Citation Nr: A25040586 Decision Date: 05/02/25 Archive Date: 05/02/25 DOCKET NO. 240719-459484 DATE: May 2, 2025 ORDER Entitlement to revision of the May 2012 rating decision that assigned a 10 percent rating for biceps tendon tear, right shoulder on the basis of clear and unmistakable error (CUE) is denied. FINDINGS OF FACT 1. The May 2012 rating decision that assigned a 10 percent rating for biceps tendon tear, right shoulder became final because the Veteran did not file a notice of disagreement, and new and material evidence was not received within the appeal period, nor were new, relevant service records received at any time thereafter. 2. The statutory and regulatory provisions at the time of the May 2012 rating decision were correctly applied and there was no undebatable error, the commission of which would manifestly change the outcome of the decision that assigned a 10 percent rating for biceps tendon tear, right shoulder. CONCLUSION OF LAW The criteria for entitlement to revision of the May 2012 rating decision that assigned a 10 percent rating for biceps tendon tear, right shoulder on the basis of CUE have not been met. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1997 to June 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2024 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In the July 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Entitlement to revision of the May 2012 rating decision that assigned a 10 percent rating for biceps tendon tear, right shoulder on the basis of CUE. A previous RO determination that is final and binding will be accepted as correct in the absence of CUE. 38 C.F.R. § 3.105(a). 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. Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). 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. Review for clear and unmistakable error in a prior final decision of an agency of original jurisdiction must be based on the evidentiary record and the law that existed when that decision was made. 38 C.F.R. § 3.105(a)(1)(iii). The benefit-of-the-doubt doctrine is not for application in claims of CUE. Andrews v. Principi, 18 Vet. App. 177, 186 (2004) (citing Russell, 3 Vet. App. at 313) (it is well established that the benefit-of-the-doubt doctrine can never be applicable in assessing a CUE motion because the nature of such a motion is that it involves more than a disagreement as to how the facts were weighed or evaluated). 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. The Veteran contends that the RO erred in assigned a 10 percent rating for his right shoulder biceps tendon tear (later, described as right shoulder tendinosis, post biceps tear with debridement and hereinafter "right shoulder disability") in the May 2012 rating decision. His primary argument is that 38 C.F.R. § 4.59 provides that painful motion should be recognized by assigning at least the minimum compensable rating for the joint affected, which is 20 percent under Diagnostic Code (DC) 5201. 38 C.F.R. § 4.71a. The Veteran was granted service connection for his right shoulder disability in an April 2003 rating decision and assigned a noncompensable rating, effective June 8, 2001. Thereafter, he was assigned a 10 percent rating in May 2012, following an application for an increased rating. The Veteran was provided notice of the decision. The Veteran did not file a Notice of Disagreement challenging this determination, nor was additional evidence received within one year of the notice letter. Thus, the May 2012 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.156(b). The criteria at the time of the rating decisions used to evaluate the Veteran's right shoulder disability is found in 38 C.F.R. § 4.71a, DCs 5201 and 5019. Diagnostic Code 5019 contemplated bursitis, which was to be rated based on limitation of motion of the affected parts. Diagnostic Code 5201 contemplated limitation of motion of the arm. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 required consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 required consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995). 38 C.F.R. § 4.59 provided that it is the intention of the rating criteria to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. At the time of the rating decision, DC 5201 provided that for the major extremity a 40 percent rating was warranted for limitation of motion of the arm to 25 degrees from the side, a 30 percent rating for limitation of motion to midway between the side and shoulder level, and a 20 percent rating for limitation of motion at shoulder level. Evidence of record at the time of the May 2012 rating decision included service treatment records (STRs), VA treatment records, and a January 2012 VA examination. The January 2012 VA examination indicated the Veteran was righthanded and noted right shoulder flexion to 150 degrees, with evidence of painful motion at 150 degrees. Abduction was limited to 150 degrees, with evidence of painful motion at 150 degrees. Repetitive use testing showed flexion to 150 degrees and abduction to 145 degrees. Additional limitations following post-repetitive use testing included less movement than normal. The Veteran contends that the May 2012 rating decision contained CUE in failing to assign the minimum compensable rating for his right shoulder disability pursuant to 38 C.F.R. § 4.59, which provides for the minimum compensable rating when there is painful motion of the joint. In Perciavalle, CAVC addressed 38 C.F.R. § 20.1403(e) and the concept that CUE "does not include the otherwise correct application of a statute or regulation where, subsequent to the [decision] challenged, there has been a change in the interpretation of the statute or regulation." Perciavalle v. Wilkie, 32 Vet. App. 59, 62 (2016). CAVC stated that neither federal statute nor VA regulations define what constitutes a "change in the interpretation" of a statute or regulation. In employing the basic practice of textual construction by ordinary meaning, CAVC found that a "'change in interpretation' necessarily require[d] the existence of a prior interpretation that is changed in some fashion whether modified, further developed, or replaced as a whole." Id. at 65. CAVC then concluded that, therefore, a "change in interpretation" cannot be a "first commentary" on a regulation or statute as "there exists no precursor interpretation that the latter modifies, alters, or replaces." Id. Subsequently, the U.S. Court of Appeals for the Federal Circuit held that there was no legal error in CAVC's majority opinion finding that the Board erred in interpreting the Veteran's CUE motion as being based on the retroactivity of later legal authorities. Perciavalle v. McDonough, 74 F.4th 1374 (Fed. Cir. 2023). Prior to Sowers v. McDonald, 27 Vet. App. 472 (2016) when the U.S. Court of Appeals for Veterans Claims (CAVC) determined that the minimum compensable rating for the shoulder would be 20 percent, it was longstanding VA policy to interpret "the minimum compensable rating" for a joint as a 10 percent rating, irrespective of the diagnostic code involved. See M21-1, Part III, Subpart iv, Chapter 4, Section A, Topics 1(g) and 7(b) (2015). While the Board notes that the M21-1 is not binding on the Board, this portion is pertinent to consideration of the CUE claim in this decision. Thus, the Board finds that Sowers put in motion a "change in interpretation" of a VA regulation, precluding a finding of CUE. It cannot be CUE for the RO to evaluate a rating in accordance with long-standing VA policy prior to the change in interpretation. This decision was not issued until many years after the decisions being collaterally attacked herein and cannot be considered in determining whether there was CUE in the rating decisions. See 38 C.F.R. § 3.105(a); see also George v. McDonough, 142 S. Ct. 1953 (2022). In the present case, the Veteran's right shoulder disability was rated under DC 5201-5019. As the Veteran's right shoulder disability did not reach a limitation of motion such that a compensable rating could be assigned in May 2012, the RO applied 38 C.F.R. § 4.59 to grant a 10 percent rating for painful motion of the shoulder. As a result, the Board does not find it undebatable that the RO committed error in applying the law as it existed and as it was interpreted at the time of the rating decision in question. 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). The Veteran has made no other allegations of error. The Veteran has not established that the correct facts were not before the RO at the time of the May 2012 rating decision or that the RO incorrectly applied the applicable statutory and regulatory provisions based on the interpretations of law existing at the time of the decisions. Thus, the application to revise the May 2012 rating decision that assigned a 10 percent rating for the Veteran's right shoulder disability based on CUE is denied. T. V. Casey Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Vanessa V. Geer, 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.