Citation Nr: 21071740 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 16-37 979 DATE: December 1, 2021 ORDER Clear and unmistakable error (CUE) is not found in a November 1983 rating decision denying entitlement to a right and left shoulder disability. As new and material evidence sufficient to reopen the claims for service connection for right and left shoulder degenerative joint disease as not been received, the application to reopen is denied. Entitlement to service connection for schizophrenia is denied. REMANDED Entitlement to a rating in excess of 10 percent for scar on dorsal aspect of right hand (previously rated as residuals of laceration on right hand) is remanded. Entitlement to a total disability rating on the basis of individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The November 1983 rating decision that denied service connection for a right and left shoulder disability was reasonably supported by the evidence of record at that time, was consistent with the laws and regulations then in effect, and it did not contain undebatable error that would have manifestly changed the outcome. 2. The claim for service connection for right and left shoulder disability was reopened and denied in an August 2010 rating decision. The Veteran did not appeal that decision and no new evidence pertinent to that claim was received by VA within one year from the date that the RO mailed the notice of the determination to the Veteran. 3. Evidence received since the time of the final August 2010 decision is cumulative and redundant of evidence already of record and does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for right and left shoulder disability. 4. The Veteran's schizophrenia did not have its onset in service or within one year of service discharge and was not shown to be etiologically related to service. CONCLUSIONS OF LAW 1. The November 1983 rating decision denying service connection for a right and left shoulder disability did not contain clear and unmistakable error. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105(a). 2. The August 2010 rating decision reopening and denying service connection for right and left shoulder disability is final. 38 U.S.C. § 7015(c), 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 3. Evidence submitted to reopen the claim of entitlement to service connection for right and left shoulder disability is not new and material. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 4. The criteria for service connection for schizophrenia have not been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from August 1980 to August 1982. In June 2019, the Veteran testified at a videoconference hearing before the undersigned Board of Veterans' Appeals (Board) Veterans Law Judge, and a transcript of that hearing is of record. In August 2019 and November 2020, the Board remanded the Veteran's claim for further development. 1. Whether the November 1983 rating decision to deny entitlement to a right and left shoulder disability was clearly and unmistakably erroneous In a November 1983 rating decision, a Regional Office (RO) denied service connection for right and left shoulder disabilities on the bases that a right shoulder dislocation existed prior to service and was not aggravated by service and that there were no objective finding of a left shoulder disability. That decision became final. RO decisions that are final and binding are accepted as correct in the absence of CUE. 38 C.F.R. § 3.105(a); see also Flash v. Brown, 8 Vet. App. 332, 340 (1995). Revision based on CUE is an exception to the rule of finality; when the evidence establishes CUE in final RO or Board decisions, it is grounds to reverse or revise decisions by the Secretary. See 38 U.S.C. §§ 5109A, 7111; DiCarlo v. Nicholson, 20 Vet. App. 52, 54-58 (2006); 38 C.F.R. §§ 3.105(a), 20.1400-1411. CUE is a very specific and rare kind of error. CUE is the kind of error 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). CUE is established when all the following conditions have been met: (1) Either the correct facts were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the alleged error is "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. King v. Shinseki, 26 Vet. App. 433, 439 (2014) ("A manifest change is not, for example, whether the regional office would have been required to send the medical report back to [the doctor] for clarification, but rather that [the appellant] undoubtedly would have been granted a disability rating greater than 10% for his [disability].") (emphasis added); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); see Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999) (expressly adopting the "manifestly changed outcome" standard). In February 2016, during the pendency of the appeals, the Veteran submitted a statement asserting that CUE was committed in the prior rating decision. He specifically asserted that his right shoulder injury did not occur prior to service, but rather, occurred in basic training. The Veteran also asserted that he was denied service connection without being afforded a VA examination, as he never received notice of any examination. The record reflects that the Veteran underwent a VA compensation and pension examination in September 1983. That examination report indicates that the Veteran has no symptoms referable to the left shoulder. Service treatment records include notations that the Veteran's recurrent right shoulder dislocation began prior to service. For the left shoulder the Veteran has not contended that either the correct facts were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied. Rather, the Veteran's CUE claim appears based on a disagreement as to how the evidence was weighed and a belief that no examination had been conducted even though the record includes a 1983 examination. To the extent the Veteran alleges there was no examination or that the 1983 examination was not adequate, this would be a failure of the duty to assist, which is explicitly not CUE. Cook v. Principi, 318 F.3d 1334, 1345-47. Concerning the right shoulder, the Veteran has asserted that the right shoulder injury did not occur prior to service which could arguably be an allegation that the correct facts were not before the adjudicator at the time of the decision. However, as noted above, the record at the time of the 1983 rating decision included service treatment records which indicated the right shoulder began prior to service. As such, there is evidence suggesting the condition preexisted service and the Veteran's claim is dependent on how the evidence was weighed. The Board thus finds that CUE in the November 1983 decision is not established. 2. Whether new and material evidence has been submitted to reopen the claims for service connection for right and left shoulder degenerative joint disease Subsequent to the original November 1983 denial of service connection for a right and left shoulder disability, the Veteran filed to reopen his claim multiple times. In a May 1993 decision, the RO determined that no new and material evidence had been received to reopen the claim for the left shoulder. In February 2003 and January 2008 rating decisions, the RO determined that no new and material evidence had been received to reopen the claims for service connection for right and left shoulder disabilities. In an August 2010 rating decision, the RO reopened the claims, but denied entitlement to service connection. In June 2012, the Veteran again requested to reopen the claims for service connection for right and left shoulder disabilities, and in May 2013 the RO determined that no new and material evidence had been received to reopen the claims. That decision is on appeal. The Board is neither required nor permitted to analyze the merits of a previously denied claim if new and material evidence has not been submitted. Butler v. Brown, 9 Vet. App. 167, 171 (1996). New evidence means existing evidence not previously submitted to VA. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Veteran has submitted multiple statements as well as testimony as his Board hearing contending that his right shoulder was not injured prior to his entry into service and that he injured his right shoulder during service and has left shoulder disability as a result of overcompensating for his right shoulder. The Board acknowledges all of the Veteran's statements, but finds that they are duplicative of statements made prior to the previous final August 2010 rating decision. The Board notes that at his June 2019 Board hearing the Veteran cited to a 2014 statement made by his doctor with reference to his right shoulder injury as constituting new and material evidence. The record reflects that in March 2014 the Veteran requested that the doctor provide an etiology statement and in May 2014 the doctor indicated that he had reviewed the Veteran's medical records and stated that "there is definite evidence" that the Veteran "had problems with his right shoulder already in 1980, while on active duty." The Board finds that the statement does not constitute new and material evidence as evidence previously of record, including the Veteran's service treatment records, established the fact that the Veteran had right shoulder problems in service. The basis of the original 1983 denial was based on the RO's finding that the Veteran's right shoulder disability preexisted service and was not aggravated by service. The Board finds that none of the evidence submitted since the previous final August 2010 rating decision relates to an unestablished fact necessary to substantiate the claim. Therefore, the claim for service connection for a right and left shoulder disability is not reopened. Service Connection 3. Entitlement to service connection for schizophrenia The Veteran contends that his schizophrenia onset in and is causally related to his service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). A veteran is presumed to be in sound condition, except for defects, infirmities, or disorders noted when examined, accepted, and enrolled for service, or when clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C. § 1111. The burden is on the Government to rebut the presumption of sound condition upon induction by clear and unmistakable evidence showing that the disorder existed prior to service and was not aggravated by service. See VAOPGCPREC 3-2003 (holding in part, that 38 C.F.R. § 3.304(b) is inconsistent with 38 U.S.C. § 1111 to the extent it states that the presumption of sound condition may be rebutted solely by clear and unmistakable evidence that a disease or injury existed prior to service). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). Here, on the Veteran's May 1980 service enlistment examination, he was found to be psychiatrically normal and he denied having a history of depression or excessive worry, frequent trouble sleeping, or nervous trouble of any sort. Thus, there is no psychological condition noted on entrance into service. The Board further finds that there is not clear and unmistakable evidence that the condition existed prior to service. The Board notes that in a July 2007 VA discharge summary, the Veteran was noted to have first seen a psychologist at the age of 15 for "acting out" and hearing voices. In July 2016, the Veteran underwent a VA mental disorders examination at which denied having a history of any psychological problems before entering into the military; however, he also reported that he first experienced auditory hallucinations "early in childhood." In November 2020, a VA examiner reviewed the Veteran's claims file and opined that given the Veteran's conflicting reports as well as a lack of documented evidence of mental health treatment or symptoms prior to service, there is not sufficient evidence to ascertain that the Veteran's schizophrenia clearly and unmistakably existed prior to his service. Based on the forgoing, the Board finds that the presumption of soundness applies and there is not clear and unmistakable evidence showing that the disorder existed prior to service and was not aggravated by service. Therefore, the Board will next consider whether it is at least as likely as not that the Veteran's currently diagnosed schizophrenia onset in or was caused by his service. At his June 2019 Board hearing, the Veteran testified that during basic training he first began hearing voices and feeling scared. He stated that he reported it to his platoon leader but was teased so he kept it to himself. He stated he did not seek treatment until the 1990s because after he separated from service, his mother passed away and he had to take care of his siblings. The Veteran's service treatment records include no complaints, diagnosis, or treatment of schizophrenia. His August 1982 separation examination notes him to be psychiatrically normal. In an accompanying report of medical history, the Veteran indicated that he "didn't know" if he had a history of depression or excessive worry. He was given a mental status examination in which he was noted to exhibit normal behavior, level of alertness, level of orientation, mood, thinking process, thought content, and memory. The physician concluded that the Veteran did not have significant mental illness. Post-service VA treatment records show that he first sought mental health treatment at the VA in September 1999. At that time, he reported that "for years" he has heard derogatory voices and seeing people that insult him. He was diagnosed with probable schizophrenia. He indicated that he had been in jail four times, including taking an antidepressant while in prison in 1998. The Board notes that prison health records were reported to have been destroyed and are thus unavailable for review. In April 2007 the Veteran was admitted for treatment for schizophrenia. His July 2007 discharge summary notes the Veteran's report of beginning to hear voices around 15-years-old when he began using cannabis. He underwent a VA compensation and pension mental health examination in July 2016. The VA examiner opined that the Veteran's schizophrenia was less likely than not incurred in or caused by service. The rationale was that the Veteran was not found to have any significant mental illness in his separation examination, service treatment records provided no other evidence of mental health problems while he was active duty, and he did not participate in any psychological treatment until he was incarcerated in the 1990s. Another VA opinion was obtained in November 2020. The examiner opined that the Veteran's schizophrenia was less likely than not incurred in or caused by service. The rationale given was that there is no documented evidence of mental health problems or treatment until September 1999 and the only evidence that the Veteran's psychiatric symptoms began in service was his only self-report, however that self-report has been inconsistent regarding the timeframes of the first occurrence of psychiatric symptoms and his initial participation in mental health treatment. The Board acknowledges the Veteran's current assertions that he heard voices during basic training. However, the Board finds that the Veteran's recollection and opinion that any in-service symptomatology represented the onset of schizophrenia is not competent and credible. The Board gives significant probative weight to the July 2016 and November 2020 VA medical etiology opinions, which considered the medical evidence of record as well as the Veteran's lay statements. The Board finds that a preponderance of the evidence is against finding that the Veteran's schizophrenia onset in or is causally related to his service. The benefit of the doubt doctrine does not apply, and the claim must be denied. REASONS FOR REMAND Although the Board regrets the additional delay, a remand for further development is required as to the following issues. 1. Entitlement to a rating in excess of 10 percent for scar on dorsal aspect of right hand (previously rated as residuals of laceration on right hand) The Veteran currently has a 10 percent rating for the scar on the dorsal aspect of his right hand under Diagnostic Code 7804. The condition was previously rated as noncompensable as residuals of laceration on the right hand. The Board notes that the Veteran has multiple conditions affecting his right hand but is only service connected for the scar on his right hand. Specifically, the Board notes that service connection for right hand arthritis was denied in February 2003 and August 2010 rating decisions. Thus, only the symptoms and impairment due to the laceration of the Veteran's right hand may be considered in determining the rating on appeal. The Veteran was afforded a VA examination in July 2016. He reported swelling, limited motion, locking, pain, and weakness in his right hand. He reported aggravation of pain with movement and holding any object for a long time. The scar due to his service-connected laceration was noted to be superficial and linear, not adherent to underlying tissues, and not unstable. The scar, 3.5 centimeters long, was noted to be painful. The Veteran underwent another VA examination of the scar on his right hand in October 2019. The examiner stated that the Veteran's scar is not painful or unstable and does not have underlying tissue damage. The examiner indicated that the scar does cause limitation with writing and writing. In September 2019, the Veteran submitted a statement indicating that his symptoms included severe cramps, a numbing sensation that extends from his hand to his waist, excruciating pain, and prevents him from being able to do any lifting or gripping with the hand. In April 2021 the Veteran underwent another VA scar examination. The scar examination notes a scar on the dorsal aspect of the right hand and lists as current symptoms, in part, "pain to right hand, can hardly move, can barely make a fist to right hand, weak grip." The exam indicates the Veteran has limited range of motion due to pain from the scar. The Veteran also underwent a VA hand and fingers examination that noted diagnoses of osteoarthritis and distal interphalangeal deformity in the fourth and fifth digits. Examination included an evaluation of range of motion in the right hand. The Board finds that clarification is needed as to what functional limitations, including limitation of range of motion of the fingers, is due to the Veteran's service-connected laceration and what is due to a nonservice-connected condition. 2. Entitlement to TDIU The issue of entitlement to TDIU is intertwined with the Veteran's increased rating claim remanded herein; therefore, it must also be remanded. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: Obtain a clarification opinion from the VA examiner who performed the April 2021 VA scar and hand/finger examinations as to what functional limitation, including limitation of range of motion of the fingers, is due to the Veteran's service-connected laceration of the right hand and what is due to a nonservice-connected condition. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Christensen 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.