provides explanations that contain clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Furthermore, the evidence is not otherwise contradicted. To the extent that the Veteran maintains that his shoulder pain has persisted since service, service connection cannot be established on the basis of continuity of symptomatology because his current diagnoses tendinosis and labral tear are not chronic diseases listed under 38 C.F.R. § 3.309(a). Walker supra. The Board has considered the Veteran’s and his fellow serviceman’s statements that the Veteran’s shoulder injury occurred in service. While they are competent to state what they witness or describe observable symptoms such as pain, they are not competent to testify as to the etiology of the Veteran’s shoulder condition. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The record does not show, nor does the Veteran or fellow serviceman contend, that they have specialized education, training, or experience that would qualify them to provide an opinion on these matters. Consequently, the Board assigns no probative weight to the Veteran’s or his fellow serviceman’s assertion that his in-service injury is the cause of his current shoulder condition. In contrast, the Board gives more probative weight to the aforementioned medical opinions. As the preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.V. Palatt, 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.