SHOULDER IMPAIRMENT OF

G. E. WILKERSON · 2026 · Case ID: A26038267

MIXED

Summary

The veteran, who served honorably in the U.S. Army from August 2002 to February 2009, appealed the denial of his motion to revise a February 2024 Rating Decision. This decision had denied his motion to revise an August 2009 Rating Decision, which had granted service connection for right shoulder strain but assigned a noncompensable rating. The veteran argued that the August 2009 decision contained clear and unmistakable error (CUE) by overlooking objective evidence of painful motion in his right shoulder, specifically citing a June 2009 VA physical therapy record. The Board reviewed the CUE claim under the law as it existed in August 2009, noting that Diagnostic Code 5201, which addresses limitation of arm motion, did not clearly apply to non-arthritis claims prior to a 2011 court decision. The Board found that the August 2009 decision did not contain CUE because the Veteran's condition was not diagnosed as arthritis, and the cited physical therapy record's statement about slight limitation of motion was ambiguous and did not clearly document objective painful motion. The Board also found that the August 2009 decision was final, as no new and material evidence was received within one year, and the 2016 upload of military medical records did not trigger the 3.156(c) exception due to a presumption of administrative regularity. The Board denied the motion for revision based on CUE. However, the Board remanded the claim for a compensable disability rating for right shoulder strain, finding that the VA Regional Office erred by not providing an updated VA medical examination to assess the current severity of the disability, which constituted a pre-decisional duty-to-assist error.

Rationale

CUE motion denied due to inapplicability of 38 C.F.R. § 4.59 to non-arthritis claims at the time of the 2009 decision.; No clear and unmistakable error found in the August 2009 rating decision.; Remanded due to duty-to-assist error in failing to obtain updated VA medical examination for current rating assessment.

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

5203

Docket No.

240318-425831

Full Decision Text

Citation Nr: A26038267
Decision Date: 04/23/26 Archive Date: 04/23/26

DOCKET NO. 240318-425831
DATE: April 23, 2026

ORDER

The motion for revision, on the basis of clear and unmistakable error, of an August 2009 Rating Decision which assigned an initial noncompensable disability rating for service-connected right shoulder strain is denied.

REMANDED

Entitlement to a compensable disability rating for service-connected right shoulder strain is remanded.

FINDING OF FACT

The August 2009 Rating Decision is final, and it does not contain a clear and unmistakable error to which reasonable minds could not differ, such that a manifestly different outcome would have resulted but for that error.

CONCLUSION OF LAW

The criteria for revision, on the basis of clear and unmistakable error, of the August 2009 Rating Decision which assigned an initial noncompensable disability rating for service-connected right shoulder strain are not met. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served honorably on active duty in the United States Army from August 2002 to February 2009.

This appeal is being adjudicated according to the appellate process set forth under the Appeals Modernization Act (AMA).

This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2024 Rating Decision issued by a Regional Office of the United States Department of Veterans Affairs (VA).

The Board received VA Form 10182 Decision Review Request: Board Appeal (Notice of Disagreement) on March 18, 2024, from the Veteran. The Veteran selected the Direct Review docket. An April 2, 2024, Board letter informed the Veteran and listed representative that the appeal had been formally placed on the Board's Direct Review docket.

1. The motion for revision, on the basis of CUE, of August 2009 Rating Decision which assigned an initial noncompensable disability rating for service-connected right shoulder strain, is denied.

The Veteran asserts that there is clear an unmistakable error in the August 2009 rating decision that assigned a noncompensable rating for his right shoulder disability.

In the context of an appeal based on the allegation of clear and unmistakable error (CUE), "[r]eview 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)(iii); Pierce v. Principi, 240 F.3d 1348 (Fed. Cir. 2001) (holding that "evidence" in 38 U.S.C. § 5109A(a) is limited to evidence that was of record at the time of the challenged decision). 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). To the extent the evidentiary-window provisions of the modernized review system (AMA) conflict with the evidentiary-window provisions associated with motions based on clear and unmistakable error, 38 C.F.R. § 3.105(a)(iii), the law provides that the evidentiary-window provisions associated with motions based on clear and unmistakable error control.

The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128?29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence in relation to the Veteran's motion.

The benefit of the doubt does not apply in the specific context of CUE, since CUE does not involve the weighing of evidence. See Burden v. Shinseki, 727 F.3d 1161, 1169?70 (Fed. Cir. 2013).

Generally, a decision of a VA Regional Office that is not timely appealed becomes final and binding in the absence of clear and unmistakable error (CUE). 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. A previous determination that is
(Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence in relation to the Veteran's motion.

The benefit of the doubt does not apply in the specific context of CUE, since CUE does not involve the weighing of evidence. See Burden v. Shinseki, 727 F.3d 1161, 1169?70 (Fed. Cir. 2013).

Generally, a decision of a VA Regional Office that is not timely appealed becomes final and binding in the absence of clear and unmistakable error (CUE). 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. A previous determination that is final and binding will be presumed correct in the absence of CUE. Fugo v. Brown, 6 Vet. App. 40, 44 (1993). If the evidence establishes CUE, the prior decision will be reversed or revised, and a finding of CUE has the same effect as if the correct decision had been made on the date of the prior decision. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104(a), 3.105(a).

"CUE is a very specific and rare kind of 'error' . . . of fact or law that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the results would have been manifestly different but for the error." Simon v. Wilkie, 30 Vet. App. 403, 408 (2018) (quoting Fugo, 6 Vet. App. at 43). Thus, even where the premise of error is accepted, if it is not clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. Fugo, 6 Vet. App at 43?44.

To establish CUE, a claimant must demonstrate the following three elements:

(1) either (a) the correct facts as they were known at the time were not before the adjudicator, (b) the adjudicator made an erroneous factual finding, or (c) the statutory or regulatory provisions extant at the time were incorrectly applied;

(2) the error was undebatable and amounted to more than a disagreement with how the facts were weighed or the law applied; and

(3) the outcome of the claim would be manifestly different had the error not occurred.

Simon, 30 Vet. App. at 407. 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).

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. Fugo, 6 Vet. App. at 43?44. Similarly, neither can broad-brush allegations of "failure to follow the regulations," "failure to give due process," or any other general, nonspecific claim of "error." Id.

By way of background, the Veteran filed an application for service connection, VA Form 21-526, on December 12, 2008. He sought service connection for a right shoulder disability.

In an August 2009 Rating Decision, a VA Regional Office granted service connection for "right shoulder strain (also claimed as shoulder degenerative disc disease with impingement)." The VA Regional Office assigned an initial noncompensable disability rating effective February 14, 2009. The VA Regional Office notified the Veteran of the decision in written correspondence dated September 1, 2009. The Veteran did not appeal the decision.

In January 2024 the Veteran, through his attorney-representative, filed a motion to revise the August 2009 Rating Decision on the basis of clear and unmistakable error (CUE). The VA Regional Office denied his motion in a February 2024 Rating Decision, which the Veteran appealed to the Board.

There are two threshold matters that the Board must address before reaching the merits of the Veteran's CUE motion. First, the Board must address the finality of the August 2009 Rating Decision. Lang v. Wilkie, 971 F.3d 1348, 1352 (Fed. Cir. 2020) (a decision must be final to be subject to revision based on CUE). Second, it must address the pleading requirements for a CUE motion. Andrews v. Nicholson, 421 F.3d 1278, 1282 (Fed. Cir. 2005).

"The purpose of the rule of finality is to preclude repetitive and bel
Decision, which the Veteran appealed to the Board.

"The purpose of the rule of finality is to preclude repetitive and belated readjudication of veterans' benefit claims." Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002). The finality of a decision is viewed from dual lenses: that of the law at the time of the rating decision and the current state of the law, to the extent they differ. As of September 1, 2009, the date of the notification of the rating decision, the law required that the Veteran file an appeal to the Board within one year of that date. 38 U.S.C. § 7105 (2009); 38 C.F.R. § 20.302 (2009). He did not do so, making the decision final in the absence of an exception. Here, for reasons discussed next, the Board finds no applicable exception applies.

The August 2009 Rating Decision was issued under the Legacy Appeal system (in effect until February 19, 2019, 38 C.F.R. § 3.2400(b)). Current law provides that in the Legacy Appeal system, if new and material evidence was received within year of notification of the rating decision, then the claim remained non-final until the evidence was addressed. 38 C.F.R. § 3.156(b) (2026). Here, the Board finds that new and material evidence was not received within one year of the September 1, 2009, notification of the Rating Decision. Thus, section 3.156(b) is inapplicable. The Veteran has not argued to the contrary.

Another exception is currently found in 38 C.F.R. § 3.156(c) (2026). Section 3.156(c) provided in relevant part: "Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim." 38 C.F.R. § 3.156(c)(1). Service department records included military personnel and medical records. Id. In the August 2009 Rating Decision, the VA Regional Office stated that it had the Veteran's military service treatment records dated from May 2002 through November 2008.

The Board observes that the Veteran's claims file indicates military medical records were associated with his claims file in 2016. But that does not necessarily mean those records were not before the VA Regional Office at the time of the August 2009 Rating Decision. On September 28, 2012, VA established the Veterans Claims Intake Program (VCIP) to maximize the use of electronic intake for all claims, creating digital, searchable files. See Report of the VA Office of Inspector General, Veterans Benefits Administration, Review of Transition to a Paperless Claims Processing Environment (Feb. 4, 2013), available at https://www.vaoig.gov/sites/default/files/reports/2013-02/VAOIG-11-04376-81.pdf. With VCIP, a new "paper claim" that was received at a regional office was recorded in VA's electronic claims processing system, called the Veterans Benefits Management System (VBMS), and shipped to one of three document conversion locations to be scanned and converted into digital images. The document images were then placed into a VBMS electronic folder for use by the VA's employees who worked on a claim.

In this appeal, the Board finds that the Veteran's military medical records were uploaded pursuant to the VA's scanning procedures in 2016. In this regard, there is a legal presumption of administrative regularity that the VA properly discharged its official duties. Ashley v. Derwinski, 2 Vet. App. 62, 64 (1992). The presumption is only rebutted by clear evidence to the contrary. Schoolman v. West, 12 Vet. App. 307, 310 (1999). In the absence of clear evidence to the contrary, the Board finds that the VA staff competently discharged their duties in 2016, uploading the Veteran's military medical records in the VA's possession at the time of the August 2009 Rating Decision. Ashley, 2 Vet. App. at 64. On review of the records uploaded in 2016 to his claims file, those military medical records all fall within the time frame documented in the August 2009 Rating Decision. Despite the absence of timestamps on all of his military medical records, there is no clear evidence that those military records were not before the VA Regional Office at the time of August 2009 Rating Decision. Therefore, the Board finds that 38 C.F.R. § 3.156(c) does not apply to prevent finality, and reconsideration is not required.

The Board finds no applicable exception to finality applies. The Veteran does not make any argument to the contrary. The August 2009 Rating Decision is final, and it may be subject to revision based on CUE.

As to the second threshold matter, a motion for revision of a final decision based on CUE must be pleaded with specificity, setting forth "clearly and specifically the alleged [CUE] of fact or law in the [prior] decision, the legal and factual basis for such allegations, and why the result would have been manifestly different." 38 C.F.R. § 3.105(a)(1)(vii)(B); see also Andrews v. Nicholson, 421 F.3d 1278, 1282 (Fed. Cir. 2005). Where a claimant is unrepresented or represented by a non-attorney, VA must read a CUE motion sympathetically before consideration of the heightened pleading requirements. Comer v. Peake, 552 F.3d 1362, 1369-70 (Fed. Cir. 2009); see Andrews, 421 F.3d at 1283. But where a claimant is represented by an attorney, the Board is "entitled to assume that the arguments presented by [the claimant are] limited for whatever reason under the advice of counsel and that those were the theories upon which [s]he intended to rely." See Massie v. Shinseki, 25 Vet. App. 123, 131 (2011) (citing Cogburn v. Shinseki, 24 Vet. App. 205, 213 (2010)). Thus, a CUE motion filed by an attorney is not entitled to a sympathetic reading. Id. Motions that are not pleaded with specificity "shall be dismissed without prejudice to refiling." Canady v. Nicholson, 20 Vet. App. 393, 400 (2006); see also 38 C.F.R. § 3.105(a)(1)(vii)(B) (requiring specific allegations of CUE); 38 C.F.R. § 20.1404(b) (same).

Here, the Veteran has, since the filing of his CUE motion, been represented by an attorney throughout the adjudicative process. On review of the CUE motion, the Board finds that it is sufficiently well-pleaded, such that the Board may adjudicate the merits of the motion. The Board finds that the Veteran's attorney-representative has limited his CUE motion to the precise arguments presented in the motion, such that a liberal reading of that motion is unnecessary, except as to where logical gap-filling is required. Nothing causes the Board to believe that there are extraneous or implicit arguments that the Veteran requests the Board to adjudicate. Thus, the Board limits its adjudication to the arguments specifically raised in the CUE motion.

In his CUE motion, received January 30, 2024, the Veteran argued that the VA Regional Office committed CUE in the August 2009 Rating Decision "by overlooking or ignoring evidence of record and failing to properly apply 38 C.F.R. § 4.59." He points to VA physical therapy records dated June 15, 2009, which he asserts documented "objective evidence of painful motion for the right shoulder." He argues that
is unnecessary, except as to where logical gap-filling is required. Nothing causes the Board to believe that there are extraneous or implicit arguments that the Veteran requests the Board to adjudicate. Thus, the Board limits its adjudication to the arguments specifically raised in the CUE motion.

In his CUE motion, received January 30, 2024, the Veteran argued that the VA Regional Office committed CUE in the August 2009 Rating Decision "by overlooking or ignoring evidence of record and failing to properly apply 38 C.F.R. § 4.59." He points to VA physical therapy records dated June 15, 2009, which he asserts documented "objective evidence of painful motion for the right shoulder." He argues that the VA Regional Office overlooked that evidence when rating his right shoulder disability. He further refined his argument in a memorandum brief received on March 5, 2025. He cited to DeLuca v. Brown, 8 Vet. App. 202 (1995), arguing that the VA Regional Office did not account for his objective loss of range of motion in his right shoulder due to pain. He concludes that had the VA Regional Office not "overlooked or ignored" the evidence of record, he would have received a 20 percent disability rating under 38 C.F.R. § 4.71a, Diagnostic Code 5201 via 38 C.F.R. § 4.59.

At the time of the August 2009 Rating Decision, 38 C.F.R. § 4.71a, Diagnostic Code 5201 ("Arm, limitation of motion"), provided as follows:

Rating (%)

Major Minor

Arm, limitation of motion of:

To 25° from side 40 30

Midway between side and shoulder level 30 20

At shoulder level 20 20

The terms "major" and "minor" referred to a veteran's "dominant" and "non-dominant" hand, respectively. See Yonek v. Shinseki, 722 F.3d 1355, 1357 (Fed. Cir. 2013); 38 C.F.R. § 4.69.

Plate I, according to the diagram contained in 38 C.F.R. § 4.71, defined "shoulder level" for both flexion and abduction as 90 degrees. 38 C.F.R. § 4.71, Plate I (2009). The VA regulations did not specifically define the criteria "midway between side and shoulder level" or "to 25° from side." In Mariano v. Principi, 17 Vet. App. 305, 317 (2003), the United States Court of Appeals for Veterans Claims noted the ambiguities of Diagnostic Code 5201 allow for two possible interpretations of the rating criteria. Specifically, the Court found that Diagnostic Code 5201 could be interpreted to require either (1) all of the specified percentages for each plane be met, i.e., forward flexion, abduction, adduction, extension, internal and external rotation, or (2) that limitation in any one plane must meet criteria. Id. at 317. Although the Court noted that it would be very difficult for a claimant to satisfy the requirements of Diagnostic Code 5201 if limitation in every plane was required, the Court deferred interpretation to the Secretary to "clearly and unambiguously" interpret Diagnostic Code 5201, and "provide adequate support for such an interpretation." Id. at 318.

The record before the VA Regional Office as of August 2009, included a VA medical examination from June 2009. The examiner recorded the Veteran's lay statements about the onset of his right shoulder injury in service. The examiner also recorded the Veteran's lay statements about his then-extant symptoms, which included pain, stiffness, locking, fatigue, lack of endurance, and functional limitations with daily activity. On examination, the Veteran's right shoulder displayed full range of motion: flexion to 180 degrees; extension to 45 degrees; abduction to 180 degrees; adduction to 45 degrees. The examiner reported: "The Deluca factor is 0." The examiner diagnosed the Veteran with right shoulder strain.

The Veteran's VA medical records documented treatment for his right shoulder. A March 31, 2009, imaging report documented "[n]o fracture, dislocation, or degenerative change is seen. The subacromial space is normal." A June 2009 VA physical therapy record documented the onset of the Veteran's right shoulder injury and then-extant subjective symptoms reported by the Veteran. A June 2009, VA physical therapy record documented: "R shoulder AROM: Slightly limited, more so into int[ernal] rotation."

In the February 2024 Rating
uction to 45 degrees. The examiner reported: "The Deluca factor is 0." The examiner diagnosed the Veteran with right shoulder strain.

In the February 2024 Rating Decision, on appeal, the VA Regional Office acknowledged the documented information within the VA medical records. But it found that the evidence constituted subjective evidence not objective evidence of painful motion. Thus, it denied revision based on CUE.

Implicit in the VA Regional Office's reasoning for denying revision based on CUE is how 38 C.F.R. § 4.59 was interpreted in 2009. To start, Diagnostic Code 5201 does not provide for a noncompensable rating, which is what the VA Regional Office assigned in 2009. In 2009, as now, the law provided that where the schedular requirements for the minimum compensable rating under a diagnostic code were not met, a noncompensable rating was assigned. 38 C.F.R. § 4.31 (2009) ("In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.").

The 2009 version of 38 C.F.R. § 4.59 provided, as it does now:

With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.

38 C.F.R. § 4.59 (2009).

The Board reiterates that "CUE must be analyzed based on the law as it was understood at the time of the original decision and cannot arise from a subsequent change in the law or interpretation thereof to attack a final VA decision" absent expressed intent for the new interpretation to apply retroactively. George v. McDonough, 991 F.3d 1227, 1234 (Fed. Cir. 2021), aff'd 596 U.S. 740 (2022) (holding "invalidation of a VA regulation after a veteran's benefits decision becomes final cannot support a claim for collateral relief based on clear and unmistakable error.").

In Burton v. Shinseki, 25 Vet. App. 1 (2011), the United States Court of Appeals for Veterans Claims (Court), for the first time in a published decision, interpreted 38 C.F.R. § 4.59 to apply outside of the "arthritis" context, even though section 4.59 only lists "arthritis." Prior to 2011, the VA and appellate courts only interpreted section 4.59 to apply to arthritis.

In an unpublished decision from the Court, Siples v. McDonough, No. 19-7957, 2021 U.S. App. Vet. Claims LEXIS 2198 (Vet. App. Dec. 15, 2021), aff'd Siples v. Collins, 127 F.4th 1325 (Fed. Cir. 2025), the Court addressed the issue of how to interpret Burton and section 4.59 in the CUE context. In Siples, the veteran argued there was CUE in a July 2004 rating decision that assigned a 10 percent disability rating for left and right shoulder subluxation disabilities under Diagnostic Code 5203, which compensated for malunion of the clavicle or scapula. Id. at *1-*
19-7957, 2021 U.S. App. Vet. Claims LEXIS 2198 (Vet. App. Dec. 15, 2021), aff'd Siples v. Collins, 127 F.4th 1325 (Fed. Cir. 2025), the Court addressed the issue of how to interpret Burton and section 4.59 in the CUE context. In Siples, the veteran argued there was CUE in a July 2004 rating decision that assigned a 10 percent disability rating for left and right shoulder subluxation disabilities under Diagnostic Code 5203, which compensated for malunion of the clavicle or scapula. Id. at *1-*2. The veteran contended that the law at the time mandated the assignment of an additional 20 percent rating per shoulder by virtue of 38 C.F.R. § 4.59 as applied through Diagnostic Code 5201 (limitation of arm motion), which offered a higher rating than Diagnostic Code 5203. Id. The Court opined:

Burton stands for one of two propositions: Before 2011, there was a prevailing interpretation that § 4.59 did not apply to non-arthritis claims, or there was not yet a settled interpretation that § 4.59 did apply to non-arthritis claims. Either way, it cannot be said that § 4.59 was undebatably understood to apply to non-arthritis claims in 2004.

Siples, at *7. The Court held there was not CUE in the July 2004 rating decision, affirming the Board's conclusion that "the understanding of § 4.59 in July 2004 did not undebatably compel the [VA Regional Office] to assign additional shoulder 20 [percent] ratings based on painful motion." Id. at *9.

Significantly, on appeal to the Federal Circuit Court of Appeals, the Federal Circuit Court explicitly stated:

Prior to the Veterans Court's 2011 decision in Burton, non-precedential decisions of the Veterans Court were inconsistent as to whether § 4.59 applied to non-arthritis claims. Compare, e.g., Denk v. West, 16 Vet. App. 460, 1999 WL 446865, at *4 (1999) (unpublished table decision) ("Because § 4.59 applies to arthritis and because the appellant has not been diagnosed as having arthritis, that regulation is not applicable to this claim." (citation omitted)), with Abbey v. Principi, 18 Vet. App. 13, 2001 WL 1181652, at *1-2 (2001) (unpublished table decision) (remanding for the Board to address § 4.59 in a non-arthritis claim). A pair of precedential Veterans Court decisions had also applied § 4.59 to arthritis-based claims, though without formally interpreting the regulation as limited to that context. See Ferguson v. Derwinski, 1 Vet. App. 428, 430 (1991); Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991).

Siples, 127 F.4th at 1328.

As applied to this Veteran's CUE motion, the Board finds that at the time of the August 2009 Rating Decision, 38 C.F.R. § 4.59 did not apply to non-arthritis claims, or at the most, there was not yet a settled interpretation of whether section 4.59 applied to non-arthritis claims. Because the Veteran's right shoulder disability did not manifest as arthritis at the time of the August 2009 Rating Decision, section 4.59 was not for application, or it was at most unclear if it was for application. Thus, it cannot be said that the VA Regional Office incorrectly applied the law at the time of the August 2009 Rating Decision.

Furthermore, if there was not a settled interpretation of section 4.59 at the time of the August 2009 Rating Decision, it cannot be an undebatable error to interpret 38 C.F.R. § 4.59 as not applying to non-arthritis claims prior to the decision of the Court in Burton. See Siples, 127 F.4th 1325. The VA does not commit clear and unmistakable error when it faithfully applies a regulation as it existed at the time of the challenged decision, even if that regulation is later revised or invalidated. George, 596 U.S. 740 (2022). Therefore, the Board finds that the August 2009 Rating Decision does not contain clear and unmistakable error because the Veteran did not have a diagnosis of arthritis to which 38 C.F.R. § 4.59 could
Decision, it cannot be an undebatable error to interpret 38 C.F.R. § 4.59 as not applying to non-arthritis claims prior to the decision of the Court in Burton. See Siples, 127 F.4th 1325. The VA does not commit clear and unmistakable error when it faithfully applies a regulation as it existed at the time of the challenged decision, even if that regulation is later revised or invalidated. George, 596 U.S. 740 (2022). Therefore, the Board finds that the August 2009 Rating Decision does not contain clear and unmistakable error because the Veteran did not have a diagnosis of arthritis to which 38 C.F.R. § 4.59 could be applied. The VA Regional Office did not incorrectly apply the statutory or regulatory provisions in existence at that time.

The Veteran's CUE motion, which does not specifically address Burton, focuses on the difference between objective evidence and subjective evidence of painful motion under 38 C.F.R. § 4.59. As discussed, section 4.59 was not applicable to the Veteran's disability at the time of the August 2009 Rating Decision. As such, CUE cannot be established. But, in the interest of completeness, the Board addresses his specific argument.

In Petitti v. McDonald, the Court held for the first time in a precedential decision that while objective evidence of pain is required to warrant a minimal compensable rating under section 4.59, such evidence can be established by lay testimony from a veteran. 27 Vet. App. 415, 427?28 (2015). Petitti was issued in 2015, after the August 2009 Rating Decision. The VA previously interpreted 38 C.F.R. § 4.59, when read with the applicable diagnostic criteria, to require objective evidence of painful motion, as the Secretary expressly asserted before the Court. See Petitti, 27 Vet. App. at 427. Although the VA's interpretation would be ruled incorrect by the Petitti Court, it signified that prior to Petitti, the law was, at the most, unclear as to whether subjective evidence of pain was sufficient to meet the requirements for a minimum compensable disability rating under 38 C.F.R. § 4.59.

The Veteran asserts that the evidence of record did establish objective evidence of painful motion in his right shoulder. He cites to the June 2009 VA physical therapy records. Specifically, he cites the statement in the June 23, 2009, record: "R shoulder AROM: Slightly limited, more so into int[ernal] rotation." The statement in the medical record is only a single sentence. It is unclear to the Board whether the statement is an objective assessment from the medical professional or documentation of the Veteran's reported subjective symptom of limitation. But if the Board assumes that it is an objective assessment, there is no evidence in the record as to what caused slight limitation of the right shoulder. It is not clear that slight limitation was due to pain as opposed to something else. Essentially, the Board would need to review the evidence anew to make its own determination about what the statement means given the lack of clarity. But in the CUE context, the Board may not reweigh evidence and make credibility determinations about the record itself. Cacciola v. Gibson, 27 Vet. App. 45, 60 (2014) ("Although the Board is required to provide an adequate statement of reasons or bases for its determination whether the . . . decision contained CUE, the Board does not reweigh the evidence."). As it is not clear and unmistakable that the medical records, on which the Veteran relies within his motion, documented objective painful motion of the right shoulder, CUE is not established.

The VA Regional Office did acknowledge the Veteran's pain within the February 2024 Rating Decision. But it found no evidence of "objective" pain on motion, which was required under section 4.59 to warrant a minimum compensable rating at the time of the August 2009 Rating Decision. The VA Regional Office weighed the credibility and probative value of the evidence, and it concluded a minimum compensable disability rating was not warranted. A disagreement with the weighing of evidence is not a basis for revision based on CUE. Fugo, 6 Vet. App. at 43?44. But even if that finding was erroneous, section 4.59 remained inapplicable to start because the Veteran was not diagnosed with arthritis in his right shoulder. Section 4.59 only applied to diagnosed arthritis disabilities at the time of the August 2009 Rating Decision. The VA Regional Office therefore did not "overlook or ignore" evidence as claimed by the Veteran. DeLuca, which held that the musculoskeletal diagnostic codes do not subsume the broader factors of
probative value of the evidence, and it concluded a minimum compensable disability rating was not warranted. A disagreement with the weighing of evidence is not a basis for revision based on CUE. Fugo, 6 Vet. App. at 43?44. But even if that finding was erroneous, section 4.59 remained inapplicable to start because the Veteran was not diagnosed with arthritis in his right shoulder. Section 4.59 only applied to diagnosed arthritis disabilities at the time of the August 2009 Rating Decision. The VA Regional Office therefore did not "overlook or ignore" evidence as claimed by the Veteran. DeLuca, which held that the musculoskeletal diagnostic codes do not subsume the broader factors of 38 C.F.R. §§ 4.40 and 4.45, does not support the Veteran's contrary argument. And the Board finds mere citation to DeLuca by the Veteran without further explanation is unpersuasive.

Accordingly, the motion for revision, on the basis of clear and unmistakable error, of August 2009 Rating Decision, which assigned an initial noncompensable disability rating for service-connected right shoulder strain is denied.

REASONS FOR REMAND

1. Entitlement to a compensable disability rating for service-connected right shoulder strain is remanded.

In the context of an appeal under the AMA, if the Board identifies a duty-to-assist error that existed at the time of the rating decision on appeal and cannot grant the maximum benefit for the claim, the Board "shall remand the claim to the agency of original jurisdiction for correction of such error and readjudication . . . if the error occurred prior to the date of the agency of original jurisdiction decision on appeal." 38 U.S.C. § 5103A(f)(2)(A); 38 C.F.R. § 20.802(a). The Board may also remand for correction of any other error to satisfy a regulatory or statutory duty if correction of the error would have a reasonable possibility of aiding in substantiating the claim. 38 C.F.R. § 20.802(a).

As part of the Veteran's CUE motion, the VA Regional Office took it upon itself to reanalyze the Veteran's rating for his right shoulder. Within the February 2024 Rating Decision, it continued the Veteran's noncompensable disability rating, discussing the current elevation criteria. The VA Regional Office was not required to analyze the CUE motion as an increased-rating claim. But since it did so, the law regarding the duty to assist applies. Moreover, the Veteran specifically asks the Board to remand the matter to the AOJ to comply with the duty to assist.

The Veteran has not received a medical examination assessing the current severity of his right shoulder since 2009. The Board finds that the VA Regional Office erred by not providing the Veteran with an updated VA medical examination prior to addressing the current rating. Remand is required to correct the pre-decisional duty-to-assist error.

In general, to the extent evidence was added to the claims file during a period of time when new evidence was not allowed, such evidence will be considered by the VA Regional Office in the adjudication of the claim on remand.

Accordingly, the matter is REMANDED for the following action:

1. Obtain a new VA examination from an appropriately qualified clinician assessing the severity of the Veteran's right shoulder disability. The entire claims file must be made available to and be reviewed by the examiner.

The examiner must report all signs and symptoms necessary to evaluate the Veteran's disability under the appropriate rating criteria. In particular, the examiner must provide range-of-motion test results (in degrees) as to the joint affected and of the opposite, undamaged joint, if medically possible, on (i) active motion, (ii) passive motion, (ii) weight-bearing, and (iv) non-weight-bearing. If the examiner cannot assess range of motion in any of the manners requested, the examiner must explain why the assessment is not possible.

The examiner must address whether the Veteran experiences functional impairment of the affected joint due to pain. If the Veteran does experience pain, the examiner must indicate the exact degree of movement at which pain limits motion in the affected joint.

The examiner must address whether the Veteran would experience functional limitation during (i) flare-ups and (ii) with repeated use over a period of time. If there is functional impairment found during flare-ups or with repeated use over a period of time, the examiner must provide, if feasible, the degree of additional limitation of motion.

If the Veteran reports taking medication in relation to his disability, the examiner MUST identify that medication in the report and discuss whether the Veteran's disability would be more severe but for the medication, to include a discussion of the degree of severity that would exist but for the medication.

If the examination does not take place during a flare-up
examiner must indicate the exact degree of movement at which pain limits motion in the affected joint.

If the examination does not take place during a flare-up or following repeated use over time, the examiner must obtain information from the Veteran, medical records, and any other reasonably available source regarding the severity, frequency, duration, and functional loss manifestations associated with such instances. Efforts to obtain such information should be documented.

The examiner is reminded to consider the Veteran's lay statements as he is legally permitted to report his symptoms, past medical history, and experiences.

The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertions.

A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided. Please do not simply list the facts on which you relied.

G. E. Wilkerson

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board J.F. Sawka, 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.

Analyze in VA Law Explorer