Citation Nr: 21040138 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 18-29 783 DATE: July 2, 2021 ORDER Entitlement to an effective date earlier than October 20, 2017, for the award of a 10 percent rating for a painful scar as a residual of clavicle surgery of the right shoulder is denied. Entitlement to revision of a December 8, 2008, rating decision that assigned an initial 10 percent rating in the award of service connection for right mid-shaft clavicle fracture with residual sensory deficit status post arthroscopy with scar, on the basis of clear and unmistakable error (CUE) pursuant to 38 C.F.R. § 3.105, is denied. FINDINGS OF FACT 1. Private outpatient treatment records dated October 20, 2017 reflect the earliest factually ascertainable date which documented that an increase in disability of the painful scar as a residual of clavicle surgery of the right shoulder had occurred. 2. The December 8, 2008, rating decision that assigned an initial 10 percent rating in the award of service connection for right mid-shaft clavicle fracture with residual sensory deficit status post arthroscopy with scar became final because the Veteran did not submit a Notice of Disagreement within one year of the decision. 3. The Agency of Original Jurisdiction (AOJ) considered the facts shown in the evidence of record and applied the correct law at the time of the December 8, 2008, rating decision. 4. The Veteran has not alleged an error of fact or law in the December 8, 2008, rating decision that compels the conclusion, to which reasonable minds could not differ, that the results would have been manifestly different but for the error. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than October 20, 2017 for the award of a 10 percent rating for a painful scar as a residual of clavicle surgery of the right shoulder are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for revision or reversal based on clear and unmistakably error (CUE) in a December 8, 2008 rating decision, that assigned an initial 10 percent rating in the award of service connection for right mid-shaft clavicle fracture with residual sensory deficit status post arthroscopy with scar, are not met. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Coast Guard from July 2004 to July 2008. These matters come to the Board of Veterans' Appeals (Board) on appeal from October 2017 and November 2017 rating decisions by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran and his spouse testified at an April 21, 2021 hearing held before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the claims file. At the April 2021 Board hearing, the Veteran's representative raised the matter of CUE in the context of an earlier effective date for the assignment of a 30 percent rating for right mid-shaft clavicle fracture with labral tear, tendinosis, instability, and labral cyst as awarded in an April 2018 rating decision. The Board does not have jurisdiction over this CUE claim. "[E]ach wholly distinct and different CUE theory underlying a request for revision is a separate matter and, when attacking a prior [AOJ] decision, each must be presented to and adjudicated by the [AOJ] in the first instance and, if not, the Board lacks jurisdiction over the merits of the matter." Jarrell v. Nicholson, 20 Vet. App. 326, 334 (2006). To the extent that the Veteran's representative asserted CUE in an April 2018 rating decision in the context of the CUE claim currently before the Board, an assertion of CUE is a motion or a request, not a theory of entitlement that can be considered part of another claim. See, e.g., Hillyard v. Shinseki, 24 Vet. App. 343, 355 (2011). While a finding of CUE may render a decision on the current CUE appeal moot at some time in the future, such does not impact the findings of fact and laws and regulations at issue here. Harris v. Derwinski, 1 Vet. App. 180 (1991). Consequently, the Veteran is invited to submit a motion for revision of an April 11, 2018 rating decision. The Board also notes that at the April 2021 hearing, the issue of whether separate compensable ratings were warranted for disabilities associated with the Veteran's service-connected right shoulder disability was raised. The Veteran is also invited to submit such a claim. This scope of this appeal is limited to the issues on the title page. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). The duty to assist was satisfied by notices included in the Fully Developed Claims (VA Form 21-526EZ) acknowledged by the Veteran in his July 2017 and October 2017 claims. The duty to assist do not encompass a person seeking revision of a final decision based on CUE. Livesay v. Principi, 15 Vet. App, 165 (2001). Therefore, no further discussion of the duties is warranted with respect to that aspect of this decision. The RO associated the Veteran's service and VA outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. As such, VA has satisfied its duty to assist with the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). 1. Entitlement to an effective date earlier than October 20, 2017, for the award of a 10 percent rating for a painful scar as a residual of clavicle surgery of the right shoulder is denied. The Veteran contends that an effective date earlier than October 20, 2017 is warranted for the award of a 10 percent rating for a painful scar as a residual of clavicle surgery of the right shoulder. He asserts that his scar was painful at the time of his original May 2008 informal claim of service connection for the right shoulder. The Board concludes that the preponderance of the evidence is against an effective date earlier than October 20, 2017 for the assignment of a 10 percent rating for painful scar of the right shoulder, residual of clavicle surgery, because it is not factually ascertainable prior to this date that the Veteran met the criteria for a 10 percent rating for his right shoulder scar. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Generally, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later, unless otherwise provided. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Entitlement arises on the date the claimant meets the basic eligibility criteria. For increased rating claims, if the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125 (1997); VAOPGCPREC 12-98 (Sept. 23, 1998). If the increase occurred more than a year prior to the claim, the effective date shall be the date of the claim. 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010). Finally, if the increase occurs after the claim is filed, the effective date shall be the date the increase occurred. 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125, 126-27 (1997). In VAOPGCPREC 12-98, VA's General Counsel noted that 38 C.F.R. § 3.400(o)(2) was added to permit payment of increased disability compensation retroactively to the date the evidence establishes the increase in the degree of disability had occurred; that this section was intended to be applied in those instances where the date of increased disablement can be factually ascertained with a degree of certainty. It was noted that this section was not intended to cover situations where disability worsened gradually and imperceptibly over an extended period of time. Prior to March 24, 2015, the law provided that a specific claim in the form prescribed by VA must be filed in order for VA benefits to be paid. 38 U.S.C. § 5101(a); 38 C.F.R. §§ 3.151, 3.160. The term "claim" or "application" meant a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Under the law at the time, VA had an obligation to look to all communications from a claimant that may be interpreted as applications or claims formal and informal for benefits and was required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). Effective March 24, 2015, VA amended its rules as to what constitutes a claim for benefits; such now requires that claims be made on specific claim form prescribed by the Secretary and available online or at the local Regional Office. This provision effectively removed informal claims from VA's processes The evidence of record reflects that the Veteran submitted an informal claim of service connection for a right shoulder disability in a Statement in Support of Claim (VA 21-4138), which was received by the RO on May 29, 2008. In June 2008, the RO notified the Veteran that it characterized the correspondence as an intent to file a claim and invited the Veteran to submit a formal claim. Thereafter, the Veteran filed a claim of service connection for a right shoulder disability in an Application for Compensation (VA 21-526) in September 2008. A December 2008 rating decision granted service connection for right midshaft clavicle fracture with residual sensory deficit, status-post arthroscopy with scar, with an initial rating of 10 percent, effective July 27, 2008 (the day following separation from active service). The Veteran did not timely appeal or submit new and material evidence within one year. The December 2008 rating decision therefore became final. 38 U.S.C. § 7105; 38 C.F.R. § 3.156(a). Thereafter, in a Fully Developed Claim (VA 21-526EZ) that was received by the RO on July 31, 2017, the Veteran submitted an increased rating claim for his right shoulder disability. An October 2017 rating decision, among other things, awarded service connection for a right shoulder scar with an initial noncompensable rating, effective July 31, 2017. VA received on October 31, 2017 the Veteran's Fully Developed Claim, which included a claim for right shoulder scar. Thereafter, a November 2017 rating decision granted service connection for a painful scar as a residual of clavicle surgery of the right shoulder and assigned an initial rating of 10 percent, effective October 31, 2017 under 38 C.F.R. § 4.118, Diagnostic Code 7804. The Board notes that the noncompensable rating, effective July 31, 2017, remained in effect for a right shoulder scar under 38 C.F.R. § 4.118, Diagnostic Code 7805. See Rating Decision- Codesheet (November 2017). The Veteran timely challenged the assigned effective date for the award of the 10 percent rating in a November 2017 Notice of Disagreement. An April 2018 Statement of the Case awarded an earlier effective date of October 20, 2017 for the assignment of the 10 percent rating for the painful scar as a residual of clavicle surgery of the right shoulder. The Statement of the Case noted that the September 2017 VA examination did not show a painful scar, and that a note from the Veteran's treating physician dated October 20, 2017 was the first evidence showing that the scar was tender or painful. An April 2018 rating decision effectuated the award of an earlier effective date. The Board notes that by extension, the RO rated the Veteran's scar as noncompensable, effective July 31, 2017, and 10 percent disabling, effective October 20, 2017, pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7804. Having carefully reviewed the evidence of record, the Board finds no basis to assign an effective date earlier than October 20, 2017. This is because it is the earliest factually ascertainable date which documented that an increase in disability of the painful scar as a residual of clavicle surgery of the right shoulder had occurred. As discussed above, the applicable law and regulations concerning effective dates state that, 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. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Here, the award of a 10 percent rating for the painful scar as a residual of clavicle surgery was predicated upon private treatment records dated October 20, 2017 which referenced the first documented assessment of pain in the surgical scar by the Veteran's treating physician during the appellate period. The Board notes that the record also includes a Statement in Support of Claim (VA 21-4318) from the Veteran dated October 20, 2017 noting that the scar was painful, which was received by the RO on October 31, 2017. There are no other factually ascertainable references to pain in the surgical scar prior to this date during the relevant period on appeal. As noted above, the September 2017 VA examination report indicated that the Veteran's right shoulder scar was not painful. An effective date cannot be assigned prior to when entitlement to the benefit arose. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Thus, the evidence of record reflects that the date the entitlement arose is later than the date of receipt of the claim. Therefore, the Board finds that the appropriate date for the assignment of the 10 percent rating for the Veteran's service-connected painful scar as a residual of clavicle surgery, is October 20, 2017. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The Board acknowledges the Veteran's assertion that the effective date for the assigned rating should be the date of his initial claim, May 29, 2008. However, for an award an effective date based on an earlier claim that became final and binding, the Veteran must collaterally attack the prior decision and show there was CUE in the prior denial of the claim. Flash v. Brown, 8 Vet. App. 332, 340 (1995). Similarly, in Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006), the United States Court of Appeals for Veterans Claims (Court) held that once a rating decision that establishes an effective date for an award becomes final, the only way that such a decision can be revised is if it contains CUE. The Court noted that any other result would vitiate the rule of finality. Thus, in order for the Veteran to be awarded an effective date based on an earlier claim, he has to show CUE in the prior denial of the claim. Flash v. Brown, 8 Vet. App. 332, 340 (1995). The issue of CUE in a specific prior agency of original jurisdiction (AOJ) or Board decision has not been raised by the Veteran as it pertains to the assigned rating for the scar as a residual of clavicle surgery and, therefore, is not before the Board at this time. 2. Entitlement to revision of a December 8, 2008, rating decision that assigned an initial 10 percent rating in the award of service connection for right mid-shaft clavicle fracture with residual sensory deficit status post arthroscopy with scar, on the basis of clear and unmistakable error (CUE) pursuant to 38 C.F.R. § 3.105, is denied. The Veteran asserts CUE in a December 8, 2008, rating decision that assigned an initial rating of 10 percent in its award of service connection for right midshaft clavicle fracture with residual sensory deficit, status-post arthroscopy with scar. He asserts that the evidence of record at the time of the challenged rating decision reflects that a higher initial rating was warranted for his right shoulder. The Veteran's contentions center upon the asserted inadequacies of the November 2008 VA shoulder examination. He asserts that the VA examiner focused solely upon the malunion and scar of the right shoulder and did not perform adequate testing. The Veteran directs attention to a subsequent November 2017 VA examination that yielded evidence of scar tissue and a torn labrum. Thus, the Veteran contends that had diagnostic testing and a more appropriate physical examination been conducted, the November 2008 VA examiner would have identified the same findings as the subsequent November 2017 VA examiner. The Veteran's representative notes that the November 2017 VA examination served as the basis of the award of an increased 30 percent rating for the Veteran's service-connected right shoulder disability in a November 2017 rating decision. 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). A December 2008 rating decision that assigned an initial 10 percent rating in the award of service connection for right mid-shaft clavicle fracture with residual sensory deficit status post arthroscopy with scar. The Veteran did not file a timely Notice of Disagreement within one year of the decision. Thus, the December 2008 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 3.156(b), 20.302, 20.1103. 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 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. Simply to claim CUE on the basis that previous adjudications had 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. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44. Where evidence establishes CUE, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). For the purpose of authorizing benefits, the rating or other adjudicatory decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. Id. 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). 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 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). The standard is not whether it is reasonable to conclude that the outcome would have been different. Id. at 442. A determination that there was CUE must be based upon the record and the law that existed at the time of the prior adjudication in question. See Pierce v. Principi, 240 F.3d 1348 (Fed. Cir. 2001). Simply to allege CUE on the basis that previous adjudications improperly weighed and evaluated the evidence or failed to apply the benefit-of-the-doubt doctrine, or failed to give reasons and bases, can never rise to the stringent definition of CUE. Disagreements as to how facts are weighed do not constitute CUE. Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. 38 C.F.R. § 4.45. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Painful motion is considered limited motion at the point that pain actually sets in. VAOPGCPREC 9-98. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The current criteria under 38 C.F.R. § 4.71a, Diagnostic Code 5203, remains the same in substance at all times since the time of the December 2008 rating decision. Pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5203, a 10 percent rating is warranted for malunion of the clavicle or scapula of the upper extremity (minor or major), or for nonunion of the clavicle or scapula without loose movement. A 20 percent rating is warranted for nonunion of the clavicle or scapula of the upper extremity (minor or major) with loose movement, or for dislocation. In the alternative, the disability may be rated on impairment of function of a contiguous joint. As discussed above, the Veteran submitted an informal claim of service connection for a right shoulder disability in a Statement in Support of Claim (VA 21-4138), which was received by the RO on May 29, 2008. He reported that his shoulder was highly sensitive to touch and that when he raised his right arm it was shorter than his right shoulder. In a subsequent Application for Compensation (VA 21-526) dated September 2008, the Veteran reported an onset of October 20, 2005 for his claimed right shoulder disability. The Veteran was afforded a VA examination in November 2008. The VA examination report indicated that the Veteran was right hand dominant and referenced the Veteran's October 2005 collar bone fracture and subsequent arthroscopic repair with right clavicular deformity. It further noted the September 2006 letter from the Veteran's treating physician that the clavicle fracture healed with malunion, a surgical procedure was performed to contour the clavicular fracture, and that the Veteran had diminished sensation at the right anterior pectoral region and tenderness at the fracture site. The Veteran reported that the clavicular fracture, and superficial sensory loss in the right anterior chest wall were stable. He further endorsed a sensation in the right clavicular region, and a constant aching pain in the mid-right clavicle made worse by pressure and cold. The Veteran stated that he also experienced right shoulder weakness and stiffness mainly with lifting overhead, redness at the fracture site, instability, fatigability, lack of endurance, and loss of motion. He denied symptoms of swelling, heat, giving way, or locking, but endorsed five periods of flare-ups per week of moderate right clavicle pain precipitated by "working out with weights" and alleviated by rest. During a flare-up, the Veteran reported that there was an additional limitation of no overhead lifting. The VA examiner indicated that the Veteran had joint symptoms of deformity, pain, stiffness, and weakness, but no giving way, instability, episodes of dislocation or subluxation, locking episodes, or effusion. Upon physical examination of the right shoulder, the VA examiner observed full active range of motion in flexion, abduction, and in internal and external rotation, with mild pain at 180 degrees. The VA examiner noted that there were no additional limitations of range of motion on repetitive use of joints due to pain, fatigue, weakness, or lack of endurance. The VA examiner also observed no crepitation or instability but identified marked tenderness to light palpation at the mid-clavicle. The VA examiner noted that the Veteran had a vertical scar at the mid-right clavicle, measuring 7.7. cm x 0.1 cm, which was superficial, with no tenderness greater than the surrounding tissue, no adherence to underlying tissue, normal texture, no loss of covering skin, no elevation or depression, and no inflammation, edema, keloid formation, indurations, inflexibility, gross distortions, or asymmetry of any features. The VA examiner noted that there was no limitation of movement or other function, and that the color was normal without hypo or hyperpigmentation. An x-ray performed during the examination showed an old fracture deformity of the right clavicle, and slight asymmetry in the bilateral acromioclavicular joints but still within normal limits. The VA examiner assessed the Veteran with fracture of the right mid-shaft clavicle status post arthroscopy to remodel fracture with residual sensory deficits in the right pectoral region. A December 2008 rating decision granted service connection for right midshaft clavicle fracture with residual sensory deficit, status-post arthroscopy with scar, with an initial rating of 10 percent, effective July 27, 2008, the day following the Veteran's separation from active service. The rating decision referenced the Veteran's in-service right clavicle fracture and subsequent surgical repair of the clavicle. It further noted that a clavicular deformity, decreased range of motion of the right arm, and increased sensitivity in the right clavicle were observed upon a separation examination. The RO further discussed the findings of the November 2008 VA examination, to include the Veteran's complaints of symptoms associated with his right shoulder disability. The RO rated the Veteran under Diagnostic Code 5299-5203, pursuant to 38 C.F.R. § 4.71a. In its assignment of an initial 10 percent rating, the RO noted that a 10 percent is assigned if there is a malunion or nonunion of the clavicle or scapula but determined that the Veteran did not meet the requirements of a 10 percent rating as the VA examination did not show malunion or nonunion of the clavicle. Nevertheless, the RO assigned a 10 percent rating based on evidence of pathology and painful motion under painful motion of the joint. The RO referenced physical examination findings from the VA examination that noted pain during flexion and abduction of the right shoulder. The Veteran's arguments regarding the assigned initial rating are essentially a disagreement as to how the facts were weighed or evaluated by the adjudicator in the December 2008 rating decision. Hyphenated diagnostic codes are used when a rating under one Diagnostic Code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after the hyphen. Regulations provide that when a disability not specifically provided for in the rating schedule is encountered, it will be rated under a closely-related disease or injury, in which both the functions affected, and the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. To the extent that there is an implicit assertion that the RO should have assigned an alternative Diagnostic Code to account for limitation of range of motion, the selection of a particular diagnostic code "is a determination that is completely dependent upon the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993) (en banc). Thus, it was within the RO's discretion to apply Diagnostic Code 5203 based on the evidence of record and "[i]t is the prerogative of the factfinder... to interpret the evidence and draw reasonable inferences from it." Evans v. McDonald, 27 Vet. App. 180, 185, 187 (2014). The RO appropriately applied the rules and regulations governing VA's Schedule for Rating Disabilities in its assignment of an initial 10 percent rating for the Veteran's right shoulder disability. Under Diagnostic Code 5203, malunion of the clavicle in the major extremity is rated as 10 percent disabling. 38 C.F.R. § 4.71a. The record at the time of the December 2008 rating decision did not reflect that the Veteran had dislocation or nonunion of the clavicle with loose movement, as to warrant an initial 20 percent rating. Irrespective of whether the November 2008 VA examiner identified current malunion of the clavicle, the RO applied 38 C.F.R. § 4.59 to grant a 10 percent rating for painful motion. A 10 percent rating is the minimum compensable rating for the shoulder joint. Thus, it would not have manifestly changed the outcome of the rating decision. While it may be argued that the Veteran should have received a separate ratings for limitation of motion under Diagnostic Code 5201 and his right clavicle, separate ratings for the right shoulder under Diagnostic Code 5201 and Diagnostic Code 5203 would constitute pyramiding. 38 C.F.R. § 4.14. A disagreement as to how the facts were weighed does not support a finding of CUE. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). As discussed above, the Veteran and his representative also contend that the VA examination he was afforded in November 2008 was inadequate. However, an argument regarding whether the Veteran was afforded a VA examination or if such an examination was inadequate, is an argument that the VA failed in its duty to assist the Veteran, which does not apply in CUE claims. Livesay v. Principi, 15 Vet. App. 165 (2001). A breach of the duty to assist cannot constitute CUE. Cook v. Principi, 318 F.3d 1334, 1345-47 (Fed. Cir. 2002); see also Caffrey v. Brown, 6 Vet. App. 377, 384 (1994). As noted by the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Cook, the requirements that a clear and unmistakable error be both outcome determinative and based on the record that existed at the time of the original decision make it impossible for a breach of the duty to assist to form the basis for a CUE claim. Cook, 318 F.3d at 1346. To the extent that effective July 31, 2017, the Veteran is now in receipt of a 30 percent rating for his right mid-shaft clavicle fracture with labral tear, tendinosis, instability, and labral cyst, and rated under Diagnostic Code 5202 pursuant to 38 C.F.R. § 4.71a, a determination that there was CUE must be based on the record and the law that existed at the time of the rating decision being challenged. Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). Therefore, evidence that was not of record at the time of the December 2008 rating decision cannot be the basis for finding that the RO committed CUE. Porter v. Brown, 5 Vet. App. 233, 236 (1993). Based upon the reasoning contained within the December 2008 rating decision, the RO did not commit clear and mistakable error based upon the record and the law that existed when the decision was made. In summary, there is nothing in the record to support that the RO did not apply the appropriate law or did not have the correct facts before it at the time of its December 2008 rating decision and, therefore, the Veteran's motion for revision or reversal of that decision must be denied. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.A. Ong, 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.