Citation Nr: 0510882 Decision Date: 04/15/05 Archive Date: 04/27/05 DOCKET NO. 04-41 463A ) DATE ) ) THE ISSUE Whether the May 1983 Board decision that denied a rating in excess of 20 percent for a left knee disability contains clear and unmistakable error (CUE), insofar as it deducted 10 percent from the rating of a left knee disability, resulting in a rating of 20 percent rather than 30 percent. (The claims service connection for right knee and low back disabilities, an increased rating for a left knee disability, and an earlier effective date for an increased rating for a left knee disability will be addressed by the Board today in a separately issued decision.) REPRESENTATION Moving party represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Higgs, Counsel INTRODUCTION The veteran served on active duty from August 1972 to May 1980. This case comes before the Board of Veteran's Appeals (Board) on motion by the veteran alleging CUE in a May 1983 Board decision. The Veterans Claims Assistance Act of 2000 implemented changes in the law concerning the VA's duty to notify a claimant as to evidence needed to substantiate a claim, and concerning the VA's duty to assist a claimant in developing evidence. See 38 U.S.C.A. §§ 5103, 5103A (West 2002) (Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000)); 38 C.F.R. § 3.159. However, these provisions are not applicable to CUE claims. Livesay v. Principi, 15 Vet. App. 165 (2001) (holding VCAA does not apply to Board CUE motions); see also, Baldwin v. Principi, 15 Vet. App. 302 (2001) (holding VCAA does not apply to RO CUE claims, and does not require remand of RO CUE claims). FINDINGS OF FACT 1. In May 1983, the Board issued a decision in which it was concluded that the veteran's level of left knee disability was 30 percent, but that 10 percent was to be deducted from the 30 percent rating due to a preservice level of knee disability. 2. The Board's decision of May 1983 was not supported by evidence then of record, and the applicable statutory and regulatory provisions existing at that time were ignored or incorrectly applied. The presumption of sound condition at entry into service, set forth at 398 C.F.R. § 3.304(b) (1982) was ignored. The regulation pertaining to deductions from ratings for a pre-service level of disability was incorrectly applied, insofar as that part of 38 C.F.R. § 3.322 (1982) that provides that "[i]f the degree of disability at the time of entrance into service is not ascertainable in terms of the schedule, no deduction will be made." 3. The deduction of 10 percent from the rating for a left knee disability was inarguably an outcome-determinative error in the Board's May 1983 decision. CONCLUSION OF LAW The Board's May 1983 decision contains CUE insofar as it deducted 10 percent from a rating of 30 percent for a left knee disability. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 3.304(b); 3.322; 20.1400-20.1411 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background At the veteran's August 1972 service entrance examination, clinical evaluation of the lower extremities was normal. On his report of history, next to the question, "Have you ever had or do you have now a "trick" or locked knee," the veteran appears to have checked the box corresponding to yes, crossed out the yes entry, and printed a much larger and darker check in the box corresponding to no. In summarizing and interpreting the history as relayed by the veteran, the reviewing clinician wrote that the veteran indicated that he had hemorrhoids two years prior to service and that he "[d]enies all else." Service medical records reveal that in February 1973, the veteran was seen for a weak painful left knee joint for treatment and then in the physical therapy clinic. The veteran complained of a bad left knee for 5 months, injured playing football, hurting after getting off from his job, no prior history. On examination, he had left knee pain. He had crepitus on motion bilaterally. Range of motion was from 0 to 110 degrees. There was slight effusion. Physical therapy prescribed was 10 ultrasound sessions and straight leg raises. A service medical clinical record data sheet indicates that the veteran hurt himself playing football in August 1973. At discharge from a hospital in February 1974, the diagnoses were listed as 1) Medial collateral ligament laxity, old rupture anterior cruciate ligament, and tear of medial meniscus, left knee; no nerve or artery involvement; and 2) Postoperative wound infection, hospital acquired. The list of operations and special producers were listed as 1) 13 September 1973, Medial menisectomy and posterior medial reconstruction, left knee, clear site; and 2) 6 December 1973, Removal, staple left knee. The September 1973 surgical report indicates that the medial meniscus was removed entirely. There are many additional underlying treatment records of the hospitalization associated with the claims files. Service medical records reveal that in March 1974 the veteran was prescribed a brace for medial instability. In December 1974, the veteran was permanently profiled at "3" for instability of the left knee. He was found to be medically qualified for duty with permanent assignment limitations, due to instability of the left knee. He was to receive no assignments requiring crawling, stooping, running, jumping, prolonged standing or marching, strenuous physical activity, or walking on uneven terrain. In March 1977, the veteran was found to be physically qualified for retention, with a lower extremity physical profile of "3." During treatment in May 1979, the veteran was found to have laxity of the medial collateral ligament and degenerative joint disease of the left knee. A February 1980 service discharge examination indicates that the veteran was wearing a brace on his left knee. On orthopedic consultation, he was found to have instability of the left knee. The examiner anticipated that the veteran would have early arthrosis and advanced degenerative joint disease, and would require a left knee prosthesis. The veteran was discharged from service in May 1980. In August 1980, in connection with the veteran's application for service connection, the RO received a report from a private physician stating that the veteran had injured his knee several years before service, in October 1965, playing football. X-rays were negative. The veteran was immobilized in a splint and blood was aspirated form the knee. In November 1966, a walking splint was removed. The doctor next saw the veteran in April 1966 for an injury to the left knee, and again in November 1966 and September 1967 for injuries of the left knee incurred while playing football. His knee had twisted, and the veteran was advised to leave a splint on while playing football. No diagnosis or impression was indicated. The physician saw the veteran for other conditions over the intervening years but not for the knee. The last time he saw the veteran was in June 1972, for lacerations of the right forearm and hand. In November 1980, the RO granted service connection for "injury, left knee, postoperative medical menisectomy and posterior medical reconstruction, with medial collateral ligament laxity and traumatic arthritis." The condition was rated as 30 percent disabling, but was reduced by 10 percent for "preservice level of disability." The rationale for this reduction of 10 percent was not provided. In March 1981, the RO received the veteran's claim for an increased rating for his left knee disability. In October 1981 and again in November 1982, the RO denied the claim for an increased rating. The RO provided no explanation for the 10 percent reduction from 30 percent to 20 percent. In May 1983, the Board of Veterans Appeal affirmed the 20 percent rating assigned by the RO, consisting of a 30 percent level of disability, but reduced by 10 percent for a preservice level of disability, pursuant to 38 C.F.R. § 3.322. The finding of fact corresponding to the reduction by 10 percent for a preservice level of disability reads as follows: 1. At the time of the entrance examination, it appears that in the history portion of the findings, the veteran originally checked having had a "trick" or locked knee. During hospitalization from September 1973 to February 1974, the veteran reported a history of a left knee injury in 1966 with a cast applied for two months. Since that original injury the veteran reported having recurrent effusion, tenderness, and the feeling of giving way at times." The discussion and evaluation portion of the May 1983 Board decision states as follows: The evidence of record demonstrates that the veteran injured his left knee in 1966 and he had recurrent effusions, tenderness, and the sensation of the knee giving way after that injury. The rating schedule demonstrates that a ten per cent (10%) rating will be assigned for slight impairment of the knee. The Board is of the opinion that slight impairment existed at the time of entrance into service, and accordingly, that amount will be deducted from whatever the veteran's present rating is. The medical evidence of record shows that the veteran has severe impairment of the left knee with atrophy, complaints of pain and limitation of flexion. Accordingly, the veteran is properly assigned a 30 per cent (30%) disability rating. Therefore, with the deduction of ten per cent (10%) for his preservice left knee disability, the veteran is assigned a twenty per cent (20%) disability rating. The doctrine of reasonable doubt has been considered in evaluating the veteran's claim. As the veteran and his representative have noted, the Board did not cite, acknowledge, or discuss the presumption of soundness, found at 38 C.F.R. § 3.304(b) (1982), which is set forth in the "law and regulations" section of this decision, infra. Nor did the Board discuss in its analysis of its decision that part of 38 C.F.R. § 3.322 (1982) stating, "If the degree of disability at the time of entrance into service is not ascertainable in terms of the schedule, no deduction will be made." The veteran and his representative argue that these provisions were ignored or misapplied by the Board in its May 1983 decision, resulting in a clear and unmistakable error in deducting 10 percent from the 30 percent rating for a left knee disability. Law and Regulations All final Board decisions are subject to revision upon a finding of Board CUE except 1) decisions on issues which have been appealed to and decided by a court of competent jurisdiction; and 2) decisions on issues which have subsequently been decided by a court of competent jurisdiction. See 38 C.F.R. § 20.1400. Neither of these exceptions applies to the present case. Rule 1403, which is found at 38 C.F.R. § 20.1403, relates to what constitutes CUE and what does not, and provides as follows: (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 issued on or after July 21, 1992. For a Board decision issued on or after July 21, 1992, the record that existed when that decision 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. (c) Errors that constitute clear and unmistakable 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 in 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 has been a change in the interpretation of the statute or regulation. (Authority: 38 U.S.C.A. § 501(a), 7111). There are two 1982 VA regulatory provisions upon which the Board relies on in making its decision today. First, 39 C.F.R. § 3.304(b) (1982) provides: Presumption of soundness. The veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorder noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are to be considered as noted. Second, 38 C.F.R. § 3.322(b) (1982) provides: Aggravation of service-connected disability. In cases involving aggravation by active service, the rating will reflect only the degree of disability over and above the degree of disability existing at the time of entrance into active service whether the particular condition was noted at the time of entrance into active service, or whether it was determined on the evidence of record to have existed at that time. It is necessary to deduct from the present evaluation the degree, if ascertainable, for a disability existing at the time of entrance into active service, in terms of the rating schedule, except if the disability is total (100%), no deduction will be made. If the degree of disability at the time of entrance into service is not ascertainable in terms of the schedule, no deduction will be made. Analysis A finding that the Board committed CUE in deducting 10 percent from the veteran's 30 percent disability rating for a left knee disability in its May 1983 decision is warranted on two separate grounds. First, the Board ignored 38 C.F.R. § 3.304(b) (1982), the presumption of soundness. The veteran's lower extremities were found to be normal at his August 1972 service entry examination. The physician who reviewed the veteran's medical history indicated that the veteran gave a history of history of hemorrhoids two years prior and "denies all else," so that he, too, did not note any condition of the left knee upon the veteran's entry into service. The veteran did at most check and cross out the entry for having had now or in the past a trick or locked knee; however, the box corresponding to "no" for this query is very clearly checked and emphasized as the intended response to the query. The paper is a carbon copy of a type that could not easily be deceptively altered many years later. In no sense was a left knee disability recorded in an examination report upon entry into service, either upon one clinician's clinical evaluation of the knee or upon another clinician's review of medical history. To rebut this presumption of soundness would have required clear and unmistakable evidence showing that the condition pre-existed service. Even assuming the Board's May 1983 description of the veteran's hospitalization records to be correct in describing pre-service knee trouble, there are also records dating earlier during service, in February 1973, which state "no prior history" and indicate the onset of knee problems to five months prior to being seen, which would date back to September 1973, or one month after entrance into service. Further, the statements from the veteran's private physician indicate the veteran last received treatment for knee injuries in March 1967 and provides no diagnosis or clinical findings; this in no sense could constitute clear and unmistakable evidence that the veteran had a knee disability upon entry into service in August 1972. In fact, as two clinicians found the veteran to have no complaints or clinical findings corresponding to disability of the left knee upon entry into service, and during initial treatment in February 1973 the veteran gave a history consistent with onset approximately one month after entry into service, it is quite arguable that the preponderance of the evidence shows that the veteran had no left knee disability upon entrance into service, even without consideration of the presumption of soundness. In any event, it is undebatable that the presumption of soundness was for application and inarguably was not rebutted by clear and unmistakable evidence. Accordingly, because no left knee disability was noted upon an examination report at entry into service, and there is no clear and unmistakable evidence to show he had the condition upon entry into service, the finding by the Board in May 1983 that the veteran had a pre-existing knee disability upon entry into service constitutes clear and unmistakable error. Thus, reducing the rating by 10 percent based on a finding of a pre-existing left knee disability constituted clear and unmistakable error by the Board. A second ground for finding CUE in the Board's May 1983 action is based on the language of 38 C.F.R. § 3.322 (1982) stating that "[i]f the degree of disability at the time of entrance into service is not ascertainable in terms of the schedule, no deduction will be made." Clinical evaluation at the time of the veteran's entrance examination in August 1972 was normal. The private physician who provided treatment to the veteran prior to service indicated he last saw the veteran for left knee trouble in 1967, years before entry into service, although he had seen the veteran for other conditions in the intervening years. The Board finds of record no evidence upon which the Board in May 1983 could have found that the level of the veteran's left knee disability (if any) upon entry into service was ascertainable. Therefore, absent any evidence as to how disabled the veteran was upon entry into service, deducting 10 percent for any such pre-existing disability was inarguably a misapplication of 38 C.F.R. § 3.322, and constituted clear and unmistakable error. The Board's improper deduction of 10 percent from the 30 percent rating was outcome-determinative, as it resulted in an assigned rating of 20 percent rather than 30 percent for the veteran's left knee disability. Accordingly, a revision of the May 1983 Board decision to correct this clear and unmistakable error is warranted. See 38 C.F.R. § 20.1400. ORDER The May 1983 Board decision that denied a rating in excess of 20 percent for a left knee disability contains clear and unmistakable error, insofar as it deducted 10 percent from the rating of a left knee disability, resulting in a rating of 20 percent rather than 30 percent. The May 1983 Board decision is revised accordingly. ____________________________________________ R. F. WILLIAMS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs