Citation Nr: 21006982 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 190321-4911 DATE: February 8, 2021 ORDER Entitlement to revision of the May 2013 rating decision granting 10 percent for a left shoulder, glenoid labral tear with open reduction internal fixation and bursitis (left shoulder disability), on the basis of clear and unmistakable error (CUE) is denied. Entitlement to revision of the May 2013 rating decision granting 10 percent for a right shoulder bursitis (right shoulder disability), on the basis of CUE is denied. FINDINGS OF FACT 1. The Veteran’s claims of service connection for left and right shoulder disabilities were granted and 10 percent ratings were assigned for each shoulder in a May 2013 rating decision, and that became final because he did not submit a notice of disagreement or new and material evidence within the appeal period. 2. The correct facts, as known at the time, were before the VA adjudicators in May 2013 and the statutory and regulatory provisions extant at the time were correctly applied. CONCLUSIONS OF LAW 1. The criteria for entitlement to revision of the May 2013 rating decision for a left shoulder disability, on the basis of CUE pursuant to 38 C.F.R. § 3.105 have not been satisfied. 38 U.S.C. § 5109A (2012); 38 C.F.R. §§ 3.104, 3.105(a) (2019). 2. The criteria for entitlement to revision of the May 2013 rating decision for a right shoulder disability, on the basis of CUE pursuant to 38 C.F.R. § 3.105 have not been satisfied. 38 U.S.C. § 5109A (2012); 38 C.F.R. §§ 3.104, 3.105(a) (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from January 2006 to March 2006, May 2006 to September 2006, and December 2007 to June 2009. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a March 2019 rating decision by the Department of Veterans Affairs (VA) Regional Office RO). In his appeal to the Board, the Veteran elected the Direct Review option. Accordingly, the Board will consider the evidence of record at the time of the March 2019 rating decision on appeal. The Veteran asserts there was CUE in a May 2013 rating decision that assigned a 10 percent rating each for left and right shoulder disabilities. A previous RO determination that is final and binding will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105 (a). The Veteran did not submit a notice of disagreement with the May 2013 rating decision. As such, that rating decision became final. Once a decision becomes final, it may only be revised by a showing of CUE. 38 C.F.R. §§ 3.104, 3.105. CUE is a very specific and rare kind of error. It is the kind of error of fact or 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. Simply to claim CUE on the basis that previous adjudication improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of failure to follow the regulations or failure to give due process, or any other general, nonspecific claim of error. In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). 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 the 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). The error must be of a type that is outcome-determinative, and subsequently developed evidence may not be considered in determining whether an error existed in the prior decision. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993); Glover v. West, 185 F. 3d 1328 (Fed. Cir. 1999). A manifest change in outcome of an adjudication means that, absent the alleged CUE, the benefit sought would have been granted at the outset. The standard is not whether it is reasonable to conclude that the outcome would have been different. King v. Shinseki, 26 Vet. App. 433, 441 (2014). As a threshold matter, the Board finds that the arguments advanced by the Veteran allege CUE with the requisite specificity. See Simmons v. Principi, 17 Vet. App. 104 (2003). The Board will therefore adjudicate the merits of his claim. In this case, the Veteran asserts that, pursuant to Sowers v. McDonald, 27 Vet. App. 472 (2016), 20 percent ratings were warranted as the minimum compensable ratings available for painful motion under the rating code for disabilities of the shoulder. Under 38 C.F.R. § 4.59, functional loss due to painful motion should be assigned at least the “minimum compensable rating” for a particular joint. The minimal compensable rating for painful or limited motion under § 4.59 does not require the presence of arthritis. Burton v. Shinseki, 25 Vet. App. 1 (2011). However, prior to May 23, 2016, it was longstanding VA policy to interpret “the minimum compensable rating” for a joint for the purpose of § 4.59 as a 10 percent rating, irrespective of the diagnostic code involved. Moreover, the diagnostic codes for ratings based on shoulder and arm impairment include a minimum 10 percent rating under certain codes. See 38 C.F.R. § 4.71a, Diagnostic Codes 5200 to 5203. In keeping with standard VA practice at the time, the AOJ assigned the Veteran an initial 10 percent rating each for his right and left shoulder disabilities in the May 2013 rating decision to compensate him for his functional loss that did not meet the compensable criteria for a shoulder or arm disability based on limitation of motion. In Sowers, 27 Vet. App. at 472, the Court held that 38 C.F.R. § 4.59 is limited by the specific diagnostic code most applicable to the 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 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, the date of the Court decision. Court decisions invalidating VA regulations or statutory interpretations do not have retroactive effect in relation to prior final adjudications. Berger v. Brown, 10 Vet. App. 166, 170 (1997); see also George v. Wilkie, 30 Vet. App. 364 (2019). As noted by the AOJ in the March 2019 rating decision, before Sowers, there was no binding guidance stating that the minimum rating for the specific diagnostic code, or DC 5201, should be applied when assigning a minimum rating under § 4.59. The Board finds that, based on the facts and law as they were known at the time of the May 2013 rating decision, the assignment of a 10 percent rating for each shoulder based on painful motion was proper. 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 May 2013, to the facts of the Veteran’s case. Revision based on CUE is therefore not warranted. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Roya Bahrami, 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.