Citation Nr: 22019262 Decision Date: 03/31/22 Archive Date: 03/31/22 DOCKET NO. 18-15 293 DATE: March 31, 2022 ORDER Entitlement to revision of a March 2010 rating decision (with October 2010 Statement of the Case) which denied service connection for a left shoulder disability on the basis of clear and unmistakable error (CUE), is granted. Entitlement to service connection for a left shoulder disability is granted. REMANDED Whether the character of discharge for the Veteran's period of service from January 28, 2003 to May 15, 2006 is a bar to VA benefits is remanded. FINDINGS OF FACT 1. The Veteran's initial claim for service connection for a left shoulder disability was denied in a March 2010 rating decision. The Veteran submitted a timely notice of disagreement (NOD) in June 2010. An October 2010 Statement of the Case (SOC) reiterated the findings in the March 2010 rating decision. The Veteran did not appeal the decision, and it became final. 2. The Veteran's initial service contract for four years, beginning January 28, 1998, was voluntarily extended to five years in April 1998. This was not a reenlistment; it was an extension of his initial enlistment, on the initial contract, without reenlistment paperwork. Therefore, his initial obligation was from January 28, 1998 to January 27, 2003. 3. The Veteran re-enlisted on October 2, 2002, prior to the expiration of his initial term of service (conditional discharge), for an additional four-year term. 4. The Veteran's served for the period of time he was obligated to serve at the time of entry into service (he served until January 27, 2003), he was not discharged in January 2003 due to reenlistment in October 2002, and he would have been eligible for a discharge or release under conditions other than dishonorable on January 27, 2003 if not for that intervening reenlistment. 5. The Veteran's period of service from January 28, 1998 to January 27, 2003 was honorable for VA purposes. 6. The March 2010 rating decision did not consider the correct law and evidence as it then existed, and the outcome of that decision would have been manifestly different in the absence of that error. 7. The Veteran injured his left shoulder in September 2002, during his period of honorable service. His post-service left shoulder disability is due to his in-service injury. CONCLUSIONS OF LAW 1. CUE has been demonstrated in a March 2010 rating decision (with October 2010 Statement of the Case) which denied service connection for a left shoulder disability, the criteria for revision have been met. 38 U.S.C. § 5109A; 38 U.S.C. § 355 (1976); 38 C.F.R. §§ 3.12, 3.13, 3.105 (a), 3.303. 2. The criteria for service connection for a left shoulder disability have 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 in the U.S. Marine Corps from January 1998 to May 2006. The Veteran earned a number of awards, including the Global War on Terrorism Expeditionary Medal for his service in Iraq. The Veteran's DD 214 lists his discharge as Under Other Than Honorable Conditions. This matter comes on appeal before the Board of Veterans' Appeals (Board) from an April 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which determined that a March 2010 rating decision which denied entitlement to service connection for a left shoulder disability did not contain CUE. In August 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. 1. Entitlement to revision of a March 2010 rating decision, with October 2010 Statement of the Case, on the basis of clear and unmistakable error (CUE) is granted. 2. Entitlement to service connection for a left shoulder disability is granted. The Veteran contends that the RO committed CUE when it denied his claim for service connection for a left shoulder disability in a March 2010 rating decision. In essence, he argues that the RO incorrectly applied regulations related to calculating his service dates for his period of honorable service. The Board notes that the Veteran submitted a timely notice of disagreement (NOD) with the March 2010 rating decision in June 2010. The RO issued a Statement of the Case (SOC) on October 7, 2010, which was identical to the March 2010 rating decision. The Veteran did not submit a timely appeal, or submit additional relevant evidence, within a year of the issuance of the SOC. As such, the decision then 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 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. 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. 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). Turning to the merits of his claims, the Board finds that the RO incorrectly applied 38 C.F.R. § 3.13, that this error was undebatable based on the evidence of record, and that but for the error, service connection for a left shoulder disability would have been granted. At the time of the 2010 rating decision, as now, in order to establish entitlement to service connection, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Hansen v. Principi, 16 Vet. App. 110, 111 (2002) (citing Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). A person seeking VA benefits must first establish that they have attained the status of a "veteran." Holmes v. Brown, 10 Vet. App. 38 (1997). The term "veteran" means a person who served in the active military, naval or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C. § 101 (2). VA benefits are not payable unless the period of service upon which a claim is based was terminated by discharge or release under conditions other than dishonorable. 38 U.S.C. § 101 (18); 38 C.F.R. § 3.12 (a). The designation of the discharge as honorable by the service department is binding on VA as to character of discharge. 38. C.F.R. § 3.12(a). Service department findings (i.e., findings of the Army, Navy, or Air Force) are binding and conclusive upon VA for purposes of establishing an individual's service. VA does not have authority to alter the findings of the service department in that regard. 38 C.F.R. § 3.203 (a); Spencer v. West, 13. Vet. App. 376, 380 (2000); Venturella v. Gober, 11 Vet. App. 240, 241 (1997); Cahall v. Brown, 7 Vet. App. 232, 237 (1994); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); see Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997); Manlincon v. West, 12 Vet. App. 238 (1999). VA has no authority to alter a claimant's discharge classification; the claimant's recourse in that regard is with the service department, and not VA. Harvey v. Brown, 6 Vet. App. 416 (1994). There are two types of character of discharge bars to establishing entitlement for VA benefits: statutory and regulatory. See 38 U.S.C. § 5303 (a); 38 C.F.R. § 3.12 (c), (d). The statutory bars are not applicable in this case. As to the regulatory bars, a discharge or release because of one of the following offenses is considered to have been issued under dishonorable conditions: (1) acceptance of an undesirable discharge in lieu of trial by general court-marital; (2) mutiny or spying; (3) offenses involving moral turpitude (this includes, generally, conviction of a felony); (4) willful and persistent misconduct; and (5) homosexual acts involving aggravated circumstances and other facts affecting the performance of duty. 38 C.F.R. § 3.12 (d). Here, the Veteran was separated in lieu of trail by court-martial, with an "Other than Honorable Conditions" characterization of service. In February 2010, the RO issued an administrative decision regarding the character of the Veteran's discharge. The decision noted that the Veteran's DD 214 showed service in the U.S. Marines from January 28, 1998 to May 15, 2006, with an Under Other Than Honorable Conditions discharge. The RO determined that the Veteran's original period of obligation was four years, and it would have expired on January 27, 2002. "There is no record of reenlistment on January 28, 2002. However, the enlistment records show the claimant received a dischargeapparently for purposes of reenlistmenton October 1, 2002. Therefore, it is clear the claimant served honorably for his initial period of obligation if it was four years." Regarding the "facts and circumstances surrounding" the Veteran's discharge, the decision noted that "on or about December 18, 2005 to January 4, 2006" the Veteran "did wrongfully use Marijuana." On January 3, 2006, the Veteran impeded an investigation regarding his use of a controlled substance. On January 4, 2006, he broke a restriction on where he was to remain geographically, willfully disobeyed an order to call an officer, and drove "while impaired on Oxycodone." The RO determined that the Veteran's period of service from January 28, 19988 through January 27, 2002 was granted a conditional discharge and was considered honorable for VA purposes. His period of service from January 28, 2002 through May 16, 2006, was considered dishonorable for VA purposes and was a bar to VA benefits. In a March 30, 2010 rating decision, the RO denied entitlement to service connection for a left shoulder disability. The rating decision cited the Veteran's DD 214 showed that the Veteran served from January 28, 1998 to May 15, 2006, and was discharged under other than honorable conditions. The rating decision noted that the RO granted his period of service from January 28, 1998 to January 27, 2002 a conditional discharge determination and was considered honorable for VA purposes. The RO then noted that service treatment records showed multiple treatments for a left shoulder disability; "however, all dates of treatment are within [his] dishonorable period of service." The RO denied entitlement to service connection for a left shoulder disability because his treatment for the left shoulder occurred during his period of dishonorable service, which was a bar to VA benefits. In June 2010, the Veteran submitted a NOD with the March 2010 rating decision, noting that the RO had used the incorrect dates for his first period of service. He argued that his first, honorable, period of service lasted from January 28, 1998 to October 10, 2002 (this appears to be a typo, and that he was referring to his October 1, 2002 reenlistment date). He stated that he initially had treatment for his shoulders in June or July 2002, during his honorable period of service. An October 2010 SOC simply reiterated the findings in the March 2010 rating decision. As noted above, the Veteran did not appeal this decision. Here, the correct facts were before the RO at the time of the March 2010 rating decision. The RO cited the Veteran's service treatment records and service personnel records, as well as his DD 214 and his separation paperwork. As such, the correct facts were available to the RO at the time of the decision. The Board finds that the RO incorrectly applied the regulations related to conditional discharges. The incorrect application of 38 C.F.R. § 3.13 resulted in a miscalculation of the Veteran's initial period of service. As the dates of his honorable service were the reason the RO denied his service connection claim, due to the date of injury to his left shoulder, the outcome of the decision was manifestly changed due to the error. The Veteran's DD 214 includes an "Other than Honorable Conditions" discharge. It also includes that he had "continuous honorable active service from" January 28, 1998 to October 1, 2002. This is the basis for the Veteran's argument that his first, honorable, period of service lasted until October 1, 2002. The Board finds that the RO and the Veteran are incorrect about his first period of service dates. Generally, a discharge in order to reenlist is considered a conditional discharge, and the entire period of service under this circumstance constitutes one period of service. 38 C.F.R. § 3.13 (b). As such, entitlement to benefits will be determined by the character of the final termination of such period of service. See Id. An exception to this general rule is set forth in 38 C.F.R. § 3.13(c), which provides that a person shall be considered to have been unconditionally discharged or released from active service when the following conditions are met: (1) the person served in active service for the period of time the person was obligated to serve at the time of entry into service; (2) the person was not discharged or released from such service at the time of completing that period of obligation due to an intervening enlistment or reenlistment; and (3) the person would have been eligible for a discharge or release under conditions other than dishonorable at that time except for the intervening enlistment or reenlistment. The RO found that the Veteran's period of obligation at entry into service was for 4 years from January 28, 1998 to January 27, 2002. However, a review of the Veteran's personnel records (and confirmed by the Veteran during his August 2021 Board hearing) shows that he extended his initial obligation to 5 years on April 24, 1998. As such, the Veteran's obligation at the time of entry was from January 28, 1998 to January 27, 2003. The February 2010 administrative decision included the RO's confusion as to how the Veteran "reenlisted" on October 1, 2002 if his initial obligation ended on January 27, 2002. That is because his initial obligation would have ended January 27, 2003, but for his reenlistment on October 2, 2002. The Board recognizes that the February 2010 administrative decision is not the subject of the CUE claim. However, the March 2010 rating decision perpetuated the error in the February 2010 administrative decision by applying the incorrect dates (despite the confusion listed in the administrative decision) to the determination on service connection. Applying 38 C.F.R. § 3.13(c) to the Veteran's correct five year obligation changes his honorable service dates and the March 2010 rating decisions determination that his left shoulder injury occurred during a period of dishonorable service that is a bar to VA benefits fails. Addressing the three steps of the exception under 38 C.F.R. § 3.13(c), the Veteran served in active service for the initial obligation (he served from January 28, 1998 to January 27, 2003), and he was not released or discharged from service on January 27, 2003 due to his intervening October 2, 2002 reenlistment. In order for the Veteran to meet the exception under 3.13(c), the Board must determine if he would have been eligible for a discharge or release under conditions other than dishonorable on January 27, 2003. The Veteran's in-service offenses which resulted in his Other Than Honorable Conditions discharge began in December 2005 according the February 2010 Administrative decision, and as cited in the March 2010 rating decision/October 2010 SOC. As noted during the Board hearing, the Veteran's personnel records were scanned out of order, which makes determining which documents are a part of his administrative separation difficult. However, it appears that his administrative separation was based upon the December 2005 and January 2006 violations cited in the February 2010 administrative decision. As such, the violations/conduct which resulted in his dishonorable discharge occurred after he completed his first term of service (occurred after January 27, 2003). The Veteran's personnel records show that he was "counseled" on a few occasions prior to December 2005. These counseling records were related to failing to check out with an officer prior to departing for scheduled leave (July 2000), displaying poor judgement and behavior while consuming alcohol and being involved in an altercation (May 2003), and finding that he had been arrested by local authorities for suspicion of assault in March 2003, this was noted to be his second alcohol-related incident in the past 12 months (June 2004). The Veteran was not disciplined for his violations except for his last violation, wherein he was referred to rehabilitation for substance abuse, enrolled in an Anger Management Counseling Program, and his Martial Arts Instructor status was voided. These incidents were not included in the Administrative Separation paperwork, and were not of a severity that the U.S. Marines Corps considered discharge or release. Indeed, the Veteran's personnel records show that he deployed to Iraq in support of Operation Iraqi Freedom in August 2004. He was then given "exceptional" ratings for his service in Iraq, which included volunteering as a convoy member to Fallujah, escorting enemy prisoners of war, assisting as a martial arts instructor, and participating in casualty evacuations. He was "enthusiastically recommended for promotion" during his 2004 service. It is undebatable that the Veteran's service through January 27, 2003 would have resulted in a discharge or release under conditions other than dishonorable at that time except for the intervening enlistment as his violations related to his administrative separation began more than 2 years later. Given the above, the Veteran met all three standards for the 38 C.F.R. § 3.13(c) exception to 38 C.F.R. § 3.13(a), (b), allowing his conditional discharge for reenlistment to be considered an unconditional discharge for the period of time he was obligated to serve at entry into service. As such, the Veteran's service from January 28, 1998 to January 27, 2003 is considered honorable for VA purposes. The Board reiterates that this finding of honorable service is for the purposes of determining eligibility for VA benefits only. Had the March 2010 rating decision (and October 2010 SOC) used the correct terms of his initial service obligation (5 years), then the RO would have determined his honorable service concluded on January 27, 2003. The Veteran entered service in sound condition as related to his left shoulder. His service treatment records include that he suffered a left acromioclavicular (AC) joint separation on September 5, 2002. He sought treatment after 4 days of left shoulder pain following bench pressing. The distal portion of his left clavicle, at the AC joint, was slightly elevated compared to the right. He had pain and decreased muscle strength. X-rays showed left AC joint separation. He was given a sling. A September 25, 2002 treatment record noted that he was diagnosed with a Grade I-II AC separation of his left shoulder following bench press competition. He had pain, and popping when attempting pushups. Although after his period of honorable service, the service treatment records show continued issues with his left shoulder. In December 2003, the Veteran was seen for left shoulder pain for 10 days following injury during martial arts instruction. His shoulder popped, and he was unable to get his shoulder to go past 90 degrees without pain and numbness to the hand. He was assessed with left shoulder impingement syndrome. A January 2004 follow-up for his left shoulder symptoms noted the Veteran's continued pain and difficulty moving his left shoulder. He was again assessed with left AC joint separation; "however, [the Veteran] refus[ed] to solely undergo conservative treatment secondary to active lifestyle and degree of physical activity." He was referred to orthopedics. Imaging showed a 1 cm separation of the left AC joint. A May 2004 evaluation and history included his reported of left shoulder AC joint separation twice, in 2002 and 2003 during martial arts. He continued to have pain with weightlifting. He had completed physical therapy. An October 2005 referral included that the Veteran had bilateral shoulder pain, right worse than left. He was told he probably needed surgical intervention as his symptoms were not changing. He was noted to have had several AC separations following an initial injury "three years ago." Clinical examination indicated impingement. A November 2005 record included the Veteran's complaint that both of shoulders hurt, and it was impacting his ability to lift weights, play sports, do martial arts/grappling. He had separated his shoulders 8 or 9 times in the last 6 months. It was noted that when his pain would recede, he would begin use of free weights again, against advice. On examination, he could not lift his arms parallel or to the sides. He had no strength when pushing against a hand. He could not rotate either shoulder. He was noted to have possible bone spurs, ligament tears, or damage to his rotator cuffs. He was assessed with bilateral shoulder arthrosis. A November 2005 left shoulder MRI showed mild acromioclavicular capsular inflammation, no evidence for rotator cuff tear, no labral tear, and no fracture. An August 2006 Abbreviated Medical Evaluation Board Report noted that the Veteran had right shoulder AC joint arthritis, labral tear, and rotator cuff tendonitis. Post service records available at the time of the March 2010 rating decision included November 2009 and January 2010 VA treatment records of continued bilateral shoulder pain. He described anterior shoulder pain with morning stiffness, and pain with overhead activities. The Veteran was not afforded a VA examination in conjunction with his initial service connection claim as the March 2010 rating adjudicator denied the claim based on his injury occurring during a period of service with a discharge that barred receipt of VA benefits. However, at the time of the March 2010 rating decision the evidence included his sound entrance into service, evidence of an initial AC joint separation of his left shoulder during his period of honorable service (September 5, 2002), and medical and lay evidence of ongoing left shoulder symptoms and pain from the initial injury through to at least January 2010. Additionally, he was diagnosed in-service with AC joint separation and impingement and an October 2005 referral noted that the Veteran's initial injury to his shoulders occurred in 2002, and the record indicated that his continued problems were associated with that initial injury. As such, at the time of the March 2010 rating decision there was evidence of an in-service injury during a period of honorable service, evidence of a current disability, and evidence of a link between the initial in-service injury and a current left shoulder disability (nexus). Thus, but for the error in determining his period of honorable service, reasonable minds would not have differed in determining that service connection for a left shoulder disability was warranted at the time of the March 2010 rating decision/October 2010 SOC. In conclusion, the RO incorrectly applied the law as it existed at the time of the March 2010 rating decision/October 2010 SOC by misapplying 38 C.F.R. § 3.13 (c) to the Veteran's initial service obligation of 5 years, and erring in determining that the Veteran's injury to his left shoulder did not occur during his period of honorable (for VA purposes) service. Damrel, 6 Vet. App. at 245. The evidence reveals that but for this error, the RO would have granted entitlement to service connection for a left shoulder disability. The AOJ's error was outcome determinative, and there was CUE in its March 2010/October 2010 decision. Hence, the March 2010 rating decision is amended to reflect that service connection for a left shoulder disability is granted. (Continued on next page) REASONS FOR REMAND 1. The issue as to whether the character of discharge for the Veteran's period of service from January 28, 2003 to May 15, 2006 period of service is a bar to VA benefits is remanded. As noted above, a February 2010 administrative decision determined that the Veteran's period of service from January 28, 2002 to May 15, 2006 was dishonorable and a bar to VA benefits. The Board has determined that the RO incorrectly applied 38 C.F.R. § 3.13(c) to the available evidence of record, and apparently missed that the Veteran extended his initial term of service to 5 years, such that his honorable period of service ends on January 28, 2003. Following a March 2010 rating decision's denial of several service connection claims due to injury occurring during his period of dishonorable service, the Veteran submitted a NOD in June 2010. The June 2010 NOD noted that the wrong service dates were used to determine his honorable/dishonorable service periods. As this NOD occurred within a year of the issuance of the February 2010 administrative decision, and specifically disagreed with the determination of his honorable service dates, the Board finds that it should have been liberally construed as a NOD for the character of discharge findings. Although this decision addresses whether the first period of service was a bar to VA benefits, and corrected the date associated with his first period of service, the Board does not have jurisdiction over the issue of his character of discharge as related to the period of service not directly associated with his left shoulder service connection CUE claim. During his Board hearing, the Veteran noted that he served in Iraq and Fallujah, and that he has been diagnosed with PTSD. This occurred during his second period of service, and is an argument that may be construed as a claim that his discharge during his second period of service should not be a bar to VA benefits due to being insane at the time of the offenses committed. As such, the Board will remand this issue for issuance of a Statement of the Case. See Manlincon v. West, 12 Vet. App. 238 (1999). The matters are REMANDED for the following action: The RO is to issue of a SOC pertaining to whether the Veteran's character of discharge for the period of service from January 28, 2003 to May 15, 2006 was under dishonorable conditions and constitutes a bar to payment of VA benefits, so that the Veteran may have the opportunity to complete an appeal on this issue (if he so desires) by filing a timely substantive appeal. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. H. Stubbs, 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.