SHOULDER IMPAIRMENT OF

CYNTHIA M. BRUCE · 2026 · Case ID: A26040581

DENIED

Summary

The veteran, who served in the U.S. Marine Corps from June 2010 to June 2014, sought to revise a September 2014 rating decision based on clear and unmistakable error (CUE). The original decision granted service connection for a right shoulder rotator cuff strain and assigned a 10 percent disability rating under Diagnostic Code (DC) 5201. The veteran argued that this rating was erroneous because, under 38 C.F.R. § 4.59, painful motion should have warranted at least a 20 percent rating, the minimum compensable rating for a shoulder under DC 5201. The Board reviewed the evidence and law as they existed in September 2014. At that time, VA policy, as reflected in the M21-1 manual and a 2003 Final Rule, allowed for a 10 percent rating for painful motion irrespective of the diagnostic code. The Board found that the September 2014 decision correctly applied the law and policy in effect at that time, assigning the minimum 10 percent rating for painful motion. The Board noted that subsequent judicial decisions, such as Sowers v. McDonald, changed VA policy regarding the minimum rating for painful shoulder motion, but CUE cannot be based on subsequent changes in interpretation or judicial pronouncements. Therefore, the Board denied the veteran's claim for revision based on CUE.

Rationale

September 2014 rating decision became final as no NOD was filed and no new/material evidence was received.; CUE requires undebatable error that manifestly changed the outcome, not a disagreement on evidence weighing.; Prior VA policy assigned a 10 percent rating for painful motion irrespective of the diagnostic code.; Subsequent judicial decisions (Sowers v. McDonald) changed interpretation but cannot form basis for CUE in final decisions.

Service Branch

MARINE CORPS

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

5201

Docket No.

240529-444376

Full Decision Text

Citation Nr: A26040581
Decision Date: 04/30/26 Archive Date: 04/30/26

DOCKET NO. 240529-444376
DATE: April 30, 2026

ORDER

Revision of a September 2014 rating decision granting an initial 10 percent disability rating under Diagnostic Code (DC) 5201 for a right shoulder rotator cuff strain on the basis of clear and unmistakable error (CUE) is denied.

FINDINGS OF FACT

1. A September 2014 rating decision, which granted service connection for a right shoulder rotator cuff strain, assigning an initial 10 percent disability rating under DC 5201, became final because the Veteran did not submit a notice of disagreement, and new and material evidence was not received within the appeal period nor were new, relevant service records received at any time thereafter.

2. The correct facts, as known at the time, were before the VA adjudicators in September 2014, the statutory and regulatory provisions extant at the time were correctly applied, and there was no undebatable error, the commission of which manifestly changed the outcome of the decision regarding the initial 10 percent rating assigned under DC 5201 for the right shoulder rotator cuff strain.

CONCLUSION OF LAW

The criteria for revision of a September 2014 rating decision with regard to the initial 10 percent rating assigned under DC 5201 for the right shoulder rotator cuff strain on the basis of clear and unmistakable error pursuant to 38 C.F.R. § 3.105 have not been satisfied. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran, who is the appellant in this case, had active service in the U.S. Marine Corps from June 2010 to June 2014.

This matter comes before the Board of Veterans' Appeals (BVA or Board) from a May 2024 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO); the modernized review system, also known as the Appeals Modernization Act (AMA), applies.

New evidence cannot be considered in deciding motions seeking revision or reversal of prior final decisions based on CUE, as such CUE motions must be based upon the facts and law that existed at the time of the prior decision. See 38 C.F.R. § 3.105(a)(1)(iii).

1. Revision of a September 2014 rating decision granting an initial 10 percent disability rating under Diagnostic Code (DC) 5201 for a right shoulder rotator cuff strain on the basis of clear and unmistakable error (CUE) is denied.

The Veteran in this case asserts CUE in a September 2014 rating decision with regard to the disability rating assigned for a right shoulder rotator cuff strain.

A previous RO determination that is final and binding will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). Here, a September 2014 rating decision granted service connection for a right shoulder rotator cuff strain, assigning an initial 10 percent disability rating. The Veteran did not file a timely notice of disagreement (NOD) challenging this determination, new and material evidence was not received within one year of the rating decision, nor were new, relevant service records received at any time thereafter. 38 C.F.R. § 3.156(b) and 3.156(c). Consequently, the September 2014 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 20.1103.

Once a decision becomes final, it may only be revised by a showing of CUE. 38 C.F.R. §§ 3.104, 3.105. CUE is a very specific and rare kind of "error." It is not intended to vindicate all mistakes. Smith v. McDonough, 101 F.4th 1375, 1380 (Fed. Cir. 2024). It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of "failure to follow the regulations" or "failure to
and rare kind of "error." It is not intended to vindicate all mistakes. Smith v. McDonough, 101 F.4th 1375, 1380 (Fed. Cir. 2024). It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, nonspecific claim of "error." Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44.

Where evidence establishes CUE, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). For the purpose of authorizing benefits, the rating or other adjudicatory decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. Id.

CUE is established when the following conditions are met: (1) either (a) the correct facts in the record were not before the adjudicator, or (b) the statutory or regulatory provisions in existence at the time were incorrectly applied; (2) the alleged error must be "undebatable," not merely "a disagreement as to how the facts were weighed or evaluated"; and (3) the commission of the alleged error must have "manifestly changed the outcome" of the decision being attacked on the basis of CUE at the time that decision was rendered. Evans v. McDonald, 27 Vet. App. 180, 185 (2014), aff'd, 642 F. App'x 982 (Fed. Cir. 2016); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992).

The error must be of a type that is outcome-determinative, and subsequently developed evidence may not be considered in determining whether an error existed in the prior decision. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993); Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999). A manifest change in the outcome of an adjudication means that, absent the alleged CUE, the benefit sought would have been granted at the outset. King v. Shinseki, 26 Vet. App. 433, 441 (2014). The standard is not whether it is reasonable to conclude that the outcome would have been different. Id. at 442. CUE is not intended to serve as an opportunity to continue litigation leading to an uncertain result. Smith, 101 F.4th at 1380-81.

The benefit-of-the-doubt doctrine is not for application in claims of CUE. Andrews v. Principi, 18 Vet. App. 177, 186 (2004) (citing Russell, 3 Vet. App. at 313) (it is well established that the benefit-of-the-doubt doctrine can never be applicable in assessing a CUE motion because the nature of such a motion is that it involves more than a disagreement as to how the facts were weighed or evaluated).

As a threshold matter, the Board finds that the arguments advanced by the Veteran allege CUE with the requisite specificity. See Simmons v. Principi, 17 Vet. App. 104 (2003). The Board will therefore adjudicate the merits of his claim.

A September 2014 rating decision granted service connection for a right shoulder rotator cuff strain, assigning a 10 percent disability rating effective from June 14, 2014, under the provisions of 38 C.F.R. § 4.71a, DCs 5201-5019. As noted above, the Veteran did not appeal this determination and the decision became final.

In February 2024, the Veteran filed a motion asserting CUE in the September 2014 rating decision, asserting that he should have received at least a 20 percent rating for the right shoulder rotator cuff strain based on painful motion under the provisions of 38 C.F.R. §
will therefore adjudicate the merits of his claim.

In February 2024, the Veteran filed a motion asserting CUE in the September 2014 rating decision, asserting that he should have received at least a 20 percent rating for the right shoulder rotator cuff strain based on painful motion under the provisions of 38 C.F.R. § 4.59, as 20 percent was the minimum compensable rating under DC 5201. 38 C.F.R. § 4.71a. The May 2024 rating decision on appeal found no CUE in the September 2014 rating decision.

For the reasons discussed below, the Board finds that there is no CUE in the September 2014 rating decision in the assignment of a 10 percent disability rating for a right shoulder rotator cuff strain under DC 5201.

As noted above, the Veteran contends that the RO erred in assigning a 10 percent rating for the shoulder strain in the September 2014 rating decision because 38 C.F.R. § 4.59 provided that painful motion should be recognized by assigning at least the minimum compensable rating for the joint affected, which is 20 percent under DC 5201. 38 C.F.R. § 4.71a.

The right shoulder strain was evaluated under DC 5201-5019. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. See 38 C.F.R. § 4.27.

DC 5019 contemplates bursitis and directs that the condition be rated on limitation of motion of the affected part as degenerative arthritis (i.e., under the provisions of DC 5003). 38 C.F.R. § 4.71a.

At the time of the 2014 rating decision, DC 5003 provided that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200, etc.). When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Id.

DC 5201, in 2014 and currently, pertains to limitation of motion of the shoulder. A rating of 40 percent for the major arm (30 percent minor) is assigned where motion is limited to 25 degrees from the side. A rating of 30 percent for the major arm (20 percent minor) is assigned where motion is limited to midway between the side and shoulder level. A rating of 20 percent for either arm is assigned where motion is limited to shoulder level. Id. A 20 percent disability rating is the minimum rating available under DC 5201. The Veteran in this case is right-handed.

The standard range of motion for shoulder abduction and forward elevation (flexion) is 180 degrees. 38 C.F.R. § 4.71, Plate I. Standard internal and external rotation is to 90 degrees, and "shoulder level" is equivalent to 90 degrees of shoulder flexion or abduction. Id.

In addition to the above regulations, 38 C.F.R. § 4.59, unamended since its adoption in 1964, provided as follows:

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.
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 (2014).

The evidence at the time of the September 2014 rating decision included an April 2014 VA examination report with a diagnosis of right shoulder rotator cuff strain with residual of painful range of motion of the right shoulder and positive empty cans test, positive external rotation/infraspinatus, and a positive subscapularis lift off test. The Veteran reported that he started to experience bilateral shoulder pain in 2011 during his deployment. He reported flare-ups consisting of trouble rotating his arms, and he had a lot of stiffness and pain. Right shoulder flexion was to 180 degrees, with pain beginning at 180 degrees. Right shoulder abduction was to 180 degrees, with pain beginning at 180 degrees. Internal and external rotation were to 90 degrees with no objective evidence of painful motion. The Veteran did not have any additional limitation of range of motion following repetitive-use testing. Functional impairment consisted of weakened movement and pain on movement. There was no pain to palpation or guarding. Muscle strength was 5/5 in flexion and abduction. There was no ankylosis. Hawkins' impingement test and empty can test were negative. External rotation/infraspinatus strength test and lift off subscapularis tests were positive, indicating possible infraspinatus and subscapularis tendon involvement. Crank apprehension and relocation test was also positive, indicating possible instability. There was no acromioclavicular joint condition. The examiner noted that imaging did not show arthritis and stated that the condition did not impact the Veteran's ability to work. The examiner estimated no additional limitation of functional ability of the shoulder during flare-ups or after repeated use over time.

Based on this evidence, the RO, in the September 2014 rating decision, granted service connection and assigned a 10 percent rating for a right shoulder rotator cuff strain based on a finding of painful motion under the provisions of 38 C.F.R. § 4.59, as the limitation of motion recorded (flexion to 180 degrees and abduction to 180 degrees, even with consideration that motion is limited at the point when pain sets in) did not meet the criteria for a compensable disability rating under DC 5201. 38 C.F.R. § 4.71a, DC 5201, 5003.

As noted above, the Veteran argues that the finding of painful motion demonstrated by the evidence of record required at least a 20 percent rating for the right shoulder rotator cuff strain under DC 5201 under the provisions of 38 C.F.R. § 4.59, as 20 percent is the minimum compensable rating under DC 5201.

However, the Board finds that there is no CUE in the September 2014 rating decision in not assigning a higher 20 percent disability rating for the right shoulder rotator cuff strain.

In this regard, at the time of the 2014 rating decision, it was VA policy to assign a 10 percent disability rating for painful, noncompensable motion, irrespective of the joint or diagnostic code involved.

As noted above, 38 C.F.R. § 4.59 allows consideration of functional loss due to painful motion to be rated to at least the minimum compensable rating for a particular joint. Prior to May 23, 2016, it was longstanding VA policy to interpret "the minimum compensable rating" for a joint as a 10 percent rating, irrespective of the diagnostic code involved, as outlined in the VA Adjudication Procedures Manual as in effect at the time of the July 2013 rating decision. See VA Adjudication Procedures Manual (M21-1), Part III, Subpart iv, Chapter 4, Section A, Topics 1(g) and 7(b) (2014). While the Board notes that the M21-1 is not binding on the Board, this portion is pertinent to examination of existing VA policy at the time of the 2014 rating decision and consideration of the CUE claim in this decision. Therefore, keeping with standard practice at the time, in this case, the RO assigned the Veteran a 10 percent rating for his right shoulder rotator cuff strain in the September 2014 rating decision to compensate him for painful motion.

Subsequently, in Sowers v. McDonald, 27 Vet. App. 472 (2016), the United States Court of Appeals for Veterans' Claims (Court) held that 38 C.F.R. § 4.59 is limited by the specific diagnostic code most applicable to the claimant's disability. Crucially, the decision does not facially state that it was the first interpretation of the relevant regulation.

Although the Court in Sowers did not specifically hold that the minimum compensable rating must be assigned under the applicable diagnostic code for the disability involved, the holding influenced subsequent VA policy to reflect that the minimum compensable rating under the specific diagnostic code for the joint involved must be assigned when painful motion is demonstrated under 38 C.F.R. § 4.59. This policy particularly affects painful motion of the shoulder evaluated under 38 C.F.R. § 4.71a, DC 5201, in which painful motion of the shoulder warrants assignment of a 20 percent rating, the minimum compensable rating. As explicitly stated in the current version of the M21-1, this policy became effective May 23, 2016, after issuance of the September 2014 rating decision.

The M21-1 guidance as it existed at the time of the September 2014 rating decision and as revised effective May 23, 2016, discussed above, is evidence of a prior longstanding policy that has since been altered. Indeed, the current version of the M21-1 specifically states that "[Sowers] represents a change in longstanding VA policy in which the minimum compensable evaluation was interpreted as a 10-percent evaluation irrespective of the DC involved." See M21-1, Part V, Subpart iii, Chapter 1, Section A, Topic 1(g).

Additionally, in a Final Rule effective September 26, 2003, amending the Schedule for Rating Disabilities under 38 CFR Part 4, it was noted that during the comment period in the proposed rulemaking in the Federal Register in September 2002, comments were received from a veterans' service organization employee and a VA employee. In response to a proposal to add higher evaluations for painful motion under section 4.59, one commenter stated that "painful motion, even if the range of motion is normal, should be one of the criteria for a 10-percent evaluation because usually any limitation of motion is due to pain, and we usually give 10 percent for pain on motion, under §§ 4.45 (The joints) and 4.59 (Painful motion)." 68 FR 51454.

This VA policy of assigning a 10 percent for painful motion - irrespective of the diagnostic code involved - was specifically noted in the Federal Register for the Final Rule for 2003 amendments to the rating criteria, prior to Sowers. This further demonstrates a change in VA's interpretation of section 4.59 from prior to the position adopted in Sowers by the Secretary and the Court and after its issuance.

Thus, the Board finds that Sowers put in motion a "change in interpretation" of a VA regulation, precluding a finding of CUE in this case. The plain language of 38 C.F.R. § 3.105 states that revision of a final decision on the basis of CUE is not warranted based on a change in interpretation of law or VA issue. 38 C.F.R. § 20.1403 (see 38 C.F.R. § 3.105(a)(1)(iv) (providing, as to rating decisions, that CUE cannot be based on a change in interpretation)). "A determination that there was a CUE must be based on the record and the law that existed at the time of the prior... decision." Russell, 3 Vet. App. at 314. This standard requires that the argument must be based on the law as it was understood at the time of the decision. A judicial decision that formulates a new interpretation of the law subsequent to a final VA decision cannot be the basis of a valid CUE claim. George v. McDonough, 142 S. Ct. 1953, 1959-60 (2022); Berger v. Brown, 10 Vet. App. 166, 170 (1997) (specifically holding that judicial opinions from the Court that formulate new interpretations of the law subsequent to an RO decision cannot be the basis of a valid CUE claim); Steele v. McDonough, 856 Fed. Appx. 878 (Fed. Cir. 2021) ("We expressly noted in George that our precedent does not support the view that a new judicial pronouncement can retroactively apply to final decisions of the VA... [c]onsequently, we need not decide whether Saunders was an authoritative statement or a change in interpretation because neither can form the basis for CUE"); Damrel, 6 Vet. App. at 246. Although a judicial decision must be given full retroactive effect in all cases that are still open on direct review, it does not affect decisions that are final. Smith v. West, 11 Vet. App. 134, 37-38 (1998); Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 758 (1995) ("new legal principles, even when applied retroactively, do not apply to cases already closed"). Nothing in the applicable statute or regulation allowing for revision of a final decision on the basis of CUE indicates that a prior final and binding decision may be reversed or amended simply because a new judicial determination changed the way an existing law was interpreted. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105.

The Board is also aware of Perciavalle v. Wilkie, wherein the United States Court of Appeals for Veterans Claims (Court) addressed 38 C.F.R. § 20.1403(e) (applying to CUE in Board decisions) and the concept that CUE "does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation." 35 Vet. App. 11, 22 (2021). The Court stated that a "change in interpretation" necessarily required the existence of a prior interpretation that is made different, whether modified or replaced in whole; it cannot be the first interpretation that the latter modifies, alters, or replaces. Id., citing Jordan v. Nicholson, 401 F.3d 1296, 1298 (Fed. Cir. 2005).

In pertinent part, the Court in Perciavalle found that Esteban v. Brown, 6 Vet. App. 259, 260 (1994) did not change the interpretation of a statute or regulation and, therefore, a CUE motion requesting revision of a decision that pre-dates their issuance should be considered on the merits. In that case, the Court explained that the decision at issue could not have changed the interpretation as it facially stated it was the first interpretation of the relevant regulations; thus, there could not have been a change in interpretation of any law or regulation. Thus, the challenge for revision based on CUE was not precluded as matter of law.

However, this case is not factually similar to Perciavalle; as previously stated, the Sowers decision did not state that the Secretary's position, or the Court's holding, was the first interpretation of section 4.59. Rather, the evidence shows that there were prior interpretations of section 4.
decision that pre-dates their issuance should be considered on the merits. In that case, the Court explained that the decision at issue could not have changed the interpretation as it facially stated it was the first interpretation of the relevant regulations; thus, there could not have been a change in interpretation of any law or regulation. Thus, the challenge for revision based on CUE was not precluded as matter of law.

In George and Steele discussed above, the veterans' arguments were similar to the one at issue in this case: that new judicial pronouncements issued after the final decision were not changes in interpretation but rather an authoritative statement of the law as it existed when the AOJ rendered its decision. In both cases, the Supreme Court and the Federal Circuit, respectively, determined that this argument did not hold merit in warranting revision based on CUE. Consistent with binding caselaw, the Board holds the same.

Based on the foregoing, the Board finds that, based on the facts and law as they were known at the time of the September 2014 rating decision, there was no CUE in not assigning a 20 percent rating for the right shoulder rotator cuff strain. At the time of the rating decision, the Veteran's limitation of motion of the right shoulder was not compensable under DC 5201. The rating criteria under DC 5003 reflected that a 10 percent rating was appropriate for the affected shoulder joint where the limitation of motion of the specific joint was noncompensable under the appropriate diagnostic code, and there was competent lay evidence of painful motion of the right shoulder. Moreover, longstanding VA practice directed the assignment of a standard minimum compensable rating of 10 percent for painful motion of a joint, irrespective of the diagnostic code involved. In other words, applying either DC 5003 or the provisions of 38 C.F.R. § 4.59 as it was interpreted at that time would have resulted in the assignment of a 10 percent rating. As a result, the Board does not find that it is undebatable that the RO committed error in applying the law, as it existed and as it was interpreted in September 2014, to the facts of the Veteran's case in not assigning a 20 percent rating for the right shoulder rotator cuff strain.

(Continued on next page)

As no other CUE arguments have been specifically pled, and for the reasons discussed above, the Board finds that there was no CUE in the September 2014 rating decision in not assigning a higher 20 percent disability rating for the right shoulder rotator cuff strain under DC 5201. The Veteran has not established that the correct facts were not before the RO at the time of the September 2014 rating decision or that the RO incorrectly applied the applicable statutory and regulatory provisions based on the interpretations of law existing at the time of that decision. Thus, the application to revise the September 2014 rating decision to reflect a 20 percent rating for the right shoulder rotator cuff strain under DC 5201 on the basis of CUE is denied.

Cynthia M. Bruce

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board T. Sherrard, 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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