Case A26033525

S. SORATHIA · 2026 · Case ID: A26033525

MIXED

Summary

The veteran, who served in the U.S. Air Force from October 1980 to October 2008, appealed a December 2025 rating decision. The veteran sought an earlier effective date for service connection for left wrist degenerative arthritis other than posttraumatic and a higher rating for irritable bowel syndrome (IBS) with chronic diarrhea. The veteran also contended that the December 2008 rating decision, which granted service connection for left ureteral calculus, bilateral elbow degenerative arthritis, and left ankle talonavicular arthritis at zero percent, was the product of clear and unmistakable error (CUE). The Board found that the veteran's claim for left wrist degenerative arthritis was pending and unadjudicated from her initial July 2008 filing until the December 2025 decision. Therefore, the Board granted an earlier effective date of November 1, 2008, for this condition. The Board also found that the veteran's IBS with chronic diarrhea had worsened, supporting a higher 30 percent rating, consistent with the criteria for DC 7319. Regarding the CUE allegations, the Board reviewed the arguments that the original decision misapplied the law or misinterpreted evidence concerning the zero percent ratings for left ureteral calculus, bilateral elbow degenerative arthritis, and left ankle talonavicular arthritis. The Board concluded that the original decision properly considered the available evidence and governing law, and that the arguments presented constituted mere disagreements with how the evidence was weighed, not CUE. The Board affirmed the original zero percent ratings for these conditions. The evidence persuasively weighed against the CUE claim, and the benefit of the doubt rule did not apply.

Rationale

Claim pending since July 2008; Unadjudicated until December 2025; Earliest effective date is November 1, 2008

Service Branch

AIR FORCE

Special Benefit

EARLIER EFFECTIVE DATE

Docket No.

260113-623750

Full Decision Text

Citation Nr: A26033525
Decision Date: 04/10/26 Archive Date: 04/10/26

DOCKET NO. 260113-623750
DATE: April 10, 2026

ORDER

Entitlement to an earlier effective date of November 1, 2008, for an award of service connection for left wrist degenerative arthritis other than posttraumatic is granted.

Entitlement to a 30 percent rating for irritable bowel syndrome (IBS) with chronic diarrhea is granted.

The December 9, 2008, rating decision, which granted, in pertinent part, claims of service connection for left ureteral calculus, right elbow degenerative arthritis, left elbow degenerative arthritis, and left ankle talonavicular arthritis, assigning separate zero percent ratings effective November 1, 2008, was not the product of clear and unmistakable error (CUE).

FINDINGS OF FACT

1. The Veteran included her original claims of service connection for left ureteral calculus (which she characterized as "kidney/bladder condition"), bilateral elbow degenerative arthritis (which she characterized as bilateral elbow tendonitis), left ankle talonavicular arthritis (which she characterized as a bilateral ankle condition), and for left wrist degenerative arthritis other than posttraumatic (which she characterized as a left wrist fracture) in statements on a VA Form 21-526, "Veteran's Application For Compensation And/Or Pension," dated on June 16, 2008, and date-stamped as received by VA on July 15, 2008.

2. The Veteran separated from active service on October 31, 2008; thus, the earliest possible effective date for an award of VA disability compensation is November 1, 2008.

3. In a rating decision dated on December 9, 2008, and issued to the Veteran and her former service representative on December 15, 2008, the Agency of Original Jurisdiction (AOJ) granted, in pertinent part, claims of service connection for right wrist degenerative arthritis, status-post distal radius fracture, assigning a 10 percent rating effective November 1, 2008, and for left ureteral calculus (which the AOJ characterized as left ureteral calculus (claimed as kidney/bladder condition)), right elbow degenerative arthritis, left elbow degenerative arthritis, and left ankle talonavicular arthritis, each evaluated as zero percent disabling effective November 1, 2008; this decision was not appealed as to these issues and became final.

4. The Veteran filed a VA Form 21-0966, "Intent To File A Claim For Compensation And/Or Pension Or Survivors Pension And/Or DIC," dated on August 1, 2025, and date-stamped as received electronically by VA that same day.

5. The Veteran, through her attorney, filed a VA Form 21-526, "Application For Disability Compensation And Related Compensation Benefits," dated on September 22, 2025, and date-stamped as received electronically by VA that same day in which she asserted, among other things, that the December 9, 2008, rating decision, which granted, in pertinent part, claims of service connection for left ureteral calculus, right elbow degenerative arthritis, left elbow degenerative arthritis, and for left ankle talonavicular arthritis, assigning separate zero percent ratings effective November 1, 2008, was the product of CUE; submission of this form clearly related back to the intent to file received on August 1, 2025.

6. In the currently appealed AMA rating decision dated on December 12, 2025, and issued to the Veteran and her attorney on December 16, 2025, the AOJ granted, in pertinent part, a claim of service connection for left wrist degenerative arthritis other than posttraumatic, assigning a 10 percent rating effective August 1, 2025, assigned a higher 20 percent rating effective August 1, 2025, for service-connected IBS with chronic diarrhea, and essentially found that the December 9, 2008, rating decision was not the product of CUE.

7. The Veteran, through her attorney, disagreed with the December 2025 AMA rating decision in statements on a VA Form 10182, "Decision Review Request: Board Appeal (Notice Of Disagreement)," dated on January 13, 2026, and date-stamped as received electronically that same day by VA.

8. The Veteran's claim of service connection for left wrist degenerative arthritis other than posttraumatic was pending and unadjudicated between when she filed it on July 15, 2008, prior to her separation from service on October 31, 2008, and when the AOJ adjudicated it in the currently appealed AMA rating decision issued in December 2025; thus, the appropriate effective date (and the earliest possible effective date) for an award of service connection for left wrist degenerative arthritis other than posttraumatic is November 1, 2008.

9. The service-connected IBS with chronic diarrhea is manifested by, at worst, complaints of loose to watery stools 10-15 times a day, bloating, abdominal pain related to defecation at least 3 days per month over a 3 month period, changes in stool frequency and form, and cramping with improvement after bowl movement until the next episode.

10. Statements regarding the Veteran's entitlement to compensable disability ratings for her service-connected left ureteral calculus, right elbow degenerative arthritis, left elbow degenerative arthritis, and left ankle talonavicular arthritis on the basis of CUE reflect disagreement with how the AOJ weighed the record evidence in the December 2008 rating decision.

CONCLUSIONS OF LAW

1. The criteria for an earlier effective date of November 1, 2008, for an award of service connection for left wrist degenerative arthritis other than posttraumatic have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.102, 3.400.

2. The criteria for a 30 percent rating for IBS with chronic diarrhea have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.114, Diagnostic Code (DC) 7319.

3. The December 9, 2008, rating decision, which granted, in pertinent part, claims of service connection for left ureteral calculus, right elbow degenerative arthritis, left elbow degenerative arthritis, and left ankle talonavicular arthritis, assigning separate zero percent ratings effective November 1, 2008, was not the product of CUE. 38 U.S.C. §§ 5109A, 7105; 38 C.F.R. §§ 3.104, 3.105.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active U.S. Air Force service from October 1980 to October 2008.

The rating decision on appeal was issued in December 2025 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the January 2026 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board only may consider the evidence of record at the time of the December 2025 AOJ decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, then she may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, then VA will issue another decision on the claims considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

As noted, the Veteran selected the Direct Review docket on her January 2026 VA Form 10182. In Williams v. McDonough, 37 Vet. App. 305 (2024), the United States Court of Appeals for Veterans Claims held that the Board should not adjudicate an appellant's appeal until the period to switch Board dockets has elapsed. This period expires one year from
or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, then VA will issue another decision on the claims considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

As noted, the Veteran selected the Direct Review docket on her January 2026 VA Form 10182. In Williams v. McDonough, 37 Vet. App. 305 (2024), the United States Court of Appeals for Veterans Claims held that the Board should not adjudicate an appellant's appeal until the period to switch Board dockets has elapsed. This period expires one year from the date that the AOJ mails notice of the decision on appeal or 60 days from the date the Board received the VA Form 10182 whichever is later. See 38 C.F.R. § 20.202 (c)(2). Here, that time has not yet elapsed; however, the attorney stated on the January 2026 VA Form 10182 that the Veteran "waives time to select a different Board review option." By including a Williams waiver on her VA Form 10182, the Veteran was clear that she does not want further delay and the Board will proceed with adjudicating this appeal.

Having reviewed the record evidence, the Board finds that the issues on appeal should be characterized as stated above. The Board notes in this regard that the AOJ adjudicated Veteran's claim of CUE in the December 2008 rating decision as 4 separate CUE claims in the currently appealed AMA rating decision issued in December 2025; however, as the Veteran and her attorney essentially make the same allegations of CUE with respect to each of the service connection claims adjudicated in the December 2008 rating decision challenged in this appeal, the Board will adjudicate all of her CUE claims as a single CUE claim. Neither the Veteran nor her representative has raised any other issues nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369 370 (2017).

1. Entitlement to an earlier effective date than August 1, 2025, for an award of service connection for left wrist degenerative arthritis other than posttraumatic

The Board is persuaded that the evidence supports assigning an earlier effective date of November 1, 2008, for an award of service connection for left wrist degenerative arthritis other than posttraumatic. The Veteran and her attorney essentially contend that her original service connection claim for left wrist degenerative arthritis other than posttraumatic ("left wrist disability") remained pending and unadjudicated between when she filed it on July 15, 2008, prior to her separation from service, and when the AOJ finally adjudicated this claim in the currently appealed AMA rating decision issued in December 2025. The Board agrees. Consistent with the Veteran's lay assertions, the record evidence shows that her service connection claim for a left wrist disability was pending and unadjudicated between when she filed it on July 15, 2008, and when the AOJ adjudicated this claim in the currently appealed AMA rating decision issued in December 2025 when it granted service connection for a left wrist disability and assigned a 10 percent rating effective August 1, 2025.

The Veteran included her original claim of service connection for a left wrist disability (which she characterized as a left wrist fracture) in statements on a VA Form 21-526, "Veteran's Application For Compensation And/Or Pension," dated on June 16, 2008, and date-stamped as received by VA on July 15, 2008.

On VA pre-discharge examination in September 2008, the Veteran's complaints included left wrist weakness, stiffness, and pain. She reported an in-service history of a left wrist fracture after "being thrown from a horse." She rated her left wrist pain as 4/10 on a pain scale (with 0/10 being no pain and 10/10 being the worst imaginable pain). Her left wrist fracture was treated with an external fixator, splint, electronic stimulator, and occupational therapy. Physical examination of the left wrist showed tenderness, a positive Finkelstein's test, and tenderness to palpation "of the anatomic snuff box." Range of motion testing of the left wrist showed dorsiflexion 50 degrees with pain, palmar flexion to 40 degrees with pain, radial deviation to 20 degrees, and ulnar deviation to 20 degrees. The diagnoses included left wrist joint degenerative arthritis with scar.

The Veteran separated from active service on October 31,
scale (with 0/10 being no pain and 10/10 being the worst imaginable pain). Her left wrist fracture was treated with an external fixator, splint, electronic stimulator, and occupational therapy. Physical examination of the left wrist showed tenderness, a positive Finkelstein's test, and tenderness to palpation "of the anatomic snuff box." Range of motion testing of the left wrist showed dorsiflexion 50 degrees with pain, palmar flexion to 40 degrees with pain, radial deviation to 20 degrees, and ulnar deviation to 20 degrees. The diagnoses included left wrist joint degenerative arthritis with scar.

The Veteran separated from active service on October 31, 2008.

In a rating decision dated on December 9, 2008, and issued to the Veteran and her former service representative on December 15, 2008, the AOJ granted, in pertinent part, claims of service connection for right wrist degenerative arthritis, status-post distal radius fracture, assigning a 10 percent rating effective November 1, 2008, or the day after her discharge from active service. This decision was not appealed and became final as to these issues. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Veteran also did not submit any relevant evidence or argument within 1 year of the December 2008 rating decision which would render it non-final for VA adjudication purposes. See Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011).

The Veteran filed a VA Form 21-0966, "Intent To File A Claim For Compensation And/Or Pension Or Survivors Pension And/Or DIC," dated on August 1, 2025, and date-stamped as received electronically by VA that same day. She subsequently filed a VA Form 21-526, "Application For Disability Compensation And Related Compensation Benefits," dated on September 22, 2025, and date-stamped as received electronically by VA that same day. Submission of this form clearly related back to the intent to file received on August 1, 2025.

In the currently appealed AMA rating decision dated on December 12, 2025, and issued to the Veteran and her attorney on December 16, 2025, the AOJ granted, in pertinent part, a claim of service connection for a left wrist disability, assigning a 10 percent rating effective August 1, 2025. The AOJ stated that August 1, 2025, was the appropriate effective date of this award because that was the date that VA received the Veteran's intent to file.

It is undisputed that the Veteran included a claim of service connection for a left wrist disability when she filed her original service connection claims on a July 2008 VA Form 21-526 prior to her separation from service on October 31, 2008. It also is undisputed that the earliest possible effective date for an award of VA disability compensation for this Veteran is November 1, 2008, or the day after the date of her separation from service. Here, there is no indication that the AOJ adjudicated the Veteran's original service connection claim for a left wrist disability which VA received in July 2008 at any time prior to the currently appealed AMA rating decision issued in December 2025. In other words, the record evidence shows that the Veteran's original service connection claim for a left wrist disability remained pending and unadjudicated between July 2008 and the December 2025 AMA rating decision. The AOJ incorrectly found in the currently appealed December 2025 AMA rating decision that the appropriate effective date for an award of service connection for a left wrist disability was August 1, 2025, because that was the date that VA received the Veteran's intent to file. It is undisputed that the Veteran submitted an intent to file on August 1, 2025; however, in the currently appealed December 2025 AMA rating decision, the AOJ did not address the service connection claim for a left wrist disability which remained pending and unadjudicated since she originally filed it in July 2008. Because the Veteran's original service connection claim for a left wrist disability remained pending and unadjudicated since she originally filed this claim in July 2008, and because she was not discharged from active service until October 31, 2008, the appropriate effective date (and the earliest possible effective date) for an award of service connection for a left wrist disability is November 1, 2008, or the day after her discharge from active service. In summary, and after resolving any reasonable doubt in the
the currently appealed December 2025 AMA rating decision, the AOJ did not address the service connection claim for a left wrist disability which remained pending and unadjudicated since she originally filed it in July 2008. Because the Veteran's original service connection claim for a left wrist disability remained pending and unadjudicated since she originally filed this claim in July 2008, and because she was not discharged from active service until October 31, 2008, the appropriate effective date (and the earliest possible effective date) for an award of service connection for a left wrist disability is November 1, 2008, or the day after her discharge from active service. In summary, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that the criteria for an earlier effective date of November 1, 2008, for an award of service connection for left wrist degenerative arthritis other than posttraumatic have been met.

2. Entitlement to a disability rating greater than 20 percent for IBS with chronic diarrhea

The Board next is persuaded that the evidence supports assigning a 30 percent rating for the Veteran's service-connected IBS with chronic diarrhea. She and her attorney essentially contend that this disability has worsened. The Board agrees. Consistent with the lay assertions from the Veteran and her attorney, the record evidence shows that the service-connected IBS with chronic diarrhea is manifested by, at worst, complaints of loose to watery stools 10-15 times a day, bloating, abdominal pain related to defecation at least 3 days per month over a 3 month period, changes in stool frequency and form, and cramping with improvement after bowl movement until the next episode. In other words, the record evidence as a whole shows that the symptomatology attributable to the service-connected IBS with chronic diarrhea more nearly approximates the criteria for a 30 percent rating throughout the appeal period under DC 7319. See 38 C.F.R. § 4.114, DC 7319.

For example, on VA intestinal conditions DBQ in November 2025, the Veteran's complaints included urgency, frequency, and loose stools. The VA examiner reviewed the Veteran's electronic claims file, including service treatment records and post-service VA treatment records. The Veteran reported that her IBS with chronic diarrhea was worsening. She also reported that she some times woke up at 3am to go to the bathroom "and by 10am [she] will have gone 10 times. Progressively gets more liquid with each episode. States that these episodes happen 2-3 times per month." She took Imodium and Gas X to treat her IBS with chronic diarrhea. Her treatment plan did not include taking daily prescribed medication to treat this problem. She had IBS with abdominal pain related to defecation at least 3 days per month during the previous 3 months, changes in stool frequency and form, and cramping with improvement after bowl movement until the next episode. A colonoscopy dated in 2007 was reviewed and showed chronic diarrhea of unknown etiology. Although the Veteran was retired, the VA examiner stated that the Veteran had to "pretreat" herself "with medications if she knows that she is going to have to leave the house." The diagnosis was irritable bowel syndrome with chronic diarrhea and hiatal hernia and gastrointestinal reflux disease (GERD).

On VA esophageal conditions DBQ in December 2025, the Veteran's complaints included loose to watery stools 10-15 times a day, abdominal cramping, and bloating. The VA examiner reviewed the Veteran's electronic claims file, including service treatment records and post-service VA treatment records. The Veteran reported that she began experiencing symptoms of GERD after the onset of chronic diarrhea. Her treatment plan did not include taking daily prescribed medication to treat this problem. She did not have any daily symptoms of any esophageal condition. The VA examiner stated that, although the Veteran was retired, her condition required her "to take multiple breaks during the day due to diarrhea" and she had "difficulty traveling due to abrupt need to use the restroom." The diagnoses included IBS with chronic diarrhea and hiatal hernia and GERD.

Consistent with her lay assertions, the record evidence shows that this disability is manifested by, at worst, complaints of loose to watery stools 10-15 times a day, bloating, abdominal pain related to defecation at least 3 days per month over a 3 month period, changes in stool frequency and form, and cramping with improvement after bowl movement until the next episode. These findings support assigning the maximum 30 percent rating for service-connected IBS with chronic diarrhea throughout the appeal period under DC 7319. Id. The Veteran consistently reported that the symptomatology attributable to this disability had worsened throughout the appeal period. VA intestinal conditions DBQ in November 2025 showed that she had IBS with abdominal pain related to defecation at least 3 days per month during the previous 3 months, changes in stool frequency and form, and cramping with improvement after bowl movement until the next episode. She experienced episodes of frequent loose stools "2-3 times per month." She also had "pretreat" herself "with medications if she knows that she is going to have to leave the house." VA esophageal conditions DBQ in December 2025 documented her complaints of loose to watery stools 10-15 times a day, abdominal cramping, and bloating. This examination also showed that she did not experience any daily symptoms related to an esophageal condition. Taken together, the record evidence as a whole supports assigning the maximum 30 percent rating for service-connected IBS with chronic diarrhea throughout the appeal period under DC 7319. Id. In summary, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that the criteria for a 30 percent rating for IBS with chronic diarrhea have been met.

3. Whether the December 9, 2008, rating decision, which granted, in pertinent part, claims of service connection for left ureteral calculus, right elbow degenerative arthritis, left elbow degenerative arthritis, and left ankle talonavicular arthritis, assigning separate zero percent ratings effective November 1, 2008, was the product of CUE

The Board finally is not persuaded that the December 9, 2008, rating decision, which granted, in pertinent part, claims of service connection for left ureteral calculus, right elbow degenerative arthritis, left elbow degenerative arthritis, and left ankle talonavicular arthritis, assigning separate zero percent ratings effective November 1, 2008, was the product of CUE. The Veteran and her attorney essentially contend that the AOJ committed CUE in the December 2008 rating decision by misinterpreting the extant record evidence and misapplying the governing law and regulations. They specifically contend that the AOJ committed CUE by misapplying or failing to apply 38 C.F.R. § 4.59 and not assigning separate 10 percent ratings for service-connected right elbow degenerative arthritis, service-connected right elbow degenerative arthritis, and service-connected left ankle talonavicular arthritis based on her subjective complaints of pain in both elbows and the left ankle at an August 2008 VA examination. They also specifically contend that the AOJ committed CUE by not assigning a 20 percent rating for service-connected left ureteral calculus under a DC for evaluating voiding dysfunction based on her reported symptom of frequent urination or voiding dysfunction at an August 2008 VA examination. They finally contend that, but for AOJ CUE in the December 2008 rating decision, the Veteran is entitled to a 20 percent rating for service-connected left ureteral calculus and separate 10 percent ratings for service-connected right elbow degenerative arthritis, service-connected right elbow degenerative arthritis, and service-connected left ankle talonavicular arthritis, each effective November 1, 2008.

The Board finds, however, that the AOJ properly considered the relevant evidence (the Veteran's service treatment records, VA examination reports, and her lay statements) and governing law and regulations when it granted, in pertinent part, claims of service connection for left ureteral calculus, right elbow degenerative arthritis, left elbow degenerative arthritis, and left ankle talonavicular arthritis, assigning separate zero percent ratings effective November 1, 2008, in the December 9, 2008, rating decision. The arguments presented by the Veteran and her attorney essentially disagree with how the AOJ weighed the record evidence in the December 9, 2008, rating decision which can never rise to the level of a valid CUE claim.

The Veteran included her original claims of service connection for left ureteral calculus (which she characterized as
records, VA examination reports, and her lay statements) and governing law and regulations when it granted, in pertinent part, claims of service connection for left ureteral calculus, right elbow degenerative arthritis, left elbow degenerative arthritis, and left ankle talonavicular arthritis, assigning separate zero percent ratings effective November 1, 2008, in the December 9, 2008, rating decision. The arguments presented by the Veteran and her attorney essentially disagree with how the AOJ weighed the record evidence in the December 9, 2008, rating decision which can never rise to the level of a valid CUE claim.

The Veteran included her original claims of service connection for left ureteral calculus (which she characterized as "kidney/bladder condition"), bilateral elbow degenerative arthritis (which she characterized as bilateral elbow tendonitis), and for left ankle talonavicular arthritis (which she characterized as a bilateral ankle condition) in statements on a VA Form 21-526, "Veteran's Application For Compensation And/Or Pension," dated on June 16, 2008, and date-stamped as received by VA on July 15, 2008.

In a rating decision dated on December 9, 2008, and issued to the Veteran and her former service representative on December 15, 2008, the AOJ granted, in pertinent part, claims of service connection for left ureteral calculus (which the AOJ characterized as left ureteral calculus (claimed as kidney/bladder condition)), right elbow degenerative arthritis, left elbow degenerative arthritis, and left ankle talonavicular arthritis, assigning separate zero percent ratings effective November 1, 2008. This decision was not appealed and became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Veteran also did not submit any relevant evidence or argument within 1 year of the December 2008 rating decision which would render it non-final for VA adjudication purposes. See Buie, 24 Vet. App. at 251-52.

The Veteran, through her attorney, filed a VA Form 21-526, "Application For Disability Compensation And Related Compensation Benefits," dated on September 22, 2025, and date-stamped as received electronically by VA that same day in which she asserted, among other things, that the December 9, 2008, rating decision, which granted, in pertinent part, claims of service connection for left ureteral calculus, right elbow degenerative arthritis, left elbow degenerative arthritis, and for left ankle talonavicular arthritis, assigning separate zero percent ratings effective November 1, 2008, was the product of CUE. Submission of this form clearly related back to the intent to file received on August 1, 2025.

In a CUE motion attached to the September 2025 VA Form 21-526, the Veteran's attorney asserted that the AOJ committed CUE in the December 2008 rating decision by not assigning a 20 percent rating for service-connected left ureteral calculus based on her reported symptom of frequent urination or voiding dysfunction at an August 2008 VA examination. He next asserted that the AOJ committed CUE in the December 2008 rating decision by not applying 38 C.F.R. § 4.59 and assigning separate 10 percent ratings for service-connected right elbow degenerative arthritis, service-connected right elbow degenerative arthritis, and service-connected left ankle talonavicular arthritis based on her subjective complaints of pain in both elbows and the left ankle at August 2008 VA examinations. He finally asserted that, but for AOJ CUE in the December 2008 rating decision, the Veteran is entitled to a 20 percent rating for service-connected left ureteral calculus and separate 10 percent ratings for service-connected right elbow degenerative arthritis, service-connected right elbow degenerative arthritis, and service-connected left ankle talonavicular arthritis.

In the currently appealed AMA rating decision dated on December 12, 2025, and issued to the Veteran and her attorney on December 16, 2025, the AOJ found, in pertinent part, that the December 9, 2008, rating decision was not the product of CUE. The AOJ concluded that the December 9, 2008, was not CUE "because the decision was properly based on the available evidence of record at the time and the rules then in effect." With respect to the disability ratings assigned for the Veteran's service-connected right elbow degenerative arthritis, left elbow degenerative arthritis, and left ankle talonavicular arthritis, the AOJ also found that it was not CUE to assign separate zero percent ratings for each of these disabilities in the December 2008 rating decision because there was no provision in the governing law at that time which provided for compensable ratings based only on subjective complaints of pain. With respect to the zero percent rating assigned for service-connected left ureteral calculus, the AOJ noted that, because this disability was not listed in the Rating Schedule, it was rated under an analogous DC which required the presence of colic for a compensable rating. The AOJ also essentially concluded that, because there was no extant record evidence at the time of the December 2008 which showed that the Veteran experienced colic, it was not CUE to assign a zero percent rating for her service-connected left ureteral calculus.

The Veteran, through her attorney, disagreed with the December 2025 AMA rating decision in statements on a VA Form 10182, "Decision Review Request: Board Appeal (Notice Of Disagreement)," dated on January 13, 2026, and date-stamped as received electronically that same day by VA. The attorney attached a submission to the January 2026 VA Form 10182 which recapitulated the prior arguments presented in the CUE motion attached to the September 2025 VA Form 21-526.

The Board notes that previous determinations, which are final and binding, including decisions of service connection, degree of disability and other issues, will be accepted as correct in the absence of CUE. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105(a). To establish a valid CUE claim, a Veteran must show that either the correct facts, as they were known at the time, were not before the adjudicator or that the statutory or regulatory provisions extant at the time were applied incorrectly. Russell v. Principi, 3 Vet. App. 310 (1992). The Court has stressed consistently the rigorous nature of the concept of CUE. CUE is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts; it is not mere misinterpretation of facts. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). Clear and unmistakable errors are errors that are undebatable so that it can be said that reasonable minds could conclude only that the original decision was fatally flawed at the time it was made. Russell v. Principi, 3 Vet. App. 310, 313-4. It must be remembered that CUE is a very specific and rare kind of error. Fugo v. Brown, 6 Vet. App. 40, 43 (1993).

The Court has propounded a three-prong test to determine whether CUE is present in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at that time were incorrectly applied; (2) the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made"; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994), quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). A determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question and not on subsequent determinations of record.
ebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made"; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994), quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). A determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question and not on subsequent determinations of record. Damrel, 6 Vet. App. at 245. A mere difference of opinion in the outcome of the adjudication or a disagreement as to how facts were weighed and evaluated does not provide a basis upon which to find that VA committed administrative error during the adjudication process. Luallen v. Brown, 8 Vet. App. 92, 96 (1995). Even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be CUE. Allegations that previous adjudications had weighed and evaluated the evidence improperly also can never rise to the stringent definition of CUE. Fugo, 6 Vet. App. at 43 44.

The Board again notes that CUE is a very specific and rare kind of error and a mere difference of opinion in the outcome of the adjudication or a disagreement as to how facts were weighed and evaluated does not provide a basis upon which to find that VA committed administrative error during the adjudication process. Id.; see also Luallen, 8 Vet. App. at 96.

With respect to the argument that the AOJ committed CUE in the December 2008 rating decision when it misinterpreted the extant record evidence and misapplied the governing law and regulations by granting, in pertinent part, claims of service connection for left ureteral calculus, right elbow degenerative arthritis, left elbow degenerative arthritis, and left ankle talonavicular arthritis, assigning separate zero percent ratings effective November 1, 2008, the Board notes initially that this argument reflects disagreement with how VA weighed the evidence. Such argument never rises to the level of a valid CUE claim. The Veteran and her attorney argued that the AOJ committed CUE in the December 2008 rating decision when it overlooked or ignored extant medical and lay evidence dated prior to this rating decision demonstrating that she experienced frequent urination or voiding dysfunction due to her service-connected left ureteral calculus, bilateral elbow pain due to her service-connected bilateral elbow degenerative arthritis, and left ankle pain due to her service-connected left ankle talonavicular arthritis. With respect to service-connected left ureteral calculus, they specifically asserted that this disability was rated under an incorrect DC because the Veteran "did not report having any renal colic, bladder stones with pain, or frequent infections" at the August 2008 VA examination. With respect to the service-connected bilateral elbow degenerative arthritis and service-connected left ankle talonavicular arthritis, they asserted that the AOJ failed to apply or misapplied 38 C.F.R. § 4.59 and to assign separate 10 percent ratings for each of these disabilities after she reported experiencing pain in both elbows and her left ankle on VA examination in August 2008. These arguments are not persuasive.

A review of the December 2008 rating decision shows that the AOJ did not misinterpret the extant record evidence and also properly applied the governing law and regulations when it granted service connection for left ureteral calculus, right elbow degenerative arthritis, left elbow degenerative arthritis, and for left ankle talonavicular arthritis, assigning separate zero percent ratings effective November 1, 2008. The AOJ noted initially that the record evidence reviewed in reaching this decision included the Veteran's available service treatment records, a pre-discharge VA examination conducted in August 2008, and her lay statements. The AOJ also noted initially that the record evidence established a direct link between each of these disabilities and active service. With respect to the Veteran's service connection claim for left ureteral calculus, the AOJ stated that the available record evidence demonstrated the presence of this disability but there was "no evidence you have experienced any colic associated with this condition." The AOJ next stated that a compensable rating for left ureteral calculus required the presence of an occasional attack of colic. The AOJ also stated that the left ureteral calculus was evaluated under an analogous DC because this disability was not listed in the Rating Schedule. With respect to the
VA examination conducted in August 2008, and her lay statements. The AOJ also noted initially that the record evidence established a direct link between each of these disabilities and active service. With respect to the Veteran's service connection claim for left ureteral calculus, the AOJ stated that the available record evidence demonstrated the presence of this disability but there was "no evidence you have experienced any colic associated with this condition." The AOJ next stated that a compensable rating for left ureteral calculus required the presence of an occasional attack of colic. The AOJ also stated that the left ureteral calculus was evaluated under an analogous DC because this disability was not listed in the Rating Schedule. With respect to the service connection claims for bilateral elbow degenerative arthritis, the AOJ stated that the pre-discharge VA examination in August 2008 showed that the range of motion of the elbows was "normal without evidence of pain." The AOJ next stated that a compensable evaluation required the presence of painful motion of a limited range of motion on examination. The AOJ also stated, "Consideration has been given for an increased evaluation due to additional limitation of function due to pain, weakness, incoordination, pain during periods of flare-up, or other reduction in normal excursion of movement." With respect to the service connection claim for left ankle talonavicular arthritis, the AOJ stated that the pre-discharge VA examination in August 2008 showed that the left ankle range of motion was "normal without evidence of pain." The AOJ next stated that a compensable evaluation required moderate limited motion of the ankle, painful motion, limitation of motion due to pain, ankylosis, or malunion with a moderate deformity. The AOJ also stated, "Consideration was also given to an increased evaluation due to an additional disability manifested by a limitation of motion, a restriction of activity, or functional impairment caused by pain during periods of flare-up, or when the body part is used repeatedly over a period of time." The AOJ finally stated that, because left ankle talonavicular arthritis was not listed in the Rating Schedule, this disability was rated by analogy. Thus, the claims of service connection for left ureteral calculus, right elbow degenerative arthritis, left elbow degenerative arthritis, and for left ankle talonavicular arthritis were granted and zero percent ratings assigned effective November 1, 2008.

The AOJ's findings in the December 2008 rating decision are supported by a review of the extant record evidence. VA examination in August 2008 documented complaints of bilateral ankle stiffness and swelling and pain which she rated as 7/10 on a pain scale (with 10/10 being the worst imaginable pain), bilateral elbow weakness, stiffness, fatigability, pain which occurred and resolved spontaneously and which she rated as 3/10 (with 0/10 being no pain), and frequent urination and urinary incontinence "which does not require a pad or any absorbent material" or the use of an appliance. She reported that her bilateral ankle pain occurred 4 times a week and lasted for 6 hours at a time and her bilateral elbow pain occurred 3 times a week and lasted for 6 hours at a time. There was no renal colic present. She was able to function with medication when experiencing both ankle and elbow pain. She took Naproxen 500 mg "twice as needed" to treat her ankle pain. She wore an ankle brace which "provide[d] some relief." An in-service history of a left wrist fracture from falling off of a horse followed by surgery to repair the fracture was noted. Physical examination of the ankles was essentially within normal limits without "signs of edema, effusion, weakness, tenderness, redness, heat, subluxation, or guarding of movement," and no deformity. Physical examination of the left wrist showed tenderness, a positive Finkelstein's test, tenderness to palpation "of the anatomic snuff box," and "no signs of edema, effusion, weakness, redness, heat, guarding of movement," or subluxation. The diagnoses included left ankle calcaneal spur and degenerative arthritis of the bilateral elbow joints. The VA examiner stated that a diagnosis of the Veteran's claimed kidney/bladder condition "is not possible because unknown."

As noted above, the AOJ specifically relied on the August 2008 VA examination report findings as support for awarding service connection and separate zero percent ratings effective November 1, 2008, for left ureteral calculus, right elbow degenerative arthritis, left elbow degenerative arthritis, and for left ankle talonavicular arthritis. The Veteran and her attorney essentially assume for the purposes of arguing that the AOJ committed CUE in the December 2008 rating decision that VA overlooked relevant evidence (here, certain lay statements from the Veteran and/or objective findings in the August 2008 VA examination report) because it was not discussed explicitly in that rating decision. This assumption is misplaced and does not constitute a valid CUE claim. See, for example, Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed), and Newhouse v. Nicholson, 497 F.3d 1298 (2007) (finding that VA is entitled to a presumption that it reviewed all of the record evidence). Having reviewed the record evidence, the Board finds that the AOJ appropriately interpreted the extant medical evidence and correctly applied the governing law and regulations in the December 2008 rating decision when it awarded service connection and separate zero percent ratings effective November 1, 2008, for left ureteral calculus, right elbow degenerative arthritis, left elbow degenerative arthritis, and for left ankle talonavicular arthritis.

With respect to the argument that AOJ committed CUE in the December 2008 rating decision when it misapplied or failed to apply 38 C.F.R. § 4.59 and assigned zero percent ratings for the Veteran's service-connected right elbow degenerative arthritis, left elbow degenerative arthritis, and left ankle talonavicular arthritis, the Board notes that this argument again reflects disagreement with how the AOJ weighed the record evidence. Such argument never rises to the level of a valid CUE claim. The Veteran's attorney contended in the September 2025 CUE motion (which he resubmitted as an attachment to the January 2026 VA Form 10182) that the AOJ failed to apply or misapplied § 4.59 when it assigned zero percent ratings for each of these service-connected disabilities in the December 2008 rating decision. The attorney specifically contended that, because painful motion of the bilateral elbows and left ankle was present at the August 2008 VA examination, the AOJ committed CUE in the December 2008 rating decision by not assigning separate 10 percent ratings effective November 1, 2008, for the Veteran's service-connected right elbow degenerative arthritis, left elbow degenerative arthritis, and left ankle talonavicular arthritis.

In the December 2008 rating decision, the AOJ found that the Veteran had a normal and non-painful range of motion in both elbows and in her left ankle. These AOJ findings in the December 2008 rating decision are supported by a review of the extant record evidence (here, the August 2008 VA examination) which shows that the Veteran's bilateral elbow and left ankle range of motion was not painful. The AOJ did not apply § 4.59 to the extant record evidence at the time of the December 2008 rating decision because this regulation was inapplicable. Because there were no physical examination findings that the Veteran had a painful range of motion in either elbow or the left ankle, the AOJ assigned separate zero percent (non-compensable) ratings for service-connected right elbow degenerative arthritis, left elbow degenerative arthritis, and left ankle talonavicular arthritis in the December 2008 rating decision. Having reviewed the record evidence, the Board finds that the AOJ did not commit CUE in the December 2008 rating decision by assigning separate zero percent ratings effective November 1, 2008, for the Veteran's service-connected right elbow degenerative arthritis, left elbow degenerative arthritis, and left ankle talonavicular arthritis.

The Veteran and her attorney again essentially contend that the AOJ committed CUE in the December 2008 rating decision because VA overlooked relevant evidence (here, an August 2008 VA examination) because certain findings in that examination were not discussed explicitly in that rating decision. These assumptions again do not constitute a valid CUE claim. Id. And, as outlined above, these assumptions are not supported by a
the record evidence, the Board finds that the AOJ did not commit CUE in the December 2008 rating decision by assigning separate zero percent ratings effective November 1, 2008, for the Veteran's service-connected right elbow degenerative arthritis, left elbow degenerative arthritis, and left ankle talonavicular arthritis.

The Veteran and her attorney again essentially contend that the AOJ committed CUE in the December 2008 rating decision because VA overlooked relevant evidence (here, an August 2008 VA examination) because certain findings in that examination were not discussed explicitly in that rating decision. These assumptions again do not constitute a valid CUE claim. Id. And, as outlined above, these assumptions are not supported by a plain reading of the AOJ's discussion of the extant record evidence in the December 2008 rating decision.

With respect to the argument that the AOJ committed CUE in the December 2008 rating decision by evaluating the service-connected left ureteral calculus under an incorrect DC, the Board again notes that this argument disagrees with how the AOJ weighed the record evidence and does not constitute a valid CUE claim. The attorney specifically and repeatedly contends in this appeal that the AOJ committed CUE in the December 2008 rating decision by not evaluating the service-connected left ureteral calculus under a DC for voiding dysfunction based on the Veteran's complaints of frequent urination and/or urinary incontinence. However, the Board notes here that it is well-settled that the assignment of a particular DC in evaluating a service-connected disability is "completely dependent on the facts of a particular case." The Board also can choose the DC to apply so long as it is supported by reasons and bases as well as the evidence. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). A particular DC may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Here, the AOJ clearly explained in the December 2008 rating decision that, because there was no specific DC for evaluating a left ureteral calculus, this service-connected disability would be evaluated by analogy to a different DC (in this case, DC 7599-7508). The AOJ also explained in the December 2008 rating decision that a non-compensable (zero percent) rating was appropriate for the Veteran's service-connected left ureteral calculus because there was "no evidence you have experienced any colic associated with this condition" and the relevant DC provided a compensable rating only when "there is documentation of an occasional attack of colic." As the AOJ stated in the currently appealed AMA rating decision issued in December 2025, the Veteran's service-connected left ureteral calculus was "rated analogous to a disability in which not only the functions affected, but anatomical localization and symptoms, are closely related." The AOJ also essentially found in the December 2025 AMA rating decision that there was no extant record evidence at the time of the December 2008 rating decision challenged in this CUE appeal which showed that the Veteran experienced colic as a result of her service-connected left ureteral calculus which supported assigning a minimum compensable 10 percent rating for this disability. Having reviewed the record evidence, the Board finds that AOJ did not commit CUE in the December 2008 rating decision by evaluating the service-connected left ureteral calculus under an analogous DC and any argument to the contrary is without merit.

With respect to the argument that, but for AOJ CUE in the December 2008 rating decision, the Veteran is entitled to a 20 percent rating for service-connected left ureteral calculus and separate 10 percent ratings for service-connected right elbow degenerative arthritis, service-connected left elbow degenerative arthritis, and for service-connected left ankle talonavicular arthritis, each effective November 1, 2008, or the day after her separation from active service, the Board again notes that this argument reflects disagreement with how the AOJ weighed the evidence. The AOJ considered the record evidence as a whole at the time of the December 2008 rating decision and found that service connection for left ureteral calculus, right elbow degenerative arthritis, left elbow degenerative arthritis, and left ankle talonavicular arthritis, each evaluated as zero percent disabling effective November 1, 2008, was warranted because the evidence showed that, although each of these disabilities was related to active service, none of them resulted in compensable disability. The AOJ reached the same conclusions in the currently appealed December 2025 AMA rating decision which found that there was no CUE in the December 2008 rating decision. The findings in the December 2025 AMA rating decision are in accord with the AOJ's prior
the record evidence as a whole at the time of the December 2008 rating decision and found that service connection for left ureteral calculus, right elbow degenerative arthritis, left elbow degenerative arthritis, and left ankle talonavicular arthritis, each evaluated as zero percent disabling effective November 1, 2008, was warranted because the evidence showed that, although each of these disabilities was related to active service, none of them resulted in compensable disability. The AOJ reached the same conclusions in the currently appealed December 2025 AMA rating decision which found that there was no CUE in the December 2008 rating decision. The findings in the December 2025 AMA rating decision are in accord with the AOJ's prior findings in the December 2008 rating decision which found that the Veteran's left ureteral calculus, right elbow degenerative arthritis, left elbow degenerative arthritis, and left ankle talonavicular arthritis were related to active service but did not result in compensable disability. And, as discussed above, the AOJ's original grant of service connection for left ureteral calculus, right elbow degenerative arthritis, left elbow degenerative arthritis, and left ankle talonavicular arthritis, each evaluated as zero percent disabling effective November 1, 2008, was supported by the extant record evidence at the time of the December 2008 rating decision.

Having reviewed the Veteran's arguments concerning an allegation of CUE in the December 2008 rating decision, the Board finds that these arguments do not rise to the level of a valid CUE claim. They essentially dispute how the AOJ weighed the record evidence at the time of this rating decision and never rise to the level of a valid CUE claim.

Even assuming for the sake of argument only that there was error in the December 9, 2008, rating decision, because it is not absolutely clear that a different result would have ensued, the error(s) complained of cannot be CUE. Again, the AOJ granted service connection for left ureteral calculus, right elbow degenerative arthritis, left elbow degenerative arthritis, and for left ankle talonavicular arthritis, each evaluated as zero percent disabling effective November 1, 2008, in the December 2008 rating decision. The AOJ considered the available medical evidence (service treatment records and VA pre-discharge examination report dated in August 2008) which showed that, although left ureteral calculus, right elbow degenerative arthritis, left elbow degenerative arthritis, and left ankle talonavicular arthritis were related to active service, the symptomatology attributable to these disabilities was not compensably disabling. The AOJ also found that November 1, 2008, was the appropriate effective date for the award of service connection and separate zero percent ratings for left ureteral calculus, right elbow degenerative arthritis, left elbow degenerative arthritis, and for left ankle talonavicular arthritis because that was the day after the Veteran's discharge from active service.

In other words, the record evidence demonstrates what the AOJ previously concluded in the December 2008 rating decision, i.e., that service connection for left ureteral calculus, right elbow degenerative arthritis, left elbow degenerative arthritis, and for left ankle talonavicular arthritis, each evaluated as zero percent disabling effective November 1, 2008, was warranted. Thus, it is not absolutely clear that a different result would have ensued at the time of the December 2008 rating decision under the interpretation advanced by the Veteran in her CUE motion. Because it is not absolutely clear to the Board that a different result would have ensued if the AOJ weighed the record evidence under the theory advanced by the Veteran in this appeal, any alleged error(s) made by the AOJ in the December 9, 2008, rating decision in awarding service connection and zero percent ratings effective November 1, 2008, for left ureteral calculus, right elbow degenerative arthritis, left elbow degenerative arthritis, and for left ankle talonavicular arthritis was not CUE. And, as noted above, the AOJ's conclusions in the December 2008 rating decision challenged in this CUE appeal with respect to the service connection claims and zero percent ratings for left ureteral calculus, right elbow degenerative arthritis, left elbow degenerative arthritis, and for left ankle talonavicular arthritis were fully supported by the available evidence at the time of each of these decisions.

The record evidence does not support finding that the December 9, 2008, rating decision, which awarded service connection and separate zero percent ratings effective November 1, 2008, for left ureteral calculus, right elbow degenerative arthritis, left elbow degenerative arthritis, and for left ankle talonavicular arthritis, was the product of CUE. The
the AOJ's conclusions in the December 2008 rating decision challenged in this CUE appeal with respect to the service connection claims and zero percent ratings for left ureteral calculus, right elbow degenerative arthritis, left elbow degenerative arthritis, and for left ankle talonavicular arthritis were fully supported by the available evidence at the time of each of these decisions.

The record evidence does not support finding that the December 9, 2008, rating decision, which awarded service connection and separate zero percent ratings effective November 1, 2008, for left ureteral calculus, right elbow degenerative arthritis, left elbow degenerative arthritis, and for left ankle talonavicular arthritis, was the product of CUE. The Veteran and her attorney otherwise have not identified or submitted any evidence demonstrating that this rating decision was the product of CUE. The evidence persuasively weighs against the claim. Therefore, the benefit of the doubt rule does not apply. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). In summary, the Board finds that the December 9, 2008, rating decision, which granted, in pertinent part, service connection for left ureteral calculus, right elbow degenerative arthritis, left elbow degenerative arthritis, and for left ankle talonavicular arthritis and assigned separate zero percent ratings effective November 1, 2008, was not the product of CUE.

S. Sorathia

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Michael T. Osborne, 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.

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