OSTEOARTHRITIS

Summary

The veteran, who served in the Army from October 1981 to October 2006, including extensive combat experience evidenced by multiple awards such as the Meritorious Service Medal, Army Commendation Medal, Expert Infantryman Badge, Ranger Tab, and Master Parachutist Badge, appeals the denial of service connection for a right shoulder disability and a revision of the effective date for Wolff-Parkinson-White syndrome based on clear and unmistakable error (CUE). The Board granted service connection for the right shoulder disability, finding that the veteran's testimony of an in-service injury during a parachute jump, supported by military records showing a Master Parachutist Badge and a June 2006 Medical History Report noting a shoulder dislocation, established an in-service incident. Although no VA examination was obtained for the shoulder, the Board found the veteran's current diagnosis of chronic osteoarthritis of the right shoulder, documented about 13 months after service, warranted granting service connection by resolving doubt in the veteran's favor under the chronicity rule. The Board denied the CUE claim for Wolff-Parkinson-White syndrome, finding the veteran's contention that the April 2008 VA examiner failed to review his medical history was unsubstantiated, as the examination report itself showed the examiner noted the July 2007 cardiac ablation. The Board concluded that the examiner's findings of no clinically significant Wolff-Parkinson-White syndrome and the disagreement over evidence evaluation did not meet the stringent definition of CUE. Service connection for the right shoulder disability was granted.

Rationale

Current diagnosis of osteoarthritis of the right shoulder; In-service incident established via testimony and records (dislocations, surgery, Master Parachutist Badge); Chronic disability manifested within one year of service, resolving doubt in veteran's favor

Full Decision Text

Citation Nr: A22012065
Decision Date: 06/27/22	Archive Date: 06/27/22

DOCKET NO. 200423-84951
DATE: June 27, 2022

ORDER

Service connection for a right shoulder disability is granted.

A revision of the effective date assigned for the evaluation of Wolff-Parkinson-White Syndrome based on a clear and unmistakable error (CUE) is denied.

FINDINGS OF FACT

1. The Veteran's right shoulder disability, to include osteoarthritis, had its onset during active service.

2. The correct facts, as known at the time, were before the VA adjudicators in November 2009, and the statutory and regulatory provisions extant at the time were correctly applied.

CONCLUSIONS OF LAW

1. The criteria for service connection for a right shoulder disability have been met.  38 U.S.C. §§ 1110, 1112; 38 C.F.R. §§ 3.303, 3.307, 3.309.

2. The criteria for entitlement to revision, on the basis of CUE, of a November 2009 rating decision pursuant to 38 C.F.R. § 3.105 have not been met.  38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105 (a).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from October 1981 to October 2006.  The Department of Veterans Affairs (VA) is grateful for his service.  Some of his many decorations include the Meritorious Service Medal (Third Award), Army Commendation Medal (Fifth Award), Army Achievement Medal (Ninth Award), Expert Infantryman Badge, Ranger Tab, Master Parachutist Badge, and Air Assault Badge.

These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2017 VA Regional Office (RO) rating decision.

Opting in from an April 2020 Statement of the Case (SOC), the Veteran submitted a VA Form 10182 Decision Review Request: Board Appeal (Notice of Disagreement) in April 2020 and chose the option for a Hearing with a Veterans Law Judge.  Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing.  38 C.F.R. § 20.302 (a).

The Veteran testified before the Board in January 2022.  A transcript of the hearing was added to the claims file.

In light of the Veteran's description of right shoulder symptoms and the diagnoses, the Board has expanded the claim to include consideration of whether service connection is warranted for any right shoulder disability.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009).

1. Service connection for a right shoulder disability is granted.

Service connection may be granted for any current disability that is the result of a disease or injury incurred in or aggravated by active military service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a).  Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303 (d).  Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

In some cases, service connection may be established by showing evidence of a chronic disease in service, which requires a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time.  38 C.F.R. § 3.303 (b).  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  Id.  The provisions of 38 C.F.R. § 3.303 (b) pertaining to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized under 38 C.F.R. § 3.309 (a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Service
 of a chronic disease in service, which requires a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time.  38 C.F.R. § 3.303 (b).  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  Id.  The provisions of 38 C.F.R. § 3.303 (b) pertaining to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized under 38 C.F.R. § 3.309 (a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Service connection will also be presumed for certain chronic diseases, including arthritis, if manifested to a compensable degree within one year after discharge from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309.

A claim will be denied if the evidence persuasively weighs against the claim.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application).  Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant.  38 C.F.R. § 3.102.

As to the first element of service connection, a current diagnosis, the Veteran is currently diagnosed as having osteoarthritis of the right shoulder.  See December 2007 Imaging Report.  The medical and lay evidence of record also reflect right shoulder dislocations and right shoulder surgery.

Regarding the second element of service connection, i.e., an in-service incurrence, the Veteran testified at his January 2022 Board hearing that he covered about 110 jumps during his military career and having had injured his right shoulder during one of these jumps.  He also recalled right shoulder dislocations.  Indeed, his military records reflect the receipt of a Master Parachutist Badge, and his June 2006 Medical History Report notes a shoulder dislocation.  Thus, an in-service incident is established.

Turning to the nexus element of service connection, the Veteran has not received a VA examination or opinion.  However, here, the Veteran is currently diagnosed as having a chronic disability  osteoarthritis of the right shoulder.  He was initially shown to have osteoarthritis of the right shoulder on December 3, 2007, about 13 months after his separation from service on October 31, 2006.  Therefore, the Board resolves doubt in the Veteran's favor and finds his osteoarthritis of the right shoulder manifested to a compensable degree within one year after his discharge from active service.  As such, service connection is warranted for a right shoulder disability.

2. A revision of the effective date assigned for the evaluation of Wolff-Parkinson-White Syndrome based on a CUE is denied.

The Veteran contends there is a CUE for the evaluation and effective date of his service-connected Wolff-Parkinson-White syndrome.  He is service connected for Wolff-Parkinson-White syndrome at a noncompensable rating from November 1, 2006, to March 23, 2011, and for 30 percent from March 24, 2011, forward.

Specifically, he contends, in a January 2010 statement, the April 2008 VA examiner did not review his medical history appropriately; thus, leaving a CUE with the November 2009 rating decision.

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. 
 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.

By way of history, a December 2006 rating decision granted service connection for Wolff-Parkinson-White syndrome at a noncompensable evaluation.  However, additional, relevant VA treatment records were received in November 2007, which was within one year of the December 2006 rating decision.  As such, the finality of the December 2006 decision was abated.  See, e.g., 38 C.F.R. § 3.156 (b); Beraud v. McDonald, 766 F.3d 1402, 1407 (2014); Turner v. Shulkin, 29 Vet. App. 207 (2018).  A March 2008 rating decision then deferred the Veteran's claim for an increase to his heart disability.  VA obtained an examination in April 2008, and based on that examination, the RO continued the Veteran's noncompensable rating by way of a November 2009 rating decision.

Next, in a January 2010 statement, the Veteran asserted the April 2008 VA examiner did not review his medical history appropriately, and in another January 2010 statement, he requested a new examination.  The RO obtained another VA examination in September 2011.  A September 2011 rating decision increased the Veteran's evaluation to 30 percent based on the September 2011 examination from March 24, 2011, the date the Veteran's claim was received by VA.  The Veteran then submitted a supplemental claim in May 2012, which tolled the September 2011 rating decision.  A November 2012 rating decision then continued the Veteran's 30-percent evaluation.  It was noted the Veteran failed to report to his examination.  Here, the November 2012 rating decision became final because the Veteran did not file a timely Notice of Disagreement (NOD) challenging this determination, nor did he submit new
 RO obtained another VA examination in September 2011.  A September 2011 rating decision increased the Veteran's evaluation to 30 percent based on the September 2011 examination from March 24, 2011, the date the Veteran's claim was received by VA.  The Veteran then submitted a supplemental claim in May 2012, which tolled the September 2011 rating decision.  A November 2012 rating decision then continued the Veteran's 30-percent evaluation.  It was noted the Veteran failed to report to his examination.  Here, the November 2012 rating decision became final because the Veteran did not file a timely Notice of Disagreement (NOD) challenging this determination, nor did he submit new and material evidence within one year of its promulgation.

The next claim for an increase was not received until June 2017, and an August 2017 rating decision continued the Veteran's 30-percent evaluation.  The Veteran submitted an NOD in May 2018, and subsequently, a rating decision was issued in July 2018 continuing the Veteran's 30-percent evaluation.  Another NOD was received in October 2018.  The Veteran then asserted his CUE claim in October 2018.  In his statement, the Veteran states the November 2009 rating decision failed to consider VA treatment records from the Birmingham VA Medical Center dated July 2007 indicating the Veteran underwent a cardiac ablation.  Thus, the Veteran requested an effective date of June 4, 2007, the date his claim was submitted.

In an April 2020 SOC, the RO asserts the evidence of record supports the November 2009 rating decision and notes the VA examiner reviewed the previous VA records that showed the Veteran had a cardiac catherization in May 2006.

Here, the Board notes a review of the April 2008 VA examination of which the November 2009 rating decision was based shows the medical examiner noted and discussed the ablation within the "Review of Medical Records" section of the examination report.  Thus, although the Veteran asserted the April 2008 VA examiner did not review his medical history appropriately, a review of the examination report shows the examiner indeed reviewed and noted the ablation from July 2007.

Furthermore, the Veteran's diagnoses from the April 2008 VA examination include a normal EKG and a normal cardiac function, and the examiner found there was insufficient evidence of any current cardiac disease related to Wolff-Parkinson-White syndrome.  The examiner opined the Veteran received definitive treatment for Wolff-Parkinson-White syndrome with an ablation of the accessory pathway.  They concluded the abnormal conduction pathway had been abolished, and the examination showed the Veteran had no clinically significant Wolff-Parkinson-White syndrome. Thus, here, there is a disagreement as to how the AOJ evaluated the facts, and such does not meet the burden of CUE.

Accordingly, the Board finds the criteria for entitlement to revision, on the basis of CUE, of the November 2009 rating decision pursuant to 38 C.F.R. § 3.105 have not been met.

 

 

R. Erdheim

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Buck Denton

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.