Citation Nr: 0507854 Decision Date: 03/17/05 Archive Date: 03/30/05 DOCKET NO. 03-16 448 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Whether there was clear and unmistakable error in the rating decision of August 19, 1947. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The veteran had active military service from June 1943 to October 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2002 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in Boston, Massachusetts. The Board recognizes that in the April 2002 rating action and May 2003 statement of the case, the RO characterized the issue on appeal as whether there was clear and unmistakable error (CUE) in the rating decision of July 14, 1947. However, the Board notes that July 14, 1947, is the date the veteran underwent a VA examination, and August 19, 1947, is the date of the rating action that the RO issued after the veteran's July 1947 rating action. In addition, the CUE claim that was filed by the veteran's representative, the Disabled American Veterans (DAV), in December 2001 on the veteran's behalf, was a claim for whether there was CUE in the rating decision of August 19, 1947. Accordingly, the Board has characterized the issue on appeal as set forth on the title page of this decision. This case has been advanced on the docket due to the advanced age of the veteran. 38 U.S.C.A. § 7107 (West 2002); 38 C.F.R. § 20.900(c) (2004). FINDINGS OF FACT 1. The record for consideration by the RO in the rating action dated August 19, 1947, included the x-ray report showing posterior wedging of the L5 vertebral body. 2. The RO did not cite Diagnostic Code 5285 from the VA Schedule for Rating Disabilities, 1945 Edition, in the August 1947 rating action and that decision did not otherwise reflect that this regulation was applied. 3. The RO's election not to assign a separate 10 percent for demonstrable deformity of a vertebral body was not reasonably supported by the medical and other evidence of record at the time of that decision; it was fatally flawed and not based on the existing legal authority. CONCLUSION OF LAW The August 19, 1947, rating decision which failed to grant an additional 10 percent for vertebral deformity, in evaluating the veteran's service-connected fracture of the transverse process of the 5th lumbar spine, was clearly and unmistakably erroneous. VA Schedule for Rating Disabilities, 1945 Edition, Diagnostic Code 5285 (GPO 1945); 38 U.S.C.A. §§ 1155, 5107, 7105 (West 2002); 38 C.F.R. §§ 3.105, 3.303, 3.304, 4.71a, Diagnostic Code 5285 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). Regulations implementing the VCAA have also been published. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA redefines VA's duty to assist and enhances the duty to notify claimants about information and evidence necessary to substantiate a claim. The VCAA also eliminates the requirement that a claim be well grounded. The United States Court of Appeals for Veterans Claims (Court) has held that because CUE claims are not conventional appeals, but rather are requests for revisions of previous decisions, provisions of the VCAA are not applicable thereto. See Livesay v. Principi, 15 Vet. App. 165, 178-79 (2001). Although this holding pertains to an allegation of CUE in a decision by the Board, the Board concludes that this judicial construction is equally applicable when the issue involves an allegation of CUE in an otherwise final decision by a regional office. As a consequence, VA's duties to notify and assist contained in the VCAA are not applicable to the veteran's CUE claim. Thus, a remand for further technical compliance with the provisions of the VCAA is not necessary. II. Factual Background The veteran's service medical records show that on November 13, 1944, the veteran sustained a shrapnel wound of the right lumbar region, fracture, simple, of the transverse process of the 5th lumbar vertebra and partial paralysis of the right femoral nerve. On the day of his injury, he was transferred to the 104th Evacuation Hospital where the wounds were debrided. Immediately after the injury, the veteran had a "peculiar" sensory disturbance along the right lower extremity and walking caused him to feel an insecurity at the knee. The veteran was then evacuated to the 231st Station Hospital where he was hospitalized from December 1944 to January 1945, and underwent a course of physical therapy. Following his hospitalization, the veteran continued to have problems with his legs, including numbness which extended from the right knee to the foot. In February 1945, the veteran was hospitalized at the 96th General Hospital because of his persistent complaints about his legs. Before a Disposition Board at the 96th General Hospital, the following diagnoses were made: (1) neuropathy, post-traumatic, partial, femoral, right, due to shrapnel wound incurred during combat on November 13, 1944, (2) fracture, simple, complete, transverse process right, 5th lumbar vertebra, incurred as in number 1, and (3) foreign body, traumatic, level of 5th lumbar vertebra, right side metallic, incurred as in number 1. According to the veteran's service medical records, in March 1945, the veteran was transferred to the Halloran General Hospital. While he was hospitalized, it was noted that an x- ray of the veteran's lumbar spine taken in December 1944 showed a "1 11/2 [centimeters]" metallic density at the level of the right transverse process of L5. Upon the veteran's discharge from the Halloran General Hospital in August 1945, he was diagnosed with the following: (1) wound, penetrating, severe, lumbar region, right, wounded in action on November 13, 1944, (2) fracture, simple, transverse process, 5th lumbar vertebra, right, incurred as in number 1, (3) foreign body, retained, traumatic, metallic, 5th lumbar vertebra, right, incurred as in number 1, and (4) paralysis of nerve, femoral, right, partial, secondary to number 1. The veteran's service medical records further reflect that in August 1945, the veteran was transferred to a convalescence hospital at Camp Edwards. Upon admission, the veteran's chief complaint was weakness of the right lower extremity and a slight limp on any prolonged walking or exercise. Physical examination showed that there was no limitation of motion at any of the joints of the lower extremity. The veteran had some weakness in the muscles of the right leg. There was a well-healed, non-tender, non-adherent, transverse scar approximately 4 inches long over the right lumbar region at the level of about the 5th lumbar. There was no paralysis of the right lower extremity. While the veteran was hospitalized, he underwent physical therapy. He also had an x-ray taken of his lumbosacral spine which was interpreted as showing a fairly large metallic foreign body (MFB) situated in the same place as previously described, with old fracture of the transverse process of the 5th lumbar vertebra on the right, with calcification present. The impression was retained foreign body (FB) and old fracture of the 5th transverse process, with calcification. Upon the veteran's discharge in September 1945, he was diagnosed with the following: (1) paralysis of nerve, femoral, right, partial, residuals of, incurred when wounded in action by shrapnel on November 13, 1944, manifested by weakness of the right lower extremity, with a slight limp following any prolonged walking or exercise, (2) foreign body, retained traumatic, metallic, 5th lumbar vertebra, right, incurred as in number 1 above, and (3) fracture, simple, transverse process, 5th lumbar vertebra, right, incurred as in number 1 above. It was noted that the veteran could no longer perform any further useful service for the government and that he was to be separated from the service. The veteran was subsequently discharged in October 1944. By a December 1945 rating action, the RO granted service connection for a scar, gunshot wound penetrating the lumbar region, with sequelae. The RO also granted service connection for retained metallic foreign body, fracture of the transverse process, 5th lumbar vertebra, right, and paralysis of the femoral nerve, partial, involving muscle group XX. The RO assigned a 100 percent rating under the provisions of Extension No. 6 of the 1933 Rating Schedule for a period of convalescence, effective from October 25, 1945. A private hospitalization report shows that the veteran was hospitalized from July to September 1946 for an abscess of the right mid-lumbar region. Upon admission, it was noted that the veteran had a two-week history of pain and swelling of his right back. It was also reported that the veteran had sustained an injury by shrapnel in the right lumbar area in November 1944. At the time of the veteran's injury, the wound was debrided and repaired. The veteran subsequently developed persistent numbness over the anterior and medial aspects of the right thigh. Two weeks prior to the hospitalization, the veteran had developed pain and swelling over the scar in the right lumbar area. Upon physical examination, there was an 8 centimeters (cm.) horizontal scar in the right lumbar area and a fluctuant abscess, absent patella reflex on the right. According to the hospital report, in July 1946, the veteran underwent surgery where the right lumbar area was explored and drained. The foreign body was not accessible and the wound was packed. Moderate drainage persisted and the wound was repacked several times. The pathologist's report of the tissue removed at the time of the July 1946 operation was chronic foreign body reaction. Culture from the drainage of the abscess revealed Staph albus, B. subtitles and C. xerosis. The private hospital report also reflects that in September 1946, the veteran had x-rays taken of his lumbosacral spine and pelvis, including both hips. The x-rays were interpreted as showing a metallic foreign body measuring 1.5 x 1.2 x 1 cm. lying in the pelvis just anterior to the mid-portion of the right sacroiliac joint. A portion of the right transverse process of the 5th lumbar vertebra was missing and there appeared to be one or two small fragments of bone lying free in that region. There was also a medium sized spur projecting downward from the inferior aspect of the 4th lumbar vertebra on that side. Those changes were apparently secondary to trauma as a result of the passage of the foreign body. There was also a slight scoliosis of the lumbar spine convex to the right. The lumbosacral disk showed slight posterior wedging, but in general, the disk was well preserved. The lumbar spine otherwise appeared normal, and the sacroiliac and hip joints appeared normal. Upon the veteran's discharge from the hospital, he was diagnosed with an abscess of the right lumbar region. In a January 1947 rating action, the RO confirmed and continued the 100 percent convalescence rating for the veteran's service-connected residuals of a gunshot wound of the lumbar region, with sequelae and retained foreign body, and paralysis of the femoral nerve, partial, involving muscle group XX (Diagnostic Codes 5320 and 8526). At that time, the RO noted that the veteran had not yet been able to return to his former job or perform any other type of work. A VA Hospital Summary shows that in April 1947, the veteran was hospitalized. Upon admission, it was noted that in 1944, the veteran sustained a gunshot wound of the right flank, following which he had debridement and the area healed. In July 1946, the veteran was hospitalized so that an abscess could be drained in the old scar of the right flank. After that "quieted down," an unsuccessful attempt to remove a large metallic foreign body in the right iliac crest was made. At that time, a large cavity was found and that was packed widely and allowed to fill in from below. However, after the veteran's discharge in October 1946, the drainage from the large cavity continued and the veteran re-entered the hospital for re-exploration. According to the hospital summary, while the veteran was hospitalized, an anterior retroperitoneal exploration was performed, and the foreign body was found lodged next to the common iliac vessel on the right. The foreign body was removed and postoperatively, the veteran's convalescence was uneventful. Upon the veteran's discharge from the hospital in June 1947, the diagnosis was foreign body right flank, treated, improved. In July 1947, the veteran underwent a VA examination. At that time, the examining physician stated that while the veteran was in the military, he received a gunshot wound to the right back. According to the examiner, the veteran also sustained a fracture of the right transverse process and subsequently developed a partial paralysis of the right femoral nerve. The examiner reported that since the veteran's discharge, the veteran had developed an abscess and was hospitalized. The veteran was readmitted in May 1947 for removal of the foreign body. The examiner noted that the veteran's current complaints were of numbness of the anterior surface of the right lower leg and occasional cramps in the right thigh. Upon physical examination of the veteran's abdomen, there was a 7 inch healed scar in the right lower quadrant, which was not tender and not adherent. In regard to the veteran's right back, there was a 3 inch depressed scar in the right flank which was adherent and tender. Trunk motions were free. The circumference of the right thigh was one inch smaller than the left. Muscle power in the right was not equal to the left, but satisfactory. Knee and hip motions were complete, likewise ankle motions. The veteran's gait was essentially normal. The diagnoses were the following: (1) fracture of the 5th lumbar, right transverse process, (2) residuals of gunshot wound to the right back, and (3) [illegible] back and abdomen. By a rating action dated on August 19, 1947, the RO noted that the veteran's service-connected disabilities would be "rerated" based on the findings from the July 1947 VA examination. In this regard, the RO stated that a careful study and analysis of the surgical findings set forth in the July 1947 VA examination report showed that the veteran's service-connected scar of the lumbar region was at a moderately severe level of disability. Thus, the RO indicated that a commensurate rating would be assigned for that scar. The RO also reported that based upon the findings in the July 1947 VA examination report, no ratable residuals were demonstrated with reference to the former fractured lumbar vertebra and the injury to the femoral nerve. According to the RO, the post-operative scar of the abdomen of recent origin was shown to be healed and asymptomatic. Therefore, in light of the above, the RO assigned a 40 percent rating under Diagnostic Code 5320 for the veteran's service-connected scar, gunshot wound of the lumbar region, "mod[erately] severe," effective from July 14, 1947. In regard to the veteran's service-connected fracture of the transverse process of the 5th lumbar spine, healed, the RO indicated that there were no ratable residuals and, as such, a zero percent rating was warranted. In addition, the RO noted that a zero percent rating was also warranted for the veteran's service-connected paralysis of the right femoral nerve because it was not shown in the July 1947 VA examination. The RO further reported that the veteran's scar of the abdomen, incisional for removal of foreign body was healed and asymptomatic and, as such, a zero percent disability rating was warranted. In a September 1947 notice letter from the RO to the veteran, the veteran was advised of the August 1947 rating decision and his right to appeal it. In the September 1947 letter, the RO also stated that on the basis of all evidence of record, including the July 1947 VA examination report, a determination had been made that the condition of the veteran's service-connected scar, gunshot wound, lumbar region was now disabling to a degree of 40 percent, and that the residuals of his fracture, 5th lumbar, spine was zero disabling. The RO noted that the veteran's service-connected scar of the abdomen was also zero percent disabling. There is no evidence of record showing that the veteran subsequently filed a timely appeal. In a rating action, dated in October 1948, the RO stated that the veteran's case had been submitted with report of his most recent VA examination in July 1948. It was the RO's determination that the evidence showed no material change in the veteran's service-connected disabilities. According to the RO, an additional rating for femoral nerve paralysis was not indicated in the veteran's case because the disability involved the same anatomical region in which was located the service-connected compensable disability, and that it did not affect an entirely different function. Thus, the 40 percent disability rating under Diagnostic Codes 8526-5320 for the veteran's service-connected scar, residuals of a gunshot wound of the lumbar region, with associated fracture of the transverse process of the 5th lumbar vertebra, healed, and partial paralysis of the femoral nerve, right, (rated as severe scar), effective from July 14, 1947, was continued. By an August 1955 rating action, the RO increased the disability rating for the veteran's service-connected scar of the abdomen from zero percent to 10 percent disabling under Diagnostic Code 7804, effective from April 20, 1955. At that time, the RO based its decision on the findings from the veteran's July 1955 VA examination which showed that the veteran's scar of the abdomen was symptomatic. The RO reported that the October 1948 rating action was otherwise affirmed. In a confirmed rating action, dated in February 1966, the RO stated that recent VA Medical Center (VAMC) outpatient treatment records and the veteran's January 1966 VA examination report had been reviewed. According to the RO, the findings from the VAMC outpatient treatment records and the January 1966 VA examination did not warrant any change in the evaluations assigned to the veteran's residuals of a gunshot wound and incisional scar of the abdomen. By a December 2003 rating action, the RO stated that based upon the findings from the veteran's most recent VA examination in September 2003, the veteran's 40 percent disability rating under Diagnostic Codes 5320-8526 for service-connected scar, residuals of a gun shot wound to the lumbar region, with partial paralysis of the femoral nerve, right, was continued. However, the RO concluded that a separate evaluation of 10 percent under Diagnostic Codes 5285-5292 was warranted for service-connected fracture of the transverse process, 5th lumbar vertebra, claimed as residuals of arthritis of the spine, effective from June 27, 2002. The RO indicated that the separate 10 percent evaluation was based on limitation of motion of the lumbar spine. III. Analysis Under applicable criteria, RO decisions that are final and binding will be accepted as correct in the absence of clear and unmistakable error. See 38 C.F.R. § 3.105(a). The question of whether clear and unmistakable error is present in a prior determination is analyzed under a three-pronged test. First, it must be determined whether either the correct facts, as they were known at the time, were not before the adjudicator (that is, more than a simple disagreement as to how the facts were weighed and evaluated) or the statutory or regulatory provisions extant at that time were incorrectly applied. Second, the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made." Third, 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 adjudication in question. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). According to the Court, clear and unmistakable error is a very specific and rare kind of error. "It is the kind of error, of fact or law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be, ipso facto, clear and unmistakable." Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993) (citing Russell at 313). The Court has defined clear and unmistakable error as administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. See Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1992). However, the mere misinterpretation of facts does not constitute clear and unmistakable error. See Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). The Court has also held that the failure to fulfill the duty to assist does not constitute clear and unmistakable error. See Crippen v. Brown, 9 Vet. App. 412, 424 (1996); Caffrey v. Brown, 6 Vet. App. 377 (1994). In the instant case, on behalf of the veteran, the DAV contends that the regulations in effect in August 1947 were incorrectly applied to the facts of the case and that, had the regulations been correctly applied, the outcome of the case would have been different. Specifically, the DAV argues that the evidence of record at the time of the August 1947 rating decision supported a finding that there was demonstrable deformity of the 4th and 5th lumbar vertebrae, thereby warranted a separate 10 percent rating under Diagnostic Code 5285. In addition, the DAV maintains that the veteran's service-connected neurological disability should have been rated separately from his service-connected muscle disability. See 38 C.F.R. § 4.25(b) (2004); Esteban v. Brown, 6 Vet. App. 259 (1994) (holding that evaluations for distinct disabilities resulting from the same injury could be combined so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition). In this regard, the DAV argues that the evidence of record at the time of the August 1947 rating action supported a finding that in addition to the 40 percent disability rating assigned under Diagnostic Code 5320 for the veteran's service-connected muscle injury, a separate 40 percent evaluation (or 20 percent evaluation, as contended by the DAV in a February 2004 brief) under Diagnostic Code 8526 was warranted for the veteran's service-connected paralysis of the right femoral nerve. The DAV further maintains that a separate 10 percent rating under Diagnostic Code 7804 was warranted for a tender scar of the right back. Thus, the DAV contends that the RO committed CUE in the August 1947 rating action by not considering separate ratings for the veteran's service- connected disabilities. As set forth above, review for clear and unmistakable error in a final RO decision must be based on the record and the law that existed at the time the challenged decision was made. In this regard, VA promulgated the 1945 edition of the Schedule for Rating Disabilities, effective April 1, 1946. Thus, the Board will consider the version of the 1945 Rating Schedule in effect in August 1947. Regarding the veteran's service-connected fracture of the transverse process of the 5th lumbar spine, healed, the pertinent diagnostic codes provided: 5285 Vertebra, fracture of, residuals Rating With cord involvement, bedridden, or requiring long leg braces.............................................100 Consider special monthly pension; with lesser involvements rate for limited motion, nerve paralysis. Without cord involvement; abnormal mobility re- quiring neck brace (jury mast).............................60 In other cases rate in accordance with definite limited motion or muscle spasm, adding 10 percent for demonstrable deformity of vertebral body. Note- Both under ankylosis and limited motion, ratings should not be assigned for more than one segment by reason of involvement of only the first or last vertebra of an adjacent segment. 5292 Spine, limitation of motion of, lumbar Rating Severe......................................................40 Moderate...................................................20 Slight........................................................10 VA Schedule for Rating Disabilities, 1945 Edition (GPO 1945). Regarding the veteran's service-connected residuals of a gunshot wound of the lumbar region involving muscle group XX, the Board notes that the 1945 Schedule for Rating Disabilities of the musculoskeletal system provided extensive discussion of the types of disability to be expected from the effects of missiles, deeper structures, muscle injuries, muscle weakness, muscle damage, muscle patterns, and muscle groups. See VA Schedule for Rating Disabilities, 1945 Edition, paragraphs 8 to 15 (GPO 1945). As is true now, four grades of severity of disabilities due to muscle injuries were recognized for rating purposes. The type pictures for these were "based on the cardinal symptoms of muscle disability (weakness, fatigue-pain, uncertainty of movement) and on the objective evidence of muscle damage, and the cardinal signs of muscle disability (loss of power, lowered threshold of fatigue, and impairment of coordination)." 1945 Rating Schedule, The Musculoskeletal System, paragraph 15 (GPO 1945); see also 38 C.F.R. § 4.54 (2004). Thus, characteristics of the different levels of severity of gunshot wounds were described as follows: Paragraph 17. Factors to be Considered in the Evaluation of Disabilities Residual to Healed Wounds Involving Muscle Groups Due to Gunshot or Other Trauma. (1) Slight (Insignificant) Disability of Muscles. Type of Injury. -Simple wound of muscle without debridement infection or effects of laceration. History and complaint. -Service department record wound of slight severity or relatively brief treatment and return to duty. Healing with good functional results. No consistent complaint of cardinal symptoms of muscle injury or painful residual. Objective findings. -Minimum scar; slight, if any, evidence of fascial defect or atrophy or of impaired tonus. No significant impairment of function and no retained metallic fragments. (2) Moderate Disability of Muscles. Type of injury. -Through and through or deep penetrating wound of relatively short track by single bullet or small shell or shrapnel fragment are to be considered as of at least moderate degree. Absence of explosive effect of high velocity missile and of residuals of debridement or of prolonged infection. History and complaint. -Service department record or other sufficient evidence of hospitalization in service for treatment of wound. Record in the file of consistent complaint on record from first examination forward, of one or more of the cardinal symptoms of muscle wounds (describing above) particularly fatigue and fatigue-pain after moderate use, affecting the particular functions controlled by injured muscles. Objective findings. -Entrance and (if present) exit scars linear or relatively small, and so situated as to indicate relatively short track of missile through muscle tissue; signs of moderate loss of deep fascia or muscle substance or impairment of muscle tonus, and of definite weakness or fatigue in comparative tests. (In such tests the rule that with strong efforts, antagonistic muscles relax is to be applied to insure validity of tests.) (3) Moderately Severe Disability of Muscles. Type of injury. -Through and through or deep penetrating wound by high velocity missile of small size or large missile of low velocity, with debridement or with prolonged infection or with sloughing of soft parts, intermuscular cicatrization. History and complaint. - Service department record or other sufficient evidence showing hospitalization for prolonged period in service for treatment of wound of severe grade. Record in the file of consistent complaint of cardinal symptoms of muscle wounds. Evidence of unemployability because of inability to keep up to production standards is to be considered, if present. Objective findings. - Entrance and (if present) exit scars relatively large and so situated as to indicate track of missile through important muscle groups. Indications on palpation of moderate loss of deep fascia, or moderate loss of muscle substance or moderate loss of normal firm resistance of muscles compared with sound side. Tests of strength and endurance of muscle groups involved (compared with sound side) give positive evidence of marked or moderately severe loss. (4) Severe Disability of Muscles. Type of injury. -Through and through or deep penetrating wound due to high velocity missile, or large or multiple low velocity missiles, or explosive effect of high velocity missile, or shattering bone fracture, with extensive debridement or prolonged infection and sloughing of soft parts, intermuscular binding and cicatrization. History and complaint. - As under moderately severe above, in aggravated form. Objective finding. - Extensive ragged, depressed, and adherent scars of skin so situated as to indicated wide damage to muscle groups in track of missile. X-ray may show minute multiple scattered foreign bodies indicating spread of intermuscular trauma and explosive effect or of muscle substance. Palpation shows moderate or extensive loss of deep fascia or of muscle substance. Soft or flabby muscles in wound area. Muscles do not swell and harden normally in contraction. Tests of strength or endurance compared with the sound side or of coordinated movements show positive evidence of severe impairment of function. In electrical tests, reaction of degeneration is not present but a diminished excitability to Faradism compared with the sound side may be present. Visible or measured atrophy may or may not be present. Adaptive contraction of opposing group of muscles, if present indicates severity. Adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bone without true skin covering, in an area where bone is normally protected by muscle, indicates the severe type. Atrophy of muscle groups not included in the track of the missile, particularly of the trapezius and serratus in wounds in the shoulder girdle (traumatic muscular dystrophy), and induration and atrophy of an entire muscle following simple piercing by a projectile (progressive sclerosing myositis), may be included in the severe group in there is sufficient evidence of severe disability. VA Schedule for Rating Disabilities, 1945 Edition, The Musculoskeletal System, paragraph 17 (GPO 1945). As is true now, muscle injury ratings will not be combined with peripheral nerve paralysis ratings for the same part, unless affecting entirely different functions. VA Schedule for Rating Disabilities, 1945 Edition, The Musculoskeletal System, paragraph 16(7) (GPO 1945); see also 38 C.F.R. § 4.55(a) (2004). The pertinent diagnostic code for injury to the spinal muscles stated then: 5320 Group XX. Spinal muscles. Rating Sacrospinalis (eretor spinae and its prolongations in thoracic and cervical regions). (Function: Postural support of body. Extension and lateral movements of spine). Cervical and dorsal region Severe......................................................40 Moderately severe........................................20 Moderate...................................................10 Slight.........................................................0 Lumbar region Severe......................................................60 Moderately severe........................................40 Moderate...................................................20 Slight........................................................0 VA Schedule for Rating Disabilities, 1945 Edition (GPO 1945). In regard to the veteran's service-connected scar of the lumbar region, the pertinent diagnostic code provided: 7804 Scars, superficial, Rating tender and painful on objective demonstration.............................................10 VA Schedule for Rating Disabilities, 1945 Edition (GPO 1945). Regarding the veteran's service-connected paralysis of the right femoral nerve, the pertinent diagnostic code provided: Disease of the Peripheral Nerves The term "incomplete paralysis," with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The following ratings are for unilateral involvement; when bilateral, combine with application of the bilateral factor. 8562 Anterior crural nerve (femoral) Rating Paralysis of Complete; paralysis of quadratus extensor muscle..............................................40 Incomplete Severe......................................30 Moderate..................................20 Mild.........................................10 VA Schedule for Rating Disabilities, 1945 Edition (GPO 1945). In the instant case, the DAV contends that the evidence of record at the time of the August 1947 rating decision supported a finding that there was demonstrable deformity of the 4th and 5th lumbar vertebrae, thereby warranted a separate 10 percent rating under Diagnostic Code 5285. According to the DAV, x-rays of the veteran's lumbosacral spine which were taken in September 1946 showed that a portion of the right transverse process of the 5th lumbar vertebra was missing and that there appeared to be one or two small fragments of bone lying free in that region. There was also a medium sized spur projecting downward from the inferior aspect of the 4th lumbar vertebra on that side. Those changes were apparently secondary to trauma as a result of the passage of the foreign body. In addition, according to the x-rays, the lumbosacral disk showed slight posterior wedging, but in general, the disk was well preserved. Thus, the DAV concludes that the preponderance of the evidence favored the veteran's claim and that the RO's failure to assign an additional 10 percent rating for demonstrable deformity of the lumbar spine at L4 and L5 was clear and unmistakable error. As previously stated, the failure of the RO to correctly apply statutory and regulatory provisions extant at the time of the decision will be basis for revision due to CUE. Therefore, the question before the Board is whether the omission to consider demonstrable vertebral deformity under Diagnostic Code 5285 constituted CUE. In the Board's view, it does for two reasons. First, the Board notes that at the time of the August 1947 rating action, there was x-ray evidence of a demonstrable deformity of the L5 vertebral body. Specifically, the September 1946 x-rays show posterior wedging of the L5 vertebral body, albeit only "slight." However, it was definitely a demonstrable deformity even though the term "vertebral deformity" was not used. In addition, there was absolutely no countervailing medical evidence to the contrary suggesting otherwise. Second, the failure to consider this evidence was error and the sort of error which, had it not been made, would have manifestly changed the outcome at the time it was made. The Board notes that in the August 1947 rating action, the RO stated that in regard to the veteran's service-connected fracture of the transverse process of the 5th lumbar spine, there were no ratable residuals and, as such, a zero percent rating was warranted. However, as noted above, at the time of the August 1947 rating, there was x-ray evidence of a demonstrable deformity of the L5 vertebral body. In light of the above, it is indisputable that the RO did not correctly apply the regulation in evaluating the degree of impairment attributable to the veteran's service-connected low back disability at that time. The regulation clearly required "adding 10 percent for demonstrable deformity of vertebral body." See VA Schedule for Rating Disabilities, 1945 Edition (GPO 1945). There is nothing discretionary about that language, nor is there any indication that the vertebral body deformity is to be considered part of the overall rating assigned to the disability. Rather, the regulation requires that the 10 percent be added to the evaluation assigned for a back disorder when there has been a vertebral fracture and there is demonstrable deformity. Therefore, under the circumstances of this case, and in light of the above, the Board finds that the record, as it was constituted at the time of the August 1947 rating decision, leads indisputably to the conclusion that the RO committed CUE in failing to assign an additional 10 percent evaluation under Diagnostic Code 5285 due to the presence of demonstrable deformity of the L5 vertebral body. As for the allegation of CUE in the same rating decision pertaining to the RO's failure to assign a separate 40 percent (or 20 percent) evaluation under Diagnostic Code 8526 for the veteran's service-connected paralysis of the right femoral nerve, the Board finds this contention is without merit. As previously stated, in the veteran's July 1947 VA examination, upon physical examination, it was noted that the circumference of the right thigh was one inch smaller than the left, and that muscle power in the right was not equal to the left, but satisfactory. However, it was also reported that trunk motions were free, and that the veteran's gait was essentially normal. Moreover, knee and hip motions were complete, likewise ankle motions. Thus, to the extent that the findings from the veteran's July 1947 VA examination showing muscle damage of the right thigh and loss of muscle strength of the right lower extremity were related to the veteran's service-connected paralysis of the right femoral nerve, the RO, in the August 1947 rating action incorrectly stated that paralysis of the right femoral nerve was not shown in the July 1947 VA examination. However, even if the RO had correctly recognized the symptoms of the veteran's service-connected neurological disability, and had addressed the question of whether a separate rating under Diagnostic Code 8526 was warranted for his neurological disability, a different result would not have ensued. In this regard, to the extent that the veteran had muscle impairment of the right lower extremity at the time of the August 1947 rating action, the Board observes that VA Schedule for Rating Disabilities, 1945 Edition, The Musculoskeletal System, paragraph 16(7) precluded combining ratings for muscle injuries with those for peripheral paralysis, unless the injuries affected entirely different functions. See also 38 C.F.R. § 4.55(a) (2004). Given that the 1945 Schedule for Rating Disabilities of the musculoskeletal system contemplated the cardinal symptoms of muscle disability (weakness, fatigue-pain, uncertainty of movement), the objective evidence of muscle damage, and the cardinal signs of muscle disability (loss of power, lowered threshold of fatigue, and impairment of coordination), it is clear that the 40 percent rating assigned under Diagnostic Code 5320 for moderately severe disability of muscle group XX encompassed both the veteran's muscle damage of the right lower extremity, and loss of muscle strength of the right lower extremity. The Board recognizes that disability associated with the veteran's service-connected neurological disability also manifested itself as muscle weakness of the right lower extremity. However, the Board finds that a separate rating under Diagnostic Code 8526 for the veteran's service- connected paralysis of the right femoral nerve would have duplicated or overlapped the symptomatology contemplated by the 40 percent rating for muscle injuries, and would have been tantamount to "pyramiding," or employing the 1945 Rating Schedule as a vehicle for compensating the veteran twice for the same symptomatology. Under the VA Schedule for Rating Disabilities, 1945 Edition, General Policy in Rating Disability, paragraph 14, "Avoidance of Pyramiding," the evaluation of the same disability under various diagnoses was to be avoided. See also 38 C.F.R. § 4.14 (2004). Significantly, it was not until 1993 that the then long-standing proscription on "pyramiding" was modified by judicial precedent. See Fanning v. Brown, 4 Vet. App. 225, 230 (1993); see also Esteban, 6 Vet. App. at 259, 261-262. Additionally, although the RO did not discuss the fact that the veteran's muscle power in the right was not equal to the left, and whether a separate rating under Diagnostic Code 8526 was warranted for the veteran's service-connected neurological disability, the Board notes that "[t]here is a presumption of regularity under which it is presumed that government officials 'have properly discharged their official duties'." United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926). Concerning this, the Board observes that it is not generally a fruitful exercise to speculate on whether a particular RO decision issued prior to February 1, 1990, applied relevant regulations based on whether the RO specifically discussed the regulations in the rating decision because, before February 1, 1990, when 38 U.S.C. § 5104(b) was added to the law to require ROs to specify the evidence considered and the reasons for the disposition, rating decisions routinely lacked such specificity. See Crippen, 9 Vet. App. at 412, 420. Moreover, the absence of a specific reference to, or failure to cite, a controlling regulation in a rating decision does not mean it was not considered. VAOPGCPREC 6-92 at para. 6; 57 Fed. Reg. 49744 (March 6, 1992). Failure to discuss regulations does not constitute CUE, as there is nothing to suggest that, had there been a written discussion of whether a separate rating under Diagnostic Code 8526 was warranted for the veteran's service- connected neurological disability, a different result would have ensued. Crippen, 9 Vet. App. at 421. Having carefully examined the regulation and the state of the law applicable in 1947, there is nothing in their plain language that would mandate the assignment of a separate disability evaluation as the veteran's representative has argued, and in fact, the regulations contemplated in 1947 precluded combining ratings for muscle injuries with those for peripheral paralysis where the same manifestations of a disability are shown under different diagnoses, as it appears in this case. Moreover, to the extent that the veteran argues that the Court's caselaw mandates a finding of clear and unmistakable error, either by the RO's failing to assign a separate disability evaluation or by failing to provide a comprehensive statement of the reasons or bases for its decision, as previously stated, the precedent that has since established these requirements was not in existence in August 1947 and does not therefore avail him. Notwithstanding the above, the Board has also considered whether it was an error of the RO not to find that the veteran's service-connected injuries affected different functions and, as such, assign a separate rating for the veteran's service-connected neurological disability. In this regard, given that Diagnostic Code 5320 relates to the spinal muscles, and that the pertinent findings in the July 1947 VA examination pertained to muscle damage and loss of muscle strength of the right lower extremity (different areas), the Board does not necessarily disagree with an interpretation of the evidence which would have resulted in the award of a separate rating for the veteran's service-connected neurological disability. However, even if the Board finds that the RO erred in failing to assign a separate rating for the veteran's service-connected neurological disability, such a rating would not have manifestly changed the outcome of the decision. In this regard, even if the RO had determined that the veteran's service-connected paralysis of the right femoral nerve caused the veteran to develop muscle weakness of the right lower extremity, which caused atrophy of the right thigh, the evidence of record at the time of the August 1947 rating action did not show more than mild nerve damage to the right lower extremity. The Board notes that impairment of the posterior crural (femoral) nerve appears to affect the muscles concerning the quadriceps (i.e., thigh) muscles. In the veteran's July 1947 VA examination, although the examiner noted that the circumference of the right thigh was one inch smaller than the left, and that muscle power in the right was not equal to the left, the examiner also reported that muscle power was satisfactory. In addition, knee and hip motions were complete, likewise ankle motions, and the veteran's gait was essentially normal. Thus, in light of the above, the veteran's service-connected neurological disability was equivalent of mild incomplete paralysis of the femoral nerve, thereby warranting a 10 percent rating. The veteran's complaints of numbness and occasional cramping of the right extremity were subjective in nature and consistent with a mild disability of the femoral nerve. There was no medical evidence suggesting any femoral nerve impairment had affected functioning of the foot or knee. Accordingly, the evidence did not show moderate incomplete paralysis of the femoral nerve and under these circumstances, a rating in excess of 10 percent was not warranted under Diagnostic Code 8526. The Board also notes that if the RO had assigned a separate 10 percent rating under Diagnostic Code 8526 for the veteran's service-connected neurological disorder, the remaining rating under Diagnostic Code 5320 would have encompassed the veteran's service-connected muscle injury of the lumbosacral spine and service-connected scar of the lumbar region. In this regard, upon a review of the July 1947 VA examination report, although the examiner did not make specific findings in regard to the veteran's range of motion of the lumbar spine, the examiner did report that the veteran's trunk motions were free, and that the veteran's gait was essentially normal. In addition, the examiner also noted that the veteran had a 3 inch depressed scar in the right flank which was adherent and tender. Thus, given that the criteria used in 1947 to evaluate muscle disabilities required deep penetrating wounds of relatively short track by single bullet or small shell or shrapnel fragment to be considered as of at least moderate degree, the Board observes that the evidence on file at the time of the August 1947 rating decision did not show more than moderate muscle damage to the affected Muscle Group in the lumbar spine region. See VA Schedule for Rating Disabilities, 1945 Edition, The Musculoskeletal System, paragraph 17. Under these circumstances, a rating in excess of 20 percent was not warranted under Diagnostic Code 5320. The Board recognizes that at the time of the August 1947 rating action, the RO noted that the July 1947 VA examination report showed that the veteran's service-connected scar of the lumbar region was at a moderately severe level of disability and, as such, the RO assigned a 40 percent disability rating under Diagnostic Code 5320 for the veteran's service-connected scar of the lumbar region. However, given that a 10 percent rating was the maximum rating assignable under Diagnostic Code 7804 for a tender and painful scar, the 40 percent evaluation assigned in 1947 arguably was generous. Thus, given that the RO assigned the 40 percent evaluation under Diagnostic Code 5320 for muscle injury of the spinal muscles (muscle group XX), it is clear that the 40 percent rating also encompassed the veteran's service-connected muscle injury of the lumbosacral spine and service-connected paralysis of the right femoral nerve, in addition to the scar of the lumbar area. However, if the RO had determined that the findings of muscle impairment of the right lower extremity were due to the veteran's neurological disability, and had assigned a separate 10 percent rating for mild incomplete paralysis of the femoral never, the remaining symptoms related to the veteran's service-connected scar of the lumbar area and service-connected muscle injury of the lumbosacral spine, when considered in light of all the criteria which was used to evaluate muscle disability, was more consistent with the criteria for a moderate disability than with the criteria for a moderately severe disability under the criteria for rating muscle injuries. As previously stated, a moderately severe disability of muscles required entrance and (if present) exit scars relatively large and so situated as to indicate track of missile through important muscle groups, and indications on palpation of moderate loss of deep fascia, or moderate loss of muscle substance or moderate loss of normal firm resistance of muscles compared with sound side. In addition, tests of strength and endurance of muscle groups involved (compared with sound side) had to give positive evidence of marked or moderately severe loss. Thus, at the time of the August 1947 rating action, given that the veteran's scar was not relatively large and that the veteran's trunk motions were free, a rating in excess of 20 percent was not warranted under Diagnostic Code 5320. In light of the above, if the RO had assigned a separate 10 percent disability rating under Diagnostic Code 8526 for the veteran's service-connected neurological disability, applying then the Combined Ratings Table of the VA Schedule for Rating Disabilities, 1945 Edition, General Policy in Rating Disability, paragraph 25, to the veteran's ratings of 10 percent under Diagnostic Code 8526 for the neurological disability, and 20 percent under Diagnostic Code 5320 for the service-connected scar of the lumbar region and service- connected muscle injury of the lumbosacral spine, the veteran would have been entitled to a 30 percent combined rating, which would have been less than the 40 percent rating that the RO had assigned in the August 1947 rating decision. See also 38 C.F.R. § 4.25 (2004). In addition, even if the RO had assigned a separate 10 percent rating under Diagnostic Code 7804 for the veteran's tender scar of the lumbar region (as will be discussed below), applying the combined rating table to the veteran's ratings of 20 percent under Diagnostic Code 5320 for the muscle injury of the lumbosacral spine, 10 percent under Diagnostic Code 7804 for the scar of the lumbar region, and 10 percent under Diagnostic Code 8526 for the service-connected neurological disability, the veteran would have been entitled to a 40 percent combined rating. See VA Schedule for Rating Disabilities, 1945 Edition, General Policy in Rating Disability, paragraph 25 (GPO 1945). Simply put, even if the RO had assigned a separate rating for the veteran's paralysis of the right femoral nerve, the result would not have been manifestly different because the combined rating would have been either less than the 40 percent rating assigned by the RO in the August 1947 rating action, or equal to the assigned 40 percent rating if a separate 10 percent rating was also assigned under Diagnostic Code 7804 for a tender scar of the lumbar region. Therefore, even if the Board finds that the RO erred in not assigning a separate rating for the veteran's paralysis of the right femoral nerve, there is no CUE, as the outcome, a combined 40 percent rating, would not have been manifestly different but for the error. In addition, a mere disagreement as to how evidence is evaluated does not amount to a valid claim of CUE. See, e.g., Damrel v. Brown, 6 Vet. App. 242, 245 (1994). As for the allegation of CUE in the August 1947 rating decision pertaining to the RO's failure to assign a separate 10 percent rating under Diagnostic Code 7804 for a tender scar of the right back, the Board finds this argument is also without merit. In this regard, the Board recognizes that in the veteran's July 1947 VA examination, it was noted that the veteran had a 3 inch depressed scar in the right flank which was adherent and tender. However, the Board notes that such a scar is contemplated in the regulations pertaining to rating muscle injuries, and such symptoms would have overlapped with the criteria for rating muscle injuries. See VA Schedule for Rating Disabilities, 1945 Edition, The Musculoskeletal System, paragraph 17 (GPO 1945). Accordingly, it was not undebatable that the scar and muscle damage warranted separate ratings, as the regulations pertaining to muscle injuries included scars. Id. By not granting a separate rating for the scar, the RO was apparently proceeding upon the regulatory instruction as found in paragraph 14 of the 1945 Schedule for Rating Disabilities relative to the "Avoidance of Pyramiding," specifying that the evaluation of the same disability under various diagnoses was to be avoided. In addition, as previously stated, it was not until 1993 that the then long- standing proscription on "pyramiding" was modified by judicial precedent. See Fanning v. Brown, 4 Vet. App. 225, 230 (1993); see also Esteban, 6 Vet. App. at 259, 261-262. Having carefully examined the regulation and the state of the law applicable in 1947, there is nothing in their plain language that would mandate the assignment of a separate disability evaluation as the veteran's representative has argued. Moreover, to the extent that the veteran argues that the Court's caselaw mandates a finding of clear and unmistakable error, either by the RO's failing to assign a separate disability evaluation or by failing to provide a comprehensive statement of the reasons or bases for its decision, as previously stated, the precedent that has since established these requirements was not in existence in August 1947 and does not therefore avail him. Notwithstanding the above, the Board has also considered whether it was an error of the RO not to find that the veteran's service-connected scar of the lumbar region warranted a separate rating under Diagnostic Code 7804 for a tender scar. However, even if the Board finds that the RO erred in failing to assign a separate rating for the veteran's service-connected scar of the lumbar area, such a rating would not have manifestly changed the outcome of the decision. The Board observes that if the RO had assigned a separate 10 percent rating under Diagnostic Code 7804 for the veteran's service-connected scar of the lumbar region (the maximum rating assignable under Diagnostic Code 7804 for a tender and painful scar), the remaining rating under Diagnostic Code 5320 would have encompassed the veteran's service-connected muscle injury of the lumbosacral spine and service-connected paralysis of the right femoral area. As previously stated, in the veteran's July 1947 VA examination, although the examiner noted that the circumference of the right thigh was one inch smaller than the left, and that muscle power in the right was not equal to the left, the examiner also reported that muscle power was satisfactory. In addition, knee and hip motions were complete, likewise ankle motions, and the veteran's gait was essentially normal. Thus, in light of the above, the evidence on file at the time of the August 1947 rating action did not show more than moderate muscle damage to the affected Muscle Group in the lumbar spine region. The symptoms related to the veteran's muscle injury of the lumbosacral spine and paralysis of the right femoral area, when considered in light of all the criteria which was used to evaluate muscle disability, was more consistent with the criteria for a moderate disability than with the criteria for a moderately severe disability under the criteria for rating muscle injuries. As previously stated, a moderately severe disability of muscles required indications on palpation of moderate loss of deep fascia, or moderate loss of muscle substance or moderate loss of normal firm resistance of muscles compared with sound side. In addition, tests of strength and endurance of muscle groups involved (compared with sound side) had to give positive evidence of marked or moderately severe loss. Thus, at the time of the August 1947 rating action, given that although the muscle power in the right was not equal to the left, the muscle power was nevertheless satisfactory, and that the veteran's trunk motions were free, a rating in excess of 20 percent was not warranted under Diagnostic Code 5320. In light of the above, if the RO had assigned a separate 10 percent disability rating under Diagnostic Code 7804 for the veteran's service-connected scar of the lumbar region, applying then the Combined Ratings Table of the VA Schedule for Rating Disabilities, 1945 Edition, General Policy in Rating Disability, paragraph 25, to the veteran's ratings of 10 percent under Diagnostic Code 7804 for the scar of the lumbar region, and 20 percent under Diagnostic Code 5320 for the service-connected neurological disability and service- connected muscle injury of the lumbosacral spine, the veteran would have been entitled to a 30 percent combined rating, which would have been less than the 40 percent rating that the RO had assigned in the August 1947 rating decision. See also 38 C.F.R. § 4.25 (2004). In addition, even if the RO had assigned a separate 10 percent rating under Diagnostic Code 8526 for the veteran's service-connected neurological disability (as discussed above), applying the combined rating table to the veteran's ratings of 20 percent under Diagnostic Code 5320 for the muscle injury of the lumbosacral spine, 10 percent under Diagnostic Code 7804 for the scar of the lumbar region, and 10 percent under Diagnostic Code 8526 for the service-connected neurological disability, the veteran would have been entitled to a 40 percent combined rating. See VA Schedule for Rating Disabilities, 1945 Edition, General Policy in Rating Disability, paragraph 25 (GPO 1945). Simply put, even if the RO had assigned a separate rating for the veteran's scar of the lumbar region, the result would not have been manifestly different because the combined rating would have been either less than the 40 percent rating assigned by the RO in the August 1947 rating action, or equal to the assigned 40 percent rating if a separate 10 percent rating was also assigned under Diagnostic Code 8526 for paralysis of the right femoral nerve. Therefore, even if the Board finds that the RO erred in not assigning a separate rating for the veteran's scar of the lumbar region, there is no CUE, as the outcome, a combined 40 percent rating, would not have been manifestly different but for the error. In addition, a mere disagreement as to how evidence is evaluated does not amount to a valid claim of CUE. See, e.g., Damrel v. Brown, 6 Vet. App. 242, 245 (1994). ORDER The August 19, 1947, rating decision, in failing to assign a 10 percent rating for the service-connected fracture of the transverse process of the 5th lumbar spine, with evidence of demonstrable vertebral deformity, was clearly and unmistakable erroneous; to this extent, the appeal is granted. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs