Citation Nr: 1414821 Decision Date: 04/04/14 Archive Date: 04/11/14 DOCKET NO. 11-20 368 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether there was clear and unmistakable error (CUE) in an October 1970 rating decision in assigning a 0 percent (noncompensable) initial rating for residuals of bilateral healed stress fractures, os calcis. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty from August 1967 to May 1970. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2012, in support of his claim, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is in the claims file, so of record. The Veteran also submitted additional evidence during the hearing and waived his right to have the RO initially consider it as the Agency of Original Jurisdiction (AOJ), preferring instead that the Board do so in the first instance. 38 U.S.C.A. § 20.1304 (2013). FINDING OF FACT The October 1970 rating decision that assigned an initial noncompensable rating for the Veteran's bilateral heel stress fracture residuals was not fatally flawed, egregious or undebatably erroneous when considering the evidence of record at the time of that decision and the existing statutes and regulations. CONCLUSION OF LAW The October 1970 rating decision at issue did not involve CUE. 38 U.S.C.A. § 5109A (b) (West 2002 & Supp. 2013); 38 C.F.R. § 3.105(a) (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans' Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2013), prescribes several requirements as to VA's duties to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2013). The VCAA does not apply to CUE claims, however, irrespective of whether the RO or instead the Board issued the prior decision that is now being collaterally attacked. See Parker v. Principi, 15 Vet. App. 407 (2002), citing Livesay v. Principi, 15 Vet. App. 165, 178-79 (2001) (en banc); see also 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.105(a). Legal Criteria and Analysis The Veteran's theory of CUE concerns his feelings regarding the impropriety of a September 1970 VA examiner offering him his business card after the examination for a new private practice he was opening. See hearing transcript pages 22 to 24. The Veteran believes that, by soliciting business for his practice and being overly concerned with that, the examiner did not write down everything that was said in the course of that evaluation and there was other evidence from a private physician revealing greater disability. Id. So, essentially, the Veteran alleges the correct facts were not before the RO adjudicator that initially decided his claim. Under 38 C.F.R. §§ 3.104(a), 3.105(a) and 20.1103, taken together, a rating decision is final and binding in the absence of CUE. Under 38 C.F.R. § 3.105(a), "[p]revious determinations which are final and binding ...will be accepted as correct in the absence of [CUE]." A decision that constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.105(a). CUE is a very specific and rare kind of error. "It is the kind of error, of fact or law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. 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." See Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). The Court has indicated that a three-pronged test is used to determine whether CUE was in a prior decision: (1) 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; (2) 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"; and (3) 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. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994), citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). In order for an alleged error to constitute CUE, it must have consisted of an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts, not merely misinterpretation of the facts. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1992); Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). A claim of CUE on the basis that the previous adjudication at issue "improperly weighed and evaluated the evidence" does not satisfy the stringent legal requirements for CUE. See Fugo, 6 Vet. App. at 43. A breach of VA's duty to notify and assist likewise does not constitute CUE. See Crippen v. Brown, 9 Vet. App. 412, 418 (1996); Caffrey v. Brown, 6 Vet. App. 377, 383-84 (1994). This includes situations when the RO is alleged to have breached the duty to assist a Veteran in obtaining relevant service department records that may render a prior rating decision non-final, see 38 C.F.R. § 3.156(c)(3), or another kind of "grave procedural error" ostensibly has occurred. Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2003) (en banc) (overruling Hayre v. West, 188 F.3d 1327, 1334 (Fed. Cir. 1999)). However, the failure to apply a relevant law or regulation is an appropriate subject for a claim of CUE. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 329 (1999), citing Olson v. Brown, 5 Vet. App. 430, 433 (1993). When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number will be "built-up" as follows: the first 2 digits will be selected from that part of the schedule most closely identifying the part, or system, of the body involved; the last 2 digits will be "99" for all unlisted conditions. This procedure will facilitate a close check of new and unlisted conditions, rated by analogy. In the selection of code numbers, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. 38 C.F.R. § 4.27 (1970). Here, the healed stress fractures, os calcis, was rated under 38 C.F.R. § 5299, which may reasonably be interpreted as implementing the rating criteria under 38 C.F.R. § 4.71a for orthopedic conditions involving the foot. By applying the law applicable, the Board does not find there was a definitive legal error in the October 1970 determination assigning an initial noncompensable rating for the bilateral heel disability. During his contemporaneous September 1970 VA compensation examination, the Veteran reported that he could not remain on his feet very long without pain. The examination revealed ankle dorsiflexion to 20 degrees, plantar flexion to 45 degrees and an absence of tendon trouble in the feet. Both arches were described as normal; there was no tenderness or swelling of the feet or heels; and there were no bony residuals. The examiner indicated the Veteran had no pain at work and that the toes were normal. X-rays of the feet revealed no definite bony or articular abnormalities, although there was a small ossicle below the distal end of the external malleolus of the left ankle and an oval ossicle just beneath the tip of the external malleolus of the right ankle. Disabilities pertaining to the feet include flatfoot (pes planus), weak foot, claw foot, metatarsalgia anterior (Morton's disease), hallux valgus, hallus rigidus, hammer toes, malunion or nonunion of tarsal or metatarsal bones, and other foot injuries. See 38 C.F.R. § 4.71a, Diagnostic Codes 5276 to 5284. Given the nature of the Veteran's injury in service, and the post-service complaints and findings, his service-connected disability was most appropriately rated under Code 5284, for "other" foot injuries. Under this code, a 10 percent rating contemplates moderate impairment, a 20 percent contemplates moderately-severe impairment, and a 30 percent rating contemplates severe impairment. With actual loss of use of the foot, a 40 percent rating is warranted. Even back in 1970, so even considering the law as it existed at the time in question, this is what the relevant version of the Code of Federal Regulations (C.F.R.) stipulated. So even if the Veteran questions the motivation of the VA examiner handing him a private business card after the examination, this mere suspicion does not satisfy the three-prong test used to establish CUE. First, there is no evidence that the correct facts were not before the adjudicator at the time of the October 1970 rating decision or that statutory or regulatory provisions extant at that time were incorrectly applied. There was no other post-service evidence of record at the time of the October 1970 rating decision, and the Veteran had not indicated receiving any treatment. His complaints of pain were also noted in the medical history section of the examination report. His assertion that the correct information was not reported by the examiner is speculation and not supported by any other evidence of record. Therefore, there is no indication the correct facts were not before the adjudicator in October 1970. As for the statutory and regulatory provisions in existence at that time, there is no evidence they were incorrectly applied. Although Code 5284 provides a minimum 10 percent rating for other foot disabilities, in every instance where the minimum schedular evaluation requires residuals and the schedule does not provide a 0-percent evaluation, a 0-percent evaluation will be assigned when the required residuals are not shown. See 38 C.F.R. § 4.31 (1970). Here, it was permissible to assign a 0 percent initial rating, even though the lowest rating under Code 5284 was 10 percent if it was determined the disability was less than moderate in severity, and at least arguably it was based on the medical and other evidence in the file at the time of that October 1970 decision. Thus, the Board finds that the first prong was not met to establish CUE. As for the second prong, the error alleged by the Veteran is not "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time the decision was made". There is no evidence indicating that, had the examiner not given the Veteran his business card, the findings of the examination would have been any more favorable to the Veteran and manifestly changed the outcome in October 1970. Accordingly, the second prong is not satisfied. Finally, when only considering the evidence of record at the time of the initial October 1970 rating decision, the only post-service evidence involving the claimed disability is the report of the September 1970 VA examination. How this evidence was weighed, as explained, is not a valid basis for finding CUE. Fugo, supra. The mere fact that the Veteran subsequently provided evidence in March 1971 of a "condition chronic causing disability" was evidence submitted as part of a March 1971 "claim for increase" (as written at the bottom of the Veteran's submission) and, therefore, not before the adjudicator in October 1970 and for this reason may not be considered in determining whether that earlier decision involved CUE. Given that there also was no misapplication of law or regulation or evidence, the correct facts were indeed before the adjudicator in October 1970, so a finding of CUE in that initial decision is unwarranted. ORDER There was no CUE in the October 1970 rating decision assigning an initial 0 percent rating for this disability at issue. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs