Petition for Writ of Certiorari — Clinton Siples, Petitioner v. Douglas A. Collins, Secretary of Veterans Affairs

Supreme Court briefNov 19, 2025

Ask Donna

What actually matters in this document.

Text

APPENDIX TO THE

PETITION FOR A WRIT OF CERTIORARI

APPENDIX A

Opinion of the Federal

Circuit (Feb. 7, 2025) .............. 1a

APPENDIX B

Decision of the Court of

Appeals for Veterans Claims

(Dec. 15, 2021) ....................... 19a

APPENDIX C

Decision of Board of Veterans’

Appeals (July 23, 2019)......... 29a

APPENDIX D

Rating Decision of

Department of Veterans

Affairs

(July 23, 2004) ....................... 57a

APPENDIX E

Order of the Federal Circuit

Denying Rehearing

(Aug. 21, 2025) ...................... 67a

APPENDIX F

38 U.S.C. § 5109A ................. 69a

APPENDIX G

38 U.S.C. § 7111 .................... 70a

APPENDIX H

38 C.F.R. § 3.105 ................... 72a

APPENDIX I

38 C.F.R. § 20.1403 ............... 83a

APPENDIX J

38 C.F.R. § 4.59 ..................... 86a

APPENDIX A

United States Court of Appeals

for the Federal Circuit

________________________

CLINTON SIPLES,

Claimant-Appellant

DOUGLAS A. COLLINS, SECRETARY OF

VETERANS AFFAIRS,

Respondent-Appellee

________________________

2022-1528

________________________

Appeal from the United States Court of Appeals for

Veterans Claims in No. 19-7957, Judge Joseph L.

Toth.

________________________

Decided: February 7, 2025

________________________

KENNETH DOJAQUEZ, Carpenter Chartered, Topeka,

KS, argued for claimant-appellant.

BORISLAV KUSHNIR, Commercial Litigation Branch,

Civil Division, United States Department of Justice,

Washington, DC, argued for respondent-appellee.

Also represented by BRIAN M. BOYNTON, ELIZABETH

MARIE HOSFORD, PATRICIA M. MCCARTHY; JONATHAN

KRISCH, Y. KEN LEE, Office of General Counsel,

United States Department of Veterans Affairs,

Washington, DC.

________________________

Before

Judges.

CHEN, BRYSON,

and STOLL,

Circuit

CHEN, Circuit Judge.

Clinton Siples is a veteran of the United States

Air Force (Air Force) who was granted service

connection for bilateral shoulder subluxation by a

Regional Office (RO) of the United States

Department of Veterans Affairs (VA). After that

decision became final, the United States Court of

Appeals for Veterans Claims (Veterans Court)

decided Burton v. Shinseki, 25 Vet. App. 1 (2011)

(Burton), which deferred to the Secretary of

Veterans Affairs’ interpretation of 38 C.F.R. § 4.59

as not limited to cases of arthritis. Mr. Siples then

filed a motion alleging clear and unmistakable error

(CUE) in the RO’s rating decision, contending that

the newly interpreted § 4.59 would have required the

VA to assign him a higher rating for his shoulder

disability, which was not based on arthritis. The

Veterans Court affirmed the Board of Veterans’

Appeals’ (Board) denial of Mr. Siples’s CUE motion

on the basis that, at the time of his rating decision,

§ 4.59 was not undebatably understood to apply to

cases other than arthritis, and thus there was no

error of the type required for CUE. Siples v.

McDonough, No. 19-7957, 2021 WL 5919626 (Vet.

App. Dec. 15, 2021) (Decision). Mr. Siples appeals.

For the reasons explained below, we affirm.

BACKGROUND

I. Section 4.59

We begin with a history of 38 C.F.R. § 4.59.

Section 4.59, unamended since its adoption in 1964,

is titled “Painful motion” and provides in full:

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 nonweightbearing and, if possible, with the range of the

opposite undamaged joint.

38 C.F.R. § 4.59 (emphases added); see 29 Fed. Reg.

6718, 6725 (May 22, 1964). 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).

In Burton, a veteran argued that § 4.59 was

applicable to rating his shoulder pain not based on

arthritis. The Secretary at first disagreed and

argued that § 4.59 was applicable to only arthritisbased claims. See Burton, 25 Vet. App. at 3. A singlejudge memorandum decision of the Veterans Court

agreed with the Secretary. See id. at 2–3. The

Veterans Court subsequently granted the veteran’s

motion for a panel decision and withdrew the

memorandum decision in order to “clarify the law as

to whether § 4.59 is applicable only to claims

involving arthritis.” Id. at 3. At that point, the

Secretary filed a supplemental brief that reversed

course and conceded that § 4.59 may apply in cases

other than arthritis, citing the earlier reflection of

that position in VA Fast Letter 04-22 (Oct. 1, 2004). 1

Id.

In the panel decision, the Veterans Court

recognized that § 4.59 begins by stating that “[w]ith

any form of arthritis, painful motion is an important

factor of disability,” and that § 4.59 mentions

arthritis again in the third sentence. Burton, 25 Vet.

App. at 3–4 (quoting 38 C.F.R. § 4.59). On the other

hand, the Veterans Court explained that “the

majority of the regulation provides guidance for

noting, evaluating, and rating joint pain, and that

guidance is devoid of any requirement that the pain

be arthritis related.” Id. at 4. Looking also to the

title of the regulation as a tool of interpretation, the

court observed that the title—“Painful motion”—

“implies no limitation to arthritis claims,” in contrast

to the title of a neighboring section, 38 C.F.R. § 4.58

(“Arthritis due to strain”), which deals exclusively

with arthritis. Id. Accordingly, the Veterans Court

deferred to the Secretary’s interpretation of § 4.59 as

not limited to arthritis claims, finding it reasonable

and “not inconsistent with the regulation or

otherwise plainly erroneous.” Id. at 5; see also id. at

3. This court entered a judgment of affirmance

without opinion pursuant to Federal Circuit Rule 36.

1 The Fast Letter was issued a little over two months after the

RO’s decision in Mr. Siples’s case.

See Burton v. Shinseki, 479 F. App’x 978 (Fed. Cir.

2012) (per curiam).

II. Mr. Siples’s Appeal

Mr. Siples served honorably in the Air Force

from 1978 to 2003. After his discharge from the Air

Force, Mr. Siples sought VA disability benefits for a

history of dislocations and subluxations in both of

his shoulders. In July 2004, the RO granted service

connection and assigned him a 10% rating for

bilateral shoulder subluxation,

noting

that

Mr. Siples’s “range of motion was limited by pain

which is the major functional impact.” J.A. 65; see

also id. at 66. That rating decision became final after

Mr. Siples did not appeal.

In June 2017, Mr. Siples filed a motion to revise

the 2004 rating decision due to alleged CUE. He

argued that § 4.59 required that “functional loss due

to painful motion…be rated at least the minimum

compensable rating,” which he contended entitled

him to a 20% rating for each shoulder. J.A. 26

(emphasis omitted). The RO and the Board denied

the CUE motion. The Board observed that at the

time of Mr. Siples’s original rating decision, which

was prior to Burton, the “VA only applied 38 C.F.R.

§ 4.59 in cases of arthritis,” and Mr. Siples’s x-rays

were negative for arthritis. J.A. 36–37.

Mr. Siples appealed to the Veterans Court,

which, in relevant part, affirmed the Board by a

single-judge memorandum decision. Quoting our

decision in George v. McDonough, 991 F.3d 1227,

1234 (Fed. Cir. 2021) (George I), aff’d, 596 U.S. 740

(2022) (George II), the Veterans Court applied the

standard 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.” Decision, 2021 WL 5919626, at *2. The

Veterans Court began its analysis by noting that

“Burton seems to be the first reported case in which

a veteran argued that § 4.59 applied outside the

arthritis context.” Id. Like the Burton court, the

Veterans Court in Mr. Siples’s case highlighted that

§ 4.59 began with a sentence seemingly limited to

the arthritis context. Id. It then reasoned that the

Burton

saga

itself—including

the

opposite

conclusions reached by the single-judge and panel

decisions, and the Secretary’s shift in position during

the proceeding—supported the conclusion that § 4.59

was not “undebatably understood to apply to nonarthritis claims in 2004.” Id. at *2–3.

Finally, the Veterans Court discussed VA

General Counsel Precedent Opinion 9-98 but found

that it did not change the assessment. Id. at *3; see

VA Op. Gen. Counsel Prec. 9-98, 1998 WL 35275130

(Aug. 14, 1998) (G.C. Prec. 9-98). The subject of G.C.

Prec. 9-98 is “Multiple Ratings for Musculoskeletal

Disability and Applicability of 38 C.F.R. §§ 4.40,

4.45, and 4.59.” The Veterans Court explained that,

although the opinion could “be read to indicate that

all three provisions apply when rating ‘other

musculoskeletal disabilities,’” that reading is “by no

means compelled.” Decision, 2021 WL 5919626, at

*3. The Veterans Court ultimately “discern[ed] no

error in the Board’s conclusion that the

understanding of § 4.59 in July 2004 did not

undebatably compel the RO to assign additional

shoulder 20% ratings based on painful motion.” Id.

Mr. Siples appealed to this court. We have

jurisdiction under 38 U.S.C. § 7292.

DISCUSSION

Our jurisdiction to review decisions of the

Veterans Court is limited by statute. George I, 991

F.3d at 1233. We may review “the validity of a

decision of the [Veterans] Court on a rule of law or of

any statute or regulation…or any interpretation

thereof (other than a determination as to a factual

matter) that was relied on by” the Veterans Court.

38 U.S.C. § 7292(a). In doing so, we “shall decide all

relevant questions of law.” Id. § 7292(d)(1). We

review assertions of legal error in a Veterans Court

decision without deference. George I, 991 F.3d at

1233. But we “may not review (A) a challenge to a

factual determination, or (B) a challenge to a law or

regulation as applied to the facts of a particular

case,” except “to the extent that an appeal…presents

a constitutional issue.” 38 U.S.C. § 7292(d)(2).

By statute, a veteran may seek revision of a final

decision of the RO or the Board “on the grounds of

clear and unmistakable error.” 38 U.S.C. § 5109A

(the RO); id. § 7111 (the Board). CUE is a “very

specific and rare kind of error.” George II, 596 U.S.

at 747 (quoting 38 C.F.R. § 20.1403(a)); 38 C.F.R.

§ 3.105(a)(1)(i). 2 Though the statutes do not define

CUE, the regulations and case law reflect certain

settled principles that Congress intended to capture

when codifying CUE. See George II, 596 U.S. at 746

(holding that Congress “codified and adopted the

[CUE] doctrine as it had developed under prior [VA]

practice” (cleaned up)).

CUE requires a party to establish three

elements. First, “[e]ither the correct facts, as they

were known at the time, were not before the

adjudicator or the statutory or regulatory provisions

extant at the time were incorrectly applied.” Willsey

v. Peake, 535 F.3d 1368, 1371 (Fed. Cir. 2008)

(citation omitted). Second, the error must be outcome

determinative and “undebatable,” id. (citation

omitted), such that “reasonable minds could not

differ,” 38 C.F.R. § 3.105(a)(1)(i); see Willsey, 535

F.3d at 1371, 1373. Last, “[a] determination that

there was CUE must be based on the record and the

law that existed at the time of the prior adjudication

in question.” Willsey, 535 F.3d at 1371. Crucial to

this appeal, “a legal-based CUE requires a

2 38 C.F.R. § 20.1403 applies to decisions of the Board, while

38 C.F.R. § 3.105 applies to decisions of the RO. The language

of the two regulations is virtually identical, due in part to an

amendment to § 3.105 in 2019 to conform that regulation to

§ 20.1403. See George I, 991 F.3d at 1234 n.5; Perciavalle v.

McDonough, 74 F.4th 1374, 1379 n.4 (Fed. Cir. 2023).

10a

misapplication of the law as it was understood at

that time, and cannot arise from a subsequent

change in interpretation of law by the agency or

judiciary.” George I, 991 F.3d at 1229; see 38 C.F.R.

§ 3.105(a)(1), (a)(1)(iv).

II.

Mr. Siples acknowledges that a VA decision

cannot be collaterally attacked for CUE based on a

subsequent change in law or interpretation thereof.

But, he argues, “the first time a regulation is

interpreted by an authority that binds the VA”—

such as the Veterans Court’s decision in Burton with

respect to § 4.59—“that interpretation controls how

the law should have been applied in all prior [RO]

decisions.” Appellant’s Br. 16 (emphases added); see

also, e.g., id. at 7. Thus, Mr. Siples asserts the

Veterans Court erred in this case by not applying

Burton’s interpretation of § 4.59 when assessing

CUE in the RO’s 2004 decision. The government

responds in the first instance that Burton changed

the interpretation of § 4.59, citing the Veterans

Court’s earlier decisions in Lichtenfels and Ferguson

as support. See Appellee’s Br. 13. The government

then adds that regardless of whether Burton is

characterized as a “change in interpretation” or a

“first interpretation,” it may not be relied on to

establish CUE because CUE must be based on the

body of law that existed at the time of the original

decision. Id. at 13–18. We agree with the

government’s latter point and need not decide

whether

Burton

represents

change

11a

interpretation or an initial interpretation, for neither

may be the basis of CUE.

Mr. Siples’s argument cannot be squared with

the precedent of both this court and the Supreme

Court. In George I, we addressed the question of

whether a VA decision applying a regulation that is

later invalidated can give rise to CUE. 991 F.3d at

1229. We held that it could not because “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.”

Id. at 1234. The Supreme Court affirmed in

George II. The Court explained that “authorities

dating back to 1928 confirm that a determination

that there was ‘clear and unmistakable error’ must

be based on the record and the law that existed at the

time of the prior VA decision,” and thus CUE could

not encompass a change in law or a change in

interpretation of law. 596 U.S. at 747 (cleaned up).

In other words, the historical basis for the change-ininterpretation exception to CUE is that CUE must

be based on the body of law extant at the time of the

VA’s decision. See also id. (“[A] subsequent legal

change could not [constitute CUE], because only the

law that existed at the time of the prior adjudication

can be considered in this posture.” (cleaned up)

(emphasis added)); 38 C.F.R. § 3.105(a)(1) (“Final

decisions will be accepted by VA as correct with

respect to the evidentiary record and the law that

existed at the time of the decision, in the absence of

clear and unmistakable error.” (emphasis added)).

12a

Even more recently than George II, we addressed

the correct standard for CUE in Perciavalle. 3 There,

we reviewed a splintered decision of the en banc

Veterans Court. In relevant part, we assessed

whether the concurring opinion of a Veterans Court

judge rested on a legally erroneous understanding of

CUE. See Perciavalle, 74 F.4th at 1380, 1382. The

concurrence had reasoned that CUE claims were

barred where the alleged legal error “has yet to be

identified as erroneous by a court decision or VA

publication,” such as a General Counsel precedential

decision. Id. at 1382 (citation omitted). We held that

view to be too restrictive because “[i]t is clear from

the Supreme Court’s recent decision in George that

the correct CUE inquiry is simply whether the

original decision was a ‘correct application of a

binding regulation’ or law, regardless of later

changes in the law or later decisions by the agency or

a court.” Id. (emphasis added) (quoting George II,

596 U.S. at 749). In other words, where the

regulation is sufficiently clear on its face, “the

language of the regulation itself can establish the

existence of CUE.” Id.; see, e.g., Glover v. West, 185

F.3d 1328, 1332 (Fed. Cir. 1999) (evaluating CUE

based on the plain language of a regulation); Groves

v. Peake, 524 F.3d 1306, 1309–10 (Fed. Cir. 2008)

(same). Though Perciavalle addressed a different

question than the one now before us, its logic and

3 In November 2023, we ordered the parties to address by

supplemental briefing this court’s decision in Perciavalle. See

ECF Nos. 32–34.

13a

conclusion based on the Supreme Court’s decision in

George II are equally applicable here: CUE must be

based on the law at the time, “regardless of…later

decisions by the agency or a court.” Perciavalle, 74

F.4th at 1382; see George II, 596 U.S. at 747.

Additionally, we note that the Veterans Court

has already concluded that neither a first nor a

changed interpretation may be relied on to establish

CUE, including in a decision that was issued just

prior to Congress’s codification of CUE and that the

Supreme Court relied on in George II. See 596 U.S.

at 747 (citing Berger v. Brown, 10 Vet. App. 166, 170

(1997)). In Berger, the Veterans Court rejected the

notion that its initial interpretation of a statute and

implementing regulation in 1993 could “be the basis

of an adjudicative error in [the RO’s] 1969” decision,

as “a simple recitation of the time sequence [should]

make that clear.” 10 Vet. App. at 170. The Veterans

Court “specifically h[e]ld that opinions from [the

Veterans] Court that formulate new interpretations

of the law subsequent to an RO decision cannot be

the basis of a valid CUE claim,” because CUE is

concerned with only the body of law that existed at

the time of the decision. Id.; see also Lamb v. Peake,

22 Vet. App. 227, 234–35 (2008). Our own court, too,

recently arrived at the same conclusion, albeit in a

non-precedential decision. See Steele v. McDonough,

856 F. App’x 878, 881 (Fed. Cir. 2021) (“[O]ur

precedent does not support the view that a new

judicial pronouncement can retroactively apply to

final decisions of the VA. Consequently, we need not

decide whether [a later decision] was an

authoritative

statement

change

14a

interpretation because neither can form the basis for

CUE.” (citation omitted)).

Mr. Siples retorts that “the first, binding

interpretation of the regulation tells us what the law

has always required.” Appellant’s Reply Br. 4

(emphasis added). But Burton did not purport to

offer such a definitive interpretation of § 4.59.

Burton merely deferred to the Secretary’s

interpretation of the regulation, as reflected in an

October 2004 Fast Letter, which itself post-dated the

RO’s July 2004 decision. See 25 Vet. App. at 3–5; see,

e.g., id. at 5 (“[The Secretary’s interpretation] is a

reasonable interpretation from examining the

regulation as a whole….”). Even if Mr. Siples were

correct, general principles of finality prohibit a new

judicial pronouncement like Burton’s from being

applied retroactively to collaterally attack a final RO

decision on the basis of CUE. See George I, 991 F.3d

at 1236–37; George II, 596 U.S. at 751. Mr. Siples

argues that his position “does not mean that he is

asking for a retroactive application of any law.”

Appellant’s Suppl. Br. 6. Yet we fail to see how Mr.

Siples is asking for anything but.

Because CUE must be based on the law as

understood at the time of the RO’s July 2004

decision, Mr. Siples’s argument relying on Burton’s

later-in-time interpretation of § 4.59 fails regardless

of whether Burton represents an initial or a changed

interpretation.

15a

III.

Our inquiry is not yet over. We must next

address whether the Veterans Court otherwise

applied the correct standard for assessing a legalbased CUE, which turns on whether the RO’s 2004

decision was undebatably erroneous based on § 4.59

as understood based on the law at the time of the

decision. See Willsey, 535 F.3d at 1373. We agree

with the Veterans Court that the understanding of

§ 4.59 in July 2004 did not undebatably require the

RO to assign a higher rating to Mr. Siples’s nonarthritic shoulder disability.

As mentioned above, although a later-in-time

interpretation of a regulation cannot itself establish

CUE, a regulation’s meaning may be so clear on its

face as to compel the existence of CUE in a VA

decision that was contrary to that meaning. See

Perciavalle, 74 F.4th at 1382. To interpret a

regulation, we look at its plain language and

consider the terms in accordance with their common

meaning. Lane v. Principi, 339 F.3d 1331, 1340 (Fed.

Cir. 2003). The Veterans Court aptly recognized that

although § 4.59 states in general terms that “painful

motion” is “productive of disability” and an “actually

painful” joint should receive “at least the minimum

compensable rating for the joint,” the regulation

prefaced

these

statements

with

the

pronouncement—in its opening sentence—that

“[w]ith any form of arthritis, painful motion is an

important factor of disability.” 38 C.F.R. § 4.59

(emphasis added); see Decision, 2021 WL 5919626, at

*2. The regulation mentions arthritis again in the

16a

third sentence. See § 4.59. Of course, “the plain

meaning that we seek to discern is the plain

meaning of the whole statute or regulation, not of

isolated sentences.” Boeing Co. v. Sec’y of Air Force,

983 F.3d 1321, 1327 (Fed. Cir. 2020) (cleaned up).

But given the regulation’s express references to

arthritis, we cannot say that the plain language of

§ 4.59 as a whole clearly applies to cases beyond

those involving arthritic painful motion.

After the RO’s July 2004 decision, the Secretary

evidently determined that § 4.59 should not be

limited to arthritis. See Burton, 25 Vet. App. at 3, 5.

We emphasize that we are not called upon in this

case to conclusively determine the correct

interpretation of § 4.59. Nor, for that matter, was the

Burton court, which simply deferred to the

Secretary’s interpretation as reasonable. Rather, our

decision is limited to the conclusion that § 4.59, on

its face, did not undebatably apply to non-arthritic

conditions. 4

The Veterans Court in this case also correctly

noted the apparent lack of a settled interpretation of

§ 4.59 prior to Burton. See Decision, 2021 WL

For the avoidance of doubt, our decision today does not

disturb or cast doubt upon the Veterans Court’s decision

deferring to the Secretary’s interpretation in Burton and that

court’s directive that, going forward, the VA address the

applicability of § 4.59 in non-arthritis claims. See 25 Vet. App.

at 5.

17a

5919626, at *3. 5 As mentioned above, unreported

decisions of the Veterans Court prior to or around

the time of the RO’s July 2004 decision diverged on

the applicability of § 4.59 to non-arthritis claims. See

supra Background Section I. And the two reported

Veterans Court cases applying § 4.59 to arthritisbased claims suggest that the regulation was

understood as being so limited. See Ferguson, 1 Vet.

App. at 430; Lichtenfels, 1 Vet. App. at 488.

Furthermore, the Burton court itself noted the

previous lack of clarity regarding § 4.59, and that

lack of clarity was the reason the Veterans Court

undertook the case by a panel decision. See 25 Vet.

App. at 3. 6

Finally, we agree with the Veterans Court that

G.C. Prec. 9-98 does not change the assessment. See

Decision, 2021 WL 5919626, at *3. This precedential

opinion of the VA General Counsel addressed several

questions that the opinion characterized as

“pertain[ing] to the applicability of 38 C.F.R. §§ 4.40,

4.45, and 4.59 in rating arthritis and other

musculoskeletal disabilities.” G.C. Prec. 9-98, 1998

5 At oral argument, Mr. Siples agreed that the understanding

of § 4.59 was unsettled in 2004. See Oral Arg. at 3:32–55

(available

https://oralarguments.cafc.uscourts.gov/

default.aspx?fl=22-1528_1107202 4.mp3).

6 While CUE is evaluated without regard to a later decision’s

impact on the law, see Perciavalle, 74 F.4th at 1382, the CUE

inquiry does not preclude reference to a later decision to the

extent it is informative of the state of the law at the relevant

time, as Burton is here.

18a

WL 35275130, at *1 (emphasis added). However,

that passing statement did not necessarily mean

that each of the three identified regulations applied

to “other musculoskeletal disabilities.” Id. The

questions presented and answered by the opinion did

not concern whether § 4.59 applied to non-arthritis

claims, and the opinion did not purport to provide

such an interpretation of § 4.59. See id. at *1, *4.

Indeed, the opinion repeatedly discusses § 4.59 in

the context of arthritis and diagnostic codes related

to arthritis. See, e.g., id. at *2 (“Given the findings of

osteo-arthritis (another term for degenerative

arthritis), the availability of a separate rating under

DC 5003 in light of sections 4.40, 4.45, and 4.59

must be considered. Even if the claimant technically

has full range of motion but the motion is inhibited

by pain, a compensable rating for arthritis under DC

5003 and section 4.59 would be available.”). At best,

G.C. Prec. 9-98 contributes to the lack of clarity

regarding the applicability of § 4.59 to non-arthritis

claims at the time of the RO’s July 2004 decision.

In short, CUE must be based on the law at the

time of the decision. And at the time of the RO’s

decision in Mr. Siples’s case, § 4.59 was not

undebatably understood as applying to cases other

than arthritis, nor was it so clear on its face as to

compel applicability to non-arthritis claims.

CONCLUSION

We have considered Mr. Siples’s remaining

arguments and find them unpersuasive. For the

reasons explained above, we affirm.

AFFIRMED

19a

APPENDIX B

Designated for electronic publication only

UNITED STATES COURT OF APPEALS FOR

VETERANS CLAIMS

No. 19-7957

CLINTON SIPLES, APPELLANT,

DENIS MCDONOUGH,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before TOTH, Judge.

MEMORANDUM DECISION

Note: Pursuant to U.S. Vet. App. R. 30(a),

this action may not be cited as precedent.

TOTH, Judge: Air Force veteran Clinton Siples

appeals a Board decision finding no clear and

unmistakable error (CUE) in a July 2004 rating

decision that assigned only one 10% rating each for

left and right shoulder subluxation disabilities. He

contends that the law at the time mandated the

assignment of an additional 20% rating per shoulder.

He asks the Court to reverse the Board with respect

to that issue and to vacate and remand the portion of

the decision addressing an allegation of CUE that he

never raised with instructions to dismiss. For the

following reasons, the Court affirms the Board’s

20a

finding that the regional office (RO), in 2004, did not

commit CUE in not assigning an additional shoulder

rating. As for the gratuitous portion of its CUE

discussion, the Court vacates but sees no need to

remand.

Following decades of service from 1978 to 2003,

Mr. Siples sought compensation for bilateral

shoulder problems following a history of dislocations

and subluxations. VA provided an exam, and the

examiner recorded the following ranges of shoulder

motion and the point at which pain occurred (if at

all), as well as what VA considered the normal range

of motion:

Right

Movement

Flexion

Abduction

Ext

Rotation

Normal

ROM

Rom in

degree

Degree

that

pain

occurs

Left

Rom in

Degree

180

150

180

Degree

that

pain

occurs

180

R. at 2038. With respect to both shoulders, the

examiner further stated that pain limited range of

motion and had a “major functional impact” but that

fatigue, weakness, lack of endurance, and

incoordination were not additional limiting factors.

Id. Recurrent subluxation with decreased ranges of

motion was diagnosed in each shoulder.

21a

In the July 2004 decision at issue here, the RO

granted service connection for recurrent subluxation

in each shoulder. Although the RO recounted the

examiner’s findings regarding ranges of motion, it

assigned two 10% ratings by analogy under

diagnostic code (DC) 5203, which compensated for

malunion of the clavicle or scapula. 38 C.F.R. § 4.71a

(2004). Mr. Siples did not appeal this decision.

Thirteen years later, he filed a motion to revise

the 2004 decision. He asserted that the RO

committed CUE by not also assigning a separate

20% rating for each shoulder under DC 5201 by

virtue of 38 C.F.R. § 4.59. DC 5201 provided a

minimum 20% rating when the arm cannot be raised

higher than shoulder level. See 38 C.F.R. § 4.71a

(2004). And § 4.59 provided in relevant part: “With

any form of arthritis, painful motion is an important

factor 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.” 38 C.F.R. § 4.59

(2004). But the RO denied the CUE motion,

concluding simply that “VA policy at the time of the

prior decision did not allow a 20 percent evaluation

for painful motion of the shoulder.” R. at 719, 720.

In the decision under this Court’s review, the

Board first concluded that it was not CUE for the RO

in 2004 to assign a shoulder disability rating by

analogy under DC 5203. As for whether additional

ratings should have been assigned, the Board

initially observed that the VA examiner did not find

22a

Mr. Siples’s arm motion to be so limited as to

warrant a compensable rating under DC 5201 alone.

Next, the Board acknowledged that the veteran

suffered from painful and decreased arm motion in

2004 but determined that, at that time, VA

understood § 4.59 to apply solely to cases of

arthritis—which the veteran didn’t have—and this

interpretation of the regulation was not officially

rejected until some years later in Burton v. Shinseki,

25 Vet.App. 1, 3-5 (2011). For this reading of § 4.59,

the Board cited, among other things, VA General

Counsel Precedent Opinion 9-98 (Aug. 14, 1998)

[hereinafter G.C. Prec. 9-98]. Thus, the Board

concluded that the 2004 RO decision contained no

undebatable error but for which additional 20%

ratings would manifestly have been assigned.

To establish CUE in a prior decision, the veteran

must demonstrate that (1) the adjudicator either

ignored the correct facts of record or incorrectly

applied statutes or regulations in effect at the time;

(2) the alleged error was undebatable, not merely a

disagreement as to how the facts were weighed or

the law was applied; and (3) the commission of the

alleged error, at the time it was made, manifestly

changed the outcome of the decision at issue. Young

v. Wilkie, 31 Vet.App. 51, 56 (2019). When reviewing

a Board finding of no CUE, the Court cannot conduct

a “plenary review” but is limited to determining

whether the finding was not in accordance with the

law or was not supported by adequate reasons or

bases. Simon v. Wilkie, 30 Vet.App. 403, 408 (2018).

23a

Before the Court, Mr. Siples reiterates his

argument before the Agency and contends that the

Board misread G.C. Prec. 9-98, which held: “If a

musculoskeletal disability is rated under a specific

diagnostic code that does not involve limitation of

motion and another diagnostic code based on

limitation of motion may be applicable, the latter

diagnostic code must be considered in light of

sections 4.40, 4.45, and 4.59.” 1998 VAOPGCPREC

LEXIS 234 4 at *10 . In other words, he maintains

that the Board legally erred in concluding that, at

the time of the July 2004 RO decision, § 4.59 applied

only when arthritis was involved because G.C. Prec.

9-98 noted that “remaining questions pertain to the

applicability of 38 C.F.R. §§ 4.40, 4.45, and 4.59 in

rating

arthritis

and

other

musculoskeletal

disabilities.” Id. at *2-3 (emphasis added). This,

coupled with the opinion’s remark that “a claimant

should be compensated for all manifestations of a

disability to the extent authorized under the

regulations,” means in the veteran’s view that § 4.59

was understood even in 1998 to apply with respect to

disabilities other than arthritis.

Although he, too, believes that the Board

misread the General Counsel opinion as applying

only to cases of arthritis, the Secretary urges

affirmance, contending that such error is harmless

because the opinion mandated only the consideration

of an additional rating based on limitation of motion

and not the automatic award of one. Based on the

evidence of record at the time, he argues, Mr. Siples

24a

has not shown that additional 20% ratings

undebatably would have been awarded under § 4.59.

The Court discerns no error in the Board’s

reading of the law in July 2004. “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.”

George v. McDonough, 991 F.3d 1227, 1234 (Fed. Cir.

2021). At the time the RO assigned Mr. Siples

shoulder ratings, § 4.59 stated that an “actually

painful” joint should be “entitled to at least the

minimum compensable rating for the joint,” but it

also prefaced this statement with the observation

that “painful motion is an important factor of

disability” “[w]ith any form of arthritis.” 38 C.F.R.

§ 4.59 (2004). Burton seems to be the first reported

case in which a veteran argued that § 4.59 applied

outside the arthritis context. Initially, the Secretary

rejected that reading. 25 Vet.App. at 3. And, in a

nonprecedential memorandum decision, the Court

agreed that “the plain language of § 4.59 limits its

application to ‘any form of arthritis’” and that

reading the regulation in any other manner “would

render the use of the word arthritis superfluous.”

Burton v. Shinseki, No. 09-2873, 2011 U.S. App. Vet.

Claims LEXIS 669, at *4 (Mar. 29, 2011). But the

veteran moved for panel review, and the Secretary

relented. Citing an October 2004 VA fast letter, the

Secretary agreed that § 4.59 could apply in non-

25a

arthritis cases. * 25 Vet.App. at 3. On panel review,

the Court concluded that the Secretary’s revised

interpretation of § 4.59’s scope was “not inconsistent

with the regulation or otherwise plainly erroneous.”

Id. at 5. While the first sentence could “lead one to

consider that the regulation might apply only to the

evaluation of arthritis claims,” we found the

Secretary’s revised understanding to be valid based

on the overall text of § 4.59. Id. at 4. This decision

was summarily affirmed without written opinion.

Burton v. Shinseki, 479 F. App’x 978 (Fed. Cir.

2012).

So, 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.

Nothing in G.C. Prec. 9-98 changes this

assessment. Mr. Siples is correct that the opinion

addressed “the applicability of 38 C.F.R. §§ 4.40,

4.45, and 4.59 in rating arthritis and other

musculoskeletal disabilities.” 1998 VAOPGCPREC

LEXIS 234 at *10 (emphasis added). But there are

three separate regulations mentioned in that

Notably, this fast letter—whatever its substance—was not

issued until three months after the RO decision at issue in this

case.

26a

sentence. Perhaps it can be read to indicate that all

three provisions apply when rating “other

musculoskeletal disabilities.” But that reading is by

no means compelled.

And reviewing the rest of the opinion

undermines that reading. In fact, most of the

document is about clarifying the applicability of

§§ 4.40 and 4.45. For example, the opinion thought it

“unclear as to whether sections 4.40 and 4.45 apply

only to diagnostic codes that are based on limitation

of motion.” 1998 VAOPGCPREC LEXIS 234, at *3.

But because “[l]imitation of motion in the affected

joint or joints is a common manifestation of

arthritis,” and because caselaw “has indicated that

DC 5003”—pertaining to arthritis confirmed by

x-ray—“is to be read in conjunction with section 4.59

and…is complemented by section 4.40,” G.C. Prec. 998 concluded that “sections 4.40, 4.45, and 4.59 all

appear to be applicable in evaluating arthritis.” Id.

at *4 (quotation marks omitted). Yet the conclusion

that §§ 4.40 and 4.45 apply within the context of

arthritis does not clearly establish that § 4.59

applies outside the context of arthritis. Where the

opinion specifically discusses § 4.59 in isolation, it

does so with respect to arthritis. E.g., id. at *6

(“Even if the claimant technically has full range of

motion but the motion is inhibited by pain, a

compensable rating for arthritis under DC 5003 and

section 4.59 would be available.”), *9-10 (“A separate

rating for arthritis could also be based on X-ray

findings and painful motion under 38 C.F.R.

§ 4.59.”).

27a

CUE “requires the application of the law as it

was understood at the time of the underlying

decision, and such an application of law does not

become CUE by virtue of a subsequent

interpretation of the statute or regulation.” George,

991 F.3d at 1232 (cleaned up); see also Steele v.

McDonough, 856 Fed. App’x 878, 881 (Fed. Cir.

2021) (describing George as clarifying that, “whether

an interpretation is a first interpretation or a change

in existing interpretation, it cannot serve as a basis

for CUE”). Thus, the Court discerns no error in the

Board’s conclusion that the understanding of § 4.59

in July 2004 did not undebatably compel the RO to

assign additional shoulder 20% ratings based on

painful motion. To this extent, the Court affirms the

Board decision.

Both parties concur that the Board unnecessarily

concluded that it was not CUE for the RO in

July 2004 to rate Mr. Siples’s shoulder disabilities by

analogy under DC 5203. The Court agrees. The

Board may not address CUE allegations with respect

to an RO decision that have not first been presented

to the RO for resolution. See Jarrell v. Nicholson, 20

Vet.App. 326, 333 (2006) (en banc). The veteran

didn’t challenge the RO’s decision to rate him under

DC 5203. Instead, he challenged the RO’s decision

not to assign an additional rating under DC 5201.

Assessing the applicability of DC 5201 didn’t require

the Board to address the propriety of the RO’s

original choice of DC 5203. When the Board

adjudicates a CUE theory over which it lacks

jurisdiction, the proper disposition is for the Court to

28a

vacate the relevant portion of the Board decision. Id.

at 334. Mr. Siples also asks the Court to

“remand…with instructions to dismiss,” Appellant’s

Br. at 9, but there is nothing for the Board to

dismiss, since the veteran asserts that it simply

addressed an issue he didn’t raise. Vacating that

portion of the Board decision permits the veteran to

raise such a CUE motion before the RO, if he

chooses.

Accordingly, the Court VACATES the July 23,

2019, Board decision as it relates to the RO’s original

choice of DC 5203 and otherwise AFFIRMS.

DATED: December 15, 2021

Copies to:

Kenneth H. Dojaquez, Esq.

VA General Counsel (027)

29a

APPENDIX C

BOARD OF VETERANS’ APPEALS

FOR THE SECRETARY OF VETERANS AFFAIRS

IN THE APPEAL OF

Redacted

CLINTON SIPLES

Docket No. 180619-286

REPRESENTED BY

JAMES J. PERCIAVALLE, Agent

DATE:

July 23, 2019

ORDER

The claim that the July 2004 rating decision, that

assigned an initial 10 percent rating for recurrent

right shoulder subluxation disability, contained clear

and unmistakable error (CUE) is denied.

The claim that the July 2004 rating decision, that

assigned initial 10 percent rating for recurrent left

shoulder subluxation disability, contained clear and

unmistakable error (CUE) is denied.

REMANDED

Entitlement to an effective date prior to January 31,

2017 for award of 20 percent rating for recurrent left

shoulder subluxation is remanded.

30a

Entitlement to effective date prior to January 31,

2017 for award of 20 percent rating for recurrent

right shoulder subluxation is remanded.

Entitlement to an effective date prior to January 31,

2017 for award of service connection for left shoulder

impairment of the humerus is remanded.

Entitlement to an effective date prior to January 31,

2017 for award of service connection for right

shoulder impairment of the humerus is remanded.

Entitlement to service connection for tinnitus is

remanded.

Entitlement to service connection for a left knee

disorder is remanded.

Entitlement to service connection for left ankle

disorder is remanded.

Entitlement to service connection for right ankle

disorder is remanded.

Entitlement to service connection for pes planus

(claimed as flat feet) is remanded.

Entitlement to service connection for sinusitis (also

claimed as allergies) is remanded.

Entitlement to service connection for sleep apnea, to

include

secondary

service-connected

disabilities, is remanded.

31a

Entitlement to an initial evaluation in excess of

10 percent for gastroesophageal reflux disease

(GERD) disability is remanded.

Entitlement to an initial evaluation in excess of

20 percent for left shoulder impairment of the

humerus disability is remanded.

Entitlement to an initial evaluation in excess of

30 percent for right shoulder impairment of the

humerus disability is remanded.

Entitlement to an evaluation in excess of 20 percent

for recurrent left shoulder subluxation disability is

remanded.

Entitlement to an evaluation in excess of 20 percent

for recurrent right shoulder subluxation disability is

remanded.

Entitlement to an evaluation in excess of 10 percent

for lumbar spine disability is remanded.

FINDINGS OF FACT

1. In a July 2004 rating decision, the RO awarded

service connection for bilateral recurrent shoulder

subluxation disability and assigned an initial

10 percent rating for each shoulder.

2. There is no outcome determinative legal or

factual error in the July 2004 rating decision that

awarded initial 10 percent rating for right shoulder

disability.

32a

3. There is no outcome determinative legal or

factual error in the July 2004 rating decision that

awarded initial 10 percent rating for left shoulder

disability.

CONCLUSIONS OF LAW

1. The criteria for finding that there was clear and

unmistakable error in a July 2004 rating decision

that assigned initial 10 percent rating for recurrent

right shoulder subluxation disability have not been

met. 38 U.S.C. § 5019A; 38 C.F.R. § 3.105 (a) (2018)

2. The criteria for finding that there was clear and

unmistakable error in a July 2004 rating decision

that assigned initial 10 percent rating for recurrent

left shoulder subluxation disability have not been

met. 38 U.S.C. § 5019A; 38 C.F.R. § 3.105 (a) (2018)

REASONS AND BASES FOR FINDINGS AND

CONCLUSIONS

The Veteran served on active duty in the United

States Air Force from September 1978 to March

2003.

The Board notes that the rating decision on appeal

was issued in May 2018. In May 2018, the Veteran

elected the modernized review system. 84 Fed. Reg.

138, 177 (Jan. 18, 2019) (to be codified at 38 C.F.R.

§ 19.2(d)). In his June 19, 2018 appeal to the Board,

the Veteran selected the evidence submission option,

and the Veteran was advised that he had 90-days

33a

from the date of selection to submit evidence to the

Board.

On September 30, 2019, additional evidence was

added to the claims file during a period of time when

new evidence was not allowed. Therefore, the Board

may not consider this evidence. 84 Fed. Reg. 138,

182 (Jan. 18, 2019) (to be codified at 38 C.F.R.

§ 20.300). The Veteran may file a Supplemental

Claim and submit or identify this evidence. 84 Fed.

Reg. 138, 182 (Jan. 18, 2019) (to be codified at

38 C.F.R. § 3.2501). If the evidence is new and

relevant, VA will issue another decision on the

claim, considering the new evidence in addition to

the evidence previously considered. Id. Specific

instructions for filing a Supplemental Claim are

included with this decision.

In June 2019, the Veteran’s attorney submitted a

statement requesting a hearing before the Board.

The request for a hearing is denied as the request

was not submitted on the proper Notice of

Disagreement on the form as prescribed by the

Secretary.

See

Claims

and

Appeals

Modernization, 84 Fed. Reg. 138, 180-81 (Jan. 18,

2019) (to be codified at 38 C.F.R. § 20.202)

Clear and Unmistakable Error

1. Whether there was CUE in the July 2004

rating decision, that assigned an initial

10 percent rating for recurrent right shoulder

subluxation disability.

34a

2. Whether there was CUE in the July 2004

rating decision that assigned initial 10 percent

rating for recurrent left shoulder subluxation

disability.

The Veteran asserts that earlier effective dates

should be awarded based on clear and unmistakable

error in a July 2004 rating decision that awarded

initial 10 percent rating each for right shoulder and

left shoulder disabilities.

The record establishes that within a year of his

separation from service, the Veteran initiated a

claim for entitlement to service connection for

bilateral shoulder disorder. In the July 2004 rating

decision, the Veteran was awarded service

connection for right and left shoulder disabilities and

each shoulder was assigned a 10 percent rating

under Diagnostic Code 5299-5203, effective from

April 1, 2003 (date following discharge from service).

VA did not receive any new evidence regarding the

claim within one year of notice of the decision. The

Veteran did not file a timely notice of disagreement.

Thus, the July 2004 rating decision is final.

38 U.S.C. § 7105 (2002); 38 C.F.R. §§ 3.156, 20.200,

20.201, 20.302 (2004).

Previous determinations which are final and

binding, including decisions for service connection,

degree of disability, age, marriage, relationship,

service, dependency, line of duty, and other issues,

will be accepted as correct in the absence of CUE.

Where evidence establishes such error, the prior

35a

decision will be reversed or amended. 38 C.F.R.

§ 3.105 (a) (2018).

Any claim of CUE must be pled with specificity. See

Andre v. Principi, 301 F. 3d 1354 (Fed. Cir. 2002).

Such a motion must set forth clearly and specifically

the alleged clear and unmistakable error, or errors,

of fact or law in the VA decision, the legal or factual

basis for such allegations, and why the result would

have been manifestly different but for the alleged

error. Non-specific allegations of failure to follow

regulations or failure to give due process, or any

other general, non-specific allegations of error, are

insufficient to satisfy that requirement. Motions

which fail to comply with the regulatory

requirements shall be dismissed, without prejudice

to refiling. 38 C.F.R. § 20.1404 (b) (2018); see

Disabled American Veterans v. Gober, 234 F.3d 682

(Fed. Cir. 2000).

Examples of situations which do not constitute CUE

are: (1) a new medical diagnosis which “corrects” an

earlier diagnosis considered in a decision; (2) VA

failure to fulfill the duty to assist; (3) a disagreement

as to how the facts were weighed or evaluated; and

(4) the otherwise correct application of a statute or

regulation where, subsequent to the decision

challenged, there has been a change in the

interpretation of the pertinent statute or regulation.

38 C.F.R. § 20.1403 (d)-(e) (pertaining to allegations

of CUE in a prior Board decision).

In determining whether a prior decision involves

CUE, the U.S. Court of Appeals for Veterans Claims

36a

(CAVC) has established a three-prong test. The

three prongs are: (1) either the correct facts, as they

were known at the time, were not before the

adjudicator (i.e., there must be more than simple

disagreement on how the facts were weighed or

evaluated), or the statutory/regulatory provisions

extant at that time were not correctly applied;

(2) the error must be “undebatable” and of the sort

which, if it had 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 adjudication. Damrel v. Brown, 6 Vet.

App. 242, 245 (1994), citing Russell v. Principi,

3 Vet. App. 310, 313-14 (1992) (en banc). See also

Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999)

(affirming

that

CUE

must

outcome

determinative).

CUE is a very specific and rare kind of “error.” It is

the kind of error in 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 manifestly have been

different but for the error. Generally, the correct

facts, as they were known at the time, were not

before the RO, or the statutory and regulatory

provisions extant at the time were incorrectly

applied. Even when 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 Ipso Facto clear and unmistakable. Fugo v.

37a

Brown, 6 Vet. App. 40, 43-44 (1993), citing Russell,

3 Vet. App. at 313-14.

A claim of CUE is a collateral attack on an otherwise

final rating decision by a VA regional office. Smith,

35 F.3d at 1527. As such, there is a presumption of

validity that attaches to a final decision, and when

such a decision is collaterally attacked the

presumption becomes even stronger. Fugo, 6 Vet.

App. at 43-44. Therefore, a claimant who seeks to

obtain retroactive benefits based on CUE has a much

heavier burden than that placed on a claimant who

seeks to establish prospective entitlement to VA

benefits. Akins v. Derwinski, 1 Vet. App. 228, 231

(1991).

The Veteran contends that RO in the July 2004

rating decision incorrectly applied the VA Schedule

for Rating Disabilities, musculoskeletal disabilities,

38 C.F.R. § 4.71 (2004), when it failed to consider

38 C.F.R. § 4.59 for painful motion which directs for

minimal compensable rating of 20 percent under

Diagnostic Code 5201 based on limitation of motion

in for each shoulder. In addition, the Veteran asserts

the RO erred in failing assigned separate awards

under Diagnostic Code 5202 (other impairment of

humerus) for each shoulder in the July 2004 rating

decision.

The July 2004 rating decision shows the RO

assigned each shoulder disability a 10 percent rating

under hyphenated Diagnostic Code 5299-5203, as

analogous to a disability due to impairment of the

clavicle or scapula.

38a

In assigning the initial 10 percent ratings for right

shoulder and left shoulder disabilities, the RO

considered the service treatment records which

showed the Veteran dislocated his left shoulder in

March 1983 and he dislocated his right shoulder in

January 1988, and he was taken to hospital both

times for reduction. The RO also considered the

subsequent

service

treatment

that

showed

complaints of recurrent dislocation, painful motion,

weakness, and instability in the shoulders. The

service treatment records also showed that the

Veteran received physical therapy records for his

bilateral shoulder instability from June 2001 to

September 2001 with good results.

The RO also considered the findings from an April

2004 VA examination report that showed the

Veteran complained of painful motion, functional

impairment, and recurrent subluxation in his

shoulders, but he had denied any dislocation since

initial injury. Range of motion testing revealed right

shoulder was limited to 180 degrees on flexion,

150 degrees on abduction, 80 degrees on external

rotation, and 70 degrees on internal rotation, and

left shoulder was limited to 180 degrees on flexion,

180 degrees on abduction, 80 degrees on external

rotation, and 80 degrees on internal rotation. There

was additional limitation due to pain, but no

evidence of weakness, fatigue, lack of endurance, or

incoordination. X-ray film of each shoulder was

negative. The VA examiner provided a diagnosis of

recurrent shoulder subluxation, bilaterally, based on

subjective complaints of subluxation with certain

39a

movement and objective evidence of decreased range

of motion.

The RO assigned each shoulder an initial 10 percent

rating by analogy to impairment of the clavicle or

scapula due to malunion and noted that higher

20 percent ratings were not warranted unless

evidence of dislocation or nonunion with loose

movement in the shoulder. After being provided with

notice of the decision and appellate rights, VA did

not receive any new evidence regarding the claim

within one year of notice of the decision. See 38

C.F.R. § 3.156 (b) (2004). The Veteran did not file a

timely notice of disagreement. Thus, the July 2004

rating decision is final. 38 U.S.C. § 7105 (2002);

38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302 (2004).

The pertinent law and regulatory criteria in effect at

the time of the July 2004 rating decision, as now,

provided that disability ratings were determined by

the application of the VA Schedule for Rating

Disabilities (Rating Schedule), 38 C.F.R. Part 4

(2004).

When the particular service-connected disability is

not listed in the rating schedule, it may be rated by

analogy to a closely related disease in which not only

the functions affected, but also the anatomical

location and symptomatology are closely analogous.

Unlisted disability requiring rating by analogy will

be coded by the numbers of the most closely related

body part and “99”. 38 C.F.R. §§ 4.20, 4.27 (2004).

Hyphenated diagnostic codes are used when a rating

under one diagnostic code requires use of an

40a

additional diagnostic code to identify the basis for

the evaluation assigned, and the additional

diagnostic code is shown after the hyphen.

Disabilities of the musculoskeletal system were

rated under 38 C.F.R. § 4.71a (2004). Diagnostic

Code 5203 provides a 10 percent disability rating is

warranted for malunion or nonunion of the clavicle

or scapula without loose movement. A 20 percent

disability rating is warranted for nonunion of the

clavicle or scapula with loose movement or

dislocation of the clavicle or scapula. 38 C.F.R.

§ 4.71a. Alternatively, Diagnostic Code 5203 directs

that impairment of the clavicle or scapula be rated

based on impairment of function of the contiguous

joint. 38 C.F.R. § 4.71a.

Diagnostic Code 5202 governs other impairment of

humerus and provides a 20 percent rating is

assigned when there is malunion of the humerus

with moderate deformity. A 20 percent evaluation is

also assigned for recurrent dislocation at the

scapulohumeral joint with infrequent episodes and

guarding at shoulder level. A 30 percent rating is

assigned when there is malunion of the humerus

with marked deformity. A 30 percent evaluation is

also assigned when there is recurrent dislocation at

the scapulohumeral joint with frequent episodes and

guarding of all movements. A 50 percent evaluation

is assigned when there is fibrous union of the

humerus. 38 C.F.R. § 4.71a.

Diagnostic Code 5201 provides a 20 percent rating is

assigned when limitation of arm motion is at

41a

shoulder level. A 30 percent rating is assigned when

limitation is midway between side and shoulder

level. A 40 percent rating is assigned when

limitation is to 25 degrees from the side. 38 C.F.R.

§ 4.71a.

Diagnostic Code 5200 addresses ankylosis of

scapulohumeral articulation. 38 C.F.R. § 4.71a.

Ankylosis is the fixation of a joint. Dinsay v. Brown,

9 Vet. App. 79 (1996).

After review of the record as it existed at the time of

the July 2004 rating decision, the Board does not

find CUE in the RO’s July 2004 rating decision that

assigned initial 10 percent ratings for right shoulder

and left shoulder disabilities under Diagnostic Code

5203. The RO determined that the Veteran’s

bilateral recurrent shoulder subluxation was most

appropriately rated with a 10 percent rating for each

shoulder under Diagnostic Code 5203, pertaining to

“impairment of clavicle or scapula.” This decision by

the RO to rate the Veteran’s recurrent bilateral

shoulder subluxation by analogy to impairment of

clavicle or scapula under Diagnostic Code 5203 is not

clear and unmistakable error.

There are several other diagnostic codes that are

used for rating shoulder disabilities, as identified

above. However, as a diagnostic code directly

reflecting the Veteran’s shoulder subluxation

disorder was not listed, the RO rated the bilateral

shoulder disorder by analogy. It is not undebatable

that the decision to rate by analogy to the diagnostic

code for impairment of clavicle or scapula was

42a

incorrect. This diagnostic code for provides ratings

for symptoms involving impairment of the shoulder.

The April 2004 VA examination report showed that

the

Veteran’s

bilateral

recurrent

shoulder

subluxation disability was manifested by painful

motion that resulted in functional impairment, but

with movement well-above shoulder level in each

arm, and the Veteran specifically denied recurrence

of shoulder dislocation. Therefore, it was reasonable,

and not clear and unmistakable error, for the RO to

rate by analogy to Diagnostic Code 5299-5203.

The Board is aware that the service treatment

records show the Veteran received treatment for

chronic intermittent dislocating shoulders. See July

1992 service orthopedic consult; October 1995 service

orthopedic consult; and May 2001 service physical

therapy referral. However, VA is not required to give

precedence to past medical reports over the findings

of the April 2004 VA examiner. See Francisco v.

Brown, 7 Vet. App. 55, 58 (1994). Furthermore, any

disagreement as to the correct diagnosis is one of

assignment of probative weight, and not

“undebatable” and of the sort which, if it had not

been made, would have manifestly changed the

outcome at the time it was made.

The RO’s decision to rate the Veteran’s bilateral

shoulder disability under Diagnostic Code 5299-5203

instead of an alternative criterion applicable to

shoulder disabilities is something on which

reasonable minds could differ. This is merely a

difference of opinion between the Veteran and the

43a

RO as to which rating most closely approximated the

Veteran’s symptoms. Similarly, whether to award

the Veteran’s separate ratings based on other

impairment of humerus was reasonably debatable

give the findings in the April 2004 VA examination

report. A difference of opinion is not CUE. See 38

C.F.R. § 3.105 (b) (2018). Therefore, the July 2004

rating decision should not be revised on the basis of

CUE.

The

Board

has

considered

the

Veteran’s

representative assertion that based on consideration

of 38 C.F.R. § 4.59, minimal compensable rating of

20 percent for each shoulder was warranted under

Diagnostic Code 5201 based on limitation of motion

due to painful motion, even if range of motion was

well-above shoulder level. In Burton v. Shinseki,

25 Vet. App. 1 (2011), the Court held that the

minimal compensable rating for painful or limited

motion under 38 C.F.R. § 4.59 does not require the

presence of arthritis. However, since this decision

was issued in August 2011, it cannot provide a basis

for finding CUE in the July 2004 rating decision.

At the time of the 2004 rating decision, VA only

applied 38 C.F.R. § 4.59 in cases of arthritis, and the

April 2004 VA x-rays of the shoulders were negative

in case. See VAGCOPPREC 9-98 (Aug. 1998),

VAOPGCPREC 23-97 (July 1997); see also

Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991)

(holding that a separate compensable rating can be

assigned for arthritis based on X- ray findings and

44a

painful motion under 38 C.F.R. § 4.59

involving a major joint or group of joints.)

when

The Board acknowledges that on his original March

2004 application for compensation the Veteran

identified post-service treatment records at military

medical facilities at Langley AFB and Portsmouth

Naval Medical Center. Although the record does not

show that the RO made any attempt to obtain those

outstanding identified military medical records, the

failure to fulfill the duty to assist cannot be CUE.

See Cook v. Principi, 318 F.3d 1334, 1344-47

(Fed.Cir.2002) (38 holding that a breach of the duty

to assist cannot form the predicate for a motion for

revision of a finally decided claim based on CUE);

Baldwin v. West, 13 Vet. App. 1, 5 (1999). Moreover,

only VA treatment records, and not records from

other federal agencies, are considered to be within

VA’s constructive possession at the time of rating

decision. See U.S.C. § 5103A (2004); Bell v.

Derwinski, 2 Vet. App. 611 (1992).

The Veteran’s argument in this case is essentially a

disagreement with how the facts were weighed and

evaluated in the July 2004 rating decision, which is

not CUE. Accordingly, the Board does not find CUE

in the July 2004 rating decision based on the facts of

record and the application VA laws and regulations

before the RO at the time of the July 2004 rating

decision. Thus, the 10 percent ratings for right

shoulder and left shoulder disabilities under

Diagnostic Code 5299-5203 were proper.

REASONS FOR REMAND

45a

1. Entitlement to an effective date prior to

January 31, 2017 for award of 20 percent rating

for recurrent left shoulder subluxation

disability

2. Entitlement to an effective date prior to

January 31, 2017 for award of 20 percent rating

for recurrent right shoulder subluxation

disability

3. Entitlement to an effective date prior to

January 31, 2017 for award of service

connection for left shoulder impairment of the

humerus disability

4. Entitlement to an effective date prior to

January 31, 2017 for award of service

connection for right shoulder impairment of

the humerus disability

Prior to the May 2018 rating decision on appeal, the

Veteran identified relevant outstanding records from

VA medical facilities in Pensacola, Florida dated

from 2006 to 2007. On remand, attempts should be

made to obtain those identified outstanding

treatment records.

Notably, prior to the March 24, 2015 amendment of

VA regulations that required all claims governed by

VA’s adjudication regulations be filed on a standard

form, VA regulations allowed for informal claims

that included constructive receipt of VA reports of

hospitalization or examination under 38 C.F.R.

§ 3.157. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). The

46a

outstanding VA treatment records need to reviewed

prior to determining whether there is a document

following the July 2004 rating decision to March 24,

2015 that indicates an intent to file a claim for an

increased rating.

5. Entitlement to service connection for a left

knee disorder

6. Entitlement

tinnitus

service

connection

for

Prior to the May 2018 rating decision on appeal, the

Veteran identified relevant outstanding records of

pertinent treatment from VA medical facilities in

Pensacola, and treatment records from medical

facilities at Langley Air Force Base from May 2003

to September 2006, and from medical facilities at

Eglin Air Force Base from September 2006 to

October 2007. See July 2017 report of contact. On

remand, attempts should be made to obtain those

identified outstanding treatment records.

7. Entitlement to service connection for a left

ankle disorder

8. Entitlement to service connection for a

right ankle disorder

The issues of entitlement to service connection for

right and left ankle disorder are remanded to correct

a duty to assist error that occurred prior to the

May 2018 rating decision on appeal. The Agency of

Original Jurisdiction (AOJ) has not obtained a VA

47a

medical opinion that addresses the nature and

etiology of the Veteran’s claimed bilateral ankle

disorder prior to the rating decision on appeal.

In this regard, the Veteran’s service treatment

records show he injured his ankles during service.

He injured his right ankle in June 1980 and

January 1988 while playing basketball, and he

injured his left ankle in November 1982 while

playing basketball. Post-service private treatment

records show diagnosis of chronic ankle pain and

Achilles tendon strain. A remand is needed to obtain

VA examination on whether the Veteran has current

right ankle and/or left ankle disorder that is related

to his period of service, to include ankle injuries.

9. Entitlement to service connection for pes

planus (claimed as flat feet)

The issue of entitlement to service connection for pes

planus is remanded to correct a duty to assist error

that occurred prior to the May 2018 rating decision

on appeal. The Agency of Original Jurisdiction (AOJ)

has not obtained a VA medical opinion that

addresses the nature and etiology of the Veteran’s

pes planus prior to the rating decision on appeal.

The Veteran’s March 1978 enlistment examination

shows his feet were evaluated as abnormal, and

there appears to be an assessment of “pes valgus

planus.” A July 1992 periodic examination also

shows that the Veteran’s feet were evaluated as

abnormal, and an assessment of bilateral pes planus,

asymptomatic was provided. Current VA treatment

48a

records show that the Veteran has bilateral pes

planus and left heel spur.

A VA medical opinion is needed to address whether

the Veteran had a foot disorder that clearly and

unmistakably pre-existed his service and if so,

whether it was not aggravated to a permanent

degree in service beyond that which would be due to

the natural progression of the disability.

10. Entitlement to service connection

sinusitis (also claimed as allergies)

for

The issue of entitlement to service connection for

sinus disorder is remanded to correct a duty to assist

error that occurred prior to the May 2018 rating

decision on appeal. The Agency of Original

Jurisdiction (AOJ) has not obtained a VA medical

opinion that addresses the nature and etiology of the

Veteran’s claimed bilateral ankle disorder prior to

the rating decision on appeal.

In this regard, the Veteran’s service treatment

records show he complained of upper respiratory

complaints. Post-service private treatment records

show diagnosis of allergic rhinitis. A remand is

needed to obtain VA examination on whether the

Veteran has current sinus disorder that had an

onset during service or is otherwise related to his

period of service.

11. Entitlement to service connection for sleep

apnea, to include as secondary to serviceconnected disabilities

49a

The issue of entitlement to sleep apnea is remanded

to correct a duty to assist error that occurred prior to

the May 2018 rating decision on appeal. The Agency

of Original Jurisdiction (AOJ) did not obtain a VA

examination prior to the May 2018 rating decision

on appeal regarding whether the Veteran’s sleep

apnea is caused or aggravated by weight gain and

obesity as result of functional impairment due to the

Veteran’s service-connected disabilities.

Obesity itself is not a disability that can be

compensated by VA. See Marcelino v. Shulkin,

No. 16-2149, 2018 U.S. App. Vet. Claims LEXIS 64

(Vet. App. Jan. 23, 2018). Obesity can be an

“intermediate step” between a current disability and

a service-connected disability if it is found that the

service-connected disability caused the veteran to

become obese, the obesity was a substantial factor in

causing the claimed secondary disability, and the

claimed secondary disability would not have

occurred but for obesity caused by the

service-connected disability.

Evidence associated with the claims file prior to the

May 2018 rating decision, include service treatment

record that note the Veteran had recent weight gain

due change in life style and post-service medical

records show the Veteran’s service-connected back

and

shoulder

disabilities

cause

functional

impairment. The Board finds that a VA

examination/medical opinion is required to

determine whether the Veteran’s sleep apnea is

50a

caused or aggravated by weight gain and obesity due

to service-connected disabilities.

12.

Entitlement to an initial evaluation in

excess of 10 percent for gastroesophageal

reflux disease (GERD) disability

The issue of entitlement to GERD is remanded to

correct a duty to assist error that occurred prior to

the May 2018 rating decision on appeal. The Agency

of Original Jurisdiction (AOJ) obtained an August

2017 examination report prior to the May 2018

rating decision on appeal. However, VA treatment

records dated in November 2017 show that the

Veteran’s symptomatology had worsened, and the

Veteran had identified increased symptomatology

during a May 2018 Decision Review Officer informal

conference. A remand is needed to afford the Veteran

with a new VA examination to evaluate the severity

of his GERD disability.

13. Entitlement to an evaluation in excess of

10 percent for lumbar spine disability is

remanded.

14. Entitlement to an initial evaluation in

excess of 20 percent for left shoulder

impairment of the humerus disability is

remanded.

15. Entitlement to an initial evaluation in

excess of 30 percent for right shoulder

impairment of the humerus disability is

remanded.

51a

16. Entitlement to an evaluation in excess of

20 percent

for

recurrent

left

shoulder

subluxation disability is remanded.

17. Entitlement to an evaluation in excess of

20 percent for recurrent right shoulder

subluxation disability is remanded.

The issues of entitlement to higher rating for left

shoulder, right shoulder, and lumbar spine

disabilities are remanded to correct a duty to assist

error that occurred prior to the May 2018 rating

decision on appeal. The Agency of Original

Jurisdiction

(AOJ)

obtained

August

2017

examination reports prior to the May 2018 rating

decision on appeal. However, in these examination

reports, the VA examiner did not provide an

adequate opinion regarding additional loss of motion

and functional impairment during flare-up.

In Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017), the

Court of Appeals of Veteran Claims held that an

examiner must try to ascertain information about

flare-ups through alternative means, including

asking the Veteran to describe additional functional

loss and estimating based on his reports, and only

then after considering all the lay and medical

evidence, can the examiner explain why he or she

cannot render an opinion. See Id. Therefore, the

Agency of Original Jurisdiction should obtain new

VA examinations in compliance with Sharp.

The matters are REMANDED for the following

action:

52a

Obtain the Veteran’s treatment

records from medical facilities at

Langley Air Force Base from May 2003

to September 2006, and from medical

facilities at Eglin Air Force Base from

September 2006 to October 2007.

Document all requests for information

as well as all responses in the claims

file.

Obtain

the

Veteran’s

treatment records from VA medical

facilities in Pensacola, Florida from

2006 to 2007.

Schedule the Veteran for a VA

examination to determine the nature

and etiology of his claimed left and

right ankle disorders. The examiner

must opine whether it is at least as

likely as not related to an in-service

injury, event, or disease, including

ankle injuries.

Schedule the Veteran for a VA

examination to determine the nature

and etiology of his claimed flat feet. The

examiner must opine whether there is

clear and unmistakable evidence that

the Veteran a foot disability prior to his

entry onto active service, and whether

there is clear and unmistakable

evidence that it was NOT aggravated to

a permanent degree in service beyond

53a

that which would be due to the natural

progression of the disability.

5. Schedule the Veteran for a VA

examination to determine the nature

and etiology of his claimed sinus

disorder. The examiner must opine

whether it is at least as likely as not

had an onset during service, or is

otherwise related to an in-service

injury, event, or disease, including

upper respiratory complaints.

Schedule the Veteran for an

examination in conjunction with his

claim for sleep apnea. The examiner

must provide opinions on the following:

(a.)

Whether the Veteran’s

weight gain and obesity was caused

or aggravated by the serviceconnected disability or disabilities.

(b.)

Whether the Veteran’s

sleep apnea, would not have

occurred but for the obesity caused

functional

impairment

associated

with

his

service-connected

disability

disabilities?

Schedule the Veteran for an

examination by an appropriate clinician

to determine the current severity of his

54a

service-connected GERD disability. The

examiner should provide a full

description of the disability and report

all signs and symptoms necessary for

evaluating the Veteran’s disability

under the rating criteria. To the extent

possible, the examiner should identify

any

symptoms

and

functional

impairments due to GERD disability

alone and discuss the effect of the

Veteran’s disability on any occupational

functioning and activities of daily

living.

Schedule the Veteran for an

examination of the current severity of

his lumbar spine disability. The

examiner must attempt to elicit

information regarding the severity,

frequency, and duration of any

flare-ups, and the degree of functional

loss during flare-ups. To the extent

possible, the examiner should identify

any

symptoms

and

functional

impairments due to lumbar spine

disability alone and discuss the effect of

the Veteran’s disability on any

occupational functioning and activities

of daily living. If it is not possible to

provide a specific measurement, or an

opinion regarding flare-ups, symptoms,

or functional impairment based on

direct observation, the examiner should

55a

provide an estimate, if at all possible, of

the additional impairment due to flareups based on the other evidence of

record and the Veteran’s statements.

Schedule the Veteran for an

examination of the current severity of

his bilateral shoulder disability. The

examiner must attempt to elicit

information regarding the severity,

frequency, and duration of any flareups, and the degree of functional loss

during flare-ups. To the extent possible,

the examiner should identify any

symptoms and functional impairments

due to bilateral shoulder disability

alone and discuss the effect of the

Veteran’s disability on any occupational

functioning and activities of daily

living. If it is not possible to provide a

specific measurement, or an opinion

regarding flare-ups, symptoms, or

functional impairment based on direct

observation, the examiner should

provide an estimate, if at all possible, of

the additional impairment due to flareups based on the other evidence of

record and the Veteran’s statements |

56a

[h/w signature]

K. J. ALIBRANDO

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD J. Murray, 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.

57a

APPENDIX D

DEPARTMENT OF VETERANS AFFAIRS

Roanoke Regional Office

210 Franklin Rd SW

Roanoke VA 24011

CLINTON J. SIPLES

VA File Number

Redacted

Represented by:

AMVETS

Rating Decision

July 23, 2004

INTRODUCTION

The records reflect that you are a veteran of the

Peacetime and Gulf War Era. You served in the Air

Force from September 13, 1978 to March 31, 2003.

You filed an original disability claim that was

received on March 8, 2004. Based on a review of the

evidence listed below, we have made the following

decision(s) on your claim.

DECISION

1. Service connection for recurrent right shoulder

subluxation (claimed as h/o bilateral shoulder

dislocations, right hand dominate) is granted with

an evaluation of 10 percent effective April 1, 2003.

58a

2. Service connection for recurrent left shoulder

subluxation (claimed as h/o bilateral shoulder

dislocations, right hand dominate) is granted with

an evaluation of 10 percent effective April 1, 2003.

3. Service connection for lumbar strain (claimed

as lower back condition) is granted with an

evaluation of 10 percent effective April 1, 2003.

4. Service connection for erectile dysfunction is

granted with an evaluation of 0 percent effective

April 1, 2003.

5. Entitlement to special monthly compensation

based on Loss Of Use of a creative organ is granted

from April 1, 2003.

6. Service connection for occasional hemorrhoid

(claimed as h/o hemorrhoids with rectal fissure, also

claimed as colonoscopy) is granted with an

evaluation of 0 percent effective April 1, 2003.

7. Service connection for anemia is denied.

EVIDENCE

•

Service Medical Records from March 11, 1978

through February 7, 2003

•

VA Examination, QTC Medical Services, dated

April 8, 2004

59a

REASONS FOR DECISION

1. Service connection for recurrent right

shoulder subluxation (claimed as h/o bilateral

shoulder dislocations, right hand dominate).

We are granting service connection for recurrent

right shoulder subluxation (claimed as h/o bilateral

shoulder dislocations, right hand dominate) because

your service medical records show you had

complaints of right shoulder dislocation while

playing basketball January 27, 1988. Radiologic

examination revealed anterior right shoulder

dislocation with no fracture identified. Your

assessment was anterior right shoulder dislocation.

August 11, 1992 you were diagnosed with anterior

instability right shoulder, and you were scheduled

for physical therapy. July 26, 2002 you had

complaints of dull pain in your right shoulder over a

2 week period. Examination revealed you were

negative for edema or ecchymosis but positive for

TTP over supraspinatus, your strength was 5/5 for

your upper extremities. You were diagnosed with

right shoulder pain.

We have assigned a 10 percent disability

evaluation based on your VA examination dated

April 8, 2004 which reveals range of motion as

flexion to 180 degrees, abduction to 150 degrees with

pain at 150, external rotation to 80 degrees, and

internal rotation to 70 degrees. Your range of motion

was limited by pain which is the major functional

impact. It was not limited by fatigue, weakness, lack

of endurance, or incoordination. You reported

60a

dislocating your shoulder in 1984 and 1991, and you

reported current symptoms of pain but no

dislocations since your initial bouts. You were

diagnosed with recurrent right shoulder subluxation.

An evaluation of 10 percent is assigned if there is a

malunion or nonunion of the clavicle or scapula. A

higher evaluation of 20 percent is not warranted

unless the record shows dislocation of the clavicle or

scapula, or nonunion of the clavicle or scapula with

loose movement.

We have assigned April 1, 2003 as your effective

date, the first day following your release from

service.

2. Service connection for recurrent left

shoulder subluxation (claimed as h/o bilateral

shoulder dislocations, right hand dominate).

We are granting service connection for recurrent

left shoulder subluxation (claimed as h/o bilateral

shoulder dislocations, right hand dominate) because

your service medical records show ;you complained of

pain in your left shoulder over a two day period

November 17, 1980. Objective examination revealed

full range of motion of left arm with apparent pain or

restriction. There was no tenderness over the left

clavicle and you diagnosis was contusion, left

shoulder. June 15, 1983 you were diagnosed with left

shoulder strain after complaining of pain and

tenderness. March 30, 1995 you injured your left

shoulder playing basketball. X-ray examination of

your left shoulder revealed anterior left shoulder

dislocation.

61a

We have assigned a 10 percent disability

evaluation based on your VA examination dated

April 8, 2004 which revealed range of motion for

your left shoulder as flexion to 180 degrees with pain

at 180, abduction to 180 degrees with pain at 180,

external and internal rotation to 80 degrees. Range

of motion was limited by pain, it was not limited by

fatigue,

weakness,

lack

endurance

incoordination. X-ray examination revealed left

shoulder within normal limits. You reported current

symptoms of pain but no dislocations since your

initial bouts. You were diagnosed with recurrent left

shoulder subluxation. An evaluation of 10 percent is

assigned if there is a malunion or nonunion of the

clavicle or scapula. A higher evaluation of 20 percent

is not warranted unless the record shows dislocation

of the clavicle or scapula, or nonunion of the clavicle

or scapula with loose movement.

We have assigned April 1, 2003 as your effective

date, the first day following your release from

service.

3. Service connection for lumbar strain

(claimed as lower back condition).

We are granting service connection for lumbar

strain (claimed as lower back condition) because

your service medical records show you injured your

lower back playing ball August 29, 1989. Your

treatment report dated August 31, 1989 assessed

you with mechanical low back pain. December 27,

1999 you had complaints of mid back pain and you

were assessed with mid thoracic right muscle strain.

62a

A treatment report from 1st Medical Group dated

October 24, 2003 reflects an assessment for low back

pain.

We have assigned a 10 percent disability

evaluation based on your VA examination dated

April 8, 2004 revealing your range of motion as

extension to 30 degrees with pain at 30, flexion to

90 degrees, right and left lateral flexion to

30 degrees, and right and left rotation to 30 degrees.

Your combined range of motion was 240 degrees.

Your range of motion was limited by pain and pain is

the major functional impact. Your spine was not

additionally limited by fatigue, weakness, lack of

endurance, incoordination, or ankylosis. Radiologic

examination of your lumbar spine was within

normal limits. You reported pain elicited by physical

activity, relieved by rest. You were diagnosed with

lumbar strain. A 10 percent evaluation is assigned

for forward flexion of the thoracolumbar spine

greater than 60 degrees but not greater than

85 degrees; or, combined range of motion of the

thoracolumbar spine greater than 120 degrees but

not greater than 235 degrees; or, muscle spasm,

guarding, or localized tenderness not resulting in

abnormal gait or abnormal spinal contour; or,

vertebral body fracture with loss of 50 percent or

more of the height. A higher evaluation of 20 percent

is not assigned unless there is forward flexion of the

thoracolumbar spine greater than 30 degrees but not

greater than 60 degrees; or, the combined range of

motion of the thoracolumbar spine not greater than

120 degrees; or, muscle spasm or guarding severe

63a

enough to result in an abnormal gait or abnormal

spinal contour such as scoliosis, reversed lordosis, or

abnormal kyphosis.

We have assigned April 1, 2003 as your effective

date, the first day following your release from

military service.

Service

dysfunction.

connection

for

erectile

We are granting service connection for erectile

dysfunction because your service medical records

show your retirement physical of February 2, 2002

shows erectile dysfunction, taking Viagra. A

treatment report dated June 25, 2001 gives an

assessment of history of erectile dysfunction, it also

shows you were prescribed Viagra.

We have assigned a 0 percent disability

evaluation based on your VA examination dated

April 8, 2004 where you reported unable to achieve

and maintain and erection; and you reported vaginal

penetration with ejaculation is not possible.

Examination of your genitalia was normal. You

reported currently using Viagra. You were diagnosed

with erectile dysfunction. A noncompensable

evaluation is assigned whenever evidence fails to

show penile deformity together with loss of erectile

power which would warrant 20 percent.

We have assigned April 1, 2003 as your effective

date, the first day following your discharge from

service.

64a

Entitlement

special

compensation based on Loss Of Use.

monthly

Entitlement to special monthly compensation is

warranted in this case because criteria regarding

Loss Of Use of a creative organ were met from

April 1, 2003.

6. Service

connection

for

occasional

hemorrhoid (claimed as h/o hemorrhoids with

rectal fissure, also claimed as colonoscopy).

We are granting service connection for occasional

hemorrhoid (claimed as h/o hemorrhoids with rectal

fissure, also claimed as colonoscopy) because your

service medical records show you had complaints of a

bump in your rectal area and assessed with

questionable cyst. November 23, 1999 you were

assessed with external hemorrhoids. November 29,

1001 you were assessed with rectal fissures after

complaining of a “funny feeling in your testicle area.”

January 25, 2002 you had complaints of rectal area

itch with slight discomfort. Your assessment was

possible continued hemorrhoid. You underwent

colonoscopy March 15, 2002 with an impression of

non-bleeding internal hemorrhoids found.

We have assigned a 0 percent disability

evaluation based on your service medical records and

your VA examination dated April 8, 2004 in which

you reported recurrences twice per year. Your rectal

examination revealed there is no evidence of

hemorrhoids, fissures, or any other abnormalities.

You reported hemorrhoidal flare-up occurs 1-2 times

65a

per year and your current treatment is Anusol and

Prep H. You were diagnosed with occasional

hemorrhoid.

A noncompensable evaluation is assigned for

mild or moderate hemorrhoids. A higher evaluation

of 10 percent is not warranted unless there are large

or thrombotic hemorrhoids which are irreducible

with evidence of frequent recurrences.

We have assigned April 1, 2003 as your effective

date, the first day following your release from

service.

7. Service connection for anemia.

We grant service connection for a disability that

you currently have if this disability began in military

service or was caused by some event or experience in

service. Your service medical records show a

diagnosis for mild anemia with no evident medical

etiology August 23, 1985. A letter concerning

potentially disqualifying information dated August

30, 1996 from the 86th AMD shows there have been

no recurrence of symptoms relating to anemia. Your

VA examination dated April 8, 2004 reveals your

CBC result was within normal limits, with a

hemoglobin level of 13.7g/dL and a hematocrit level

of 41.3 percent. Your CHEM 12 was within normal

limits and your urinalysis was absent of protein,

sugar and RBC’s. You didn’t report any current

symptoms associated with anemia. Your examiner

didn’t render a diagnosis because the condition is

resolved. Therefore, service connection for anemia is

66a

denied because the medical evidence of record fails

to show that this disability has been clinically

diagnosed.

67a

APPENDIX E

NOTE: This order is nonprecedential.

United States Court of Appeals

for the Federal Circuit

________________________

CLINTON SIPLES,

Claimant-Appellant

DOUGLAS A. COLLINS, SECRETARY OF

VETERANS AFFAIRS,

Respondent-Appellee

________________________

2022-1528

________________________

Appeal from the United States Court of Appeals

for Veterans Claims in No. 19-7957, Judge Joseph L.

Toth.

________________________

ON PETITION FOR REHEARING EN BANC

________________________

Before MOORE, Chief Judge, LOURIE, BRYSON 1, DYK,

PROST, REYNA, TARANTO, CHEN, HUGHES, STOLL,

CUNNINGHAM, and STARK, Circuit Judges. 2

1 Circuit Judge Bryson participated only in the decision on the

petition for panel rehearing.

68a

PER CURIAM.

ORDER

Clinton Siples filed a petition for rehearing en

banc. A response to the petition was invited by the

court and filed by Douglas A. Collins.

National Organization of Veterans’ Advocates

and,

Military-Veterans

Advocacy

separately

requested leave to file briefs as amicus curiae, which

the court granted.

The petition was first referred as a petition to

the panel that heard the appeal, and thereafter the

petition was referred to the circuit judges who are in

regular active service.

Upon consideration thereof,

IT IS ORDERED THAT:

The petition for panel rehearing is denied.

The petition for rehearing en banc is denied

FOR THE COURT

[SEAL AND H/W SIGNATURE]

August 21, 2025

Date

Jarrett B. Perlow

Clerk of Court

2 Circuit Judge Newman did not participate.

69a

APPENDIX F

United States Code

Title 38. Veterans’ Benefits

38 U.S.C.A. § 5109A

§ 5109A. Revision of decisions on grounds of

clear and unmistakable error

(a) A decision by the Secretary under this chapter is

subject to revision on the grounds of clear and

unmistakable error. If evidence establishes the error,

the prior decision shall be reversed or revised.

(b) For the purposes of authorizing benefits, a rating

or other adjudicative decision that constitutes a

reversal or revision of a prior decision on the

grounds of clear and unmistakable error has the

same effect as if the decision had been made on the

date of the prior decision.

unmistakable error exists in a case may be

instituted by the Secretary on the Secretary’s own

motion or upon request of the claimant.

(d) A request for revision of a decision of the

Secretary based on clear and unmistakable error

may be made at any time after that decision is made.

(e) Such a request shall be submitted to the

Secretary and shall be decided in the same manner

as any other claim.

70a

APPENDIX G

United States Code

Title 38. Veterans’ Benefits

38 U.S.C.A. § 7111

§ 7111. Revision of decisions on grounds of

clear and unmistakable error

(a) A decision by the Board is subject to revision on

the grounds of clear and unmistakable error. If

evidence establishes the error, the prior decision

shall be reversed or revised.

(b) For the purposes of authorizing benefits, a rating

or other adjudicative decision of the Board that

constitutes a reversal or revision of a prior decision

of the Board on the grounds of clear and

unmistakable error has the same effect as if the

decision had been made on the date of the prior

decision.

unmistakable error exists in a case may be

instituted by the Board on the Board’s own motion or

upon request of the claimant.

(d) A request for revision of a decision of the Board

based on clear and unmistakable error may be made

at any time after that decision is made.

(e) Such a request shall be submitted directly to the

Board and shall be decided by the Board on the

71a

merits.

(f) A claim filed with the Secretary that requests

reversal or revision of a previous Board decision due

to clear and unmistakable error shall be considered

to be a request to the Board under this section, and

the Secretary shall promptly transmit any such

request to the Board for its consideration under this

section.

72a

APPENDIX H

Code of Federal Regulations

Title 38. Pensions, Bonuses, and Veterans’ Relief

38 C.F.R. § 3.105

§ 3.105 Revision of decisions.

The provisions of this section apply except where an

award was based on an act of commission or

omission by the payee, or with his or her knowledge

(§ 3.500(b)); there is a change in law or a

Department of Veterans Affairs issue, or a change in

interpretation of law or a Department of Veterans

Affairs issue (§ 3.114); or the evidence establishes

that service connection was clearly illegal. The

provisions with respect to the date of discontinuance

of benefits are applicable to running awards. Where

the award has been suspended, and it is determined

that no additional payments are in order, the award

will be discontinued effective date of last payment.

(a)(1) Error in final decisions. Decisions are final

when the underlying claim is finally adjudicated as

provided in § 3.160(d). Final decisions will be

accepted by VA as correct with respect to the

evidentiary record and the law that existed at the

time of the decision, in the absence of clear and

unmistakable error. At any time after a decision is

final, the claimant may request, or VA may initiate,

review of the decision to determine if there was a

clear and unmistakable error in the decision. Where

73a

evidence establishes such error, the prior decision

will be reversed or amended.

(i) Definition of clear and unmistakable error. A

clear and unmistakable error 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. If it is not absolutely clear that a different

result would have ensued, the error complained

of cannot be clear and unmistakable. Generally,

either the correct facts, as they were known at

the time, were not before VA, or the statutory

and regulatory provisions extant at the time

were incorrectly applied.

(ii) Effective date of reversed or revised decisions.

For the purpose of authorizing benefits, the

rating or other adjudicative decision which

constitutes a reversal or revision of a prior

decision on the grounds of clear and

unmistakable error has the same effect as if the

corrected decision had been made on the date of

the reversed decision. Except as provided in

paragraphs (d) and (e) of this section, where an

award is reduced or discontinued because of

administrative error or error in judgment, the

provisions of § 3.500(b)(2) will apply.

(iii) Record to be reviewed. Review for clear and

unmistakable error in a prior final decision of an

agency of original jurisdiction must be based on

74a

the evidentiary record and the law that existed

when that decision was made. The duty to assist

in § 3.159 does not apply to requests for revision

based on clear and unmistakable error.

(iv) Change in interpretation. Clear and

unmistakable error does not include the

otherwise correct application of a statute or

regulation where, subsequent to the decision

being challenged, there has been a change in the

interpretation of the statute or regulation.

(v) Limitation on Applicability. Decisions of an

agency of original jurisdiction on issues that have

been decided on appeal by the Board or a court of

competent jurisdiction are not subject to revision

under this subsection.

(vi) Duty to assist not applicable. For examples of

situations that are not clear and unmistakable

error see 38 CFR 20.1403(d).

(vii) Filing Requirements—

(A) General. A request for revision of a

decision based on clear and unmistakable

error must be in writing, and must be signed

by the requesting party or that party’s

authorized representative. The request must

include the name of the claimant; the name of

the requesting party if other than the

claimant; the applicable Department of

Veterans Affairs file number; and the date of

the decision to which the request relates. If

the applicable decision involved more than

75a

one issue, the request must identify the

specific issue, or issues, to which the request

pertains.

(B) Specific allegations required. The request

must set forth clearly and specifically the

alleged clear and unmistakable error, or

errors, of fact or law in the prior decision, the

legal or factual basis for such allegations, and

why the result would have been manifestly

different but for the alleged error. Nonspecific allegations of failure to follow

regulations or failure to give due process, or

any other general, non-specific allegations of

error, are insufficient to satisfy the

requirement of the previous sentence.

(2) Error in binding decisions prior to final

adjudication. Prior to the time that a claim is

finally adjudicated, previous decisions which are

binding will be accepted as correct by the agency

of original jurisdiction, with respect to the

evidentiary record and law existing at the time of

the decision, unless the decision is clearly

erroneous, after considering whether any

favorable findings may be reversed as provided

in § 3.104(c).

(b) Difference of opinion. Whenever an adjudicative

agency is of the opinion that a revision or an

amendment of a previous decision is warranted on

the basis of the evidentiary record and law that

existed at the time of the decision, a difference of

opinion being involved rather than a clear and

76a

unmistakable error, the proposed revision will be

recommended to Central Office. However, a decision

may be revised under § 3.2600 or § 3.2601 without

being recommended to Central Office.

character of discharge or line of duty which would

result in discontinued entitlement is subject to the

provisions of paragraph (d) of this section.

(d) Severance of service connection. Subject to the

limitations contained in §§ 3.114 and 3.957, service

connection will be severed only where evidence

establishes that it is clearly and unmistakably

erroneous (the burden of proof being upon the

Government). (Where service connection is severed

because of a change in or interpretation of a law or

Department of Veterans Affairs issue, the provisions

of § 3.114 are for application.) A change in diagnosis

may be accepted as a basis for severance action if the

examining physician or physicians or other proper

medical authority certifies that, in the light of all

accumulated evidence, the diagnosis on which

service connection was predicated is clearly

erroneous. This certification must be accompanied by

a summary of the facts, findings, and reasons

supporting the conclusion. When severance of service

connection is considered warranted, a rating

proposing severance will be prepared setting forth

all material facts and reasons. The claimant will be

notified at his or her latest address of record of the

contemplated action and furnished detailed reasons

therefor and will be given 60 days for the

presentation of additional evidence to show that

77a

service connection should be maintained. Unless

otherwise provided in paragraph (i) of this section, if

additional evidence is not received within that

period, final rating action will be taken and the

award will be reduced or discontinued, if in order,

effective the last day of the month in which a 60–day

period from the date of notice to the beneficiary of

the final rating action expires.

(Authority: 38 U.S.C. 5112(b)(6))

(e) Reduction in evaluation—compensation. Where

the reduction in evaluation of a service-connected

disability or employability status is considered

warranted and the lower evaluation would result in

a reduction or discontinuance of compensation

payments currently being made, a rating proposing

the reduction or discontinuance will be prepared

setting forth all material facts and reasons. The

beneficiary will be notified at his or her latest

address of record of the contemplated action and

furnished detailed reasons therefor, and will be

given 60 days for the presentation of additional

evidence to show that compensation payments

should be continued at their present level. Unless

otherwise provided in paragraph (i) of this section, if

additional evidence is not received within that

period, final rating action will be taken and the

award will be reduced or discontinued effective the

last day of the month in which a 60–day period from

the date of notice to the beneficiary of the final

rating action expires.

(Authority: 38 U.S.C. 5112(b)(6))

78a

(f) Reduction in evaluation—pension. Where a

change in disability or employability warrants a

reduction or discontinuance of pension payments

currently being made, a rating proposing the

reduction or discontinuance will be prepared setting

forth all material facts and reasons. The beneficiary

will be notified at his or her latest address of record

of the contemplated action and furnished detailed

reasons therefor, and will be given 60 days for the

presentation of additional evidence to show that

pension benefits should be continued at their present

level. Unless otherwise provided in paragraph (i) of

this section, if additional evidence is not received

within that period, final rating action will be taken

and the award will be reduced or discontinued

effective the last day of the month in which the final

rating action is approved.

(Authority: 38 U.S.C. 5112(b)(5))

(g) Reduction in evaluation—monetary allowance

under 38 U.S.C. chapter 18 for certain individuals

who are children of Vietnam veterans or children of

veterans with covered service in Korea. Where a

reduction or discontinuance of a monetary allowance

currently being paid under 38 U.S.C. chapter 18 is

considered warranted, VA will notify the beneficiary

at his or her latest address of record of the proposed

reduction, furnish detailed reasons therefor, and

allow the beneficiary 60 days to present additional

evidence to show that the monetary allowance

should be continued at the present level. Unless

otherwise provided in paragraph (i) of this section, if

VA does not receive additional evidence within that

79a

period, it will take final rating action and reduce the

award effective the last day of the month following

60 days from the date of notice to the beneficiary of

the proposed reduction.

(Authority: 38 U.S.C. 1805, 1815, 1821, 1832,

5112(b)(6))

(h) Other reductions/discontinuances. Except as

otherwise specified at § 3.103(b)(3) of this part,

where a reduction or discontinuance of benefits is

warranted by reason of information received

concerning income, net worth, dependency, or

marital or other status, a proposal for the reduction

or discontinuance will be prepared setting forth all

material facts and reasons. The beneficiary will be

notified at his or her latest address of record of the

contemplated action and furnished detailed reasons

therefor, and will be given 60 days for the

presentation of additional evidence to show that the

benefits should be continued at their present level.

Unless otherwise provided in paragraph (i) of this

section, if additional evidence is not received within

that period, final adverse action will be taken and

the award will be reduced or discontinued effective

as specified under the provisions of §§ 3.500 through

3.503 of this part.

(Authority: 38 U.S.C. 5112)

(i) Predetermination hearings.

(1) In the advance written notice concerning

proposed actions under paragraphs (d) through

(h) of this section, the beneficiary will be

80a

informed that he or she will have an opportunity

for a predetermination hearing, provided that a

request for such a hearing is received by VA

within 30 days from the date of the notice. If a

timely request is received, VA will notify the

beneficiary in writing of the time and place of the

hearing at least 10 days in advance of the

scheduled hearing date. The 10 day advance

notice may be waived by agreement between VA

and the beneficiary or representative. The

hearing will be conducted by VA personnel who

did not participate in the proposed adverse action

and who will bear the decision-making

responsibility. If a predetermination hearing is

timely requested, benefit payments shall be

continued at the previously established level

pending a final determination concerning the

proposed action.

(2) Following the predetermination procedures

specified in this paragraph and paragraph (d),

(e), (f), (g) or (h) of this section, whichever is

applicable, final action will be taken. If a

predetermination hearing was not requested or if

the beneficiary failed without good cause to

report for a scheduled predetermination hearing,

the final action will be based solely upon the

evidence of record. Examples of good cause

include, but are not limited to, the illness or

hospitalization of the claimant or beneficiary,

death of an immediate family member, etc. If a

predetermination hearing was conducted, the

final action will be based on evidence and

81a

testimony adduced at the hearing as well as the

other evidence of record including any additional

evidence obtained following the hearing pursuant

to necessary development. Whether or not a

predetermination hearing was conducted, a

written notice of the final action shall be issued

to the beneficiary and his or her representative,

setting forth the reasons therefor and the

evidence upon which it is based. Where a

reduction or discontinuance of benefits is found

warranted following consideration of any

additional evidence submitted, the effective date

of such reduction or discontinuance shall be as

follows:

(i) Where reduction or discontinuance was

proposed under the provisions of paragraph (d) or

(e) of this section, the effective date of final action

shall be the last day of the month in which a 60–

day period from the date of notice to the

beneficiary of the final action expires.

(ii) Where reduction or discontinuance was

proposed under the provisions of paragraphs (f)

and (g) of this section, the effective date of final

action shall be the last day of the month in which

such action is approved.

(iii) Where reduction or discontinuance was

proposed under the provisions of paragraph (h) of

this section, the effective date of final action shall

be as specified under the provisions of §§ 3.500

through 3.503 of this part.

82a

(j) Supplemental claims and higher-level review. VA

may revise an earlier decision denying benefits, if

warranted, upon resolution of a supplemental claim

under § 3.160(c) or higher-level review under

§ 3.2601.

83a

APPENDIX I

Code of Federal Regulations

Title 38. Pensions, Bonuses, and Veterans’ Relief

38 C.F.R. § 20.1403

§ 20.1403 Rule 1403. What constitutes clear

and unmistakable error; what does not.

(a) General. Clear and unmistakable error 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. Generally, either the correct facts, as they

were known at the time, were not before the Board,

or the statutory and regulatory provisions extant at

the time were incorrectly applied.

(b) Record to be reviewed—

(1) General. Review for clear and unmistakable

error in a prior Board decision must be based on

the record and the law that existed when that

decision was made.

(2) Special rule for Board decisions on legacy

appeals issued on or after July 21, 1992. For a

Board decision on a legacy appeal as defined in

§ 19.2 of this chapter issued on or after July 21,

1992, the record that existed when that decision

84a

was made includes relevant documents possessed

by the Department of Veterans Affairs not later

than 90 days before such record was transferred

to the Board for review in reaching that decision,

provided that the documents could reasonably be

expected to be part of the record.

error. To warrant revision of a Board decision on the

grounds of clear and unmistakable error, there must

have been an error in the Board’s adjudication of the

appeal which, had it not been made, would have

manifestly changed the outcome when it was made.

If it is not absolutely clear that a different result

would have ensued, the error complained of cannot

be clear and unmistakable.

(d) Examples of situations that are not clear and

unmistakable error—

(1) Changed diagnosis. A new medical diagnosis

that “corrects” an earlier diagnosis considered in

a Board decision.

(2) Duty to assist. The Secretary's failure to

fulfill the duty to assist.

(3) Evaluation of evidence. A disagreement as to

how the facts were weighed or evaluated.

(e)

Change

interpretation.

Clear

and

unmistakable error does not include the otherwise

correct application of a statute or regulation where,

subsequent to the Board decision challenged, there

85a

has been a change in the interpretation of the

statute or regulation.

86a

APPENDIX J

Code of Federal Regulations

Title 38. Pensions, Bonuses, and Veterans’ Relief

38 C.F.R. § 4.59

§ 4.59 Painful motion.

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.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.