SHOULDER IMPAIRMENT OF

J. B. FREEMAN · 2026 · Case ID: A26040565

MIXED

Summary

The Veteran, a Marine Corps Veteran who served from May 2010 to April 2018 and again from October 2021 to July 2023, with prior attendance at the U.S. Naval Academy from June 2006 to May 2010, appeals decisions denying service connection for a kidney condition and restoring a prior 60 percent disability rating for dermatitis. The Veteran also sought service connection for a left shoulder strain and bilateral corneal scars. The Board granted service connection for the left shoulder strain, finding it was aggravated by an in-service boxing injury and subsequent surgery, despite the VA examiner's opinion that it was not aggravated due to a lack of treatment records between service dates. The Board also granted service connection for bilateral corneal scars, finding they were due to an in-service event, crediting the Veteran's testimony and STRs indicating an onset during service. The claim for a kidney condition was denied, as the Board found no current diagnosis and the reported renal failure was an acute condition likely caused by excessive protein intake and OTC supplements, not a chronic service-related issue. The Board found the prior reduction of the dermatitis rating from 60 percent to 10 percent was improper, as the AOJ's CUE finding was based on an ambiguous regulation and an examiner's opinion that topical corticosteroids could be considered systemic therapy. Therefore, the 60 percent rating for dermatitis was restored.

Rationale

In-service injury (boxing tournament); Surgery for labral tear; Benefit of the doubt applied

Service Branch

MARINE CORPS

Special Benefit

NO SPECIAL BENEFIT

Docket No.

200521-89104

Full Decision Text

Citation Nr: A26040565
Decision Date: 04/30/26 Archive Date: 04/30/26

DOCKET NO. 200521-89104
DATE: April 30, 2026

ORDER

Entitlement to service connection for left shoulder strain, including a labral tear status post-surgery, is granted.

Entitlement to service connection for bilateral corneal scars (claimed as bilateral corneal opacity, crystalline lens) is granted.

Entitlement to service connection for a kidney condition, including stage III renal disease, is denied.

Restoration of a 60 percent disability rating for dermatitis, effective December 1, 2019, is granted.

FINDINGS OF FACT

1. The Veteran's left shoulder strain, including a labral tear status post-surgery, is causally related to an injury, event, or disease in service.

2. The Veteran's bilateral corneal scars are causally related to an injury, event, or disease in service.

3. The Veteran does not have a current kidney condition and has not had one at any time during the appeal.

4. In an April 2018 rating decision, the AOJ assigned a 60 percent disability rating for dermatitis.

5. In a November 2018 rating decision, the AOJ proposed to reduce the disability rating assigned for the Veteran's service connected dermatitis from 60 percent to 10 percent based on a finding of CUE in the April 2018 rating decision; the AOJ implemented the reduction in the October 2019 rating decision.

6. The finding of CUE was improper as the law and regulations extant at that time did not reflect that an undebatable error was made in the April 2018 rating decision.

CONCLUSIONS OF LAW

1. The criteria to establish entitlement to service connection for a left shoulder strain, including a labral tear status post-surgery, are met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309.

2. The criteria to establish entitlement to service connection for bilateral corneal scars (claimed as bilateral corneal opacity, crystalline lens), are met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309.

3. The criteria for entitlement to service connection for a kidney condition, including stage III renal disease, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

4. The October 2019 reduction of the disability rating for dermatitis from 60 percent to 10 percent was improper, and restoration of the 60 percent rating is warranted. 38 U.S.C. § 1155, 5109A; 38 C.F.R. §§ 3.104, 3.105, 4.118.

INTRODUCTION

The Veteran served on active duty in the United States Marine Corps from May 2010 to April 2018 and October 2021 to July 2023. In addition, the Veteran attended the United States Navel Academy from June 2006 until he graduated in May 2010.

These matters come before the Board of Veterans' Appeals (Board) on an appeal from November 2018 and October 2019 rating decisions by the Department of Veterans Affairs (VA) Regional Office, which is the Agency of Original Jurisdiction (AOJ).

In the Veteran's May 2020 VA Form 10182, Decision Review Request: Board Appeal, he elected the Hearing docket. On October 11, 2024, the Veteran was afforded a Board hearing. Therefore, the Board may only consider the evidence of record before the AOJ at the time of its decision on the issue(s) on appeal, and evidence submitted by the appellant or his or her representative within 90 days following his Board hearing. 38 C.F.R. §§ 20.300(a), 20.302(a). If additional evidence was submitted between the dates of the AOJ decision and the Board hearing, the Board will not consider it unless it is resubmitted during the 90 days following the Board hearing. If evidence is not resubmitted, the appellant is welcome to file a supplemental claim to have this evidence considered. Id.; Cook v. McDonough, 36 Vet. App. 175 (2023).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38
within 90 days following his Board hearing. 38 C.F.R. §§ 20.300(a), 20.302(a). If additional evidence was submitted between the dates of the AOJ decision and the Board hearing, the Board will not consider it unless it is resubmitted during the 90 days following the Board hearing. If evidence is not resubmitted, the appellant is welcome to file a supplemental claim to have this evidence considered. Id.; Cook v. McDonough, 36 Vet. App. 175 (2023).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship also known as a "nexus" between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). For chronic diseases manifestation during service or within 1-year post-service or a showing of continuity of symptomatology may serve to satisfy the nexus element. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

1. Entitlement to service connection for a left shoulder strain, including a labral tear status post-surgery

The Veteran contends that his current left shoulder condition is due to an injury that occurred while he was attending the Navel Academy. See October 2024 Hearing Transcript at 7. He explained that while at the academy, he was on the Navy boxing team and dislocated his shoulder in a tournament, ultimately requiring surgery to repair the damage. He stated that he has continued to have issues with his shoulder since that time and his symptoms have continued to worsen. Id.

The Veteran's service treatment records indicate that while a midshipman at the U.S. Naval Academy, he underwent left shoulder surgery. See October 2024 Correspondence. An April 2007 MRI indicated a tear of the anteroinferior labrum, superior labrum and a cartilaginous defect of the inferior glenoid. See April 2018 STRs.

During a January 2018 VA examination for shoulder conditions, the Veteran reported that he dislocated his left shoulder while boxing for the Navy. See January 2018 VA Examination. He had left shoulder surgery which initially improved the condition; however, over the years his range of motion and stability continued to decrease. The examiner confirmed the diagnosis of a left shoulder labral tear, status-post surgery, and a current left shoulder strain. The examiner did not provide an etiology opinion regarding the left shoulder condition. Id.

In a June 2018 VA medical opinion, the examiner stated that the Veteran had a history of left shoulder dislocation and had surgery in July 2002 and August 2004. The examiner noted that he dislocated his shoulder again while boxing in the naval academy in 2007. They opined that the Veteran's left shoulder condition was not aggravated by an event of injury during service because there were no complaints or treatment for his left shoulder condition between May 2010 and April 2018. Id.

The June 2018 VA examiner opined that the Veteran's left shoulder condition was not aggravated by an event or injury during service because his STRs and medical records were silent for complaints or treatment for the condition between May 2010 and July 2018. However, the Veteran's medical records indicate that he dislocated his left shoulder while boxing for the Naval Academy boxing team ultimately requiring shoulder surgery in 2007 to repair the injury. See October 2024 Correspondence and April 2018 STRs. The Veteran reported that he has continued to have pain and decreased range of motion in his left shoulder since that time. The Veteran is competent to report his readily observable symptoms. See 38 C.F.R. § 3.159(a)(2), Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

Therefore, the Board finds that, affording the Veteran the benefit of the doubt, his left shoulder condition was aggravated during service. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for a left shoulder strain is granted.

2. Entitlement to service connection for bilateral corneal scars (claimed as bilateral corneal
of motion in his left shoulder since that time. The Veteran is competent to report his readily observable symptoms. See 38 C.F.R. § 3.159(a)(2), Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

2. Entitlement to service connection for bilateral corneal scars (claimed as bilateral corneal opacity, crystalline lens)

The Veteran contends that his bilateral eye condition, specifically corneal scarring, is due to his military service. See October 2024 Hearing Transcript at 3. He explained that during service he was treated for corneal scratches likely from debris being kicked up into his eyes. Id.

The Veteran's service treatment records (STRs) indicate that in November 2008, he was diagnosed with bilateral corneal opacity due to corneal scars in addition to crystalline lens; however, there was no impact to his vision. See December 2017 STRs.

During a February 2018 VA examination for eye conditions, the examiner confirmed the diagnosis of bilateral paracentral corneal scars, but stated the condition was stable. They noted the onset of the condition was in 2011. The examiner did not provide an etiology opinion regarding the bilateral corneal scars. Id.

The June 2018 VA examiner stated that the onset of the Veteran's corneal scar was in 2011 and his STRs indicate diagnosis of bilateral corneal opacity due to corneal scars and crystalline lens in November 2008. There is no evidence that the Veteran had bilateral corneal scars when he entered Naval Academy in June 2006.

Considering the Veteran's hearing testimony that the condition started during service, his STRs that indicate a diagnosis of bilateral corneal scars in November 2008, and the June 2018 VA examiner's statement that the condition had its onset in 2011, the Board concludes that the Veteran's bilateral corneal scars are due to an event or injury during service. Therefore, the Board finds that, affording the Veteran the benefit of the doubt, his bilateral corneal scars are due to his military service. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for bilateral corneal scars is granted.

3. Entitlement to service connection for a kidney condition, including stage III renal disease

The Veteran contends that he has a kidney condition, specifically renal failure, due to his military service. The Veteran testified that after separation from service in July 2018, he had bloodwork that indicated stage III renal failure. See October 2024 Hearing Transcript at 5. He stated that he sought private medical treatment which included changing his diet to correct his kidney function. Id.

The Board finds, based on the current evidence of record, that the Veteran does not have a current diagnosis of a kidney condition, including renal failure, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

In a July 2018 VA medical treatment note, the physician indicated the Veteran was being seen for renal function concerns. See April 2019 VA Medical Treatment Records. The physician noted the Veteran's reports that he was a professional body builder and was consuming 300 grams of protein a day in addition to OTC supplements which ultimately caused his kidney function to drop. He had recently altered his diet which allowed his kidney function to return to normal. He was advised not to exceed 100 grams of protein a day and to avoid supplements to prevent further issues with his kidney function. Id.

During a July 2018 VA examination for kidney conditions, the examiner explained that during a post separation examination in April 2018, the Veteran's blood tests indicated elevated liver enzyme levels and stage III kidney disease. The examiner stated that the Veteran currently had no symptoms of kidney disease and that the condition was an incidental finding in post separation serum laboratory work, but opined the condition likely had its onset during service and was therefore related to service. Id.

In a November 2018 addendum medical opinion, the examiner clarified that the Veteran was initially diagnosed with acute renal failure in July 2018, not chronic renal failure.
exceed 100 grams of protein a day and to avoid supplements to prevent further issues with his kidney function. Id.

In a November 2018 addendum medical opinion, the examiner clarified that the Veteran was initially diagnosed with acute renal failure in July 2018, not chronic renal failure. See November 2018 VA Examination. They explained there was no objective evidence to support that the Veteran had a chronic kidney condition. While the Veteran's blood work indicated acute kidney failure in April 2018, he was instructed to discontinue the use of over-the-counter supplements. A May 2018 renal ultrasound indicated normal kidneys but follow up laboratory results indicated acute renal failure as the Veteran was still taking OTC supplements. The examiner stated that based upon his medical records, while his GFR was below normal in May and June 2018, that the medical evidence did not support that the condition was present for 3 months or more which would constitute chronic kidney failure, and therefore he concluded it was an acute condition. Id.

The Board finds the Veteran does not have a current diagnosis of kidney disease, including stage III renal disease. While there was evidence of elevated liver enzyme levels and acute kidney failure in May and June 2018, those were incidental finds noted in post separation laboratory work which were a direct result of his excessive protein intake and use of OTC supplements and was not a chronic condition. His May 2018 renal ultrasound indicated normal kidneys and laboratory results in July 2018 indicated normal kidney function. In addition, the July 2018 VA examiner noted the Veteran did not have any symptoms of kidney disease and no functional impairment was noted. See July 2018 and November 2018 VA Examinations and April 2019 VA Medical Treatment Records.

In light of the foregoing, the Board finds the evidence persuasively demonstrates that the Veteran does not have a current disability of kidney disease, including stage III renal failure. See 38 C.F.R. § 3.385. As the Veteran does not currently have a kidney disability, the criteria for entitlement to service connection for a kidney condition are not met, the benefit-of-the-doubt doctrine is not applicable, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

4. Restoration of a 60 percent disability rating for dermatitis, effective December 1, 2019

An April 2018 rating decision granted service connection for dermatitis (claimed as skin lipoma, non-neoplastic nevus, and PFB) and assigned a 60 percent disability rating under Diagnostic Code (DC) 7806, effective April 3, 2018.

In a November 21, 2018, rating decision, the AOJ proposed to decrease the 60 percent disability rating to 10 percent under DC 7806 because the assignment of 60 percent under DC 7806 constituted CUE. A notification letter explaining the procedural rights for rate reduction was sent to the Veteran at his address of record and to his representative on November 27, 2018.

An October 2019 rating decision implemented the decrease in the dermatitis disability rating to 10 percent under DC 7806, effective December 1, 2019. In a May 2020 VA Form 10182 NOD, the Veteran appealed the October 2019 rating decision to the Board.

By operation of law, a previous rating decision by the RO is binding and will be accepted as correct in the absence of clear and unmistakable error (CUE). 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. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error.

The Court of Appeals for Veterans Claims (CAVC) has set forth a three-pronged 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 (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
), 3.105(a). CUE is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error.

The Court of Appeals for Veterans Claims (CAVC) has set forth a three-pronged 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 (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 (1994), Russell v. Principi, 3 Vet. App. 310 (1992).

Thus, 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 clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993), citing Russell v. Principi, 3 Vet. App. 313 (en banc).

Evaluation of the propriety of the rating decision issued in April 2018 requires consideration of two separate standards, the standard relating to CUE and the standard governing reduction of benefits. That is, the reduction on appeal was based on a determination that CUE existed in the April 2018 rating decision. If CUE was not present in the prior decision, then there is no basis for the reduction. If CUE was present in the April 2018 rating decision, because the remedy used to correct such error was reduction, the proper procedures governing reduction must be observed. The Board is required to analyze both questions.

Under 38 C.F.R. § 4.118, diagnostic code (DC) 7806, in effect at the time of the April 2018 rating decision, a 10 percent rating required that at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas be affected, or intermitted systemic therapy such as corticosteroids or other immunosuppressive drugs be required for a total duration of less than six weeks during the past 12-month period.

A 30 percent rating required that 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas be affected, or systemic therapy such as corticosteroids or other immunosuppressive drugs be required for a total duration of six weeks or more, but not constantly, during the past 12-month period.

A 60 percent rating required that more than 40 percent of the entire body or more than 40 percent of exposed areas be affected, or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs be required during the past 12-month period. 38 C.F.R. § 4.118, DC 7806.

In the April 2018 rating decision, the AOJ assigned a 60 percent disability rating for dermatitis, effective April 3, 2018, based on the findings of constant or near-constant systemic therapy over the past 12-month period. 38 C.F.R. § 4.118, DC 7806.

A regulation change under 38 C.F.R. § 4.118, not in effect until August 13, 2018, states that for purposes of DC 7806, systemic therapy is treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical therapy is treatment that is administered through the skin.

During his October 2024 hearing, the Veteran testified that he used multiple topical steroid creams to treat his skin condition, but that the condition progressively worsened over time. See October 2024 Hearing Transcript at 9-10. He denied ever having oral or injectable medication to treat his dermatitis. Id.

The Veteran's STRs indicate that in August 2016, the Veteran was treated at the Naval Hospital at Camp LeJeune for an allergic reaction due to food that caused swelling in his throat and difficulty swallowing. See December 2017 and April 2018 STRs. There was no evidence of a skin
, intranasally) other than the skin, and topical therapy is treatment that is administered through the skin.

The Veteran's STRs indicate that in August 2016, the Veteran was treated at the Naval Hospital at Camp LeJeune for an allergic reaction due to food that caused swelling in his throat and difficulty swallowing. See December 2017 and April 2018 STRs. There was no evidence of a skin rash and he was not itching. He was diagnosed with an immune hypersensitivity reaction secondary to food, and treated with Benadryl, and epinephrine, and prescribed prednisone prior to his release. Id.

During a January 2018 VA examination, the Veteran reported that his skin had become progressively sensitive and dry over time. The examiner confirmed the Veteran's diagnosis of dermatitis. The examiner indicated the Veteran had constant or near-constant use of systemic corticosteroids including prednisone and Benadryl, for facial breakouts and a food allergy. The Veteran used antihistamines for six weeks or more including Erolin, Loratadine, and Zyrtec for facial breakouts. In addition, he had constant or near constant use of topical corticosteroids and other topical medications in the past twelve months to treat his dermatitis. The Veteran had visible characteristic dermatitis on less than 5 percent of his total body area and 5 percent to less than 20 percent of his exposed areas of skin. The Veteran did not have any tumors or neoplasms, or scarring or disfigurement. Nor did he have any other pertinent physical finding, complications, signs, or symptoms and the condition did not result in any functional impact. Id.

For the following reasons, the Board finds that the October 2019 reduction of the disability rating from 60 to 10 percent for dermatitis based on CUE was improper. At the time of the April 2018 rating decision, the law was clear as to whether a 60 percent disability rating was warranted for use of a topical corticosteroid under DC 7806. The U.S. Court of Appeals for the Federal Circuit held that the language of DC 7806 as it then existed was ambiguous and that whether a topical corticosteroid was a systemic therapy was a question of fact for the adjudicator to resolve. Johnson v. Shulkin, 862 F.3d 1351, 1356 (Fed. Cir. 2017). The January 2018 VA examination report contains a notation from the examiner that the corticosteroid was a systemic therapy. Thus, the AOJ had a reasonable basis on the record to conclude that the criteria for a 60 percent disability rating were met. 38 C.F.R. § 4.118.

Therefore, for the foregoing reasons, the Board finds that the AOJ's finding of CUE in the April 2018 rating decision that assigned a 60 percent disability rating for the Veteran's service-connected dermatitis, and the subsequent October 2019 reduction from 60 percent to 10 percent was improper. Restoration of a 60 percent disability rating for service connected dermatitis, effective December 1, 2019, is granted.

J. B. FREEMAN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board C. Aubee, 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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