Citation Nr: 0001452 Decision Date: 01/18/00 Archive Date: 01/27/00 DOCKET NO. 97-32 439A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an increased rating for a right shoulder disability, currently evaluated as 20 percent disabling. 2. Entitlement to an increased rating for a left shoulder disability, currently evaluated as 20 percent disabling. 3. Entitlement to an earlier effective date for a 20 percent rating for a right shoulder disability, based on clear and unmistakable error (CUE) in a June 1970 RO rating decision. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Cooper, Associate Counsel INTRODUCTION The veteran served on active duty from January 1962 to December 1969. This case comes before the Board of Veterans' Appeals (Board) partly from an October 1997 RO decision which denied increased ratings for a right shoulder disability (rated 20 percent) and a left shoulder disability (rated 20 percent). The veteran also appeals for an earlier effective date for a 20 percent rating for a right shoulder disorder, based on CUE in a June 1970 RO rating decision. The Board finds this claim is properly on appeal, and the procedural background will be summarized. In a June 1970 decision, the RO granted service connection and a 0 percent rating for a right shoulder disability, effective December 17, 1969 (the day after service). In a January 1995 decision, the RO granted an increased 20 percent rating for the right shoulder disability, effective June 9, 1993. In a December 1996 decision, the RO found there was CUE in the June 1970 RO decision, to the extent that it failed to assign a 10 percent rating for the right shoulder disability; on correction of the CUE, the RO assigned a 10 percent rating for the period of December 17, 1969 to June 8, 1993. The Board finds that statements of the veteran, within a year following notice of the December 1996 RO decision, constitute a timely notice of disagreement with that decision, to the extent the decision did not assign a retroactive 20 percent rating for the right shoulder disability based on CUE in the June 1970 RO decision. Another RO decision in August 1998 essentially found that further revision of the retroactive 10 percent rating for the right shoulder disability, based on CUE, was not warranted. A September 1998 "notice of disagreement" from the veteran (although another notice of disagreement was not required) again requested a retroactive 20 percent rating, to the time of release from service, for the right shoulder disability. In September 1998, the RO issued a statement of the case on the CUE issue, and the veteran filed a timely substantive appeal in September 1998. FINDINGS OF FACT 1. The veteran's right shoulder (major upper extremity) disability includes residuals of surgery for chronic dislocations, arthritis, and limitation of motion. Current dislocations are infrequent; arm motion is possible to the shoulder level; and impairment does not exceed that for moderately severe disability of intrinsic muscles of the shoulder girdle. 2. The veteran's left shoulder (minor upper extremity) disability includes residuals of surgery for chronic dislocations, arthritis, and limitation of motion. Current dislocations are infrequent; arm motion is possible to the shoulder level; and impairment does not exceed that for moderately severe disability of intrinsic muscles of the shoulder girdle. 3. The RO has found that an unappealed June 1970 RO decision was based on CUE in assigning a 0 percent rating for the veteran's right shoulder disability, and the RO has revised the June 1970 RO decision to assign a 10 percent rating for the disability. Based on such CUE correction, the RO rated the right shoulder disability as 10 percent disabling effective from December 17, 1969 (day after service separation) through June 8, 1993 (the current 20 percent rating for this diability became effective on June 9, 1993). Considering evidence available and legal authority in effect at the time of the June 1970 RO decision, the failure of the RO to then assign a 20 percent rating for the right shoulder disability was not undebatably erroneous. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for a right shoulder disability have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5201, 5203, § 4.73, Diagnostic Code 5304 (1999). 2. The criteria for a rating in excess of 20 percent for a left shoulder disability have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5201, 5203, § 4.73, Diagnostic Code 5304 (1999). 3. There was no CUE in a June 1970 RO decision, to the extent that it did not assign a 20 percent rating for the right shoulder disability, and there is no basis for an earlier effective date for the current 20 percent rating for the disability based on alleged CUE. 38 U.S.C.A. §§ 5109A, 7105 (West 1991 & Supp. 1999); 38 C.F.R. § 3.105(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran served on active duty in the Army from January 1962 to December 1969. A review of his service medical records reveals that on reenlistment examination in February 1964, the veteran related a history of injury to the left shoulder while playing football in December 1963. The veteran was treated for an anterior dislocation of his right shoulder in June 1965. In October 1965, he complained of pain in the left shoulder after a fall. The diagnostic impression was slight shoulder sprain. The veteran reported dislocation of his right shoulder in May 1968. He underwent surgical repair for recurrent dislocation of his right shoulder in July 1968. An undated service medical record reveals that the veteran reported dislocation of the left shoulder occurring in his sleep. On separation examination in December 1969, recurrent dislocations of both shoulders were noted. Post-service medical records show the veteran was admitted to a VA hospital in January-February 1970 and underwent a Putti- Platt repair of the left shoulder for recurrent left shoulder dislocations. While this admission was for the left shoulder, the hospital records note that the veteran previously had right shoulder dislocations for which he had surgical repair in service in 1968; he reported he had no recurrent right shoulder dislocations since the operation in service; and current examination of the right shoulder showed full range of motion and no symptoms of dislocation. A May 1970 VA examination report shows the veteran primarily complained of his left shoulder problems for which he had recently had surgery. It was noted he was right-handed. It was noted that a right shoulder dislocation had previously been repaired in service. Current X-rays of both shoulders were normal. The examination report notes an asymptomatic surgical scar of the right shoulder, as well as a tender healing scar of the left shoulder from recent surgery. The examination report states that the "Rt" [right] shoulder had complete range of motion and no atrophy or weakness. The examination report next recites that the "Rt" shoulder had complete forward and lateral elevation, 50 percent anterior and posterior rotation, stiffness, and "recent surgery." The final examination diagnosis was postoperative residuals from repair of recurrent shoulder dislocations, bilateral. In a June 1970 decision, the RO granted service connection for postoperative residuals of bilateral shoulder dislocations; the left shoulder was rated 20 percent, and the right shoulder was rated 0 percent; and service connection and compensation were effective from December 17, 1969 (day after service separation). The June 1970 rating decision notes, in part, that the recent VA examination showed complete function of the right shoulder, and also showed that the left shoulder had 50 percent anterior and posterior rotation, stiffness, and recent surgery. A May 1993 VA bilateral shoulder X-ray shows degenerative changes in both shoulder joints. Neither shoulder appeared dislocated. On June 9, 1993, the RO received claims for increased ratings for the right and left shoulder disabilities. VA treatment records from June 1993 to August 1993 show that the veteran received physical therapy for his right and left shoulder conditions. The August 1993 discharge note shows flexion and abduction of the right shoulder was 140 degrees. The left shoulder revealed 150 degrees flexion and 143 degrees abduction. The veteran did not report pain during resistive activities. On VA examination in August 1993, the veteran related his history of injury to both shoulders during service. The examiner noted that his muscles appeared to have been penetrated as a result of surgery. No tissue loss of either shoulder was noted. Scar formation on both shoulders was observed. It was noted that the skin appeared to be concave into the tissues and could be interpreted as adhesions. The examiner noted no damage to the bones and strength was good. The veteran reported constant pain in the right shoulder with a feeling that it was going to dislocate. Range of motion testing revealed flexion of the right shoulder to 150 degrees and to 160 degrees on the left shoulder. Extension was 70 degrees, bilaterally. Right shoulder internal rotation was to 70 degrees and external rotation was to 60 degrees. Left shoulder internal and external rotation was 70 degrees. Abduction of both shoulders was 160 degrees. The veteran reported bilateral intermittent shoulder pain, more on the right than the left. He estimated that there were 5 post- surgical dislocations on the right and 3 post-surgical dislocations on the left. August 1993 VA X-rays showed degenerative joint disease (arthritis) of both shoulders. On VA examination in September 1994, bilateral, well-healed surgical scars in the deltopectoral groove were observed. Active range of motion of the shoulders revealed forward flexion to 120 degrees, abduction to 90 degrees, and external rotation to 80 degrees. Passive range of motion was increased to a range of about 10 degrees on each side. It was noted that the veteran had some apprehension with external rotations on the arm abducted. Flexion of the shoulder caused a significant amount of pain in the external rotations. It was noted that X-rays of both shoulders showed severe degenerative changes on the left and mild degenerative joint disease on the right. A history of bilateral shoulder dislocations and chronic instability was also noted. The examiner noted that bilateral shoulder degenerative joint disease could be secondary to chronic dislocations. In a January 1995 decision, the RO increased the evaluation for the veteran's service-connected right shoulder condition to 20 percent, effective June 9, 1993. On VA examination in April 1996, the veteran related that he had multiple injuries to both shoulders which resulted in dislocation of the left and right shoulder joints. No swelling or deformity was noted. Range of motion testing showed left shoulder flexion to 95 degrees and abduction to 80 degrees. The right shoulder demonstrated 115 degrees of flexion and 110 degrees of abduction. X-rays of both shoulders showed arthritis. A private hospital operative report from July 1996 shows that the veteran underwent an arthroscopy, debridement, and resection of a left shoulder lesion. Arthritis of the shoulder was noted. The diagnosis was internal derangement of the left shoulder. [The veteran was subsequently granted a temporary total convalescent rating based on this left shoulder surgery.] Private medical records from January 1994 to November 1996 show that the veteran received treatment for instability and discomfort of both shoulders. The veteran indicated that he sometimes self-reduced his shoulder after it became dislocated while he was sleeping. In a November 1996 statement, Norman M. Krause, M.D. indicated that the veteran had perpetual discomfort within his left shoulder following surgery. Dr. Krause noted that the veteran had instability and needed continued therapy. He said that the veteran was progressing fairly well; however the joint was loose and he had limited range of motion. Dr. Krause stated that the veteran was benefiting from the strengthening program but still may be a candidate for future shoulder instability surgery. The veteran testified at an RO hearing in December 1996. He argued that ratings higher than 20 percent should be assigned for the right and left shoulder disabilities. He also asserted that at least a 10 percent rating for the right shoulder disorder should be retroactive to service. In this regard, his representative suggested that the 1970 VA examination showed that both shoulders, particularly the left one, had 50 percent range of motion, and that a 10 percent rating should have been assigned for the right shoulder at that time. In a December 1996 decision, the RO determined that revision was warranted in the June 1970 RO decision, based on CUE. The RO held that there was CUE in the June 1970 decision in assigning a 0 percent rating for the right shoulder disability, and that, on correction of the error, the right shoulder disability would be retroactively rated 10 percent, effective December 17, 1969 (day after service). In granting this CUE relief, the RO stated that the June 1970 decision failed to acknowledge significantly impaired range of motion of the right shoulder, inasmuch as the May 1970 VA examination showed the right shoulder had 50 percent limitation of anterior and posterior rotation. A May 1998 private medical record shows that the veteran had continued bilateral shoulder problems, left worse than the right. It was noted that he had instability with apprehension of the left shoulder and good range of motion. The right shoulder seemed more unstable but not as symptomatic. The examiner also noted that the veteran had cervical radiculopathy with nerve symptoms going from the cervical spine into the arm. A June 1998 private treatment note shows that the veteran had continued pain and instability in both shoulders, left greater than right. Range of motion testing revealed abduction to 80 with weakness, bilaterally. During a June 1998 RO hearing, the veteran testified that he had pain and numbness in his left arm from nerve damage to his neck. He said that he had frequent dislocations which he sometimes replaced himself. The veteran stated that he worked as a police officer for 25 years but was on light duty the last 6 years due to knee and shoulder problems. He related that his shoulder problems made it difficult to handle a weapon at work and interfered with his social activities. A November 1998 private medical record shows that the veteran continued to experience shoulder pain, left worse than right. The veteran had active elevation of 135 degrees with external rotation of the arms at the side of 30, which was symmetric. The diagnoses were recurrent anterior dislocations of both shoulders, following previous Putti-Platt stabilization surgeries, and bilateral rotator cuff tendinitis. The examiner noted that both shoulders were equally debilitated and had undergone similar course of injury following initial dislocations and surgeries. The veteran testified at an RO hearing in December 1998. He argued that ratings higher than 20 percent should be assigned for right and left shoulder disabilities, and he described symptoms of pain and dislocations. He indicated he continued to work as a firearms instructor at a police academy. It was also argued that the retroactive 10 percent rating for the right shoulder disability should be higher based on CUE; attention was directed to recent medical evidence in support of the CUE argument. II. Analysis A. Increased Ratings The veteran's claims for increased ratings for a right shoulder disability (rated 20 percent) and a left shoulder disability (rated 20 percent) are well grounded, meaning plausible. The file shows that the RO has properly developed the evidence, and there is no further VA duty to assist the veteran with his claims. 38 U.S.C.A. § 5107(a). When rating the veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, it is the more recent evidence which is generally the most relevant in an increased rating claim, as the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The RO has rated the right and left shoulder disabilities under criteria for muscle injuries. The Board notes that regulations for evaluating muscle injuries were subject to minor revisions in July 1997, but there were no substantive changes which would affect the present case. The RO has rated the veteran's right and left shoulder disabilities under 38 C.F.R. § 4.73, Diagnostic Code 5304. This code pertains to muscle injuries to intrinsic muscles of the shoulder girdle (Muscle Group IV). This muscle group is responsible for stabilizing the muscles of the shoulder against injury in strong movements, holding the head of the humerus in the socket, abduction, outward rotation, and inward rotation. Under this code, for either the major (dominant) or minor (non-dominant) shoulder, a 20 percent rating is assigned for moderately severe impairment. A 20 percent evaluation is also warranted for a severe impairment of the non-dominant upper extremity. A 30 percent evaluation is warranted for a severe impairment of the dominant upper extremity. Id. Regulation, 38 C.F.R. § 4.56, contains factors to consider in evaluating muscle injuries from gunshot wounds or other trauma, although such are only guidelines which are to be considered with all factors in the individual case. Robertson v. Brown, 5 Vet. App. 70 (1993). In this case, the veteran's right shoulder (major upper extremity) disability is manifested by complaints of joint instability and discomfort. The historical medical evidence suggests some muscle penetration and loss of strength resulting from surgery; however, characteristics of a severe muscle injury under the guidelines of 38 C.F.R. § 4.56 have not been demonstrated. The veteran's left shoulder (minor upper extremity) disability is manifested by symptoms of joint instability and discomfort of a slightly higher degree. However, with consideration of the factors of 38 C.F.R. § 4.56, the historical medical records, and recent findings, no more than a moderately severe muscle injury is shown for either the right or left shoulders under the guidelines of 38 C.F.R. § 4.56, and such is ratable at 20 percent under Code 5304. A severe muscle injury of the right (major) shoulder is not shown, as required for a higher rating of 30 percent under Code 5304; and even if there was a severe muscle injury of the left (minor) shoulder, such would be rated no more than 20 percent under Code 5304. The Board has also considered other diagnostic codes. The evidence shows the veteran has arthritis of both shoulders, and such is rated on the basis of limitation of motion. 38 C.F.R. § 4.71a, Codes 5003 and 5010. Limitation of motion of the major or minor arm is rated 20 percent when limited at the shoulder level. When arm motion is limited to a point midway between the side and shoulder level, a 30 percent rating is assigned for the major arm and a 20 percent rating is assigned for the minor arm. When arm motion is limited to 25 degrees from the side, a 40 percent rating is assigned for the major arm and a 30 percent rating is assigned for the minor arm. 38 C.F.R. § 4.71a, Code 5201. Standard range of motion of the shoulder is 180 degrees flexion and abduction and 90 degrees internal and external rotation. 38 C.F.R. § 4.71, Plate I. During the April 1996 VA examination, the veteran had left shoulder flexion to 95 degrees and abduction to 80 degrees. The right shoulder had 115 degrees of flexion and 110 degrees of abduction. A June 1998 private treatment note reflects 80 degrees of abduction, bilaterally. Range of motion testing of both shoulders in November 1998 revealed 135 degrees of active elevation. The recent medical evidence shows varying degrees of motion of both shoulders, but the evidence as a whole shows that motion of both shoulders is possible to about the shoulder level. Such limitation of motion is to be rated 20 percent for each shoulder. For a higher rating of 30 percent under Code 5201, the right (major) arm motion would have to be limited to a point midway between the side and shoulder level, and the left (minor) arm would have to be limited to a point 25 degrees from the side. Such is not shown by the evidence. Moreover, there is no objective evidence that pain on use of the shoulders results in limitation of motion to a degree which would support a higher rating. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 6 Vet. App. 321 (1995). Under 38 C.F.R. § 4.71a, Code 5202, which pertains to other impairment of the humerus, a 20 percent evaluation is warranted for infrequent episodes of dislocation of the scapulohumeral joint of the major or minor upper extremity with guarding of movement only at the shoulder level. Frequent episodes of dislocation and guarding of all arm movements is rated 30 percent for the major upper extremity and 20 percent for the minor upper extremity. Malunion of the humerus with marked deformity is rated 30 percent for the major upper extremity and 20 percent for the minor upper extremity. Fibrous union of the humerus is rated 50 percent for the major upper extremity and 40 percent for the minor upper extremity. Id. Although the veteran testified that he experiences right and left shoulder dislocations, the medical evidence does not show frequent dislocations and guarding of all arm movements in either shoulder, nor is there malunion with marked deformity of either humerus or fibrous union of either humerus. The recent medical evidence indicates no more than infrequent episodes of dislocations of either shoulder with guarding of arm movement at the shoulder level. Such supports no more than the current 20 percent ratings. Thus, higher ratings under Code 5202 are not warranted. The preponderance of the evidence is against the claims for a rating higher than 20 percent for the right shoulder disability and a rating higher than 20 percent for the left shoulder disability. Therefore the benefit-of-the-doubt doctrine is inapplicable, and the claims for increased ratings must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. CUE The veteran claims there was CUE in the June 1970 RO decision to the extent that it did not assign a 20 percent rating for his right shoulder disability. The purpose of this claim is to obtain an earlier effective date for the current 20 percent rating for the right shoulder disability. The June 1970 RO decision assigned a 0 percent rating for the right shoulder disability, but the RO has recently revised the June 1970 decision, based on a finding of CUE, to the extent that a 10 percent rating has been assigned for the right shoulder disability (retroactive from December 17, 1969 until the current 20 percent rating became effective on June 9, 1993). The only question now presented is whether the June 1970 RO decision was based on CUE for failing to assign a 20 percent rating for the right shoulder disorder. The veteran did not appeal the June 1970 RO decision, and it is thus considered final, although it may be reversed or revised if found to be based on CUE. 38 U.S.C.A. § 7105. Legal authority provides that where CUE is found in a prior rating decision, the prior decision will be reversed or revised, and for the purposes of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal or revision of the prior decision on the grounds of CUE has the same effect as if the decision had been made on the date of the prior decision. 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.105(a). CUE is a very specific and rare kind of error; it is the 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 result would have been manifestly different but for the error. To find CUE, the correct facts, as they were known at the time, must not have been before the adjudicator (a simple disagreement as to how the facts were weighed or evaluated will not suffice) or the law in effect at that time was incorrectly applied; the error must be undebatable and of a sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and the determination of CUE must be based on the record and law that existed at the time of the prior adjudication. Caffrey v. Brown, 6 Vet. App. 377, 383-384 (1994); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Fugo v. Brown, 6 Vet. App. 40, 43-45 (1993); Russell v. Principi, 3 Vet. App. 310, 313-314 (1992). At the time of the June 1970 RO decision, the evidence of record included service medical records which revealed a history of recurrent dislocations of the right shoulder and surgical repair for such in 1968. Post-service records showed that when the veteran was hospitalized at a VA facility in January-February 1970, for an operation for left shoulder dislocations, physical examination of the right shoulder showed a scar, full range of motion, and no symptoms of dislocation, and the veteran denied having right shoulder dislocations since the surgical repair in service. Also of record was a May 1970 VA examination. Although the examiner successively wrote "Rt" [right] in reporting findings of examination of both shoulders, from the context of the entire examination report (which emphasized complaints and findings of the left shoulder which had recently been surgically treated) and the preceding medical records, the successive notations of "Rt" on the examination report appear to be nothing more than a careless (yet common) mistake when writing down the abbreviations for right [Rt] and left [Lt]. Again given the context of the examination report and preceding medical records, it appears that the examiner intended to indicate that the right shoulder had an asymptomatic scar, complete range of motion, and no atrophy or weakness; and that the left shoulder had 50 percent anterior and posterior rotation and stiffness associated with "recent surgery." This is how the RO interpreted the examination report at the time of its June 1970 decision, and this seems to the Board to be the most logical and reasonable interpretation. This was not the ROs recent interpretation of the old examination report when it found CUE to the extent that it assigned a corrected 10 percent rating for the right shoulder disability. The Board does not agree with the RO's recent interpretation of the May 1970 examination report. In any event, the evidence available at the time of the June 1970 RO decision did not compel a conclusion, to which reasonable minds could not differ, that the veteran's right shoulder disability should be rated 20 percent. The pertinent rating criteria (including those of Codes 5201, 5202, and 5304) were the same at the time of the June 1970 as they are today. (See above discussion of these criteria as applied to current increased ratings.) Evidence available at the time of the June 1970 is the only evidence to be considered in deciding if the there was CUE; later evidence, which the veteran's representative refers to, is irrelevant to CUE. By one reasonable interpretation of the evidence available in June 1970, the right shoulder disability was essentially asymptomatic, with full range of motion and no dislocations since surgical repair in service. Such findings do not come close to the 20 percent criteria of any of the pertinent diagnostic codes. The veteran's mere dispute with how the RO weighed the evidence in June 1970 does not meet the standard of CUE in the failure to grant a 20 percent evaluation. There is nothing in the evidence from the time of the June 1970 rating decision which would compel a conclusion, to which reasonable minds could not differ, that the veteran's right shoulder disability warranted a 20 percent evaluation under any diagnostic code. The record does not demonstrate undebatable error or fact or law in the June 1970 RO decision, the correction of which would compel a 20 percent rating for the right shoulder disability. Thus, the Board concludes there is no basis for a retroactive 20 percent rating for the right shoulder disabilty under a theory of CUE. ORDER An increased rating for a right shoulder disability is denied. An increased rating for a left shoulder disability is denied. An earlier effective date for a 20 percent rating for a right shoulder disability, based on CUE in a June 1970 RO decision, is denied. L. W. TOBIN Member, Board of Veterans' Appeals